Atul Kumar Gupta & Anr vs M/s Sahara India Commercial Corporation Ltd. & Ors

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Mohd. Faris, Advocate, for the complainants. In spite of service of notice, none appeared, for the opposite parties.

Atul Kumar Gupta and Mrs. Lokeshwari Devi have filed above complaint, for directing the opposite parties, jointly and severally (i) to handover possession of plot and villa, complete in all respect, containing Plinth No.189 admeasuring 1171 sq.mtrs. Survey/Gat No.37, village Deogar, Taluka Mulshi, district Pune, Maharashtra, after taking balance consideration without charging any penalty/interest, (ii) to pay interest to State Bank of India, on the loan sanctioned for payment of cost of the above plot and villa, (iii) to pay Rs.50/- lacs, for delay in delivery of possession, being deficiency in service and unfair trade practice, (iv) to pay Rs.25/- lacs, as foreclosure penalty of loan and loss of interest, in case possession of above plot and villa is further delayed, (v) to pay Rs.15/- lacs, as compensation for mental agony and harassment, (vi) to award punitive damages, (vii) in case of non-delivery of possession, to refund entire amount of Rs.18124712/-with interest @18.75% per annum from the date of deposit till the date of its realization and (viii) any other relief which is deemed fit and proper in the circumstances of the case.

The complainants stated that M/s. Sahara India Commercial Corporation Limited and M/s. Aambay Valley City Ltd. (the developer) were companies, registered under Companies Act, 1956 and engaged in the business of development and construction of residential and commercial building and selling its unit to the prospective buyers. Urban Development Department, Government of Maharashtra sanctioned for developing Hill Station at villages Ambavane, Visakhar, Peth Shahapur, Kolvali, Nandgoan, Deogar, Pomgoan and Khumberi, taluka Mulshi, district Pune. M/s. Sahara India Commercial Corporation Limited launched the project of “Aamby Valley City” at village Deogar, taluka Mulshi, district Pune and gave attractive advertisements. The complainants booked a plot and villa and deposited Rs.10.41/- lacs towards plot and Rs.10.82/- lacs towards villa. They were allotted Plinth No.189 admeasuring 1171 sq.mtrs. Survey/Gat No.37, village Deogar, taluka Mulshi, district Pune, for lease premium of Rs.11550000/- for plot and Rs.12000000/- for villa, built up area 371.61 sq.mtrs. M/s. Sahara India Commercial Corporation Limited executed an agreement to lease for a period of 999 years on 16.11.2007 of the said plot and villa in favour of the complainants. Remaining sale consideration was payable in 24 equal monthly instalments and possession had to be handed over till 16.11.2009, complete in all respect. State Bank of India was the official banker for “Aamby Valley City”. The complainants were advised to take loan from State Bank of India. The complainants applied for loan to State Bank of India, which was sanctioned. State Bank of India, which was paying instalments of 400 customers, linked the instalments to various level of the construction, in order to safeguards its interest. State Bank of India was monitoring the project and making payments of the instalments. The complainants made payment of Rs.18124712/- out of total lease price of Rs.23550000/- up to 09.12.2009. The project was however delayed. The developer vide email dated 14.06.2010 informed that possession would be delivered up to 28.02.2011. Vide another email dated 19.07.2010, possession period was further extended up to June, 2011. The developer took excuse for delay as lack of manpower, interruption of the work due to rain, shortage of building materials etc. The complainant gave a legal notice dated 08.02.2011 to the developer, for refund of his money with interest @20% per annum. The developer replied the notice and alleged that as the instalments were not paid on due dates and Rs.5425288/- was still due as such the construction was delayed. The complaint was filed on 28.07.2011, complaining deficiency in service and unfair trade practice. Thereafter, the complainants filed Additional Affidavit on 24.10.2011, stating some additional facts, relating to payment mode.

