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Judgment
R.K. Agrawal, J., President
The present Consumer Complaint has been filed under Sections 21, read with Section 12(1)(c) of the Consumer Protection Act, 1986 (for short "the Act") by the Complainants, in the representative capacity, agitating their joint, personal as well as collective grievance against the Opposite Party, M/s. Sahara Prime City Ltd. (hereinafter referred to as the 'Builder' ) for the inordinate delay in handing over possession of the Flats booked by them in the Project launched by the Builder in the name and style of "'Sahara Grace Kochi" in the year 2007 in Ernakulam, Kerala.
Initially, the Complaint Nos. 969 and 970 of 2016 were filed by the four Complainants combined together in each of the cases. Thereafter, I.A. No. 5330 of 2016 was filed on behalf of the Complainants U/S 12 (1) (c) of the Act seeking permission to file the Complaint on behalf of eights Complainants and also on behalf of several other similarly situated Consumers. Vide Order dated 16.05.2017, the said Application was allowed and permission was granted to treat the Complaint as a Joint Complaint on behalf of all the Allottees of the said Project. A notice was also directed to be published u/s 13(6) of the Act in the Newspapers. Accordingly, the amended Complaint along with Amended Memo of Parties was filed on 01.08.2016. Subsequently, I.A.Nos. 13167, 13168, 13169, 13632, 13633, 13634, 13635, 14580, 14581, 16641, 16642, 16643, 18761, 18769, 18795 were filed by the Allottee of the same Project seeking impleading in the matter.The Applications were allowed by this Commission and the Applicants were allowed to join the proceedings as Co-Complainants.
According to the Complainants, the facts of the case are that the Opposite Party Builder (Part of Sahara Group of Companies) launched its first Premium Luxury Residential Project in Kochi in the year 2007 under the name and style as "Sahara Grace Kochi" (hereinafter referred to as the Project ).The Builder has undertaken similar housing Projects in Lucknow and Gurgaon by the name of "Sahara Grade Lucknow" and "Sahara Grace Gurgaon"). In the Project, four Towers were to be constructed phase wise, ranging from nine to twenty four floors with modern amenities. In the first phase, Blocks B-1 and B-2 were to be constructed. Complainants allured by the wide publicity of the Builder, booked their respective residential flats in the said Project in Block B-1 and B-2 by the paying the initial booking Amount. Identical Allotment Letters containing the details of Flat booked, Floor on which the Flat/Apartment was located, unit area, price to be paid, payment plan etc. were issued to the Complainants. In the Allotment Letter, it was mentioned that the installment has to be made on or before 15 th day of the due month and in case of default, the interest @ 18% p.a would be charged for the delayed period.Further, in case of three consecutive defaults, the booking of Flat would be automatically cancelled. The possession of the booked Flats was promised to be delivered from January 2012 to December 2013. Several identical Agreements were also entered into between the parties in respect of their respective Flat/Apartment. As per Clause 3 of the Agreement, the final instalment amount was due and payable at the time of handing over the possession. According to the Complainants, during the period from August 2010 to December, 2013, there was hardly any construction activity on the work site. However, still the demands were made by the Builder for payment of instalments and the same were paid by the Complainants. Numbers of enquiries were made by emails/personal visits about the status of the construction of the Project from the Builder but no response. Hence, a criminal complaint was filed against the Builder in 2014 before the Thikkakara Police Station at Kochi. The officials of the Builder were arrested and produced before the High Court of Kerala. While seeking their bail, it was promised that the balance work of the Project would be completed within three months which was not done.
From May 2014 to July 2014, the Complainants received identical letters from the Builder informing them that due to ongoing litigation pending before the Hon'ble Supreme Court between Sahara and SEBI, they would be unable to complete the Project as there is a restrain order from parting with any moveable or immovable property. However, as per the Complainants, this letter was a stratagem adopted by the Builder for covering up its own misdeeds, breaches and shortcomings.
By letter dated 10.10.2014, the Builder informed the Complainants that the construction work at the site had been restarted and the new date from 14.01.2015 to 25.02.2015 were given to hand over the possession of the allotted Flats. Again, in the beginning of the year 2015, the Complainants were informed that due to non-payments of installments there will be delay in completing the construction for which they cannot be held responsible. On 13.08.2015, a meeting took place between the Flat Buyers and the Builder to discuss the schedule for completion of work and for handing over of the possession on the Flats to them. In the meeting, a new date, i.e. 21.09.2015 was fixed for handing over the possession but still the Builder had failed to keep its promised.
