National Consumer Disputes Redressal
Mrs. Anju Vinod Saraswat, vs The Managing Director, Sahara Prime ... on 20 September, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 266 OF 2014 1. Mrs. ANJU VINOD SARASWAT, 102, Sanskar Apartment, Near Jain Temple, 6/2, Patel Colony, JAMNAGAR - 226024. ...........Complainant(s) Versus 1. THE MANAGING DIRECTOR, SAHARA PRIME CITY LIMITED, Sahara India Centre, 2, Kapoorthala Complex, Aliganj, Lucknow - 226 024 Uttar Pradesh 2. The Managing Worket & Chairman, Sahara Prime City Limited, Ground Floor, Sahara Store, Oppo. Domestic Airport, Vile Parle East, Mumbai - 400 099. Maharashtra 3. The Asst. Chief Manager Sales, North Zone Sales Office, Sahara Prime City Limited, JMD Pacific Square, 1st Floor Near 32 Mile Store, Sector 15 Part II, NH 8, Gurgaon - 122 001. Haryana 4. . . . ...........Opp.Party(s) BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER For the Complainant : MR. SANJEEV KUMAR VARMA, For the Opp.Party : Ms Neha Gupta, Advocate with Mr Rishabh Pant, Advocate Dated : 20 Sep 2022 ORDER PER MR SUBHASH CHANDRA, PRESIDING MEMBER This complaint is filed under section 21 (a) (i) of the Consumer Protection Act, 1986 (hereinafter 'Act') alleging deficiency in service and unfair trade practice by M/s Sahara Prime City Limited, Kapoorthala Complex, Aliganj, Lucknow, the opposite party, in respect of an independent semi-detached house booked by the complainants in project 'Sahara Prime City', Hardoi Road, Lucknow (in short 'the project') promoted and developed by the opposite party.
2. The brief facts of the case are that the complainant had booked an independent, semi-detached house (hereinafter, the 'Unit') with the opposite party in the project on 29.07.2011 by paying a booking amount of Rs.5.29.594/-. As per letter dated 29.07.2011 issued by the opposite party, Unit no. S4/12A (Unit Code 061) with unit area 292.81 sq m and plot area of 278.90 sq m was allotted to the complainant at a sale consideration of Rs.99,50,000/-. Possession of the said unit was promised as per payment plan extending to 18 months in this letter, i.e., by 12.05.2013. On 30.07.2011, the opposite party issued a letter that a discount against cash down payment of Rs 5,37,300/- had been extended to the complainant. However, despite timely payments made by the complainant through 18 instalments after availing a loan of Rs 30 lakhs from LIC Housing Finance Ltd., Lucknow, the construction of the flat has not been completed by the opposite party till the date of filing of the complaint. No offer of possession has also been made by the opposite party despite the lapse of nearly 1 year 2 months as on the date of filing of this complaint, i.e., 30.07.2014. It is averred that the opposite party has been making false promises of completion of the project and is now citing reasons 'beyond their control' to cover the deficiency in service.
3. It is averred by the complainant that at the time of booking of the unit she was assured by the opposite party that the project would be completed in 18 months. As on February 2013, she had paid Rs 96,94,607/- which amounted to 97% of the total cost. This included the loan from LIC Housing Finance Ltd which was disbursed in 6 instalments. The opposite party has been raising demands which the complainant has been complying with. She paid Rs.2,61,969/- vide cheque dated 27.01.2014 and Rs.12,73,698/- vide two cheques dated 12.02.2014 against full and final payment. Thereafter, another demand letter was issued dated 20.03.2014 for Rs.16,400/- for electrical maintenance charges and Rs.3,48,250/- on account of Sales Tax while conveying that the possession of the house would be done by 31.12.2014. She has been repeatedly writing to the opposite party since 13.03.2012 to enquire about the status of her unit in the said project but has received no reply. The complainant submits that she was orally informed at the site that the project would be completed by September-October 2013 but as per situation on ground the construction is hopelessly behind schedule and is unlikely to be completed anytime soon. As the project has been inordinately delayed, complainant has claimed refund of the amount deposited along with compensation by way of interest etc and is before us with the following prayer seeking:
(a) Allow the instant complaint; (b) Direct the opposite parties to immediately handover possession of the said house to the complainant within specified time without claiming any other amount as she had already made total payment of Rs.1,13,38,649/-, i.e., excess payment of Rs.13,88,649/- against total cost of house of Rs.99,50,000/-; And
Direct the opposite parties to fulfil the necessary formalities at the earliest like execution of conveyance deed/ mutation in respect of said house in favour of the complainant and the complainant is ready and willing to pay necessary charges for the same;
OR In alternative direct the opposite parties to provide alternative house to the complainant in the same vicinity and to charge the same old rate for the alternative house at which the original house was allotted to the complainant as per Original Terms and Conditions of allotment letter.
OR Direct the opposite parties to refund the said total deposited amount of Rs.1,13,38,649/- with interest @ 24% per annum as she had also availed loan from the LIC Housing Finance Limited and paying the loan instalments.
(b) Direct the opposite parties to pay the complainant damages/ compensation of Rs.20 lakh for mental agony and physical harassment for unavailability of accommodation in time and in respect of delay from the stipulated date of possession till actual possession is handed over;
(c ) Direct the opposite parties to make payment of Rs.55,000/- towards litigation expenses borne by the complainant;
(d) Direct the OPs to pay Rs.20,000/- as cost of conveyance for visiting the different offices and construction site of the OPs; and ( e) Grant the complainant such other and/ or further relief(s) as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the present case and render justice.
