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 State Commission has not considered all these aspects and has allowed the refund of the deposited amount by the complainant along with 18 % p.a. interest. It was argued that about Rs.6,00,000/- were to be deposited by the complainant before he could have requested for possession as per the agreement. As the complainant had not paid the full amount of consideration, she was not entitled to file the complaint and the complaint was premature. 6. The learned counsel for the appellant further argued that there was a specific clause relating to arbitration for settlement of any dispute between the parties and therefore, the complainant was not entitled to file complaint before the consumer forum. 7. It was further argued by the learned counsel for the appellant that 18% p.a. interest on the amount to be refunded is on a very high side looking at the current scenario of bank interest rates and the amount of interest being ordered in judgments being passed by this Commission. As the complainant herself was a defaulter, in fact, she is not entitled to any interest even if the money is to be refunded. 8. On the other hand, learned counsel for the respondent/complainant stated that the complainant is entitled to ask for refund when the said property is not handed over within the committed time period for its delivery. As the due date of possession has already passed and the progress was not sufficient to believe the possession could be handed over within a reasonable time, there was no alternative, but to ask for the refund. Otherwise also if the opposite parties have breached the condition of contract by not adhering to the committed date of possession, the complainant is entitled to seek refund of the paid amount. The State Commission has rightly passed the order of refund along with 18% p.a. interest. 9. Learned counsel for the complainant stated that the appeal is not maintainable as it has been filed after a long delay of 67 days. No proper justification has been given for the delay. Even if it is accepted that the free copy was given and received by the applicant on 13.03.2012 the delay is not justified as the appeal has been filed on 13.06.2012. The main delay has been stated to have occurred on account of the fact that the counsel took six weeks’ time to prepare the appeal. The advocates are well qualified and know that the time for filing of the appeal is 30 days. It cannot be believed that the counsel would take six weeks time to prepare the appeal. The onus to file appeal rests on the appellant and not on the counsel. Accordingly, no proper reasoning has been given in the application for condonation of delay of 67 days. It was requested to dismiss the application for condonation of delay. 10. I have given a thoughtful consideration to the arguments advanced by the learned counsel for both the parties and have examined the material on record. Though the application for condonation of delay has been filed for condoning delay of 67 days, the Registry has reported 62 days delay. Be that as it may, there is substantial delay in the matter. The affidavit of counsel has been filed. Also the medical certificate advising rest from 06.01.2012 to 30.03.2012 has been filed. Hon’ble Supreme Court in the case of Esha Bhattacharjee vs. Managing Committee of RaghunathpurNafar Academy and Others., (2013) 12 SCC 649, has laid down:- 21. “From the aforesaid authorities (case laws referred) the principles that can broadly be culled out are: 21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. 21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. 21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. 21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: 22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. 22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. 22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters.” 11. The Hon’ble Supreme Court in another case N. Balakrishnan Vs. M.Krishnamurthy, (1998) Supp. 1 SCR 403, has laid down the following:- “11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. KuntalKumari, MANU/SC/0335/1968: [AIR 1969 SCR1006 and State of West Bengal Vs. The Administrator, Howrah Municipality, MANU/SC/0534/1971: [1972]2SCR874a. 13. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.” 12. From the above authoritative judgments of Hon’ble Supreme Court, the balance of justice is to be seen and it is to be seen that miscarriage of justice does not take place. On the ground mentioned in the application for condonation of delay, I deem it appropriate to condone the delay in filing the present appeal at a cost of Rs.2,00,000/- (rupees two lakhs only) to be paid by the appellant to the complainant. 13. Now coming to the merits, I find that there is some force in the arguments of the learned counsel for the appellant that full payment was not done by the complainant and therefore, he is not entitled to any relief. There was some delay in handing over the possession and the complainant moved to the consumer forum for refund of the deposited amount. On the other hand, it is also true that once the builder did not handover the possession in time, the allottee shall be entitled to ask for the refund as there has been breach of agreement by the builder. The State Commission has in overall interest of settling the dispute, has ordered refund of the deposited amount to the complainant. I do not find any error in this order. However, the State Commission has awarded interest at the rate of 18% p.a. from the date of deposit till actual payment, which seems to be on a higher side looking at the present scenario of the interest rates prevailing in the market and banks. Obviously, consumer complaint cannot become a medium for enrichment of any of the parties. This Commission has been generally ordering refund with interest ranging from 9%p.a. to 14% p.a. depending on the facts and circumstances of each case. In the facts and circumstances of the present case, I deem it appropriate to order refund of the deposited amount along with 12% p.a. interest. 14. Based on the above discussion, First Appeal No.321 of 2012 is partly allowed and it is ordered that the amount as ordered by the State Commission shall be refunded with 12% p.a. interest instead of 18% p.a. interest as ordered by the State Commission. The order dated 08.02.2012 of the State Commission stands modified to this effect only and with this modification the order of the State Commission is upheld. The appellant is also directed to pay Rs.2,00,000/-(rupees two lakhs only) as cost for condoning the delay in filing the present appeal. All the payments be made within a period of 45 days from the date of this order, failing which an additional interest of 3%p.a. shall be payable by the appellant from the date of this order till actual payment. No order as to costs for this appeal. | 
