JUDGMENT - W.M. SAMBRE, President :---The learned Counsel Mrs. Chiddarwar for the complainant and Mrs. Padole, Counsel for the respondent present. 2. The grievances of the complainant is that she entered into an agreement with the respondent on 30-7-85 for purchase of a flat for a cost of Rs. 2,32,900/- admeasuring 1140 sq. ft. This cost was including the cost of the land. It was agreed that the payment was to be made in stages as per the progress in construction as per Clauses 2 and 3 of the agreement. Defendant also had agreed that the possession was to be given in May, 1988. 3. Mrs. Chiddarwar, Counsel for the appellant contended that inspite of the fact that the possession was to be given in May, 1988, the construction itself was not completed. The respondent issued a letter on 22-6-1988 and second letter on 20-7-88 informing the complainant that the possession of the flat will be given upto the end of June, 1989. Even on 30-6-1989, the construction was going on and the flat was not completed. The respondent again wrote a letter on 30-6-1989 informing this complainant that the possession of the flat will be given in March, 1990. From March, 1990 to December, 1990 no possession of the flat was given. On the other hand the letter was addressed to the complainant by the builder on 29-12-1992 wherein the complainant along with others was called for discussion about the escalation in price. This delay in giving possession is on the part of the builder has not been disputed by the respondent. Even for the delayed payment, the Clause 8 prescribed the procedure. The letter was addressed on 7-7-1986 by the respondent builder that the area of construction of the flat has been increased by 120 sq. ft. This letter of the builder was also replied by the complainant wherein it has been specifically stated that the complainant has not asked for the increased space and she is satisfied with the flat of 1140 sq. ft. and, therefore, she is not bound to pay any more cost. Considering the conduct of the respondent builder that the flat was not ready upto 1992 she was constrained to file this complaint claiming refund of the amount as she was not hopeful that the construction will be completed within the stipulated period as assured by the respondent builder. ft. and, therefore, she is not bound to pay any more cost. Considering the conduct of the respondent builder that the flat was not ready upto 1992 she was constrained to file this complaint claiming refund of the amount as she was not hopeful that the construction will be completed within the stipulated period as assured by the respondent builder. She contended that the original agreement was to deliver the flat in May, 1988. The respondent builder could not complete the work of flat for delivering the possession till December, 1992. This five years waiting period was too much for this complainant as she has made payment to the builder with expectation that she would be living in her own house after the retirement of her husband from Air Force Service. This dream of the complainant could not come true because of the lapses on the part of the respondent. She was required to occupy rental premises for which she is paying the rent and, therefore, she claims that this rental amount also should be recovered from the builder and it be paid to her for the period from May, 1988 till to-day at Rs. 1000/- per month. She also stated that a promise was made by the builder that complainant should occupy the flat belonging to some body else on the 3rd floor. But no clarification about anything was made as this complainant was insisting on transfer of atleast that flat in her name which the respondent declined. Therefore, the complainant claims that she has been deprived of her rights to occupy the flat from May. 1988 till to-day i.e. for a period of seven years and, therefore, she has no hope to get any flat in near future from the respondent as there is no electric supply, water supply and there are no lifts installed even to-day and, therefore, she declared that she can not live on the assurance of the builder when he could not complete the said construction for such a long period of seven years, when she was to be placed in possession of the flat in 1988. Therefore, the complainant claims that an amount of Rs. 1,000/- per month be paid to her towards rent from May, 1988 till to-day, she also claims that her amount of Rs. Therefore, the complainant claims that an amount of Rs. 1,000/- per month be paid to her towards rent from May, 1988 till to-day, she also claims that her amount of Rs. 2,25,900/- she paid should be refunded to her along with the interest at 18% p.a. She explained that the balance amount of Rs. 7000/- was not paid as it was agreed that the balance amount of Rs. 7,000/- was to be paid on the date of possession. Therefore she claims that this amount of Rs. 2,25,900/- be paid to her along with interest @ 18% p.a. The complainant also claims that she should be paid compensation of Rs. 50,000/- for mental harassment and mental agony due to the non-completion of the flat. She also claims the cost of Rs. 4000/- from the respondent. She further contended that she is not liable to pay any escalation charges as delay was caused due to the lapses on the part of the builder and there is no question of any escalation charges to be paid by the complainant to the builder. 