High Court of Kerala
Case Law Search
M.P.RAMAKRISHNAN NAIR, S/O. LATE v. THE GREATER COCHIN DEVELOPMENT AUTHORITY - OP No. 30201 of 2002(U)  RD-KL 104 (2 January 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMOP No. 30201 of 2002(U)
1. M.P.RAMAKRISHNAN NAIR, S/O. LATE
1. THE GREATER COCHIN DEVELOPMENT AUTHORITY
For Petitioner :SRI.BABU S. NAIR
For Respondent :SRI.P.R.RAMACHANDRA MENON, SC,GCDA
The Hon'ble MR. Justice S.SIRI JAGAN
O R D E R
S. SIRI JAGAN, J.```````````````````````````````````````````````````` O.P. No. 30201 OF 2002 U ````````````````````````````````````````````````````
Dated this the 2nd day of January, 2007
J U D G M E N T
Counsel for the petitioner was absent when the case was taken up for hearing. Therefore, I am constrained to dispose of this original petition hearing the counsel for the respondent. The petitioner purchased a house in Panampilly Nagar Housing Colony having No.MIG 396 from one Valsa Thomas on 3.10.1989. This house was originally allotted to the said Valsa Thomas by the respondent GCDA on 28.2.1980 as per agreement executed between the said Valsa Thomas and the respondents. At the time of purchase, the total value of the house was estimated as Rs.46,200/- and the allottee was liable to remit 30% of the total value in advance and the remaining amount in 120 equal monthly instalments of Rs.426.44. The instalments were payable on the 10th day of every succeeding month. The petitioner submits that the original allottee had paid the 30% and was paying the monthly instalments without any default and the petitioner purchased the house after submitting a joint application by himself and the said Valsa Thomas and the respondent has issued Ext.P1 order dated 25.9.1989 according sanction to purchase the house from the original allottee. The petitioner submits that at the time of purchase of the house by the petitioner, the petitioner was directed to pay all dues as on the date of purchase as a condition precedent for transferring the ownership from the original allottee to the petitioner, which the petitioner had complied with. The petitioner would submit that this is evident from Ext.P2 agreement between the petitioner and the respondent. According to the petitioner, the petitioner has been regularly OP.30201/02 2 paying the instalment without any default. Ultimately, on 26.9.1990, the petitioner paid the entire balance instalments by remitting the 118th , 119th and 120th instalments as evidenced by Ext.P3 receipt dated 26.9.1990. Therefore, according to the petitioner, the petitioner had paid off the entire balance instalments due in 1990 itself. However, in 1998, the petitioner was directed to produce remittance details for the month of December, 1983 as per Ext.P4 dated 16.7.1998. Since the said instalment was paid by the original allottee, the petitioner was not in possession of the remittance details for that instalment which was intimated to the respondent. Subsequently, in 2001, the petitioner made an application for getting the original sale deed as the entire amounts were paid by him in 1990. However, to the surprise of the petitioner, he was served with a notice directing him to pay an amount of Rs.29,855/- stated to be the amount due towards cost of house No.M.I.G.396. Ext.P5 is the said demand. Following Ext.P5, the petitioner was again served with another notice dated 27.8.02 demanding an amount of Rs.31,464.32 with a threat of revenue recovery steps in the event of failure to pay the amount. The said notice is Ext.P6. The petitioner is challenging Exts.P5 and P6 notices in this original petition. The petitioner's contention is that he had paid the entire cost of the house by paying all the 120 instalments as stipulated in Ext.P2 without any default and, therefore, there is no justification at all for demanding this huge sum after a lapse of more than 12 years of the last payment made by the petitioner.
2. The respondent has filed a counter affidavit. In the same, their contention is that the petitioner is liable to pay all amounts due in respect of the house in question whether it was due from the original allottee or the OP.30201/02 3 petitioner. For this purpose, they rely on clause (31) of the Ext.R1 terms and conditions of the allotment to the petitioner. It is submitted in the counter affidavit that the allottee has remitted only 104 instalments instead of 120 instalments and the demand made is of the balance amount.
3. I am not inclined to accept the contentions of the respondent in this matter for the following reasons. Firstly, more than 12 years have elapsed since the last payment made by the petitioner as evidenced by Exts.P3, P5 and P6. In Ext.P3 receipt issued by the respondent itself, it is specifically referred that the petitioner has paid the 118th, 119th and 120th instalments. If at that time any previous instalment was due the respondent should have adjusted the payment against that instalment only, which they have not done, which would go a long way to prove the case of the petitioner. The respondent does not mention in the counter affidavit as to which of the 120 instalments the petitioner has defaulted. Further, when the respondent itself has in Ext.P3 specifically accepted the amount tendered by the petitioner as towards the 118th, 119th and 120th instalments, I cannot accept the contention of the respondent that some other instalments are due from the petitioner without specifying as to which of the instalments the petitioner has defaulted. In fact, when the respondent in Ext.P3 specifically mentioned therein that the amount is accepted towards 118th, 119th and 120th instalments, I have to assume that all other earlier instalments have been duly paid otherwise the respondent would not mention in Ext.P3 receipt the instalment numbers as 118, 119 and 120. Moreover 16 instalments would not come to Rs.29,855/- going by the fact that three instalments amount only to Rs.1,311.62. Further, the respondent has not even attempted to explain the OP.30201/02 4 long and unexplained delay between Exts.P3 and P5. I cannot assume that if any such amounts were due, the GCDA, which is widely known to be in financial difficulties would have failed to collect those amounts in time if the same were actually due. In the above circumstances, I am inclined to accept the case of the petitioner that as evidenced by Ext.P3 he has paid the last three instalments due from him towards payment of the price of the house, especially since the respondent has in their counter affidavit failed to state as to which were the instalments defaulted by the petitioner and the counter affidavit is sadly lacking in details of the amounts due from the petitioner. Accordingly, I quash Exts.P5 and P6 and direct the respondent to return the original sale deed pertaining to MIG 396 to the petitioner, within a period of one month from the date of receipt of a copy of this judgment. The original petition is allowed as above.
(S. SIRI JAGAN, JUDGE)aks
S. SIRI JAGAN , J.OP No.30201/02 U
J U D G M E N T
2nd January, 2007
Double Click on any word for its dictionary meaning or to get reference material on it.