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Judgment
CHEQUE
NO.","DATE OF
ISSUE","AMOUNT PAID
(Rs.)",DRAWN ON,RECEIPT NO.
233685,20.12.1995,"9,90,000/-","State Bank of
Saurashtra, CP, New
Delhi",1567
233686,21.12.1995,"9,90,000/","State Bank of
Saurashtra, CP, New
Delhi",1568
233687,22.12.1995,"9,90,000/","State Bank of
Saurashtra, CP, New
Delhi",1569
23688,23.12.1995,"9,90,000/","State Bank of
Saurashtra, CP, New
Delhi",1570
233689,26.12.1995,"9,90,000/","State Bank of
Saurashtra, CP, New
Delhi",1571
not approached the Civil Court, the Bench of this Court was of the view that the plaintiff should not be thrown out unheard; benefit of Section 14",,,,
should have been awarded to such a litigant who had filed his complaint before the Consumer Forum but because of inherent lack of jurisdiction, the",,,,
Consumer Forum could not have entertained his plaint. Learned counsel for the plaintiff rightly points out that this judgment would be wholly applicable,,,,
to the scenario of the instant case.,,,,
This Court is of the view that the benefit of Section 14 of the Limitation Act i.e. the period spent by the plaintiff in prosecuting the case in a wrong,,,,
form which exercise was bonafide and in good faith i.e. in wrong Court should be excluded; if the said period is excluded the suit of the plaintiff would,,,,
be within time.,,,,
This Court notes that the judgments relied upon by the defendant would not be applicable to the factual scenario of the instant case. In both the,,,,
aforenoted judgments, the Court of the view that the proceedings being preferred by the plaintiff were neither bonafide and nor in good faith; there",,,,
was a total absence of good faith which was the reason why the benefit of Section 14 of the Limitation Act had not been accorded in favour of that,,,,
litigant. In the instant case, the version is otherwise. The plaintiff had filed proceedings in the Consumer Forum within the period of limitation i.e. on",,,,
12.01.2004 which period had to be counted from June, 2001 (after the expiry of the period of 66 months). There is nothing on record which could",,,,
suggest that the action of the plaintiff in filing his complaint before the State Consumer Commission was with no other intention but for the intent of,,,,
making an effort to recover his money which he had paid to defendant No.1. This Court is of the considered view that such a party cannot go,,,,
unheard.,,,,
Accordingly, I.A. No.1843/2014 filed by the plaintiff for condonation of delay is allowed.",,,,
As a necessary consequence, the application under Order VII Rule 11 of the Code is dismissed.â€",,,,
As per the above order, the Plaintiff was given benefit of Section 14 of the Limitation Act during the period when it was pursuing proceedings",,,,
before the State Consumer Dispute Redressal Commission. Thereafter, parties attempted settlement which did not work out.",,,,
The matter is listed for framing of issues. However, a perusal of the pleadings shows that the fact that the Plaintiff had deposited the amounts for",,,,
booking of five flats is not disputed as per the pleadings. A perusal of the response to paras 5 to 9 of the reply on merits shows that the payments have,,,,
not been denied.,,,,
The execution of the booking agreements is not denied and the agreement to sell is not denied.,,,,
However, the Defendant merely states as under:",,,,
“5-9 Contents of paras under reply are denied as wrong and incorrect. Plaintiff be put to strict proof in respect of averment regarding booking of,,,,
five units/flats in DCM Tecno Plaza and payment of full consideration to defendant no.1. It is stated that a bare perusal of copy of the alleged,,,,
agreements to sell dated 02.04.1997 reveal that consideration was not paid in full and any averment to payment of full consideration is false and,,,,
mischievous. The averment that defendant no.1 represented to the plaintiff that there are no dues outstanding as against the authorities concerned and,,,,
that all formalities with regard to the approvals, sanctioning of the plans etc. have been completed is denied as wrong and incorrect.â€",,,,
During the course of the arguments, learned counsel for the Defendant submitted that though the tower in which the Plaintiff had booked the flats",,,,
is not available, there is another tower in which the Defendants are willing to allot space to the Plaintiff.",,,,
The present being a commercial dispute, it is not necessary that every suit has to go to trial. The stands of the respective parties clearly show that",,,,
the payments are being admitted, the factum of non-allotment of the flats being admitted, the agreement to sell and other documents are being",,,,
admitted, no useful purpose is served in sending the matter to trial.",,,,
In the written statement, the Defendant has tried to justify the delay in the allotment by giving the entire chronology of events leading to the project",,,,
DCM Techno Plaza becoming Central Square. The Defendants admit that the completion certificate for Plaza-2 has been applied for but is still,,,,
pending. Thus, the Defendant seeks to justify the non-allotment for such a long period.",,,,
The learned counsel for the Plaintiff submits that his client is no longer interested in taking space in the alternate tower being offered by the,,,,
Defendants inasmuch as the Plaintiff had made the booking for the purpose of office premises and the Plaintiff has already taken alternate premise.,,,,
The Defendants have enjoyed the sum of Rs.49,50,000/- paid by the Plaintiff since the year 1995 i.e. for 23 years. Admittedly, the Defendants ought",,,,
to have given an offer to the Plaintiff to take refund of the amount which they have enjoyed for 23 years. But the Defendants chose to continue to,,,,
litigate with the Plaintiff without any basis. The Defendants’ conduct is mala fide and dishonest to say the least.,,,,
There being no issue requiring oral evidence, in the present case, parties were heard finally in the matter. The facts set out above demonstrate that",,,,
the payment of the Plaintiff is liable to be refunded by the Defendants. However, the Defendants are also liable to pay interest on the sum paid by the",,,,
Plaintiff. The suit is decreed in the sum of Rs.49.5 Lakhs along with interest @ 8.5 % per annum from 2005 to 2015 and with interest @ 7.5 % per,,,,
annum from 2015 to 2018. The said payment shall be made within a period of eight weeks failing which an interest @ 12% per annum on the decretal,,,,
amount till realisation shall be liable to be paid.,,,,
In the facts and circumstances of the present case, costs of Rs.50,000/-are also imposed on the Defendants, to be paid to the Plaintiff within eight",,,,
weeks.,,,,
The suit is disposed of.,,,,