1. The present Consumer Complaint has been filed under Section 21 & 22 of the Consumer Protection Act, 1986 (for short “the Act”) by Bankey Bihari Social Welfare Society (hereinafter referred to as the Complainant) against Opposite Party, Delhi Development Authority (hereinafter referred to as the Opposite Party Authority), seeking delay compensation of 40 months for late delivery of the possession of the Plot; refund of excess amount charged by the Opposite Parties for 60 sq. mtr. area short; refund of amount charged towards interest in late deposit of bid amount; along with interest and compensation etc.

 

2. Succinctly put, the material facts as culled out from the Complaint, are that on 26.03.2012 Applicants/Opposite Parties held an auction of plots on lease hold basis for Hospitals, Nursing Homes & Polyclinics at various prime locations of Delhi in which the Complainant also participated for the allotment of plot at PSP-1, Sector-22, Plot No. 15, Rohini, Delhi-110085, measuring around 3000 Sq Mrs. (hereinafter referred to as "The Plot”). An amount of ₹4,33,00,000/- being the 25% of the total bid amount was deposited by the Complainant. On 24.05.2012 the Complainant’s bid of ₹17,29,00,000/- was accepted by the Opposite Parties/Applicants, in respect of Plot No. PSP1, Sector 22, Plot No. 15, Rohini, Delhi and a Demand-cum-Allotment letter is issued to the Complainant. On 14.08.2012 the Complainant sought extension of time for making the balance payment of ₹12,96,00,050/-.  The Opposite Party Authority extended the time for making the payment of balance amount upto 15.02.2013 subject to payment of interest.  The Complainant made the balance payment of principle amount within the stipulated extended time and asked the Opposite Party Authority to intimate the amount of interest.  On 22.04.2014, the Opposite Party Authority demanded ₹5,50,42,540/- towards interest on balance bid amount, which on contest was reduced to ₹86,67,712/- and the Complainant deposited ₹86,67,712/- towards interest for extended period on payment of balance bid amount.  On 17.03.2016 the Complainant filed an RTI application with the Applicants/Opposite Parties demanding a certified copy of the file pertaining to the allotment of the aforesaid plot, in reply to which it was revealed that although the said Plot had been wrongly allotted to some other allottee way back on 08.07.2013 yet Applicants/Opposite Parties had throughout been demanding interest from the Complainant and refusing to deliver possession on different grounds. After much request, on 21.06.2016 the possession of the aforesaid Plot was delivered to the Complainant but the actual size of the plot was allegedly short by 60 Sq. mtrs. The Complainant wrote various letters to the Opposite Parties/Applicants, for the refund of excess money charged for the Plot. Communication was also made requesting the execution of lease dead of the aforesaid Plot and issuance of an NOC so that construction on the plot could be started but to no avail. It is the case of the Complainant that despite making the complete payment and repeated requests, the Opposite parties have failed to give possession of the aforesaid plot thereby, causing deficiency of service. Feeling aggrieved, allelging deficiency in service on the part of the Opposite Parties, the Complainant, filed the present Consumer Complaint before this commission seeking following reliefs:-

“(i) Allow the present complaint;

 

(ii) Direct the Ops to pay an amount of ₹8,96,00,000/-(Rupees Eight Crores Ninety Six Lakhs Only) calculated @ 15% per annum for the delay of 40 Months in handing over the possession of the plot bearing no. PSP-1, Sector-22, Plot No. 15, Rohini, Delhi-110085.

(iii) Direct the OPs to pay an amount of ₹34,58,000/- on account of excess premium charged from the complainant for the short delivery of land measuring 60Sq Mtrs.

 

(iv) Direct the OPs to refund an amount of ₹86,67,712/- charged on account of interest for delay in making the balance premium bid amount.

 

(v) Direct the OPs to waive off the period of 40 Months of delayed delivery of possession of the plot of land for calculation and payment of Ground Rent by the complainant.

 

(vi) Direct the OPs to execute the lease deed of the aforesaid plot in favour of the complainant immediately.

 

(vii) Direct the OPs to grant N.O.C. for the purpose of construction and also appropriately extend the period of completion of construction from the date of execution of lease deed and grant of NOC.