For ready reference, the necessary details of Complainants relating to allotment letter, unit allotted, total sale consideration, amount paid, promised date of delivery etc., (as furnished by the Counsel for the Complainant along with Written Submissions) are given below:-
Complainant Name
Unit No.
Date of Allotment Letter
Total Consideration
Amount Paid
Promised Date of Delivery
Jacob Thomas
B1/164,
19.07.08
59,03,206
57,84,858
23.01.12
Madhukuttan T.J
B1/124
2008
57,59,841
54,67,373
23.01.12
Seby Andrews Thattil and Shara Seby
B2/15
17.08.08
43,89,698
35,52,894
25.01.12
Anson P. Isaac
B1/15
07.08.08
43,54,001
40,01,280
23.01.12
P.V. Varkay Alexander
B1/54
30.10.10
55,10,000
55,92,403
24.02.13
Prakash Nair and Vineeta Sekhar
B1/172
01.10.12
51,10,365
51,10,365
19.04.13
Raghunathan Nair
B1/144
11.07.11
58,31,000
55,97,760
9.12.13
G e o r g e Verghese and Jesvin Abraham
B2/61
04.05.11
44,27,525
38,45,085
18.06.13
Sajan George
B1/122
52,37,000
45,00,185
17.06.14
Arathi Gopinathan
B1/82
Booked in 2012
51,18,000
48,71,916
11.10.13
George Kottam, Amit Joseph & Nirmala George
B-1/144
Booked in 2011
57,24,000
49,90,734
15.07.13
Aby Antony
A3/111
Booked in 2013
58,68,000
17,60,400
15.12.14
B o b b y Abraham
A3/82
Booked In 2013
61,37,000
18,97,991
15.06.16
Haroon Sajid
B1/P191
Booked in 2008
59,99,064
55,14,986
01.09.11
Jayakumar Valliyaveettil Raman Nair and U s h a Jayakumar
B1/3
Booked in 2008
58,66,860
56,31,313
25.10.11
Jayakumar Valliyaveettil
Raman Nair
U s h a Jayakumar
B1/2
Booked in 2012
50,70,352
50,70,352
07.03.13
Madhusudhan D Shet and Sarika S Kudtarkar
B2/154
14.05.10
57,20,325
57,20,325
15.04.13
Vinodkumar C
Pillai and Suja Somanathan Nair
B2/26
Booked in 2012
49,97,000
47,92,940
23.04.14
M a h e s h Kappanayli and Swapna Menon
B/113
Booked in 2011
57,24,000
50,26,770
05.04.14
Jayakrishnan Chandran Nair and Lekshmi Jayakrishnan
B2/141
Booked in 2013
52,96,000
20,12,480
24.01.14
Shaji N. Kurvila
B1/71
Booked in 2014
50,88,000
10,22,427
14.01.15
V.R Satheesan and Rani Satheesan
B1/84
Booked in 2008
56,17,000
56,04,904
01.01.13
Rajan K. Cherian and Mariamma Rajan
B1/114
Booked in 2012
52,96,000
40,43,531
31.08.13
Shaji Thomas and Shiji Shaji
B2/34
-
-
96%
-
It is alleged by the Complainants that they had already paid majority of amounts towards the total cost of their Flats ranging from 81% to 100% but the Project is still nowhere near completion and they had lost their trust in the Builder and hand over the possession in near future. The Complainants have suffered huge losses inasmuch as they had deposited their hard earned money with the Builder in the hope that they would get the possession of the Flat at the stipulated time. Some of the Complainants have taken loans from the Bank to pay the dues to the Builder for which tri-partite agreements were executed. The Builder has diverted the funds to finance their other Projects at the costs of the Complainants. Hence, alleging unfair trade practice and deficiency in service on the part of the Opposite Party Builder, the Complainants has filed the present Complaint with following prayer:-
" a) The Opposite Party be directed to complete the flats/apartments within six months from today and thereafter handover the legal possessions of the flat within one month thereafter.
b) The Opposite Party be directed to pay Complainants and other flat buyers, interest @ 18% p.a. on the total amounts/sums paid/deposited by them as on original promised possession dates of the flats, for the period commencing from the original promised possession dates till the date of handing over of the actual legal possessions to the Complainants and other flat buyers by the Opposite Party.
c) The Opposite Party be directed to pay the amounts claimed under prayer (b) above, after deducting any amounts, if payable by the Complainants and other flat buyers at the time of final notice of possession.
d) In the alternative, if legal possession of the flats booked by the Claimants and other Flay Buyers cannot be granted to them at all as promised, then the Opposite Party be directed to return/refund the entire monies/amounts paid/deposited by the Complainants and other flat buyers till date with interest @ 18% p.a. from the time these amounts were paid/deposited by the Complainants and other Flat Buyers with the Opposite Party, till the date of actual payment.
e) The Opposite Party be directed to pay compensation for mental agony and harassment to the tune of Rs.2,00,000/-(Two Lakhs only) to each of the Complainants.
f) Costs of Rs.1,00,000/- be awarded to the Complainants.
