National Consumer Disputes Redressal
Sadhana & 2 Ors. vs Sahara Prime City Limited & 9 Ors. on 2 June, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 683 OF 2015 1. SADHANA & 2 ORS. "MARK HAVEN" GROUND FLOOR, 12, APOLLO BUNDER, MUMBAI-400039, MAHARASHTRA ...........Complainant(s) Versus 1. SAHARA PRIME CITY LIMITED & 9 ORS. (REP. BY AUTHRIZED SIGNATORY SHRI ANUJ KUMAR DWIVEDI) SAHARA INDIA CENTRE, 2, KAPOORTHALA COMPLEX, LUCKNOW-226024 2. KETUBH CITY HOMES MAU PRIVATE LIMITED (REP. BY ITS AUTHRIZED PERSON SHREE PANKAJ) SAHARA INDIA BHAWAN, 1, KAPOORTHALA COMPLEX, LUCKNOW-226024 ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. Pawan Kumar Ray, Advocate For the Opp.Party : Appearance not marked.
Dated : 02 Jun 2017 ORDER JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)
The complainants booked a residential bungalow with the opposite party in a project namely 'Sahara City Homes', which the opposite party was to develop in Nagpur. A bungalow to be constructed on plot admeasuring 473.70 sq. mtr., and having built up area of 380.73 sq. mtr., was allotted to them by the opposite party. The parties then entered into an agreement dated 24.1.2009, incorporating their respective obligations, in respect of the said transaction. As per the allotment letter dated 02.3.2009, issued by the opposite party to the complainant, the possession of the bungalow was to be delivered within 38 months from the date of allotment subject to force-majeure circumstances. The possession therefore ought to have been delivered by 02.5.2012. The grievance of the complainant is that despite they having already paid a sum of Rs.1,43,56,000/- to the opposite party, the possession of the bungalow has not been offered and in fact even the construction is not complete, till date. The complainants are therefore, before this Commission seeking refund of the aforesaid amount of Rs.1,43,56,000/-, along with compensation quantified at Rs.1,43,56,000/- on account of deficiency in service and liquidated damages @ Rs.2.00 lacs per month with effect from May, 2012. They are also seeking cost of litigation and cost of sending legal notice to the opposite party.
2. The opposite party did not file written version even within 45 days from the date on which they were served, they having been served on 05.2.2016. The right of the opposite party to file written version therefore, was closed vide order dated 02.5.2016. By that time, almost three months from the date of receipt of notice by the opposite party had expired.
3. The complainants have filed affidavit by way of evidence in support of their case. I have heard the learned counsel for the parties. A perusal of the allotment letter issued by the opposite party to the complainant shows that the possession was to be offered to the complainant within 38 months from the date of allotment, though the offer of possession could be delayed on account of circumstances beyond the control of the opposite party. The aforesaid period of 38 months expired on 02.5.2012. There is no evidence of the possession having been delayed on account of reasons and circumstances beyond the control of the opposite party. Therefore, the opposite party is clearly deficient in rendering services to the complainants by not offering possession of the bungalow on or before 02.5.2012. The complainants cannot be compelled to wait any more for possession of the said bungalow and are entitled to seek refund of the amount paid by them to the opposite party, along with appropriate compensation.
4. The learned counsel for the opposite party states that the complaint is barred by limitation having filed in August, 2015. However, there is no merit in the contention since the failure to deliver possession of the bungalow gave rise to recurrent cause of action to the complainant as was held by the Hon'ble Supreme Court in Meerut Development Authority Vs. M.K. Gupta, in SLP (C) CC No.8481 of 2012, decided on 09.5.2012.
5. The learned counsel for the complainants states on instructions from Mr. Rakesh Mehra, who is present in the Court that in order to avoid further litigation in the matter, the complainant are restricting their claim to refund of the principal amount of Rs. 1,43,56,000/- paid by them along with compensation in the form of simple interest @ 10% from the date of each payment, till the date on which the entire refund, along with compensation is made. The complaint is therefore disposed of with the following directions:
(i) The opposite party shall refund the principal amount of Rs. 1,43,56,000/- to the complainant along with compensation in the form of simple interest @ 10% per annum from the date of each payment, till the date on which the entire principal amount, along with compensation in the form of interest, in terms of this order is actually refunded ;
(ii) The opposite party shall also pay a sum of Rs.10,000/- as cost of litigation to the complainants;
(iii) The payment in terms of this order shall be made within three months from the date of this order.
......................J V.K. JAIN PRESIDING MEMBER