 

(viii) Direct the OPs to pay an amount of ₹25,00,000/-for the harassment and mental torture caused to the Complaint.

 

(ix) Any other relief which this Hon’ble Commission deems fit and proper in favour of the complainants in the interest of justice.”

 

IA No. 556 of 2022

3. The Complaint was resisted by the Opposite Party Authority.  The Opposite Party Authority had filed the Interim Application, i.e., IA No. 556 of 2022 under Section 26 of the Consumer Protection Act, 1986 seeking dismissal of the present Complaint, i.e., CC No. 1381 of 2018 on the ground that the Plot was sought to be purchased by the Complainant for a 'commercial purpose’, therefore, the Complainant did not fall within the definition of 'consumer' under section 2 (d) of the Act. Reliance was placed on para 20 of the complaint, wherein the Complainant has inter alia stated that " the possession of plot got delayed by 40 months which caused huge financial loss to the complainant and could not construct the plot as required under the allotment scheme". It was further submitted by the Opposite Parties that once the possession is taken over by the allottee and payment is made, the allottee does not remain a consumer, therefore, the Complainant seized to be consumer once possession of the plot was handed over to the complainant on 21.06.2016 and the payment, including interest on delayed payment of balance amount, was paid on 17.04.2015.  Reliance was placed on Harpal Arya vs. Housing Board, Hayana Estate Manager, 2016 SCC OnLine NCDR 361, wherein it was held that once the possession is taken over by the allottee and payment is made, the allottee does not remain a consumer. Relying on the judgment passed by this Commission in ‘Allied (Garments) Exports Indus Tries Pvt. Ltd. vs. DDA 1990 SSC OnLine NCDRC 41, wherein it has been held that a consumer complaint is not maintainable where there has been a straight sale of immovable property at auction, it was submitted that the present Consumer Complaint is not maintainable since the Complainant has purchased the said Plot on Auction. It was further submitted that the present Consumer Complaint is also not maintainable since the Complainant has purchased the said Learned Counsel for the Opposite Parties also relied upon V.M. Salgaocar and Bros. vs. Board of Trustees of Port of Mormugao, (2005) 4SCC 613 wherein it was held that even if limitation is not raised as a plea in defence, it is obligatory on the Hon'ble Court to satisfy itself that the claims are within limitation. It was submitted that in the present case, the payment, refund of which had been sought in the present Complaint, was made on or prior to 17.04.2015 and the possession of the plot was handed over on 21.06.2016. The Complainant chose not to take recourse to any legal proceeding until the filing of the present complaint more than 3 years after the money was paid and almost 2 years after possession was handed over, therefore, the Complaint ought to be dismissed.

 

4. Per Contra, while replying to the aforesaid Interim Application, the Complainant, denied the contents of the Application, it was contended that:- (i) The Complainant purchased the property i.e. Plot, at PSP-1, Sector 22, Plot no. 15, Rohini-110085, Delhi on leasehold basis in an auction conducted by Opposite party No. 1/ Applicant herein, for the purpose of establishing Medical Facilities for a charitable purpose and not for the purpose of resale or undertaking any commercial activity which makes them falls squarely under the definition of "Consumer" as defined w/s 2(d) of the Consumer Protection Act, 1986.(ii) The Complainant is not an institution which runs for the purpose of striving profit from public but is a charitable institution for the welfare of the society as a whole by providing medical facilities and education. Further, the ancillary Objects as stated in the Memorandum clearly state that all the earnings received by the Complainant shall be used in furtherance of the aims and objectives of the Complainant and no profit shall be paid, whether directly or indirectly, in any form whatsoever to the members of the complainant or any other person claiming through them, thus proving that the aforesaid plot was not purchased for a commercial purpose. (iii) The possession of the subject property was handed over by the Opposite Parties/Applicants on 21.06.2016 and the complaint in issue was filed on 04.06.2018, i.e., within the limitation period. and (iv) the period of limitation started to run from the date when the possession was handed over and not from the date when the payment was made and thus, the Complaint filed by the Complainant was well within the limitation period. The Complainant, has thus prayed, that the Applicants / Opposite Parties, are not entitled to any relief from this Commission and that the subject Interim Application is totally misconceived and an abuse of process of law, deserving to be dismissed.

