1.     This appeal under section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’) challenges the order dated 18.01.2021 of the State Consumer Disputes Redressal Commission, Chandigarh in Consumer Complaint No.22 of 2020 filed by the complainants and directing the refund of Rs.9,75,285/- paid by them with interest @ 12% per annum from the respective dates of deposits, within 30 days, failing which to refund, with penal interest of 3% (i.e. 15%), from the date of the order till realization along with compensation for harassment and litigation cost of Rs.50,000/-.

2.      The brief facts of the case are that the appellant launched a project “The Valley” at Sector-3, Pinjore-Kalka Urban Complex, Panchkula, Haryana in which the complainants booked an independent floor on 12.03.2012 and were allotted floor No.DVF-F4/4-FF for a sale consideration of Rs.6,570,155.04/-.  Payments were to be made as per 2 year Construction Linked Payment Plan under clause 11 (A) of the Allotment Letter the project was to be completed within 24 months, subject to force majeure conditions. The appellant paid a sum of Rs.9,75,285/- in two installments and did not make any further payments. Accordingly, the allotment was cancelled on 09.05.2014 by the appellant after several notices for making the necessary payments.

3.        The appellant submits that the Punjab and Haryana High Court in Tara Chand & Ors. Vs. M/s. DLF Homes Panchkula (P) Ltd. & Ors. in W.P. No.6230/2010 vide order dated 06.04.2010 had restrained the appellants from creating any third party rights and to ensure that there was no change in the nature of the land or any further construction activity. Since this order covered the unit in question and project land, the appellants were unable to proceed with the project. This order was stayed by the Hon’ble Supreme Court in SLP (Civil Appeal) No.10663 of 2010 dated 23.07.2010. However, another SLP No.21786-88 of 2010 was filed before the Hon’ble Supreme Court in Ravindra Singh Vs. State of Haryana & Ors., which stayed the construction activities at the project site, vide its order dated 19.04.2012. Therefore, the appellant contends that it was unable to proceed with the project. It is submitted that vide its order dated 12.12.2012, the Hon’ble Supreme Court vacated its order in the said SLP whereafter the appellants  resumed the project and obtained revised approvals from the concerned authority on 06.09.2013 and 14.08.2014.

4.     It is stated by the appellants that the respondent filed a CC No.22 of 2020 before the State Commission, Chandigarh on 15.01.2020 which came to be decided on 18.01.2021 and is impugned by way of this appeal.

5.     We have heard learned counsels for both the parties and perused the material available on record.

6.     The appellant contends that that impugned order is erroneous since it has failed to appreciate that the allotment of the flat to the complainants had been cancelled by it on the grounds of default in payment and that the complainant was barred by limitation under Section 24 A of the Act. It is also contended that the appellant was covered by force majeure conditions with respect to delay in completion of the project.

7.     The appellant’s contention is that the State Commission erred in its order since the allotment to the respondents had already been cancelled by the appellant and the necessary refund sent to it after deducting the earnest money. The respondents did not challenge the cancellation order dated 09.05.2014 and instead claimed refund on the ground of deficiency in service. Since the cancellation order was dated 09.05.2013, the complaint filed before the State Commission dated 15.01.2020 was barred by limitation under Section 24 A of the Act. It was also stated the respondents’ contention that the fact of cancellation was conveyed to them only vide letter dated 09.01.2017 was incorrect and that notwithstanding this, even from this date the complaint before the State Commission was in breach of Section 24 of the Act.

8.     On the other hand, the respondents contend that they had not made subsequent payments on account of lack of progress on the project site and that they were entitled to refund in view of the fact the project which should have been completed by March 2014 had been delayed and that by its own admission, appellant had received approvals in August to September 2019 for the project which should have been completed by August 2014.

9.      It is also contended that a cheque for refund of Rs.2,80,756/- had been received from the appellants which was not encashed since the deposited amount was Rs.9,75,285/-.They received no replies to their e-mails thereafter for the refund of the entire amount but were informed only on 09.01.2017 along with a demand draft for Rs.2,80,756/- dated 14.12.2016 than the allotment itself stood cancelled.

10.    The State Commission held as under:-

     “….. since the opposite parties are still utilizing the amount paid by the complainants and have not refunded the same, as such, in that event there is a continuing cause of action in their favour, in view of observations made by the Hon’ble National Commission in KNK Promoters & Developers Versus S.N. Padmini, Revision Petition No.340 of 2011, decided on 31 August 2016 in which it was held that the builder cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee and if it is so, there is a continuing cause of action in favour of the allotte, to file a complaint seeking refund of the said amount.

     In the instant case, fault, if any, as explained above, was on the part of the opposite parties and they cannot take benefit out of that by saying that the consumer complaint is barred by limitation. In National Insurance Co. Ltd. Vs. Hindustan Safety Glass Works Ltd. And allied cases, in Civil Appeal No.3883/2007, decided on 07.04.2017,the Hon’ble Supreme Court of India held that the provisions concerning the limitation issue in the Act, 1986 could not be strictly construed to the disadvantage of a consumer in cases, where the supplier of goods or services itself was instrumental in causing delay”.

Relying upon the principle of law laid down by the Hon’ble Supreme Court’s Judgment in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 the State Commission had proceeded to award an interest rate of 12%.

11.   From the facts of this case, it is evident that the appellant had cancelled the allotment made to the respondents and also sent a demand draft for refund after deducting the earnest money in respect of the independent floor allotted to it. While there is a dispute between the parties as to the date on which the cancellation was done, it is admitted that a demand draft of Rs.2,80,756/- dated 14.12.2016 was sent to the respondents which they admittedly did not encash. The complaint before the State Commission was filed on 15.01.2020.

12.   It is nevertheless a fact that cancellation of allotment was indeed done on the basis of non-compliance by the respondents with regard to demands for payments. Therefore, reckoned from the date of cancellation i.e. 09.05.2014, the complaint was entirely barred by limitation. There is no application for any condonation of delay filed before the State Commission seeking condonation of delay.

13.   The Hon’ble Supreme Court has held in Ram Lal and Ors. Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361, that the condonation of delay is not a matter of right and where                        no sufficient reasons are shown, the Court/Commission has no other discretion but to dismiss the application.  The Hon’ble Supreme Court has observed as under:

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the Condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for Condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

(Emphasis added)

14.  It has been held by the Hon’ble Supreme Court in R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC) as under:-

"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

15.   In Anshul Aggarwal vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578, the Hon’ble Supreme Court clearly stated that while dealing with the applications for condonation of delay under the Consumer Protection Act, 1986 the special nature of the Act shall also be kept in mind.  The Hon’ble Court has held as under:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer Fora."

16.   The complaint was barred by limitation before the State Commission. The State Commission also erred in not considering the fact that there was no application for condonation of delay and proceeded to adjudicate in the matter without addressing the fundamental issue of delay.

17.   For this reason, the appeal is liable to succeed. The complaint is accordingly allowed and the impugned order of the State Commission is set aside. There shall be no orders as to costs.

18.   All pending I.As., if any, stand disposed off with this order.