Sahara Prime City vs Harendra Kumar

Heard Counsel for the Parties.

The above appeal has been filed against the Order of State Consumer Disputes Redressal Commission, Uttar Pradesh dated 25.08.2021 passed in CC No.431 of 2017 whereby the complaint has been allowed and opposite party has been directed to deliver possession within three months, failing which the Opposite Party was directed to refund the entire amount deposited by the Complainant alongwith interest as well as other compensation have also been allowed.

The Office has submitted report that there is delay of 92 days in filing the Appeal.  The Appellant has filed IA No.1911/2022 for condoning the delay in filing the Appeal.  In the IA, the appellant has stated that after receiving the certified copy of the impugned order, advice and consent were sought from the Authorised Representative of the Appellant and after initial round of discussion with management it was realised that State Commission has failed to appreciate the fact that the construction of the Real Estate Project developed by the Appellant is squarely covered by the event of force majeure and decision was taken to file the appeal.  However the file was misplaced somewhere as such the delay has occurred in filing the Appeal.  Cause shown is sufficient.  IA is allowed.  Delay in filing the appeal is condoned.

Respondent alongwith his Advocate appears in person and states that in view of inordinate delay in completing the construction and still there is no hope that the construction will be completed in near future, he confined his relief for refund.

Mr. Harendra Kumar and Smt. Madhu Prajapati filed CC No.431 of 2017 for directing the Opposite Party to (i) execute the sale deed of the park facing unit No.C-24/303, Unit Type 3 bedroom admeasuring 138.55 sq.m. in the Project Sahara Prime City Lucknow within a reasonable time or alternatively to refund the entire amount deposited by the Complainants alongwith interest @ 24% per annum from the date of deposit till the date of refund. (ii) Pay interest @ 18% per annum on the amount of Rs.2,997,610/-. (iii) Pay rent of Rs.10,000/- per month from September, 2015 till the delivery of possession. (iv)Pay compensation of Rs.10 lakhs as mental agony and harassment. (v) Pay punitive damages. (vi) Pay Rs.50,000/- as litigation cost and (vii) Other relief which is deemed fit and proper in the fact of the case.

The Respondent stated that Sahara Prime City Limited, the Opposite Party No.1 was a company Registered under the Companies Act, 1956 and engaged in the business of development and construction of Group Housing Project.  The Opposite Parties launched a Group Housing Project in the name of “Sahara City Homes” in Lucknow and made vide publicity and its amenities and facilities in the year 2012.  Believing upon the representation of the Opposite Party, the Complainant booked a flat and deposited the booking amount on 28.05.2012.  The Opposite Party issued allotment letter dated 16.06.2012 allotting Unit No.C-24/303 admeasuring 138.55 sq.m. for total sale consideration of Rs.42,82,300/- and 10% of sale consideration as preferential location charges and Rs.3,89,300/- towards central park facing unit.  The payment plan was construction linked payment plan. As per demand of the Opposite Party, the Complainant has timely deposited the instalment and deposited the total amount of Rs.29,97,610/- till June, 2014.  However, the Opposite Party did not raise any demand thereafter as the Opposite Party was not proceeding with the construction at all on the spot.  As per allotment letter, the possession has to be given within 36 months.  The due date of possession has expired in August, 2015.  The Complainant, in order to make payment had taken loan from Life Insurance Company and also arranged the payments of balance amount from other various sources.  In spite of due date of the possession has expired on 30.08.2015 the Opposite Parties were not proceeding in the matter then the Complainant gave a letter dated 02.02.2017 asking the Opposite Party to hand over the possession and also pay delayed compensation.  In spite of service of the letter dated 02.02.2017, the Opposite Party has not make any response.  Then the Complainant also gave an E-mail dated 08.02.2017 and reminder dated 13.02.2017.  The Complainant was residing in rented accommodation and was paying Rs.10,000/- per month. Due to not handing over the possession of accommodation in dispute, the complainants have a double burden in as much as they were paying rent also and also paying the interest on the loan amount.  Thereafter the complaint was filed in the month of October, 2017.

The Appellant filed written statement and contested the complaint.  In the written statement booking made by the complainant as well as deposits made by the Complainant have not been disputed, however, the appellant has raised the plea of force majeure for delay in construction in as much as the Appellant has stated that Supreme Court of India in Civil Appeal No.9813 of 2011 by Order dated 21.11.2013 has stopped the Opposite Party from parting with any movable or immovable property of Sahara Group of Companies therefore the construction was not proceed.

The State Commission by the impugned Order upon the Complainant’s Case and has passed the Order as stated above.  Hence, this Appeal has been filed.

It is own case of the Appellant that they are not able to proceed with the project due to some force majeure reason.  In such circumstances a home buyer cannot be wait for possession for unlimited period.  The order of the State Commission in alternative directing the appellant to refund the amount does not suffer from any illegality.

However the State Commission has directed for giving compensation equal to the amount deposited by the complainant and also pay damages of Rs.15,000/- per month from 01.09.2015 and rent of Rs.10,000/- per month from 01.09.2015 till 31.12.2020 and thereafter @ 12,000/- per month till the date of actual possession and pay Rs.1 lakh as compensation for mental agony and harassment and Rs.50,000/- as cost.

Hon’ble Supreme Court in the case of Civil Appeal No.4910-4911/2019 D.S. Dhanda –vs- DLF Homes Panchkula Pvt. Ltd. has observed that compensation in multiple head cannot be allowed in case of refund.  Thereafter the Larger Bench of Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, 2022 Live Law (SC) 352, has held that interest @ 9% per annum interest in case of refund is just compensation which amount to restitutory and compensatory.  In the light of the order of Hon’ble Supreme Court, the Order of the State Commission is liable to be modified.

In the result, the appeal is partly allowed.  The Appellant is directed to refund entire amount of Rs.29,97,610/- with interest @ 9% per annum from the date of respective deposit till the date of payment.  In addition to it the appellant shall also pay cost of Rs.50,000/- to the complainants. In case the above payment are not complied with within three months from today then the appellant will be liable to pay interest @ 12% per annum.