 

5. I have heard Mr. B.R. Sachdeva, learned Counsel appearing on behalf of the Complainant and Ms. Aakanksha Kaul, learned Counsel appearing on behalf of the Opposite Parties/Applicants and have given a thoughtful consideration to the various pleas raised by them.  

 

6. The submission of the Opposite Party Authority that the present Complaint is barred by limitation is misconceived in view of the fact that there was continuing cause of action till the date of filing of the Complaint.  The Principle of ‘continuous cause of action’ has been dealt in detail by this Commission vide Order dated 19.01.2023 passed in ‘Lakashmikanth vs. Ms. Vijetha Rao’ RP No. 1620 of 2022, wherein it has been observed as under:- 

 

“The continuous cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.  Lord Justice A.L. Smith who concurred with above view said “If once a cause of action arises, and the acts complained of are continuously repeated, the cause of action continues and goes on de die in diem.  It seems to me that there was a connection in the present case between the series of acts before and after the action was brought; they were repeated in succession, and became a continuing cause of action.  They were an assertion of the same claim namely, a claim to continue to pour sewage into the stream and a continuance of the same alleged right.  In my opinion, there was here a continuing cause of action within the meaning of the rule.” [Qadeer Mohammad v. State of Madhya Pradesh 2010 SCC OnLine MP 168; WP No. 4812/2010 (S)].

 

  The continuous cause of action is a continuing source of injury or harm caused to the consumer which renders the doer of the act responsible and liable for consequences in law [Doaba Paryavaran Samiti v. Union of India 2019 SCC OnLine NGT 634].  In such circumstances, a fresh period of limitation begins to run at every moment of time during which the injury or harm is caused as the case may be continues.

 

  For instance, the last date stipulated in the buyer’s agreement for giving possession of the flat to them expired more than two years ago, then complaint is barred by limitation.  But failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Commission.  It is only when the seller flatly refuse to give possession that the period of limitation prescribed in Section 24A of the Consumer Protection Act, 1986, or Section 69 of the Consumer Protection Act, 2019, would have begun to run.  This principle is well-settled legal proposition as the Hon’ble Supreme Court has held in various cases [Meerut Development Authority v. MK Gupta, IV (2012) CPJ 12; Satish Kumar Pandey v. Unitech Ltd. 2015 SCC OnLine NCDRC 14; SarojKharbanda v. Bigjo’s Estate Ltd. 2018 SCC OnLine NCDRC 254].

 

  It may be mentioned here that the Hon’ble Supreme Court in the Case of Samruddhi Cooperative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd., (2022) 4 SCC 103, has laid down the principles as to when continuing cause of action will arise.  Relevant Paragraphs No. 11 to 21 of the Judgment in Samruddhi Cooperative Housing Society Ltd. (Supra) are reproduced below for ready reference:

 

 “C. Analysis

 

11. The crux of the appeal revolves around the maintainability of the complaint and whether it is barred by limitation. NCDRC held that the cause of action arose when the municipal authorities asked the Appellant to pay higher charges in the first instance and thus, a complaint should have been filed within two years of the accrual of the cause of action. The Appellant however, has argued that the cause of action is of a continuing nature, since members of the Appellant have continued paying higher charges as the Respondent failed to provide the occupancy certificate.

 

12. Section 24A of the Consumer Protection Act 1986 provides for the period of limitation period for lodging a complaint. A complaint to a consumer forum has to be filed within two years of the date on which the cause of action has arisen. In the instant case, the Appellant has submitted that since the cause of action is founded on a continuing wrong, the complaint is within limitation.

 

13. Section 22 of the Limitation Act, 1963 provides for the computation of limitation in the case of a continuing breach of contract or tort. It provides that in case of a continuing breach of contract, a fresh period of limitation begins to run at every moment of time during which the breach continues. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan elaborated on when a continuous cause of action arises. 

