Per Mrs. M. Shreesha, Member

          Aggrieved by the orders dated 11.08.2017 in CC No. 584, 585 and 586 of 2015 passed by the State Consumer Disputes Redressal Commission, Delhi (for short the “State Commission”),  DLF Limited (hereinafter referred to as “the Developer”) has preferred these First Appeals under Section 19 of the Consumer Protection Act, 1986 (in short “the Act”).

2.       As the facts and issues are similar in all the First Appeals and involves the same Opposite Party/Developer, they are being disposed of by this common order.  However, for the sake of convenience First Appeal No. 1977 of 2017 is being taken up as a lead case.

3.       By the impugned order the State Commission has condoned the delay in filing the complaint and disposed of the application under section 24A(2) of the Act filed by the Complainant seeking condonation of delay in filing the Complaint under section 17 of the Act. The State Commission while exercising its descrition to condone the delay has observed as follows:-

“17.    There is nothing on record to show any malafides on the part of complainants. The complainants had pursued their complaint bondafide before MRTP Commission/COMPAT for about past 17 years with the belief that MRTP Commission/COMPAT was competent to grant relief of possession.  Perusal of complaint before MRTP Commission shows that there was a specific prayer made by complainants for grant of relief of possession of Unit in question.  The MRTP Commission/COMPAT has already given permission to the complainants to approach Consumer Forum for appropriate relief. The said permission has been given in the presence of OP. No objection was raised by the OP before the COMPAT.  The complainants have been bonafide pursuing their remedy before MRTP Commission/COMPAT and finding that COMPAT can’t give the relief of possession, the complaint was withdrawn.

18.     Relevant provision of Section 14 of the Limitation Act  read as under:

 “S.14. Exclusion of time of proceeding bona fide in Court     without jurisdiction

 (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. 

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.”

(3) xxx xxx xxx xxx.”

 19. It is well settled that the real purpose of Section 14 of the Limitation Act, is to extend the period of limitation prescribed by adding the period during which the suit or other proceeding has been prosecuted with due diligence and in good faith in a Court which either on account of defect of jurisdiction or other cause of a like nature, was unable to entertain it.

20. The complainants have been pursuing their remedy before MRTP Commission/COMPAT with due diligence and in good faith as such they are entitled for the benefit under section 14 of the Limitation Act. The judgment of N. Manohar Reddy (supra) relied upon by OP is not applicable to the facts of the present case. 

21. Further National Commission has also granted leave to complainants to file the complaint before appropriate Forum.  In similar facts and circumstances, National Commission in Pushpa Goel v. Ghaziabad Authority, II (2015) CPJ 46 (NC) has held that the complaint is not barred by limitation.

22. It is also admitted position that the possession is not delivered to the complainants so far and in the present complaint, one of the prayers is for possession of flat.  In complaint before MRTP Commission also, one of the prayers was for the relief of possession of unit.  According to Ld. Counsel for the complainant, the cause of action is continuing one and Ld. Counsel has relied upon judgement of Lata Construction & ors v. Dr. Rameshchandra Ramniklal Shah & Anr, X (1999) SLT 77.  On the other hand, OP has relied upon judgement of Jay Grih Nirman Pvt. Ltd. v. Arunoday Apartment Owners’ Association, 1(2014) CPJ 307 (NC) and has contended that it was clearly intimated to the complainant that unless all amounts due are paid as per Agreement, the possession cannot be taken.  It is contended that demand for extra charges has already been intimated in June 1997 as such it cannot be said that present is a case of continuing cause of action.  We have considered the submissions of the parties.  It is yet to be decided as to whether demand for extra charges by OP is valid or not.  In any event, the complaint was filed before the MRTP Commission within the period of limitation.  In these circumstances, the aforesaid contention is not examined at length.

