Gyanendra Sharma v. State of U. P — 1988 DIGILAW 717 (ALL)

JUDGMENT V.K. Khanna, J. - Petitioner applied for an allotment of a plot from U.P. Avas Evam Vikas Parishad, respondent No. 2 in the year 1972. In the year 1984, respondent No. 2 decided to built houses and give it to the willing persons on the basis of "Self Financing Scheme". According to the rules framed by respondent No. 2, a person desirous of having a house in the aforesaid scheme was required to deposit Rs. 18,000 as registration fee and thereafter he had to deposit instalments as specified in Annexure-1 to the writ petition. It is not disputed that the petitioner had not applied for registration under the aforesaid scheme within the prescribed date by depositing Rs. 18,000. However, the petitioner later on applied to respondent No. 2 for allotment of the house under the aforesaid scheme. Respondent No. 2 by a letter dated 10th April, 1986 contained in Annexure-2 to the writ petition, passed an order that in the Self Financing Scheme, i 984, the petitioner has been allowed to deposit registration fee under category A on the condition that the difference of the registration fee is deposited along with the interest at the rate of 18 per cent from the date of depositing the registration fee under the scheme from 1-3-1984. 2. As far as the payment of the entire amount of the instalment was concerned, it was ordered that the entire amount of instalment had to be deposited by 15-5-1986 or prior to the allotment of the house. It is not disputed that the aforesaid order contained in Annexure-2 to the writ petition passed by the respondent No. 2 was accepted by the petitioner and in pursuance of the aforesaid order the petitioner has been depositing certain amount towards payment of instalment from time to time. By an order dated 3-2-1987 the petitioner was informed that his name has been included in the list of the prospective allotters. Finally, the petitioner received an allotment letter dated 24-3-1988 and was informed that he has been allotted a house in Self Financing Scheme on 15-2-1988. The total cost of the house was estimated to be Rs. 1,45,550/- and the total cost of the land was estimated to be of Rs. 80,320/-. The petitioner was asked to deposit Rs. 1,08,087.40 towards the balance amount of the instalment besides other dues. The total cost of the house was estimated to be Rs. 1,45,550/- and the total cost of the land was estimated to be of Rs. 80,320/-. The petitioner was asked to deposit Rs. 1,08,087.40 towards the balance amount of the instalment besides other dues. The communication dated 24-3-1988 is contained in Annexure-7 to the writ petition. It is at this stage the petitioner has come to challenge the action of the respondent No. 2 on the ground that the amount which is being demanded from the petitioner cannot be recovered under the terms given in Annexure-2 to the writ petition. 3. At the admission stage the respondents were directed to file a counter affidavit. Parties have exchanged counter and rejoinder affidavits. The present writ petition is being disposed of finally in accordance with the rules of the court. 4. It may be mentioned that at the time of hearing of the petition respondents were asked to produce the break-up of the entire calculation showing as to how they have charged interest and have arrived at the final amount which is now being demanded from the petitioner. Respondent No. 2 has produced before us a detailed chart. 5. Learned counsel for the petitioner has firstly urged before us that the respondents are not entitled to charge interest from a date earlier to 15-5-1986. It has been urged in the alternative that in any view of the matter after 15-5-1986, respondent No. 2 is not entitled to charge interest at the rale of 18 per cent. 6. After hearing learned counsel for the parties at some length we are of the opinion that the contention of the petitioner that interest can only be charged on the amount of the instalment from 15-5-1986 is not correct. The petitioner has been allotted a house in the Self Financing Scheme and the idea under the Scheme was that a person who gets himself registered under the scheme will have to deposit the amount to be paid in instalments. If we look into the condition given in Annexure-1 to the writ petition we find that after acceptance of the registration, the first instalment had to be paid within a month of the acceptance and the next instalment had to be paid within the period prescribed in the Scheme. If we look into the condition given in Annexure-1 to the writ petition we find that after acceptance of the registration, the first instalment had to be paid within a month of the acceptance and the next instalment had to be paid within the period prescribed in the Scheme. The petitioner had been given benefit of the aforesaid scheme without depositing the amount as was contemplated to be deposited under the scheme. The petitioner has thus to pay interest at the rate of 14 per cent from the date on which the instalment money had to be deposited till the date of actual payment. It is true that the petitioner will not have to pay penal interest at the rate of 18 per cent in case he does not make deposits before 15-5-1986 inasmuch as Annexure-2 to the writ petition clearly says that the entire amount of instalments may either be deposited on 15-5-1986 or before the house is allotted. It has not been disputed that the petitioner had deposited the entire amount of instalments before the house was allotted and thus respondent No. 2 was only entitled to charge interest at the rate of 14 per cent from the date on which the instalment had to be paid in accordance with the scheme as contained in Annexure I to the writ petition. Charging of interest at the rate of 18 per cent from 15-5-1986 is, therefore, not justified. 7. Learned counsel for the petitioner has then urged that the petitioner has been making payment from time to time towards the instalment. It has been urged that the amount has been appropriated only towards interest and not towards instalment. 8. On the aforesaid question law' is clear that as far as appropriation of the amount paid by the debtor to the creditor is concerned, in case, the debtor has paid any amount to the creditor on the condition that it should be appropriated in a certain manner, the creditor is bound to appropriate the amount in accordance with the wishes of the debtor. However, in case the debtor has made payment and has not laid down any condition for appropriation of the amount the law provides that it will be open to the creditor to appropriate the amount in the manner he likes. However, in case the debtor has made payment and has not laid down any condition for appropriation of the amount the law provides that it will be open to the creditor to appropriate the amount in the manner he likes. It is, therefore, clear that while making payments the petitioner has to indicate that the amount was to be paid towards instalment and that respondent No. 2 had to appropriate the amount towards instalment. However, in case no such condition was made by the petitioner while making the payment, respondent was well within its right to have appropriated the amount towards interest. 9. In the end, learned counsel for the petitioner has urged that the interest had also been charged on the additional amount which was found due at the time of allotment of the house after taking into consideration the revised cost form of the house which has been allotted to the petitioner. We have seen records in this connection. An amount of Rs. 31,170 was found to be payable by the petitioner. As actual cost has increased by that amount over the estimated cost, respondent No. 2 had given time till 30th April, 1988 for payment of the aforesaid amount. In case the petitioner has not paid the aforesaid sum of Rs. 31,170 by the 30th April, 1988 he was to pay interest at the rate of 14 per cent from 1st May, 1988 till the date of payment. The contention raised therefore has no substance. No other point has been passed before us by the learned counsel for the petitioner. The respondents are now directed to make fresh calculation in accordance with the direction given in this judgment. The petitioner will make payment of the amount which is found due, within two months from the date of service of the order disclosing the break-up of the amount which the petitioner is liable to pay in accordance with the observations made in the judgment. In case, the petitioner does not pay the amount within the aforesaid period of two months from the date of service of the order, the petitioner will be liable to pay penal interest at the rate of 18 per cent till he deposits the amount. 10. Subject to the aforesaid observation the petition is finally disposed of. 11. In case, the petitioner does not pay the amount within the aforesaid period of two months from the date of service of the order, the petitioner will be liable to pay penal interest at the rate of 18 per cent till he deposits the amount. 10. Subject to the aforesaid observation the petition is finally disposed of. 11. A certified copy of this order may be given to the learned counsel for the parties on payment of usual charges by 22nd August, 1988.