 

14. Speaking for the three-Judge Bench, P.B. Gajendragadkar, J. (as the learned Chief Justice then was) observed that: (Balakrishna case, AIR p. 807, para 31)

 

“31. … Does the conduct of the trustees amount to a continuing wrong under Section 23? That is the question which this contention raises for our decision. In other words, did the cause of action arise de die in diem as claimed by the Appellants? In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked.”(emphasis supplied)

 

The Court held that the act of the trustees to deny the rights of Guravs as hereditary worshippers and dispossessing them through a decree of the court was not a continuing wrong. Although the continued dispossession caused damage to the Appellants, the injury to their rights was complete when they were evicted.

 

15. In CWT v. Suresh Seth, a two-Judge Bench of this Court dealt with the question of whether a default in filing a return under the Wealth Tax Act amounted to a continuing wrong. E.S. Venkataramiah, J. (as the learned Chief Justice then was) observed that: (SCC pp. 798-99, para 11)

 

“11. …  The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case whenever the question of levying penalty arises what has to be first considered is whether the Assessee has failed without reasonable cause to file the return as required by law and if it is held that he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of delayed return the penalty may be correlated to the timelag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not, however, give rise to a fresh cause of action every day. Explaining the expression "a continuing cause of action" Lord Lindley in Hole v. Chard Union observed: (Chpp 295-96)

 

‘… What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.’ ”(emphasis supplied)

 

16. The Court further provided illustrations of continuous wrongs: (Suresh Seth case, SCC p. 800 para 17)

 

“17. The true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that act. Breach of a covenant to keep the premises in good repair, breach of a continuing guarantee, obstruction to a right of way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children whom he is bound to maintain under law and the carrying on of mining operations or the running of a factory without complying with the measures intended for the safety and well-being of workmen may be illustrations of continuing breaches or wrongs giving rise to civil or criminal liability, as the case may be, de die in diem.”

 

17. In M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, a Constitution Bench of this Court [of which one of us (DY Chandrachud, J.) was a part] examined the precedents with regards to a continuing wrong. The Court observed that: (SCC p. 369, para 343)

“343. The submission of Nirmohi Akhara is based on the principle of continuing wrong as a defence to a plea of limitation. In assessing the submission, a distinction must be made between the source of a legal injury and the effect of the injury. The source of a legal injury is founded in a breach of an obligation. A continuing wrong arises where there is an obligation imposed by law, agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature, giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise, there must in the first place be a wrong which is actionable because in the absence of a wrong, there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual, whether positive or negative, to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature. ...

 

Hence, in evaluating whether there is a continuing wrong within the meaning of Section 23, the mere fact that the effect of the injury caused has continued, is not sufficient to constitute it as a continuing wrong. For instance, when the wrong is complete as a result of the act or omission which is complained of, no continuing wrong arises even though the effect or damage that is sustained may enure in the future. What makes a wrong, a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation.”(emphasis supplied)

 

18. A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement. Section 3 of the MOFA imposes certain general obligations on a promoter. These obligations inter alia include making disclosures on the nature of title to the land, encumbrances on the land, fixtures, fittings and amenities to be provided, and to not grant possession of a flat until a completion certificate is given by the local authority. The responsibility to obtain the occupancy certificate from the local authority has also been imposed under the agreement to sell between the members of the Appellant and the Respondent on the latter.

 

19. Section 6 of the MOFA make the promoter responsible for payments of outgoings till the property is transferred. Section 6 reads as follows:

 

“6. Responsibility for payment of outgoings till property is transferred. – 

A promoter shall, while he is in possession, and where he collects from persons who have taken over flats or are to take over flats sums for the payment of outgoings even thereafter, pay all outgoings (including ground rent, municipal or other local taxes, on income taxes, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any), until he transfers the property to the persons taking over the flats, or to the organisation of any such persons, where any promoter fails to pay all or any of the outgoings collected by him from the persons who have taken over flats or are to take over flats, before transferring the property to the persons taking over the flats or to the organisation of any such persons, the promoter shall continue to be liable, even after the transfer of the property, to pay such outgoings and penal charges (if any) to the authority or person to whom they are payable and to be responsible for any legal proceedings which may be taken therefor by such authority or persons.”(emphasis supplied)

 

20. Sections 3 and 6 of the MOFA indicate that the promoter has an obligation to provide the occupancy certificate to the flat owners. Apart from this, the promoter must make payments of outgoings such as ground rent, municipal taxes, water charges and electricity charges till the time the property is transferred to the flat-owners. Where the promoter fails to pay such charges, the promoter is liable even after the transfer of property.