4.       Learned Council appearing for the Appellant/Developer submitted that the State Commission had erroneously condoned the delay as the agreement is dated 17.06.93; the Complaint filed before the MRTP is dated 08.10.98; Judgement of the MRTP commission in the case of B.B. Patel Patel on identical issues is dated 19.01.09; Complaint was transferred to COMPAT on 14.07.15; the Complaint was filed under Consumer Protection Act before the State Commission on 14.08.2015 and that the total delay in filing the present Complaint is 22 years. Learned Counsel submitted that the first Complaint before MRTP Commission was filed after 5 years of the agreement, wherein even the clauses of the Agreement was challenged. Having regard to the fact that Complainant has paid 40% of the total sale consideration by the end of two and half years and was mainly protesting against the extra amount which was demanded vide letters dated 23.04.1998 and 30.09.1998; that the Complainant filed an application under section 36(A) of MRTP Act 1969 before the MRTP Commission seeking a direction to restrain the Developer from cancelling the allotment and quashed the alleged demand of extra amount; that an application was also filed under section 12A of MRTP act seeking interim relief; that statement by the Developer was recorded before the MRTP Commission to the effect that they would not cancel the allotment; on 04.09.2000 MRTP disposed the application of interim relief; when this order was challenged by the Complainant before the Hon’ble Supreme Court, the matter was remanded back to the MRTP Commission; during the course of proceedings MRTP Act was repealed and instead of that Competition Act, 2002 was implemented and the matter stood transferred to Competition Appellate Tribunal (COMPAT); the Complainant had withdrawn the Complaint and had filed the same before the State Commission Delhi. Hon’ble Supreme Court in a catena of judgements has laid down that when there is a bonafide reason by the Complainant as he has approached the wrong forum the discretion is with the  concerned Tribunal to condone the delay or not. The reasons given by the State Commission while exercising jurisdiction under Section 17 of the Act in condoning the delay on the ground that possession was not yet delivered and that there was common prayer  for delivery of possession even before the MRTP commission and held that the cause of action is a continuing one. Keeping in view the afore-noted reasons, the contention of the Learned Counsel appearing for the Developer that State Commission ought not to have allowed the delay condonation application when there was no specific direction by COMPAT except to state that the Forum can consider the delay and also that it cannot be considered as a continuing cause of action, is unsustainable.  Keeping in view that the State Commission has taken into consideration all the gamut of facts and the Complainant has shown his bonafide of approaching the wrong  Forum, has exercise its discretion conferred on it under Section 24A(2) and  condoned the delay. Keeping in view that the agreement is of the year 1993 and the Complainant is a senior citizen and the peculiar facts and circumstances of this case wherein several attempts were also made for settlement, we do not find it a fit case to remand the matter back to the State Commission for adjudication on merits, after a lapse of so many years.  

5.       Vide order dated 30.10.2017 this Commission had directed the Developer to file the complete statement in a tabular form indicating the details of initial payments made by the complainant, the amount charged subsequently on the said amounts including the interest along with rate of interest, the amounts without interest component and the compensation, if any, due to be paid to the Complainants in terms of their respective Agreement to Sell. The parties were also requested to explore the possibility of an out of court amicable settlement. Thereafter there were several adjournment and proposals were also made by the Developer of the Complainants for which a counter offer was also made but no amicable settlement could be arrived at.

6.       The facts undisputed are that the flat purchasers entered into an Apartment Buyer Agreement on 17.06.83/18.06.83, for a unit in the project namely Beverly Park 1 in Gurgaon Haryana and paid 10% of the total sale consideration of Rs. 20,38,442/- in addition to other charges namely EDC, CSD and maintenance security. As for Clause 17 and 21 of the Apartment Buyer Agreement the flat purchasers opted for a 10 year payment plan wherein the possession was to be given within 2 ½ and 3 years provided that all dues as per the agreement was paid. That Counsel appearing for the Complainant submitted that Complainant made 40% payment  plus other charges due as per annexure II of the Apartment Buyer Agreement by July 1995 within the stipulated period of 2 ½ years. The licence fee was also paid which actually was due and payable only after the possession was handed over.

7.       It is contented by the Complainants that after lapse of 4 years with no possession given to the Complainants as promised under  Clause 16 of the Agreement,  a demand letter was sent by the Developer vide letter dated 20.061997 apprising the Complainants that escalation charges of Rs.8,51,116/- in CC No. 587 of 2015 shall be payable over and above the total sale consideration. The Complainants protested against the levy of escalation charges since they were not chargeable as for the demand that was raised. One year prior to the completion of the said project which was at 50% of construction stage. Apprehending cancellation of unit  it is submitted that the Complainant moved an application 08.01.1998 under section 36(a) of the Monopoly and Restrictive Trade Practices Act, 1969 seeking interim relief, which was granted vide an order dated 04.09.2000 and on an Appeal, the Hon’ble Supreme Court made the following observations:-

“Viewed from any angle we do not find any valid ground, to disturb the impugned order of the commission in exercise of Jurisdiction under Article 136, though we do feel that the respondent has exhibited somewhat unreasonable attitude in spurning  the offer made in the course of hearing.”