Vide Order dated 23.03.2018, the right of the Opposite Party Builder to file its Written Version was forfeited as they could not file the reply in time despite opportunity being granted by the Commission.
We have heard the Learned Counsel for the parties and also perused the material available on record as well as the Written Submissions filed by the Complainant on 29.08.2019. Despite liberty being granted vide order dated 26.08.2019, the Opposite Party Builder has not preferred to file its Written Submissions.
Mr. Arun Francis, Learned Counsel appearing for the Complainants strenuously submitted that the Complainants had paid all the amounts as demanded by the Builder from time to time. It was assured to the Complainants that the entire Project would be completed and possession would be delivered in most of the case by December, 2012 and in some cases latest by January 2015. However, the Builder has failed to complete the construction and hand over the possession within the stipulated period of time which tantamount to deficiency in service on their part and as such the Complainants are entitled for the reasonable compensation for the delay in delivery of possession, mental agony and harassment or for refund of the deposited amounts with reasonable interest and compensation as well as costs.
A perusal of the afore-extracted Chart containing the details of the Complainants, allotted units, date of allotment letters, promised date of handing over the possession, total costs, amount paid etc. would reveal that most of the Complainants had paid the major amount of the total costs ranging from 81% to 100% but despite that the Builder has failed to complete the construction of the Project and hand over the possession of the allotted Units to the Complainant within the stipulated time i.e. latest by 15.01.2015 except in the case of Bobby Abraham where it was 15. 06.2016. Nevertheless, the Opposite Party has not contested the Complaint by filing its reply despite opportunities having been granted and finally Vide Order dated 23.03.2018 its right to file Written Version was forfeited. Hence, the facts averred in the Complaint remain unrebutted and under these circumstances, the questions regarding reasons for delay in completing the Project and as to when the Builder will be in a position to complete the entire Project and hand over the possession to the Complainants also remain unanswered. The defence taken by the Builder that delay in completing the construction of the Project and handing over the possession of the allotted Units to the Complainants has taken place due to default on the part of the Complainants in making the payments of installments in time and a pending litigation between Sahara and SEBI wherein an Order was passed by the Hon'ble Supreme Court restraining them from parting with any moveable or immovable property, does not hold water and deserves to be rejected. If there was any default in making the payment of installments by the Complainants, the Builder was at liberty to cancel the booking. With regard to pendency of case before the Hon'ble Supreme Court, the Builder has informed to the Complainants during the period from May 2014 to July 2014 that there was delay in construction on account of said litigation. Further, vide letter dated 10. 10.2014, the Complainants were informed that the work has restarted at the site. Even if it is presumed, for the sake of argument, that there was some delay on account of said litigation, the work was restarted in October, 2014 but yet the Builder has failed to complete the Construction till the date of filing of complaint in the year 2016.
In the case of Emmar MGF Land Ltd. & Ors. vs. Amit Puri - [II (2015) CPJ 568 (NC)] , this Commission has held that after the promised date of delivery, it is the discretion of the Complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation and it is well within his right to seek for refund of the principal amount with interest and compensation.
Further, in the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC, the Hon'ble Apex Court has observed as under :-
".....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified."
In the instant case also, the Complainants cannot be made to wait indefinitely for possession of their Flats, when there is absolutely no response from the Opposite Parties and the Complainants are entitled for refund of the principal amount with interest. Accordingly, keeping in view the ratio laid down by the Hon'ble Supreme Court in DLF Homes Panchkula Pvt. Ltd Vs. D.S. Dhanda - II (2019) CPJ 117 (SC) , that compensation under multiple heads cannot be awarded, we are of the considered view that simple interest in the form of compensation @ 8% p.a. would meet the ends of justice together with costs of 50,000/-.
In the result, this Complaint filed under Section 12(1)(c) of the Act i.e., for the benefit of all Consumers/Complainants is allowed in part directing the Opposite Party Builder to refund the deposited amount to the Complainants with compensation in the form of simple interest @ 8% p.a. from the respective dates of deposit till the payment is made together with costs of 50,000/. This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 10% p.a. for the same period.