- (1.) Plaintiff/appellant Balbir Singh (hereinafter referred to as the appellant) is in second appeal aggrieved against the judgment and decree of reversal dated 06.01.2010 whereby appeal filed by the defendant HUDA was accepted and the judgment and decree dated 11.08.2009 was set aside and the suit was dismissed. It is apparent that the plaintiff/petitioner was allotted a commercial booth no.68 in Sector 8, Faridabad on a free hold basis vide allotment letter dated 14.02.92 for a total sale consideration of Rs. 1,47,000/-. He had deposited 10% of the bid amount at the time of auction and the remaining 15% of the bid amount within the stipulated time. Upon deposit of the 25% of the bid amount/sale consideration plaintiff was issued allotment letter dated 14.2.92 and was delivered possession of the plot. Plaintiff opted to pay the balance amount of Rs. 1,24,950/- in ten half yearly installments with interest at the rate of 15% per annum. It is apparent that upon the plaintiff becoming a defaulter in payment of the due installments, a show cause cause notice under Section 17(1), 17(2) of HUDA Act was issued on 21.11.2000 asking the plaintiff to deposit a sum of Rs. 2,25,552/-. Thereafter another notice under Section 17 (3) of HUDA Act was issued on 26.6.2001. The plaintiff filed a reply to the notice and stated that the respondent/defendant HUDA could only charge interest at the rate of 15% on the outstanding dues. It appears that the defendant HUDA not satisfied with the reply and non payment of the outstanding dues passed a resumption order dated 11.01.2002. It is admitted position that plaintiff filed an appeal against the resumption order before the Administrator, HUDA under Section 17(5) of the HUDA Act, 1977(for short 1977 Act) and the same was dismissed on 30.04.2002.
(2.) It is further an admitted case that no revision under Section 17 (8) of the HUDA Act was filed by the plaintiffs against both the orders. However, the plaintiff chose to file present suit for declaration with consequential relief of permanent injunction and mandatory injunction. The suit was decreed vide judgment and decree dated 11.08.2009 and it was held that issuance of impugned notices were illegal and the defendant HUDA was not entitled to charge interest @ 18% per annum. In the appeal filed by the defendant-HUDA impugned judgment and decree dated 11.08.2009 was set aside by holding that the Civil Court in view of Section 50 of the 1977 Act was not having jurisdiction to entertain and try the suit against resumption order Ex. P-11.
(3.) At the time of hearing Learned Counsel has submitted that during the pendency of the suit the plaintiff had paid the entire outstanding amount along 18% interest on the delayed payment of installments in terms and conditions of the allotment letter. He, however, concedes that the remedy available under Section 17(8) was not exhausted by the plaintiffs. He thus prays for withdrawal of the present appeal to avail his alternative remedy of filing a revision since the Appellate Court has held that the Civil Court had no jurisdiction to entertain the suit. The prayer is just and reasonable more so when it is settled law that once the procedure envisaged under the Act has been followed then the remedy available to the aggrieved party is to exhaust the remedies available under the statutes. In view of the aforesaid, the present regular second appeal is dismissed as withdrawn with liberty to the plaintiff/appellant to raise all pleas of payment etc., before the revisional authority. It is further directed that in view of the proviso to Sub Section 8 of Section 17 of the 1977 Act, the appeal if filed within 60 days from today, the same shall be entertained and not declined on the ground of delay. It is, however, clarified that the revisional authority shall be open to decide the revision in accordance with law.;