Y.R. Meena, J.:
This appeal has been directed against the judgment and order of learned single Judge, dated 24-12- 1997 (reported as Vysya bank Ltd. v. Appropriate Authority of Income-tax & Ors. (1999) 151 CTR (Cal) 239). The appeal was listed several times. None appeared for the Appropriate Authority.
2. Heard learned counsel for the respondents perused the impugned judgment.
Learned single Judge has set aside the order of Appropriate Authority on the ground that no reasonable opportunity has been given to vendor and vendoe and there are several discrepancies in the proceeding before acquisition of the property in terms of section 269UD(1) of the Income Tax Act. Learned single Judge has specifically emphasized on the decision in the case of C.B. Gautam v. Union of India (1992) 108 CTR (SC) 304 read with : 199ITR530(SC) .
3. During the course of the argument before learned single Judge, learned counsel Dr. Pal on behalf of respondent No. 1 also prayed that the matter be remitted to Appropriate Authority to give fresh opportunity to the vendor and vendor. This prayer of Dr. Pal was also rejected following the judgment of this court in case of Dwarakanath & Ors. v. Union of India in : 213ITR470(Cal) taking the view that the period of limitation to pass an order of purchase of any immovable property as provided for in the first and second proviso to the said section creates an embargo on the Appropriate Authority, by the legislation, to pass an order for purchase under the said section after expiry of the period of limitation and section 5 of the Limitation Act not having been made applicable to the aforesaid provision of the Act, the Appropriate Authority loses its jurisdiction to exercise its power under the said section, after expiry of the aforesaid period. The appeal was listed several times but none appeared for the Appropriate Authority/appellant. Considering the finding of the learned single Judge that no reasonable opportunity has been given for the acquisition of the property as required under section 269UD. We find no merit in the appeal.
4. When the appeal was admitted the respondent No. 7 was allowed to file cross-objection, regarding his claim of interest required to be paid for the period, possession has been taken but consideration has not been paid to the vendor. The learned counsel for the vendor placed reliance on the decision of this court in case of Rajlakshmi Narayan v. Kathleen Gandhi & Ors. : 201ITR681(SC) and the decision in the case of Appropriate Authority & Anr. v. Smt. Sudha Patil & Anr. : 235ITR118(SC) .
5. Learned counsel for the Vysya bank Shri Bazoria submits that there was an agreement and the purchaser bank i.e. the Vysya bank Ltd. has paid the consideration as per agreement. Therefore, only 5 per cent is now left to be paid. Under the agreement that will be paid at the time completion of conveyance and on that amount, the interest is payable under the agreement itself, by the bank, None appeared for the Authority or Government.
6. The relevant facts in this regard are that the bank had agreed to purchase from Delite under two agreements, one dated 21-4-1994 and other dated 27-5-1994, 16 flats under construction at premises No. 250, Netaji Subhas Chandra Bose Road, Tollygunge, Calcutta- 700047, for the purpose of providing residential accommodation to its officers who came on transfer for serving at its branches at Calcutta. As required by the provisions of Chapter XX-C of the Act, the bank and Delite filed Form No. 37-1 in respect of each of the two agreements for issue of 'No objection certificate' for the said transfers. The Appropriate Authority, however, passed orders of purchase under section 269UD of the Act in both the cases. The order in respect of the first agreement was passed on 29-7-1994 and that in respect of second agreement on 28-9- 1994, both were set aside by the learned Trial Judge.
The said agreements dated 21-4-1994 and 27-5-1994 in part 3 of Annexure 'A' thereto respectively provided for payment of consideration as under :
'Agreement dated 21-4-1994
1. Rs. 9,96,282.50 at or before the execution of the agreement (25%).
2. Rs. 27,37,091.00 on or before the date of possession (70%).
3. Rs. 1,95,506.50 at or before the completion of the conveyance (5%).'
Bank had thus to pay only 25 per cent of the price at or before the execution of the respective agreements which it duly paid. 70 per cent of the price was payable upon possession being given and 5 per cent at the time of conveyance. Since the Bank's officers had already arrived at Calcutta on transfer Delite delivered possession of the flats under the first agreement dated 21-4-1994 to the bank. The bank duly paid a little less than 70 per cent of the consideration as provided in the said agreement which Delite duly accepted.
At the time of filing the first writ petition, the bank had duly paid in terms of the first agreement about 95 per cent of the total consideration on receiving possession of the flats as aforesaid and only the balance about 5 per cent remains to be paid since the same is payable only on execution of the conveyance which cannot be executed till today as 'No objection certificate' has not been issued by the Appropriate Authority.
In case of second agreement Delite delivered possession of the flats to Appropriate Authority before any order was passed in the writ petition and thereafter received it back from them under orders of this Hon'ble court and it again under an order of this court in this appeal Delite handed over possession of the flats to bank, after receiving 70 per cent of the consideration. Thus, the bank had duly paid 95 per cent of the consideration in respect of the second agreement also on receiving possession of the flats.
