ORAL JUDGMENT

PER JUSTICE MR. V.R. KINGAONKAR

          We have heard learned counsel for the parties.  We are inclined to dispose of the delay condonation application as well as the appeal itself in view of the short compass of controversy involved. 

2.          There is delay of 60 days in filing of the appeal.  According to the applicant, the order dated 02-09-2010 rendered by the Karnataka State Consumer Disputes Redressal Commission in Complaint Case No. 226/2010 should have been challenged by filing the appeal in this Commission but due to wrong legal advice, it was challenged before the High Court by filing Writ Petition No.34064/2010.  Ultimately the Writ Petition was withdrawn with liberty to file the appeal before this Commission.  Consequently, the applicant claims condonation of the delay on account of litigating before wrong Forum due to bonafide reasons.  The period can be excluded under Section 14 of the Limitation Act since the liberty is already granted by the High Court at the time of withdrawal of Writ Petition.  We deem it proper, therefore, to accept the explanation of the appellant and condone the delay.  The application is, therefore, allowed.  The delay is condoned.

3.      So far as the merits of the appeal are concerned, we may mention here that the Complaint Case No. 226/2010 was dismissed by order dated 02-09-2010 which reads as follows:--

“02-09-2010 We have heard the counsel for the complainant and perused the records.  Considering the ground urged that after the receipt of the refund of the sale consideration amount, he has filed this complaint for refund of the interest amount.  Therefore in our opinion, complaint is not maintainable.  Hence, the complaint is dismissed at the stage of the admission.  Order follows.”

4.          Perusal of the impugned order shows that the complaint came to be dismissed merely because the complainants sought refund of the interest amount.  Nowhere the State Commissions says that the complainant was not a consumer.  The refund of the amount was sought by the complainant (appellant) for the reasons that the auctioned plot was not of the same size for which the advertisement was made and there was no interest in purchasing the plot of lesser size.  The amount of the appellants was lying with the respondent for considerable period of about one and a half year.  Obviously, the State Commission was required to consider whether there was unjust enrichment committed by the respondents.  The counsel for the respondents point out that possession was delivered to the appellant.  This aspect also ought to be taken into consideration by the State Commission while considering the request for refund of the interest.  We think that appropriate deduction can be made from the payable interest in respect of the amount of market rent for the property.

5.      In view of the foregoing discussion, the impugned cryptic order of the State Commission is unsustainable in the eye of law.  Hence, the appeal is partly allowed.  The matter is remitted to the State Commission by setting aside the impugned order.  The State Commission may consider maintainability of the complaint, proper deduction to be made on account of chargeable or payable market rent after the delivery of the possession and the rate which could be payable if at all it is found that interest should have been paid to the respondent.  It is, however, made clear that the appellant will not be entitled to claim refund of the registration charges and stamp duty because it was payable by the appellant and there was no fault on part of the respondent in this behalf.  The appeal is accordingly disposed of.  No costs.