RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Complaint No. 170 of 2015

Colonel Ajit Singh, Kirti Chakra s/o Late S.

Amrik Singh, aged about 65 years, R/o 5/303,

Viram Khand, Gomti Nagar, Lucknow.    ....Complainant.

Versus

M/s Sahara Prime City Limited, having its

Registered Office at Sahara India Centre-2,

Kapoorthala Complex, Aliganj, Lucknow

through its Managing Director.                 …..Opp. Party.

Present:-                                                   

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Raj Kamal Gupta, Member.

Shri R.K. Gupta, Counsel for complainant.

None for the OP.

Date 16.5.2018

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

This complaint has been filed by the complainant against the OP for directing the OP for giving possession of house, interest @ 18% on the entire amount deposited by him. Also the rent paid by the complainant i.e. Rs.10,08,000.00 from 14.11.2010 to July, 2015, a sum of Rs.1,67,875.00 paid as interest by the complainant be refunded as interest and an award of a sum of Rs.10 lacs for physical and mental harassment to the complainant and Rs.1 lac as cost of the case.

 The case of the complainant, in brief, is that he is a retired officer of the India Army. He agreed to purchase an Independent Row House (named as Exotic) measuring 169.51 sq. meters and terrace area of 52.71 sq. meters at

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Sahara City Homes, Lucknow for a sum of Rs.51,74,400.00. An additional discount of 30% in price of the unit was granted to the complainant on account of being physically handicapped and hence, the net payable amount was Rs.36,21,800.00. The complainant had made payment of Rs.5,17,400.00 to the OP for allotment of the house, the possession of which was to be handed over as per the allotment letter within a period of 38 months from the date of allotment. The complainant's booking was confirmed and he was allotted unit no.R 4/53 Type, Independent Row House. The complainant further paid Rs.2,58,700.00 on 1.7.2007. Vide letter dated 18.1.2008, the OP raised a demand of Rs.7,32,984.00 and on 30.1.2008, the OP granted permission to mortgage the house to M/s BHW Home Finance Ltd. which was in pursuance of an application for sanctioning of loan moved by the complainant for purchasing the house. The Financer of the complainant refused the payment of the instalment of Rs.8,91,076.00 to the OP on account of unsatisfactory work progress and therefore, the complainant had to make payment of Rs.8,91,076.00 from his own resources. The complainant deposited the requisite instalments though some time with some delay for which the delayed interest of Rs.2,13,780.00 was adjusted by the OP. The complainant in all has paid Rs.42,31,880.00 to the OP. Vide letter dated 21.2.2003 the OP apprised that there was no balance due against the complainant towards the cost of the house. The house was to be delivered within 38 months from the date of allotment i.e. by 14.11.2010 but

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the OP could not complete the construction of the unit within the time limit. On 6.7.2013, the complainant was apprised that his unit was ready and that he was required to make payment of amount of Rs.6,25,057.00 which was inclusive of one time maintenance, service tax and electricity charges etc. The complainant requested the OP vide E Mail dated 15.7.2013 to waive off one time maintenance amount of Rs.5,38,056.00 on account of delay in delivery of the possession of the unit. Due to delay in delivery of the possession, the complainant had to live in a rented accommodation after retirement and had to pay Rs.18,000.00 per month in non-availability of the unit. On 25.11.2013, the complainant made payment of Rs.5,297.00 as service tax and on 18.12.2013 he further made payment of Rs.6,04,783.00 towards sinking fund and service tax to the OP. On 16.4.2014, the OP further raised demand of Rs.46,388.00 towards payment of sales tax and electricity charges. On 21.5.2014, the OP apprised the complainant that the possession of the property can not be delivered without any reason. The complainant, thereafter, contacted the OP but no satisfactory answer was given by the OP. The complainant requested the OP to handover the possession of the house and to pay interest on the deposited amount as 50 months have already elapsed. Despite the complainant paying the entire cost of the house, the OP has not delivered the possession of the house and as a physically disabled Army Officer the complainant had to suffer a lot due to the negligence of the OP. Therefore, the complainant is entitled to get the