The opposite parties filed Counter Affidavit on 28.12.2011 to oppose admission of the complaint although it was admitted on 08.11.2011, in which, material facts have not been disputed. It has been stated that “Aamby Valley City” project was transferred to M/s. Aamby Valley City Ltd. (opposite party-4) in demerger scheme under Section 394 of the Companies Act, 1956, which was approved by Bombay High Court vide order dated 23.11.2007 and Calcutta High Court on 30.01.2008. After 07.07.2008, the complainants paid instalments to M/s. Aamby Valley City Ltd. (opposite party-4). But these facts have been supressed. Under the agreement dated 16.11.2007, remaining consideration was payable in 24 equal monthly instalments, which was started from next month of the agreement but the instalments were not paid regularly month to month. Rs.5425288/- was due on 16.11.2009. Delivery of possession was subject to timely payment of instalments. The complainants were bound to make timely payment and State Bank of India had no authority to change the payment schedule as prescribed in the agreement. Only 12 instalments of villa were paid and 12 instalments were still due. The complainant, vide legal notice dated 08.02.2011, demanded for refund of his money, as such, agreement dated 16.11.2007 stood terminated and the complainants would be entitled for refund after deducting 20% amount as earnest money and the complaint is liable to be dismissed. It has been denied that opposite parties were jointly and severally liable to refund the amount and other reliefs claimed in the complaint. Preliminary issue relating to maintainability of the consumer complaint, was also raised.

The complainants filed Rejoinder Reply on 19.09.2012, in which, the facts stated in the complaint were reiterated. It has been stated that M/s. Aamby Valley City (opposite party-4) was inadvertently typed for M/s. Aamby Valley City Limited and a corrected Memo of Parties was supplied. State Bank of India sanctioned loan to about 400 allottees in this project. In order to secure loan, State Bank of India linked the payment of instalments on construction levels, which was never objected by the opposite parties. Payment of instalment was stopped as opposite parties stopped construction on the spot. Delay in payment of instalment cannot be attributed to the complainants. The complainants filed Affidavit of Evidence of Atul Kumar Gupta. None of the opposite parties filed either any written reply or any Affidavit of Evidence. As such, Counter Affidavit is treated as Written Reply.

I have considered the arguments of the counsel for the complainants and examined the record. A perusal of Agreement to Lease dated 16.11.2007, shows that lease premium of Rs.11550000/- for plot and Rs.12000000/- for villa, built up area 371.61 sq.mtrs, Plinth No.189 admeasuring 1171 sq.mtrs. Survey/Gat No.37, village Deogar, taluka Mulshi, district Pune was agreed between the parties. Out of total premium, Rs.1041000/- was paid for plot and Rs.1082000/- was paid for villa, which was acknowledged in the agreement. Remaining consideration was payable in 24 equal monthly instalments i.e. Rs.437875/- for plot and Rs.454917/- for villa and the instalment started from next month of the agreement. However, payment schedule was changed by State Bank of India, which was financer of the complainants and various other allottees. Payment of instalments of villa was linked to various levels of construction. This change in payment schedule of the instalment was never objected by the opposite parties and they accepted payment of instalments up to 09.12.2009. It is not disputed by the opposite parties that full premium of plot was paid. The opposite parties have stated that Rs.5425288/- was due on 16.11.2009, towards premium of villa. According to the complainants, as the opposite parties stopped construction after December, 2009, State Bank of India stopped payment of instalments. There is nothing on record to show that the opposite parties issued any demand notice after December, 2009. On the other hand, from email dated 14.06.2010 (Annexure-C-22), it is proved that only roof slab RCC 50% was completed by that time. By another email dated 17.09.2010 (Annexure-C-21), the opposite parties gave explanation for not proceeding with the construction timely. As such, delay in completing construction cannot be attributed to the complainants.

So far as notice dated 08.02.2011, by which, the complainants demanded for refund of the amount, is concerned, the opposite parties did not agree for refund of the amount of the complainants nor refunded it. As such, it cannot be said that the agreement dated 16.11.2007 was terminated between the parties. The opposite parties have not issued any demand notice after December, 2009. The complainants have already paid full premium of plot and more than 50% premium of the villa till December, 2009 as such they have prayed for possession after receiving remaining consideration. Agreement between the parties still exists, as such, the complainants cannot be denied for the relief of possession in terms of the agreement.

Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241, held that the home buyer would be entitled for compensation for delay in possession in the shape of interest @6% per annum from due date of possession till the delivery of possession. In the present case, due date of possession was November, 2009. However, State Bank of India changed the payment schedule as such I take due date of possession as February, 2011, when the complainants gave notice.

ORDER

In view of the aforesaid discussions, the complaint is partly allowed. The opposite parties are jointly and severally directed to complete construction of villa within six months from the date of the judgment and handover possession of plot and villa complete in all respect, containing Plinth No.189 admeasuring 1171 sq.mtrs. Survey/Gat No.37, village Deogar, Taluka Mulshi, district Pune, Maharashtra, to the complainants after taking balance consideration without charging penal interest on it. The opposite parties shall jointly and severally pay delayed compensation in the shape of interest @6% per annum on the deposit of the complainants from March, 2011, till the date of handing over possession.