 

21. Based on these provisions, it is evident that there was an obligation on the Respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The Respondent has time and again failed to provide the occupancy certificate to the Appellant Society. For this reason, a complaint was instituted in 1998 by the Appellant against the Respondent. NCDRC on 20-8-2014 directed the Respondent to obtain the certificate within a period of four months. Further, NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the Respondent has failed to provide the occupancy certificate. Owing to the failure of the Respondent to obtain the certificate, there has been a direct impact on the members of the Appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the Respondent under the MOFA and amounts to a continuing wrong. The Appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation.”

 

7. Admittedly, in the present case, the possession of the Plot was given on 21.06.2016 but the actual size of the Plot was shorter by 60 sq. Mtr.  The Complainant had paid the price of allotment of Plot at PSP-1, Sector 22, Plot No. 15, Rohini, Delhi – 110085 admeasuring 3000 sq. mtr. thus, if the actual size of Plot offered is shorter by 60 sq. mtr, the demand of refund of excess amount alongwith compensation in the form of interest is continuing cause of action and the Principles laid down by the Hon’ble Supreme Court in above-referred cases will squarely be applicable to the fact of the present case.  Thus, there is continuous cause of action and the present Complaint is not barred by limitation.  The plea of the Opposite Party Authority that the complaint is barred by limitation is, therefore, rejected. 

 

8. So far as the contention of the Opposite Party Authority that after taking over the possession, the Complainant ceases to be ‘Consumer’ so as to invoke the jurisdiction under the provisions of the Consumer Protection Act, 1986, it may be mentioned here that the Hon’ble Supreme Court in the case of ‘Debashis Sinha & Ors. vs. M/s. RNR Enterprises’ [Civil Appeal No. 3343 of 2020 decided on 09.02.2023] has held as under:-

 

“11.      …….More often than not, the jurisdiction of the consumer fora under the C.P. Act is invoked postpurchase. If complaints were to be spurned on the specious ground that the consumers knew what they were purchasing, the object and purpose of the enactment would be defeated. Any deficiency detected post-purchase opens up an avenue for the aggrieved consumer to seek relief before the consumer fora……”

 

9. The short-fall in the area of the Plot given to the Complainant was detected after the possession had been given and, therefore, the Complainants are entitled to approach this Commission by filing the Complaint under the Provision of Consumer Protection Act, 1986.  Therefore, the plea of the Opposite Party Authority that after taking over the possession, the Complainant ceases to be ‘Consumer’ so as to invoke the jurisdiction under the provisions of the Consumer Protection Act, 1986, stands rejected. 

 

10. As far as the contention of the Opposite Party Authority that the Complainant Society is engaged in commercial activity and as such the Complaint is not maintainable before the Consumer Fora is concerned, it may be mentioned here that the Opposite Party Authority had held an auction of plots on lease hold basis for Hospital, Nursing Home and Polyclinics at various prime locations of Delhi.  The Complainant is a registered society and is engaged in various charitable activities in the field of Education and Medical Facilities.  It may be mentioned herein that the Hon’ble Supreme Court in ‘Lilavati Kirtilal Mehta Medical Trust vs. Unique Shanti Developers and Ors.’ (2020) 2 SCC 265, has considered the question of ‘Commercial Purpose’ in detail and laid down the broad-principles for determining whether an activity or transaction is ‘for a commercial purpose’ or not.  The relevant Para 19 of the Judgment passed by the Hon’ble Supreme court in ‘Lilavati Kiritilal Mehta Medical Trust (supra)’ is reproduced for ready reference:-

 

“19. To summarize from the above discussion, though a straightjacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial purpose’:

(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose’ is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.

 

(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity. 

 

(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. 

 

(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self-employment’ need not be looked into.”

 

11. After applying these principles to the facts of the case, the Hon’ble Supreme Court held that there was no direct nexus between the purchase of flats by Appellant Trust and the profit generating activities.  The same principle is also applicable in the present case as the Complainant is a charitable trust engaged in the activities of Education and Medical Facilities, thus, it cannot be said that the Complainants purchased the plot, in question, for commercial activities and the Complainant cannot invoke jurisdiction under the Provisions of Consumer Protection Act, 1986.  Therefore, there is no force in the contention of the Opposite Party Authority that the Complainant is engaged in commercial activity and as such the Complaint is not maintainable, and the same is also rejected.

