Sushilkumar Vs Karnataka Housing Board and Anr.

THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW THE WRIT APPEAL AND SET ASIDE THE JUDGEMENT PASSED IN WP NO.225708 OF 2020 DATED 25.09.2024 TO THE LIMITED EXTENT OF IMPOSITION OF INTEREST AT THE RATE OF 18 PERCENT PER ANNUM FROM 09.10.2017 TILL THE DATE OF PAYMENT.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE K NATARAJAN AND

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HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL)

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This intra Court appeal is filed by the appellant challenging the order of the learned Single Judge dated 25.09.2024 passed in W.P.No.225708/2020 (GM-RES).

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Brief facts leading to the filing of this appeal are that, the respondents conducted a public auction of a corner plot bearing No.155 HIG-1 E/W situated at Biddapur, Old Airport Road, Kalaburagi. The appellant has participated in the bid process and was declared as a successful bidder. The appellant deposited 25% of the bid amount within the stipulated time. It is averred that the appellant sent a communication dated 20.03.2012 that the

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plot in question is not a corner plot, but an intermediate plot and requested to re-fix the price as an intermediate

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plot. The respondent No.1 issued a revised auction confirmation certificate to the appellant by fixing the price

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of the plot at Rs.34,16,494/-. On 16.09.2019, the respondent No.1 passed an order of canceling the allotment of the plot and forfeiture of 25% of the amount deposited. The action of the respondents was challenged by the appellant. The learned Single Judge allowed the writ petition by quashing the cancellation of allotment by issuing mandamus to the respondent No.1 to receive the balance amount of Rs.21,41,494/- as per the revised confirmation dated 09.10.2017 along with interest at the rate of 18% per annum from 09.10.2017 till the payment is made and the appellant was directed to make the payment within 90 days. This appeal is filed by the original petitioner being aggrieved by the direction of the learned Single Judge to pay the interest at 18% p.a. from 09.10.2017.

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Sri. N.B. Diwanji, learned counsel appearing for

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the appellant submits that the learned Single Judge has

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recorded clear finding that there was a mistake on the part

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of the respondents in not communicating the revised confirmation letter. However, the learned Single Judge without any fault of the appellant, has directed the appellant to pay the interest at the rate of 18% per annum from 09.10.2017, which is impermissible. It is submitted

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that the interest awarded by the learned Single Judge for the delayed payment is exorbitant and it should not be more than 6%. Hence, he seeks to allow the appeal.

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Per contra, Sri. Shivakumar Malipatil, learned

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counsel appearing for the respondents supports the impugned order of the learned Single Judge and submits that the appellant has failed to pay the amount immediately after reworking the price on 09.10.2017. Hence, the appellant is liable to pay the interest. It is submitted that the learned Single Judge taking note of the fact that there was a lapse on the part of the appellant in not communicating the changed address to the

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respondents, has awarded interest which does not call for

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any interference. Hence, he seeks to dismiss the appeal.

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We have heard the submissions of the learned counsel for the appellant, learned counsel for the respondents and meticulously perused the material available on record. We have given our anxious consideration to the submissions advanced and the material available on record.

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This appeal is filed seeking to set aside the

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order of the learned Single Judge only to the extent of the direction to pay interest at the rate of 18% per annum from 09.10.2017 till the payment is made. Admittedly, the respondents have not filed any appeal challenging the impugned order of the learned Single Judge.

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The undisputed facts are that the appellant was the successful bidder for plot bearing No.155 HIG-1 E/W situated at Biddapur, Old Airport Road, Kalaburagi in a public auction conducted by the respondents. The

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appellant has deposited 25% of the bid amount within the stipulated time. The respondents does not dispute that the plot was auctioned as a corner plot. However, later they came to know that it was an intermediate site only on the basis of the representation dated 20.03.2012 submitted by the appellant after depositing 25% of the bid amount. The respondents did not take any action on the representation of the appellant dated 20.03.2012 till 09.10.2017 when the respondents sent the revised confirmation letter. Admittedly, there is a lapse on the part of the respondent – authorities in auctioning the plot as a corner site and collecting 25% of the bid amount and only on 09.10.2017 revised demand was made and the said demand is also not served on the appellant. The postal endorsement indicates that ‘addressee left’. The respondents have not made any attempt to serve the demand on the appellant and thereafter, they have cancelled the allotment on 16.09.2019 by forfeiting 25% of the amount deposited by the appellant.

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The learned Single Judge has clearly recorded

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the finding that there is a lapse on the part of the respondents in auctioning the plot as a corner plot and there is a delay in revising the rates as an intermediate site. Further, the learned Single Judge has recorded the finding that there is a fault on the part of the appellant in not furnishing the correct and proper address and directed the appellant to pay the interest from 09.10.2017 at 18% on the balance amount of Rs.21,41,494/-.

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In our considered view, we do not find any error in the finding recorded by the learned Single Judge with regard to the direction to pay the interest. However, the interest saddled by the learned Single Judge at the rate of 18% per annum calculated from 09.10.2017 till the payment, is on higher side. We are of the considered view that the interest of justice would be met if the order of the learned Single Judge is modified to the extent of awarding the interest at 12% as against 18% per annum as directed by the learned Single Judge. Considering the peculiar facts

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and circumstances of the case, it would be onerous on the allottee, if the appellant is directed to pay the interest at 18% per annum. Hence, we modify the impugned order of the learned Single Judge only to the extent of reducing the interest rate to 12% per annum. It is made clear that the impugned order of the learned Single Judge insofar as other directions are concerned, is upheld.

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10. For the aforementioned reasons, we proceed to

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pass the following:

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ORDER

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i) The writ appeal is disposed of.

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ii) The order of the learned Single Judge dated 25.09.2024 passed in W.P.No.225708/2020 is upheld, except the direction to pay interest at 18% per annum.

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iii) A mandamus is issued directing the respondents

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to receive balance amount of Rs.21,41,494/- as

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per the revised confirmation dated 09.10.2017 along with interest at the rate of 12% per annum calculated from 09.10.2017 till the date of payment. The appellant is directed to make the payment within three months from the date of receipt of the certified copy of the order.

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iv) The respondents are directed to execute necessary sale deed in favour of the appellant within 30 days from the date of receipt of the payment.

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v) No orders to cost.

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Sd/(K NATARAJAN) JUDGE

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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MCR

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List No.: 1 Sl No.: 26 CT: PS

Sushilkumar v. Karnataka Housing Board and Anr.

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Sushilkumar v. Karnataka Housing Board and Anr.

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