IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.10.2010 Coram: THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI W.P. No. 2926 of 2010 and M.P. No.1 of 2010 AR.Muthiah .. Petitioner vs. 1.The Chairman Tamil Nadu Housing Board Nandanam, Chennai. 2.The Executive Engineer Villupuram Housing Unit Tamil Nadu Housing Board Villupuram-605 602. .. Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, to call for the records on the file of the second respondent in letter No.R4/2004/90, dated 22.07.2004, letter No.8/2804/90, dated 07.08.2009 and letter No.2904/09, dated 03.11.2009 to quash the same and to further direct the second respondent to issue No Due Certificate to the petitioner for having completed EMI as per the agreement. For Petitioner : Mr. Sajeev Kumar for Mr.Royan Law Associates For Respondents : Mr.A.Vijayakumar (TNHB) O R D E R
On consent, the writ petition is taken up for final hearing at the admission stage.
2.The writ petition is filed against the order of the second respondent in his proceedings in Letter No.R4/2004/90, dated 22.07.2004, Letter No.8/2804/90, dated 07.08.2009 and Letter No.2904/09, dated 03.11.2009 and to quash the same and to further direct the second respondent to issue No Due Certificate to the petitioner for having completed EMI as per the agreement.
3.The petitioner herein, is allotted plot No.3-A, L.I.G. Vilvarayanatham, Cuddalore, followed by lease cum sale agreement entered into between the petitioner and the respondent on 24.02.1999 containing the terms and conditions, subject to which the allotment is made. The tentative cost of the house was fixed at Rs.55,100/- and the petitioner was directed to deposit a sum of Rs.16,500/- and the balance cost of the house was directed to be paid in equal monthly installment at Rs.496/- per month for 14 years. The petitioner has been regularly making the monthly installments and completed the same during 2007. In the meanwhile, the respondents herein, re-fixed the price of the property and a sum of Rs.8,800/- and Rs.2,910/- towards extra land cost for extra extent allotted to him and 10% for getting allotment of corner plot, totally, Rs.11,710/- is fixed as additional price payable by the petitioner. The first respondent has, while demanding the additional payment sought to recover the same with interest and penal interest and as per the working sheet dated 22.07.2004, enclosed at page-16 of the typed set of papers filed by the respondent, the interest comes to Rs.24,200/-. The perusal of the working sheet would reveal that the additional price of the property is calculated with interest at 12.75% and penal interest at 15.75% that too from the date of allotment till date of payment.
4.According to the learned counsel for the petitioner, the demand for payment of interest and penal interest for the extra cost is contrary to the terms and conditions and is illegal and without jurisdiction and the interest and the penal interest is calculated in the most arbitrary manner without any basis.
5.On the contrary, the learned standing counsel for the respondents would try to justify the demand so far it relates to interest and penal interest on the strength of lease cum sale agreement entered into between the parties.
6.The short point arises for consideration herein is as to whether the additional price fixed in respect of the property in question by the first respondent is payable by the allottee with interest and penal interest as claimed by the respondents.
7.I have considered the rival submissions made on both sides and perused the records available herein.
8.The original allotment of the property in favour of the petitioner was during 1992 and as per the calculation memo dated 18.11.1993, the tentative value of the plot is Rs.55,100/- and after deducting initial deposit of Rs.14,500/-, the balance payable by the petitioner is Rs.38,600/- and the same is payable in 168 monthly installments commencing from August 1993. The respondents have also entered into lease cum sale agreement during 1991 prior to the order of allotment containing various clauses and relevant clauses for the purpose of deciding the present issue are Clauses-10 and 15 to 19, enclosed at pages-4 and 5 of the typed set of papers. The conjoined reading of the same would reveal that the Board is empowered to fix the price of the property on two occasions, i.e. provisionally and finally. The provisional price determination shall be with the development charges, cost of amenities, cost of building etc., within a period of three years from the date of allotment and the final fixation shall be only on account of excess compensation if any awarded by the Tribunal or Courts for the land as aforesaid. As far as the first provisional or tentative cost is concerned, the same shall be payable in monthly equal installments and is payable with interest calculated from the date of allotment and with incidental charges such as stamp duty, registration charges etc. As far as the final determination is concerned, the installment shall be deemed to have been becoming payable from the date of lease cum sale agreement and the difference between the provisional installments and the purchase price already paid by the lessee and the amount payable by installments under clause-15 shall be paid, on demand, by the purchaser etc.
9.Here in this case, the tentative cost already fixed is for lesser extent and what is claimed subsequently is for the extra extent and for allotment of corner plot and the same ought to have been either included in the original tentative cost dated 18.11.1993 or within three years from the date of allotment. However, the provisional determination of the land cost is made only during 2004, which is 12 years after the date of allotment. Not withstanding the delay, the same is immediately paid by the petitioner. That being so, the respondents are not entitled to claim any interest or penal interest for the additional land cost from the date of allotment till date of payment. If at all the petitioner is liable to pay any interest, the same shall be only for three years from the date of allotment that too at the same rate of interest at 12.75%, which is the rate of interest fixed for the tentative cost originally. As any amount becomes due only on the failure of the petitioner to make the payment, after the amount becomes due, the question of claiming any penal interest for the additional land cost fixed during 2004 does not at all arise. Thus both way, the claim for interest from the date of allotment till date of re-fixation of land cost during 2004 and the claim for penal interest, as rightly argued by the learned counsel for the petitioner, is contrary to the terms and conditions of the allotment and is illegal and without jurisdiction.
10.In my considered view, the petitioner is liable to pay the additional land cost and 10% cost for corner plot to the tune of Rs.11,710/- with interest at the rate of simple interest at 12.75% for three years from the date of allotment on 07.10.1991, which comes to Rs.4,489/- and the same is payable by the petitioner, within two weeks from the date of receipt of the copy of this order.
11.At this juncture, the learned standing counsel for the respondents makes an appeal to this Court that the petitioner may be directed to pay other incidental charges such as maintenance charges and other charges as per the terms and conditions. The learned counsel for the petitioner would represent that he has already completed 168 monthly installments and he had been regularly paying the monthly maintenance charges and other charges as per the terms and conditions. Though, the dispute raised herein is only with regard to the claim for interest and penal interest for the additional cost from the date of allotment till date of payment during 2004. Considering the submissions made on both sides, this Court is inclined to direct the petitioner to pay arrears of incidental charges if any, as per the terms and conditions.
12.In the result, the impugned order is set aside in so far as it relates to the claim for interest and penal interest from the date of allotment till date of payment and the petitioner is directed to pay a sum of Rs.4,489/- towards interest for the additional cost of Rs.11,710/- for three years at the rate of 12.75% from the date of allotment 07.10.1991, within two weeks from the date of receipt of the copy of this order.
13.This writ petition is accordingly allowed. No costs. The connected miscellaneous petition is closed.
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To
1.The Chairman
Tamil Nadu Housing Board
Nandanam, Chennai.
2.The Executive Engineer
Villupuram Housing Unit
Tamil Nadu Housing Board
Villupuram 605 602