HARBANS LAL, J. - (1.) THIS appeal is directed against the judgment/decree dated 2.11.2007 passed by the Court of learned Additional District Judge, Faridabad whereby he partly allowed the appeal preferred against the judgment/decree dated 17.9.2004 rendered by the Court of learned Civil Judge (Junior Division), Faridabad whereby he decreed the suit declaring the impugned notices or action in regard to the resumption of the booth in question as null and void with a further direction to the plaintiffs to make the payment of remaining instalments, if any, including 10% interest per annum on the delayed payment within one month from the passing of the judgment and directed the defendants to refund the excess amount, if any, to the plaintiffs within one month.
(2.) THE facts which form the backdrop of the suit are that the plaintiffs had purchased commercial booth No. 126, Sector 15, Faridabad measuring 9 feet X 24 feet X 3 inch from Subhash Chander son of Bhagwan Dass as per the re-allotment letter No. 12 dated 4.1.1990 issued by the Estate Officer, Haryana Urban Development Authority (hereinafter to be referred as 'the authority') Faridabad. Previously, Subhash Chander had purchased the same in open auction held on 10.7.1989 for Rs. 3,41,500/- and deposited 10% of the sale price at the time of auction and further 15% of the sale price was to be deposited within the stipulated period as per the allotment letter. After auction, the allottee approached the authority several times for delivery of possession of the plot, but the authority failed to give the possession as there was no development work done at the site as shown in the site plan, which was displayed at the time of auction. The defendant had made assurance to the plaintiffs at the time of allotment that the development work would be done at the site in question as early as possible and the possession will be delivered after depositing 25% of the sale price and that all the commercial booths in the residential areas would be closed as early as possible and they would not be allowed to do their commercial activities in the same. On believing these assurances, Subhash Chander purchased the disputed site. That till March, 1994, there have been no development works on the road, water sewerage, drains, electricity poles etc. In the month of January, 1994, the plaintiffs constructed the double storey building on the site in question after spending a huge amount of Rs. 3,50,000/-. The plaintiffs were interested to open a restaurant in the booth in question, but the defendants allowed one big sweet shop-cum-restaurant by the name of 'Kesar' in the residential area. They suffered heavy losses in the business. The plaintiffs came to know that the booth had been resumed by the administrative of the defendants without giving any opportunity to the plaintiffs of being heard on 4.2.1994. They have illegally and unlawfully issued Memo No. 2945 dated 14.11.1994 thereby threatening the plaintiffs to evict them forcibly from the disputed booth. The resumption of the booth is only on the ground of non-payment of instalments, which the plaintiffs are ready and willing to pay after deducting the interest and penalty. The plaintiffs requested the defendants many a times to withdraw the notice dated 14.11.1994 regarding eviction as well as the resumption order passed at their back, but they failed to give any satisfactory reply. On these allegations, the suit was filed. In their written statement, the defendants have inter-alia pleaded that the jurisdiction of the Civil Court is barred. As alleged, as per clause 6 of the allotment letter, the allottee was required to take possession of the booth after depositing 15% of the price in addition to 10% price deposited at the time of auction. It is further alleged that the development work stood already completed and the allottee failed to take possession. That in spite of issuance of notice, the plaintiffs have failed to deposit the amount of instalments due and as such, the plot was resumed as far back as on 4.2.1994. The notice under Sections 17(1), 17(2), 17(3) and 17(4) of Haryana Urban Development Authority Act, 1977 (for brevity, 'the Act') were issued to the allottee on 22.7.1993, 19.10.1993, 12.11.1993 and 16.12.1993 for depositing the amount due. The total amount due was Rs. 3,55,138/- prior to the resumption of the booth and without getting the plans approved from the authority, the plaintiffs have illegally raised construction and consequently, the notices under Section 18(1) and 18(2) of the Act were issued, but the plaintiffs failed to put in their appearance or to show any cause. Their appeal was also dismissed as they failed to appear. Their complaint filed before the District Consumer Forum, Faridabad also met failure. The construction raised on the booth is illegal. Lastly, it has been prayed that the suit may be dismissed. The following issues were framed : 1. Whether the notice under section 17(3) and 17(4) of HUDA Act are illegal, void and against the principle of natural justice ? OPP 2. Whether the plaintiff is entitled to decree of injunction ? OPP 2A. Whether the plaintiff in the alternative can be allowed to deposit the entire amount alongwith the usual interest, which remains unpaid on account of price of the booth alongwith costs ? OPP 3. Whether the civil court has no jurisdiction to entertain the present suit ? OPD
(3.) WHETHER the plaintiff has no cause of action to file the present suit ? OPD.;