ORAL JUDGMENT PER JUSTICE MR. V.R. KINGAONKAR This appeal is preferred by the original complainant, being aggrieved by judgment rendered by the State Commission, in complaint case no. 54/2006. By the impugned judgment, the complaint was dismissed by the State Commission on spacious ground that it was barred by principle of res-judicata in view of the absence of prayer for recovery of the escalation cost of construction in the writ petition filed by the appellant and in view of inaction after the disposal of the representation by the Estate Officer. 2. It is not necessary to elaborately set out all the facts in detail. Suffice it to say that Plot No. 37 in Sector-32, Gurgaon was allotted to the appellant (complainant) on 29-06-1995 by the Respondents. The possession was to be delivered after completion of the development work. The construction was to be completed by the appellant within a period of three years after delivery of the possession. The possession was not delivered to the appellant, admittedly, till 13-12-2005. In the meanwhile, the appellant was served with a notice dated 14-03-2001 calling upon him to show cause as to why on account of breach of the conditions of the allotment letter dated 29-06-1995, the allotment be not cancelled and the plot be not resumed. The appellant challenged such notice by filing Civil Writ Petition No. 5378/2001. The High Court allowed the Writ Petition by order dated 31st October, 2003. The High Court directed the Respondents to deliver the possession and also quashed the notice whereby the appellant was called upon to explain as to why the plot be not resumed. The appellant had also claimed refund of interest amount of Rs.5.15 lakhs but the said prayer was not considered by the High Court and in review application filed by the appellant, the appellant was directed to make a representation to the Estate Officer. The appellant accordingly preferred review application before the Estate Officer. It, however, appears that the order of the Estate Officer was not appealed against and therefore, the question regarding payment of interest by the appellant and refund thereof was treated by the State Commission as a closed chapter. 3. The case of the appellant before the State Commission was that there was deficiency in the service because the Respondents did not complete the development work and, therefore, the construction cost had increased. The appellant further alleged that the amount deposited at the time of allotment of the plot was lying with the Respondents and could have earned interest. The appellant alleged that interest of Rs.37,71,882/- by way of compensation is recoverable from the Respondents along with compensation of Rs.52 lakhs on account of escalation of the cost of construction due to delay in delivery of the possession. 4. We do not wish to make any comment on the merits of the claim put forth by the appellant. For, the State Commission did not address the clinching issues involved in the complaint. The State Commission appears to have considered the fact that in the writ petition interest @ 18% was sought by the appellant and that was not allowed by the High Court vide order dated 31-10-2003. The State Commission further held that because the representation was rejected by the Estate Officer as regards the claim for interest and only excess amount was refunded to the appellant to the extent of Rs.1,72,730/-, and because no further appeal was preferred to the Chief Administrator, HUDA, the appellant was not entitled to claim such amount of principle of “Res-judicata”. We find such reasoning of the State Commission to be incorrect, improper and unacceptable. In fact, principle of “Res-judicata” as provided under Section 11 of the Civil Procedure Code will be applicable only and only when the relevant issue is decided by the Competent Court in any other proceedings between the parties. In the present case the two material issues involved were:-- i) Whether the delay in delivery of possession had resulted into any kind of financial burden on the appellant in respect of escalation of the cost of construction or that it was due to the act of the appellant that such additional burden of construction cost was required to be incurred? ii) Whether the appellant was entitled to recover interest @ 18% p.a. in respect of the deposit for which the refund was required to be made. 5. The admitted fact is that the construction could not be undertaken by the appellant due to delay in delivery of the possession. How much additional financial burden was to be incurred by the appellant is a question of fact. The State Commission should have called upon the parties to prove the quantum of such additional financial burden. The fact that the appellant had not sought recovery of escalation cost in the writ petition is, in our opinion, of no much significance in as much as the said writ petition was filed in the year 2001 and issue involved in the writ petition related only to the show cause notice served on the appellant in respect of the proposed resumption of the plot. Obviously, in that writ petition, the appellant was not required to claim any amount towards loss caused due to escalation of cost of construction. In our view, the appellant was required to prove such escalation in the cost of construction in the said writ petition. Taking extreme case, if the notice had not been issued then there was no question of seeking such a relief in the writ petition. It appears that it was only after direction of the High Court in 2003 that the possession was offered and delivered in 2005 and that gave the appellant cause of action to seek the recovery of escalation of cost of construction. We may observe here that the principle of res-judicata is not applicable in the fact situation of the present case. Without expressing any opinion on the merits and correctness of the claim, we deem it proper to set aside the impugned order and remit the matter to the State Commission for deciding the issues involved in the case afresh by giving due opportunities to both the sides to lead the evidence and hear them on merits. 6. The parties are directed to appear before the State Commission on 10-10-2011. The State Commission shall make endeavour for expeditious disposal of the complaint. The appeal is accordingly disposed of with no order as to cost. | 