The only amounts now remaining to be paid by the bank to Delite under the said two agreements in 5 per cent which is to be paid at the time of execution of conveyances after 'No objection certificate are issued by the Appropriate Authority. This, Hon'ble court by its order dated 29-6-1998 (P. 1104 of Part H of the paper-book in Mat No. 299 of 1998) has also directed for payment of such balance 5 per cent at the time of execution of the conveyances depending on the result of these appeals, with interest on such balance 5 per cent.
7. This brings us to the question that when possession of the property has been taken by the Appropriate Authority, or possession has been handed over by vendor under the order of court and no consideration has been paid, whether the vendor is entitled for any interest on the outstanding balance of amount for the period till the balance amount is paid In this regard we would like to refer to some observations of the apex Court.
8. In Rajlaxmi Narayan (supra) at pp. 683 and 684 their Lordships has observed as under
'We can safely take judicial notice of the fact that the price of immovable properties have shoot up continuously for the last few years and today the said property, if sold in the open market, would fetch a much larger amount than that for which it was agreed to be sold to respondent No. 1.
Taking into account these circumstances we modify the impugned order and direct that in the event of the aforesaid order of the Appropriate Authority being upheld, the Government shall pay to the appellant, as the purchase price, the amount stated as the consideration for the sale of the said property in the agreement entered into between the appellant and respondent No. 1 with interest thereon at 15 per cent per annum. In case the order of the Appropriate Authority is set aside and the transaction of sale in favour of respondent No. 1 is completed, respondent No. 1 shall pay to the appellant interest on the balance amount payable on account of the purchase price by respondent No. 1 interest at 20 per cent per annum. The interest in either eventuality will be calculated right from the day the impugned order was made by the Delhi High Court.
We may clarify that whether interest should be paid to the owner of an immovable property who has entered into an agreement to sell the same which cannot be completed by reason of an order of purchase under section 269UD of the Income Tax Act and at what rate, will have to be decided in the facts and circumstances of each case. All that can be observed by way of a general principles is that where such a seller has raised no objection or obstruction either to the purchase of his property by an order under section 269UD or to the completion to the agreement of sale entered into by him but is unable to get the purchase price by reason of the said order and the stay order or orders passed by a Court, interest at an appropriate rate can, if equity so requires, be paid to him.'
9. In C.B. Gautain's case (supra) again their Lordships have considered that when the payment is delayed on account of acquisition proceedings under Chapter XX-C, the interest should be paid to the seller and how much the rate of interest and for what period the interest is payable that depends upon the facts of that case, In C.B. Gautain's case their Lordships has awarded the interest at the rate of 9 per cent payable by the Government to the vendor.
10. In case of Smt. Sudha Patil (supra), the Supreme Court has directed the payment of interest at the rate of 15 per cent per annum payable to the seller on delayed payment, in a case when delay was not on account of seller.
11. As stated above there was two agreements regarding the sale of flats by respondent No. 2 Delite Housing Corpn. to the Yysya Bank, as per agreement patticular amount was payable at a particular stage of transfer, say as at the stage of execution of the agreement, then on or before the possession, then 6 per cent at the time of completion of the conveyances. The details of the amount which has been paid reads as under:
Appropriate Authority v. Vyasa bank Ltd.
(Dues upto 30th Nov., 1999)
1st Writ (Rs.)
2nd Writ (Rs.)
Amount Due (Rs.)
Consideration receivable for one car parking
Less : Payment actually received
Less: Payment received on 22nd July, 1998, in terms of order of Court
On the perusal of the aforesaid details major amount due against this second agreement for number of years and possession was with the Appropriate Authority, for same period the possession was restored to the respondent No. 1 as per court order, but seller could not make use of it, as there was a prohibitory order of the court and even the respondent No. 7 had to incur some expenses on maintenance of the premises, those expenses are allowed to the vendor, respondent No. 7.
It is also brought to our notice that-seller never objected the acquisition under section 269UD, he simply file the reply to notice that it sold the flats to bank for a consideration shown in the agreement to sale. In our view this cannot be a obstruction, in purchase by Appropriate Authority.
Considering these facts and circumstances, as referred above we are of the view that equity requires that respondent No. 7 vendor is entitled for the interest at the rate of 12 per cent from the Government for the period from 1-10-1994 to 22-7-1998, on the amount Rs. 29,32,597 which could not be paid to the vendor respondent No. 7, on account of acquisition proceedings under section 269UD of the Act. So far the 5 per cent balance consideration is concerned, which has riot been paid and payable only on completion of the conveyance, for that there is already a provision in the agreement and purchaser bank will pay the interest on that balance amount while the conveyance deed will be executed.
Considering the above discussion the appeal is dismissed and the crossobjections of respondent No. 7 are allowed in part as referred above.