8.       Learned Counsel for the Complaint submitted that Hon’ble Apex Court had found the conduct of the Developer to be arbitrary in spurning the offer despite the fact that the Complainants showed their bona fide throughout the show the course of transaction. In 2015 considering that COMPAT did not have the power to grant possession, the Complainant withdrew their Complaint with the liberty to seek remedy before an appropriate Forum and filed the Complaint before the State Commission Delhi. Learned Counsel appearing for the Complainant contended that the  Developer did not comply with the order dated 30.10.2017 passed by this Commission as the statement of account was given with incorrect calculations with charges under heads which were not part of the Agreement. The Developer submitted that an offer of settlement, in which they had demanded Rs. 44,08,831/-.

9.       The Complainant had filed an application seeking possession of the unit without prejudice to the rights in seeking compensation for the delayed period. Learned Counsel appearing for DLF submitted that the charges referred to in the letter dated 02.06.1997 were being charged in terms of the agreement dated 14.03.1994 and that there was no excess charges. Further it was contended that the statement of account is as per the heads given under the terms of agreement and placed reliance on clauses 1,4,5,9 and 11 of the terms and conditions.

10.     A perusal of the Apartment Agreement shows that clause 16 refers to the period of possession stating that the possession should be delivered within two and half years from the date of booking apartment and that if the completion of the building is delayed due to  the reason of non-availability of steel or cement or other building materials or water supply or electrical power or any disputes or act of god or by any other act or notification of the Government, the Developer is entitled to reasonable extension of time for delivery of possession. Clause 18 specifies that if the Developer is  expected to deliver position within the time specified in Clause 16 then the flat purchasers should give a notice to the Company terminating the agreement in which even, the Company shall be at liberty to sell and dispose of the said apartment and then refund the amount to the flat purchaser.

11.     It is relevant to mention that the time of the grace period has not been mentioned either in Clauses 16 or 17. It is also significant to mention that as for Clause 18 it is the flat purchaser who has issued the notice to the Company seeking cancellation. Learned Counsel submitted that the extra charges were demanded only because a large number of works were being carried out with respect to extra lift, a large enterprise hall, large sized terra tiles,  100% standby generator etc.

12.     Keeping in view the rival contentions of both the sides and appreciating the evidence on record and especially having regard to the peculiar facts and circumstances of the case concerned, we are of the view that reliance should be placed on the recent judgement of the Hon’ble Supreme Court in  DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, (Civil Appeal No. 4910-4941/2019) decided on 10^th May, 2019  wherein the Hon’ble Supreme Court granted refund of the amounts along with  9% interest and also compensation for delayed period @ 9%.  Keeping in view that the matter is of the Year 1993 and at the cost of repetition and  in the pecular facts and circumstances of case and to give a quietus to the matter as repeated offers and counter offers made by both the parties have failed, and more than 27 years has elapsed and  the flats in question are ready and available and are only getting dilapidated, we direct the Developer to offer possession to the Complainants in a habitable condition and the Complainant shall accept possession by paying interest @9% p.a. on the balance amounts for the period from the date of  demand till the actual date on which the occupation certificate has been obtained. To reiterate,  keeping in view the facts of the specific case, the Complainant is not liable to pay any maintenance or holding charges and likewise is not entitled to claim any  amounts to the delayed period compensation. To balance equities we hold that the possession  may be offered within 4 weeks from the date of receipt of a copy of this order and after the balance amount is paid by the Complainants with 9% interest from the initial date of demand till the date the occupation certificate has been received. The appeals are disposed off with the afore-noted directions.

FIRST APPEALS NO. 1978 & 1979 OF 2017

          In view of the discussion made in First Appeal bearing No. 1977 of 2017 the First Appeals bearing No. 1978 and 1979 of 2017 are also disposed of accordingly in the same terms.