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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
Prem Narain, Member
DAMDEN PROPERTIES - Appellant
Vs.
M.V. PARANJYOTHI - Respondent
F.A. No. 321 of 2012
Decided On : 27-06-2018
S.K. Mishra, Adv., Sunil Kumar, Adv., Vanshdeep Dalmia, Adv.
The court emphasized the need for a liberal, pragmatic, justice-oriented approach while dealing with an application for condonation of delay, considering the principles of substantial justice, lack of bona fides, and the conduct of the parties.
Headnote:
Delay in Construction - Consumer Complaint - Esha Bhattacharjee vs. Managing Committee of RaghunathpurNafar Academy and Others., (2013) 12 SCC 649, N. Balakrishnan Vs. M.Krishnamurthy, (1998) Supp1 SCR 403
Fact of the Case:
The appellant, M/s. Damden Properties, filed an appeal against the State Commission's order directing refund of the amount paid by the complainant along with interest, due to delay in construction and possession of the property.
Finding of the Court:
The court condoned the delay in filing the appeal at a cost of Rs.2,00,000 to be paid by the appellant to the complainant. The court upheld the State Commission's order of refund with 12% p.a. interest instead of 18% p.a. interest as ordered by the State Commission.
Issues: Delay in construction, entitlement to refund, arbitration clause, maintainability of appeal, condonation of delay
Ratio Decidendi: The court emphasized the need for a liberal, pragmatic, justice-oriented approach while dealing with an application for condonation of delay. It considered the principles of substantial justice, lack of bona fides, and the conduct of the parties in determining the condonation of delay. The court also highlighted the public policy behind the law of limitation and the need to balance the interests of both parties.
Final Decision: The appeal was partly allowed, and the court ordered the refund of the deposited amount along with 12% p.a. interest instead of 18% p.a. interest as ordered by the State Commission. The appellant was directed to pay Rs.2,00,000 as cost for condoning the delay in filing the appeal.
JUDGMENT/ORDER :
Prem Narain, Presiding Member
1. This appeal has been filed by the appellant M/s. Damden Properties against the order dated 08.02.2012 of the State Consumer Disputes Redressal Commission, Karnataka (in short 'the State Commission') passed in Complaint No. CC/128/2010.
2. Brief facts of the case are that the complainant Dr. M.V.Paranjyothi (respondent herein) filed a complaint before the State Commission against OP-1 M/s. Unique Unity (not mentioned in memo of parties herein) and OP-2 M/s. Damden Properties (appellant herein). The OP No.1 & 2 entered into a joint development agreement to construct the apartment and to sell the same to the persons interested in purchasing the apartments developed by them in the suit schedule property in plot No.36 and portion of plot No.37 allotted by KIADB situated at Hebbal Industrial area, Hebbal Mysore. In furtherance of the said joint development agreement dated 24.07.2007 they entered into a sale agreement with the complainant. OPs agreed to sell 697 sq.ft. area of undivided share right, title and interest in the immovable property allotted by KIADB in plot No.36 and portion of plot No.37 and on the very same day, the OP-2 entered into a construction agreement with the complainant agreeing to construct a flat bearing No.702 in Block No.2, 7th floor super built up area measuring 1623 sq.ft. along with one car parking slot in the project known as "Damden Solarium". The complainant agreed to purchase flat No.702 for a sum of Rs.40, 20, 990/- and the OPs collected Rs.28 lakhs so far from the complainant. The complainant obtained a housing loan to the extent of Rs.25 lakhs from UTI Bank, Mysore. The complainant and the UTI Bank entered into a tripartite agreement and mortgaged the said property on 26.7.2007. Though the OPs had agreed that they would get the building constructed by September 2009 and would get the said property conveyed to the complainant and put the complainant in possession but, failed to do so. It was stated that she had no option but to reside in a rented house by paying huge sum towards the rent and she is also forced to repay the loan instalments with interest without enjoying the property. When she approached the OPs they did not give proper answers and failed to perform their contractual obligation and there is no hope that the OPs will complete the construction in the near future and, therefore, she terminated the contracts entered into with the OPs and sought for refund of the amount paid. However, to no avail. Hence, the complainant filed a consumer complaint before the State Commission. State Commission partly allowed the complaint and directed OP-1 & 2 jointly and severally to refund Rs.28, 00, 000/- to the complainant along with interest @ 18% p.a. from the respective dates of payments and costs of Rs.5000/-.
3. Hence the present appeal.
4. Heard the learned counsel for both the parties and perused the record. Learned counsel for the appellant stated that there has been some delay in filing the appeal. It was stated that delay has occurred as the appellant was ill from 6.1.2012 to 30.3.2012 and the appellant did not receive free copy sent by the State Commission on 06.04.2012. The appellant approached counsel in Delhi and submitted all the documents and the learned counsel took six weeks' time to prepare the appeal. The learned counsel has also filed medical certificate to support his assertion. It was prayed that the delay may be condoned as the appellant has strong merit in the case.
5. On merits it was stated by the learned counsel for the appellant that the delay in construction was due to several factors, which were beyond the control of the appellant. He mentioned that most of the allottee including the appellant did not pay the instalments in time and therefore, there was shortage of fund to carry on with the construction. Similarly the price of building material had increased and there was difficulty in procuring due to Government Orders. The Sta
