Sahara Prime City Ltd vs Gyana Nand

This appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (in short, ‘the Act’) against the judgment dated 30.09.2019  of  the  Uttar  Pradesh  State  Consumer  Disputes  Redressal Commission, Lucknow (in short, ‘the State Commission’) in Complaint no.125 of 2014.

The facts in brief are that the appellant/ opposite party are engaged in execution of residential projects. The respondent/ complainant booked a unit vide application dated 24.10.2011 in its project ‘Sahara City Homes’, Lucknow. The respondent sought a concession under Special Category (Physically Handicapped). The respondent also deposited the entire price of the flat, i.e., Rs.30,15,769/- after reducing the discount of 30% for Physically Handicapped category. Respondent had claimed to be Physically Handicapped on the basis of a certificate from the Chief Medical Officer, Baliia. As per record which indicates 60% disability. Respondent’s application was allowed based upon a verification report dated 26.12.2013 by Shri Alakh Sinha, Assistant Chief Manager Works, Head Legal Sahara Prime City Limited, wherein it was noted that as only the hip joint of the respondent was involved, he was not eligible for the rebate which was duly communicated to the respondent.  Be that as it may, the appellant confirmed the booking of the respondent vide allotment letter dated 05.01.2012 and allotted a three bedroom flat measuring 135.25 sq mts., being Unit no. C 21/405. The respondent thereafter made payments initially but started defaulting in making timely payments and various reminders were sent to the respondent.  Despite repeated requests and reminders  the respondent defaulted in making payment. According to the appellant this was as he was found not eligible for Special Category Discount. The appellant contends that the respondent   was   not  entitled  for  special  category  discount  and  has submitted that if he wishes to cancel the booking, the amounts so deposited by him would be refunded after deduction of Rs.10,000/- as cancellation charges. The respondent instead of honouring the sale agreement or cancelling the booking, proceeded to file a complaint before the State Commission with the following prayer:

(a)    The flat in question whose entire price has been deposited by the complainant be provided to the complainant;

(b) The complainant may be provided 18% interest on his deposited entire price of the flat till actual delivery of flat from the date of stipulated delivery of flat;

(c )    The complainant may be provided Rs.10,00,000/- towards mental pain and agony for not getting his own accommodation even after paying full price of the unit;

(d) The opposite party even after receiving the entire amount of the flat are not providing the physical possession of the flat and are not giving any reasons that under what circumstances they are not providing physical possession of the flat to the complainant. Due to this reasons the complainant became helpless and has to send legal notice and now is being compelled to file this complaint before this Hon’ble Commission. The opposite party is liable to provide Rs.50,000/- towards cost of the complaint and legal expenses; and

(e )    Any other relief deemed fit and proper against the opposite parties in view of facts and circumstances and documents of the complaint.

The case was contested by the parties before the State Commission which, after hearing the parties and perusing the material on record, ordered as under:

·         The complaint is partly accepted. The opposite party is directed that within 45 days from the date of judgment it shall deliver possession of  flat  in  question  to  the  complainant.  It  is  also  ordered  to the opposite party that interest of 15% per annum on total amount deposited by the complainant be also paid to complainant from 01.05.2013 till the date of payment of total amount. Apart from this it is also directed to the opposite party that in above prescribed period Rs.10,000/- shall also be paid to complainant as costs of litigation.

Aggrieved by this order of the State Commission, the appellant, Sahara Prime City Ltd, has filed this present appeal with the following prayer to:

a. Allow the appeal and set aside/ quash the judgment and order dated 30.09.2019 passed by the State Commission in Complaint no.125 of 2014;

b. Award cost of the appeal in favour of appellant; and

c. Pass such other order/s, as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the instant case.

We have heard the proxy counsel appearing on behalf of the appellant with authority letter and the counsel for the respondent.

After hearing the parties, it is apparent that the flat in question, even after joint inspection as recently as 13.04.2024 has not been found to be approachable or habitable. Respondent had applied for a flat under the category of a Physically Handicapped person. As per the appellant, the respondent was not entitled under this category. From the record it is evident  that  while the booking was done on 24.10.2011 and allotment of the said flat was done on 05.01.2012, possession was to be handed over after  a   period   of   15  months  as  per  the  allotment  letter,  i.e.,  by 04.04.2013. The present complaint was instituted on 03.09.2013 seeking possession of the flat. In view of the fact that the appellant is unable to offer a suitable flat under the category under which it was applied.

There are a number of Case Laws wherein the Hon’ble Supreme Court and this Commission has decided favourably on the right of the buyers to get a refund of their money in case of delay by the Developer in giving possession in terms of the Buyer’s Agreement.

In Emmar MGF Land Ltd. & Ors. Vs. Amit Puri- {(II 2015 CPJ 568 (NC)}, decided on 30.03.2015, this Commission has held:

“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.”

. The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, in which the Hon’ble Apex Court has observed as hereunder:

“.....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 SCDRC and by the NCDRC for refund of moneys were justified.”

.   In another judgment of the Hon’ble Supreme Court in the case of  Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan, ll (2019) CPJ 34 (SC), it was held as under:

“We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the 22 Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest”.

As regards the rate of interest and the scope for payment of compensation  in  such  matters, the Hon’ble Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019 decided on 7.4.2022 held that:-

“We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts.The Commission in the Order impugned has granted interest from the date of last deposit.We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. D S Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.

At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just.”

In view of the above discussions and judicial precedents, the impugned Order dated 30.09.2019 in C.C. No.125 of 2014 passed by the learned State Commission, U.P., Lucknow is modified with the following directions: -

ORDER

i. The Appellant shall refund the entire deposited amount of Rs.30,15,769/- to the Complainant/Respondent along with simple interest @ 9% per annum from the respective dates of deposit till the date of realization, within 8 weeks from the date of  this  order.  In  the event of delay, the   amount payable shall carry interest at the rate of 12% per annum from the date of expiry of 8 weeks until the realization of the entire amount.

ii. The Appellant shall pay cost of litigation quantified as Rs.25,000/- to the Complainant/ Respondent, within 8 weeks from the date of this order.

First Appeal no.409 of 2020 is disposed of with the above directions. All the pending Applications, if any, are disposed of accordingly.  The Statutory amount deposited by the Appellant, if any, be refunded after due compliance of the order.