4. The complainants have relied upon this Commission's orders in Sadhana and Ors vs Sahara Prime City Limited and Ors - IV (2017) CPJ 299 (NC), Sanjay Kumar Airen and Anr. vs Sahara Prime City Limited and Anr. - II (2017) CPJ 191 (NC) and Sahara India Parivar and Ors vs Rajinder Kumar - II (2018) CPJ 1 (NC) and Sahara Prime City Ltd., and Anr. vs Tamil Nadu Consumer Protection Organisation and Ors, - IV (2018) CPJ 598 (NC) wherein compensation per annum on account of harassment, mental agony and cost of litigation was awarded in similar matters of delayed possession.
5. The complaint has been resisted by the opposite party by way of written submission. By way of preliminary objections, it is contended that the complainant has no cause of action as she is not a 'consumer' under the terms of section 2(1)(d) of the Consumer Protection Act, 1986 since she is a resident of Jamnagar, Gujarat and is only an investor who is seeking to profit from the booking. It is also contended that the complainant has not been able to establish any cause of action or deficiency in service. It is contended by the opposite party that delay is due to reasons not attributable to the opposite party in view of the orders of the Hon'ble Supreme Court in SEBI vs Sahara India Real Estate Corporation Ltd., - Contempt Petition (Civil) no. 412 of 2012 in CA no. 9833 of 2011 which prohibited the opposite party from alienating its assets.
6. The case of the complainant is that there has been an inordinate delay in handing over possession of a residential unit for which he has deposited instalments as per the payment plan and that he is entitled to compensation. It is his case that the delay is inordinate since no offer of possession has been made even on date which is 9 years 5 months from the date of promised possession (12.05.2013) and amounts to deficiency in service.
7. The opposite party has denied making false or misleading promises and averred that the reasons for the delay in completing the project and obtaining an occupation certificate were not in its control. It is not denied that an offer of possession has not been made so far. Opposite party has relied upon judgements of the Hon'ble Supreme Court (supra) to deny any unfair trade practice on its part.
8. Parties filed their written synopsis. We have heard the learned counsels for the parties and perused the records carefully. Admittedly, there has been a delay of over 9 years in the handing over the subject unit. The opposite party has not denied the receipt of Rs.1,13,38,649 /- towards the sale consideration of the subject unit. The reasons for the delay advanced by the opposite party is the force majeure ground for the delay in completion of the construction in view of the order of the Hon'ble Supreme Court. This cannot be considered as a valid ground in view of the fact that it was his risk to manage having collected deposits against the booking made. The order in SEBI vs Sahara India Real Estate Corporation Ltd., is distinguishable from the present case in that there is no order of the Hon'ble Supreme Court prohibiting the handing over of units booked by consumers against deposits in projects of the opposite party. Rather the assets relate to those held by the opposite party and not apartments under construction booked against payment by consumers. For this reason, the contention of the opposite party is without merit and cannot be sustained.
9. As regards the contention of the opposite party that the complainants are seeking to profit from the booking of the flat, it has been settled by this Commission in Kavita Ahuja vs Shipra Estates - I (2016) CPJ 31, wherein it was held that "the onus of establishing that the complainant was dealing in real estate, i.e., in the purchase and sale of plots/ flats for commercial purposes to earn profits lies upon the opposite party". This has not been done in the present case. Further, in Rajnish Bhardwaj and Ors vs M/s CHD Developers Ltd., and Ors in CC no. 3775 of 2017 decided on 26.11.2019, this Commission has observed as under:
"13. The first contention of the Learned Counsel for the Opposite Party that the Complainants are not "Consumers" and only "investors" is not supported by any documentary evidence. In a catena of judgments, this Commission has laid down that the onus of proof shifts to the Opposite Party to prove that the Complainant is "investor" and it is observed that the Opposite Party did not discharge their onus of proof regarding this aspect. Hence, we are of the considered view that the Complainants are "Consumers" as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986".
The contention of the opposite party that the complainant are not consumers is, therefore, not valid and needs to be rejected.
10. There is an admitted delay in handing over possession. Even as on date there is neither an occupation certificate nor an offer of possession by the opposite party. In light of the judgement of the Hon'ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd., vs Govindan Raghavan and Connected matter in Civil Appeal no. 12238 of 2018 decided on 02.04.2019 and in Civil Appeal no. 3182 of 2019 - Kolkata West International City Pvt., Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC, decided on 25.03.2019 wherein it was laid down that "...it would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession...A buyer can be expected to wait for a reasonable period. A period of seven years is beyond what is reasonable". Further, in Fortune Infrastructure & Anr. Vs. Trevor D'Lima & Ors. - 2018 (5) SCC 442 the Hon'ble Apex Court held that "a person cannot be made to wait indefinitely for possession of the flat allotted and is entitled to refund along with compensation". The prayer of the complainant for refund with compensation in the form of interest is, therefore, justified and sustained.
11. In view of the foregoing I am of the considered view that there has been deficiency in service as well as unfair trade practice on part of the opposite party in respect of the flat booked by the complainants. For the aforesaid reasons, I am inclined to accept the contentions of the complainants and allow complaint with the following directions:
(i) opposite party shall refund the amount of Rs. 1,13,38,649/- deposited by the complainant towards the sale consideration of the flat with interest @ 9% from the respective dates of deposit till the date of payment;
(ii) opposite party shall also pay Rs 50,000/- as litigation costs to the complainant;
(iii) this order be complied with within 8 weeks failing which the amount to be repaid shall be repaid with 12% rate of interest.
12. The complaint is disposed of with these directions.
...................... SUBHASH CHANDRA PRESIDING MEMBER