4. Mrs. Padole learned Counsel for respondent contended that there are no lapses on the part of the respondent. No doubt there was delay in construction and handing over the possession of the flat of the complainant but that was due to some internal problems as the present builder has taken over from the previous builder in the year 1990 and he has spent Rs. 50,00,000/- which he borrowed at the rate of 18% interest from the outside agency. This shows that he had bona fide intention to complete the construction. She also contended that the delay in giving possession was due to hurdle created by the M.S.E.B. as they did not supply the electricity, and second one due to non-supply of water and installation of lift by OTS. Eventhough the respondent was ready and willing to pay the charge for the same and which he has already paid. She contended that considering the facts that there are bona fide reasons for the delay in delivery of the possession, the complainant in not entitled to any interest as claimed by her. She also contended that complainant is also not entitled for the rental claim nor any compensation. Mrs. Padole also contended that certain internal work has been executed by the respondent at the instance of the complainant. She also contended that complainant is also not entitled for the rental claim nor any compensation. Mrs. Padole also contended that certain internal work has been executed by the respondent at the instance of the complainant. The costs of which comes to Rs. 43,000/- which has not been paid by the complainant. Similar is the case with the escalation charges. The respondent was called for discussion about the escalation charges of the construction but the complainant refused to attend the said meeting. Respondent contended that he is ready and willing to hand over the possession within three months from to-day. He also sent a fresh demand of Rs. 1,67,000/- vide letter dated 21-4-95 which includes escalation charges alongwith the other charges. Mrs. Padole contended that this amount is due to be received from the complainant and, therefore, there are lapses; on the part of the complainant herself in making payment of the instalment which has caused the delay in construction. 5. Mrs. Padole further contended that there are breaches on the part of both the sides. If the breach of agreement is in existence then the commission has no locus standi to entertain the complaint in view of the decision of the National Commission in case of (M/s. Suresh Steal Haribagh v. R.T. Sharma)1, reported in 1991 C.P.J. page 427. She also relied upon (Gunindar Bedi v. Delhi Development Authority)2, 1993 C.P.J. page 404 which deals with escalation charges claimed by the D.D.A. Considering all these aspects Mrs. Padole contended that there are no lapses on the part of the builder who is even to day ready to hand over the possession of the flat within a period of three months. Therefore, this complaint itself is liable to be dismissed. She also contended that this complaint itself is time barred as the possession was to be given in May, 1988 and this complaint is filed in 1993. 6. After hearing the learned Counsel and after going through the records, the contention raised by the complainant on the basis of the agreement that she was entitled for the possession of the flat in May, 1988 has not been disputed by the respondent builder. The agreed cost of Rs. 2,32,900/- is also not disputed for 1140 sq.ft. flat including cost of the land by the parties. The agreed cost of Rs. 2,32,900/- is also not disputed for 1140 sq.ft. flat including cost of the land by the parties. It was also agreed that the payment was to be made in stages as per progress in the construction but it is the case of the respondent builder that there is breach on the part of the complainant in making payment even on the basis of the stages. The respondent has failed to bring to our notice the specific defaults committed by the complainant as regards the payment which were due on a particular day and they were not paid by the complainant. The possession has been delayed is also not disputed. The builder was ready and willing to hand over the possession after 1989, but the complainant was not accepting as the flat was on the VIIth floor it was not possible for her to occupy the said premises without the facility of water, electricity and lift. The claim of the respondent builder that he was entitled for the escalation charges is not correct. We are of the view that there is no provision in the agreement to any escalation charges as the possession was to be given in May, 1988, when the possession was not given in May, 1988, the default is committed by the respondent and whatever delay is caused in construction which has escalated the prices was due to the fault on the part of the respondent builder and, therefore, there is no question of payment of escalation charges as claimed by the respondent builder. The complainant cannot be held responsible for any escalation charges. 7. The citation relied upon the Mrs. Padole as regards escalation charges cannot be made applicable to this case for the reasons that the case cited is about Delhi Development Authority. It is pertinent to note that this development authority recovers the actual costs of the construction from the allottee and, therefore, the ratio cited by Mrs. Padole does not come to her rescue. As regards the limitation, Mrs. Padole contended that the flat was to be allotted in May, 1988 while the same has not been given till to-day when the complaint came to be filed in the year 1993 i.e. after five years. Padole does not come to her rescue. As regards the limitation, Mrs. Padole contended that the flat was to be allotted in May, 1988 while the same has not been given till to-day when the complaint came to be filed in the year 1993 i.e. after five years. It has been pointed out by the Counsel for the complainant that there is continuous cause of action and, therefore, she referred to the letter of 21-12-1992 which was addressed by the builder to the complainant inviting her for consideration of the escalation charges. Mrs. Padole states that letter is not written by the builder. It is merely a notice. Even assuming that this is a notice issued by the builder still this notice/letter itself brings the cause of action in limitation. A part from this fact there is no question of limitation as the possession has not been handed over from time to time through the letter addressed assuring possession to be given on 1988, 89 and 90. Hence, we are of the view that this conduct