 

12. So far as the contention of the Opposite Party Authority relying upon the decision of this Commission in ‘Allied (Garments) Exports Indus Tries Pvt. Ltd vs. DDA, 1990 SCC Online NCDRC41, that if the plot of land has been purchased in auction it is on ‘as is where is’ basis as such the Complaint is not maintainable, is concerned, it may be mentioned here that the Complainant had paid for a Plot of land admeasuring 3000 sq. mtr. but for the reasons best known to the Opposite Party Authority, the said plot was not allotted.  Instead, another Plot with lesser area admeasuring 2940 sq. mtr. had been handed over and that too after a long delay and the Complainant’s office bearers were made to run from pillar to post to get the possession of the Plot and that too with lesser area. Despite having received entire consideration for plot of land admeasuring 3000 sq. mtr., the Opposite Party Authority allotted plot admeasuring 2940 sq. mtr., therefore, the Opposite Party Authority is liable to refund the amount of short area of 60 sq. mtr. alongwith compensation.  Therefore, the decisions relied upon by the Opposite Party would not be applicable to the facts of the present case and the contention is rejected.

 

13. In view of the foregoing discussion, the IA No. 556 / 2022 filed by the Opposite Party Developer, is dismissed.  

 

CONSUMER COMPLAINT No. 1381 / 2018

14. It may be mentioned here that apart from the various pleas raised by the Opposite Party Authority on the maintainability of the Consumer Complaint, there is no other plea raised on the facts of the case.  It is not in dispute that despite having received the entire bid amount towards sale of Plot admeasuring 3000 sq. mtr., the Opposite Party Authority delivered the possession of the Plot admeasuring 2940 sq. mtr., i.e., the Opposite Party charged excess amount of  60 sq. mtr. Keeping in view the peculiar facts and circumstances of the case, the interest of the Justice would be met if the Opposite Party is directed to refund ₹34,58,000/- i.e., the excess amount of 60 sq. mtr. charged by them alongwith interest @12% p.a. w.e.f. the date of deposit of bid amount till the date of realization, which, in my considered opinion, is much less than the rate of interest charged by the Opposite Party Authority, in addition to the amount of interest paid by the Complainant to the Opposite Party Authority on the amount of ₹34,58,000/- while granting extension for payment of the balance amount.  Admittedly, on the request of the Complainant for extension of time for making the balance bid amount of ₹12,96,00,050/-, the Opposite Party Authority extended the time for making the payment of balance amount upto 15.02.2013 subject to payment of interest.  The Opposite Party Authority has charged ₹86,67,712/- towards interest for the extension period, which was provided on the request of the Complainant for payment of balance bid amount of ₹12,96,00,050/-, which in my considered view, the Complainant was bound to pay and cannot be said to be illegal. Consequently, the Consumer Complaint is partly allowed with the following directions:-

(i) The Opposite Party Authority is directed to refund ₹34,58,000/- i.e., the excess amount of 60 sq. mtr. charged by them alongwith interest @12% p.a. w.e.f. the date of deposit of bid amount till the date of realization within 6 weeks from today, in addition to the actual amount of interest charged by the Opposite Party Authority and paid by the Complainant on the amount of ₹34,58,000/- while granting extension of time for making the payment of the balance bid amount of ₹12,96,00,050/-.  It is made clear that if the aforementioned amount is not refunded within the aforesaid period, the rate of interest will increase to 15% p.a. instead of 12% p.a.

 

(ii) The Opposite Party Authority is directed to execute the lease deed of the Plot in favour of the complainant within 6 weeks from today.

(iii) The Opposite Party Authority is directed to grant N.O.C. for the purpose of construction and appropriately extend the period of completion of construction from the date of execution of lease deed and grant of NOC.

(iv) Keeping in view the facts and circumstances of the case, the Opposite Party Authority shall pay ₹1,00,000/- towards cost of litigation to the Complainant within four weeks from today.