on the part of the respondent builder brings continuity to the cause of action. The recent letter of 21-4-1995 makes the position absolutely clear. Therefore, this point of limitation also does not come to the rescue of the respondent. The third point raised is about the jurisdiction of this forum as there is breach of the agreement on both the sides and this matter is required to be taken cognisance by the Civil Court. This contention of Mrs. Padole no doubt true only to the extent of non-payment of Rs. 7,000/- by the complainant which in our view cannot be treated as a breach, and it cannot be accepted in this case for the reason that this Commission certainly has jurisdiction to deal with the cases when the service rendered by the builder himself is having latches and infrigment of agreement is on the part of builder and not the complainant. Therefore, the citation cited by Mrs. Padole is of no consequence. 8. As regards the claim of the respondent builder that the area of flat has been increased from 1140 to 1260 sq.ft. and, therefore, extra charges required to be paid was also not correct. Therefore, the citation cited by Mrs. Padole is of no consequence. 8. As regards the claim of the respondent builder that the area of flat has been increased from 1140 to 1260 sq.ft. and, therefore, extra charges required to be paid was also not correct. Complainant has stated that she entered into an agreement for 1140 sq.ft for which she has paid the amount and she is not in a need of 1260 sq.ft. area which the builder is going to allot her. This will also show that this demand made by the builder has not been accepted by the complainant and, therefore, she is not liable to pay any charges even for the increase of the flat area for which the demand is made by the respondent builder in April, 1995. In case the said excess area is thrusted upon the complainant she was ready to accept without further payment. Therefore, on this count also the complainant has specifically stated that she does not want any excess area of the flat and she is not ready and willing to pay any excess amount beyond the agreement. This will show that the complainant had adhered to the agreement for all the purposes and this agreement has been flouted by the respondent builder. The conduct of the builder amply shows that he was unable to hand over the possession as agreed in the year 1988. There was assurance given by the builder to give possession in June, 1989 which he did not do. Again he assured on 31-7-1989 to hand over the possession in March, 1990, once again the respondent failed to hand over possession in March, 1990. She has also refused to attend any meeting called by the builder for escalation of costs for the reasons that she was not responsible for the escalation as she was to get the possession of the flat in May, 1988. Mrs. Padole on behalf of the respondent contended that there is no question of payment of any rent as claimed by the complainant as on informal order was made for occupation of 3rd floor by the complainant, but she admits that there is nothing on record to that effect. Mrs. Padole on behalf of the respondent contended that there is no question of payment of any rent as claimed by the complainant as on informal order was made for occupation of 3rd floor by the complainant, but she admits that there is nothing on record to that effect. Her contention is that the builder is ready to handover possession within a period of three months as builder has been assured electric supply by M.S.E.B., within a short period as well as water connection by the Corporation and also assurance given by the OTS to install lift in the building. But there is nothing on record to show that there are positive signs that the possession will be given in three months as stated by Mrs. Padole, Mrs. Chiddarwar stated that the grievance of the complainant is that she is fed up with the tactics of the respondent builder causing delay to the extent of seven years, in giving possession of the flat. She may not get the said flat again for an unlimited period and, therefore, her claim for compensation, refund of deposit along with the interest in our view appears to be genuine and perfectly right. The complainant is entitled for the interest at 18% on the amount deposited with the builder from the date of its deposit till the final refund is made. We direct the respondent to return back the amount of Rs. 2,25,900/- along with the interest at 18% to be calculated from the date of payment of each instalment till its realisation to be paid within four weeks from the date of this order. The appellant complainant is also entitled to the compensation amounting to Rs. 50,000/- for the mental agony and harassment she suffered. The complainant is also entitled to the cost of Rs. 2,500/-. We are of the view that the complainant is not entitled for the rental benefit as claimed by the complainant and, therefore, her claim for rental amount is hereby turned down. Hence, we pass the following order :- ORDER: 9. The respondent is directed to refund back the amount deposited by the complainant amounting to Rs. 2,25,900/- along with interest at 18% p.a. to be calculated from the date of deposit of each instalment till the final refund is made. The complainant be also paid compensation of Rs. Hence, we pass the following order :- ORDER: 9. The respondent is directed to refund back the amount deposited by the complainant amounting to Rs. 2,25,900/- along with interest at 18% p.a. to be calculated from the date of deposit of each instalment till the final refund is made. The complainant be also paid compensation of Rs. 50,000/- for the harassment and mental agony suffered by her as she did not get the flat from May, 1988 to till to-day. The complainant should be paid costs of Rs. 2,500/-. All these amounts shall be paid by the respondent within a period of four weeks from the date of this order. With the above direction, this complaint stands allowed. *****