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possession of the unit in question and also entitled interest @ 18% on the entire amount deposited by him. Also the rent paid by the complainant i.e. Rs.10,08,000.00 from 14.11.2010 to July, 2015 be also paid by the OP to the complainant. Besides a sum of Rs.1,67,875.00 paid as interest by the complainant be refunded as interest and an award of a sum of Rs.10 lacs for physical and mental harassment to the complainant and Rs.1 lac as cost of the case.

The OPs filed their written statement submitting therein that the complainant has neither hired nor availed of any service of the OP and is therefore, not a consumer  under the Consumer Protection Act, 1986. The alleged contract was for purchase of unit and not for construction by a site owner with contractor. Besides,  the jurisdiction in case of any dispute as per agreement  was to be at courts at Kolkata only hence, this complaint is not maintainable in this Commission. Besides, this complaint is in respect of immoveable property on the basis of mere allotment letter and therefore, it is not maintainable as it is in violation of the provisions of Section 17(1) and 49 of the Indian Registration Act read with section 54 of the Transfer of Property Act. It is further submitted that the Hon'ble Supreme Court has passed order dated 21.11.2003 in contempt petition no.412/2012 related to Civil Appeal no.9813/2011 (SEBI vs. SICCL and other) inter-alia directing that Sahara Group Companies shall not part with any movable and immovable properties until further order which puts embargo on transfer, parting of possession,

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mortgage renting etc. The complaint, therefore, is liable to be dismissed with exemplary cost.

The complainant has filed 17 annexures with his complaint. He has also filed his affidavit in support of his complaint.

The OP has filed the affidavit of Sri L. N. Misra.

Both the parties have filed their written arguments.

          Heard counsel for the complainant and perused the entire evidence on record. None appeared for the OP.

In this case, it is not disputed that the complainant was allotted an Independent Row House, the cost of which was Rs.51,74,400.00 and that a discount of 30% in price of the unit was granted to the complainant as he was a physically handicapped person and hence, the net payable amount was Rs.36,21,800.00. It is also not disputed that the unit was to be delivered within a period of 38 months from the date of allotment i.e. by 14.11.2010. It is also not disputed that the complainant deposited the entire cost of the unit but he was not handed-over the possession. The OP has raised many objections regarding maintainability of the complaint but with regard to the facts of the case i.e. the allotment of flat, payment of cost of the unit etc., no averment has been made challenging the contention of the complainant.

          So now, in this case, it is to be seen as to whether despite the complainants making payment of the entire cost of the flat allotted to them by the OP, the OP did not deliver the possession of the flat to the complainants and hence, committed deficiency in service or not. If so, its effect. 

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          In this regard, we find that the complainant has apart from filing his affidavit has filed documents pertaining to the allotment of unit in question and the payments made in regard to the cost of unit as per annexures filed by the complainant. Annexure '1' to the complaint is the terms and conditions of Sahara City Homes, Annexure '5' is the net cost of the house after special discount of 30% whereby the cost of unit is shown as Rs.36,21,800.00 for the unit value of which Rs.51,74,400.00. The complainant has filed the photo-copies of the payments made. He has filed documents to show that Rs.42,31,880.00 was paid by him and that there was nothing as balance amount to be paid by him for the unit. The OP is keeping an eerie silence on the score of providing the possession of the house as they have not uttered a single word as to why the possession of the house was not given. There are as many as 23 paras in the WS but ironically there is no mention of either the complainant not making any payment or incomplete payment or any default or any justification what so ever for not being able to hand-over the possession. The OP has raised objections which have got nothing to do with the core issues in the complaint.

          A point has been raised that the complainant is not the consumer as the contract was for purchase of unit and not for construction by a site owner with the contractor. This is a ridiculous contention on the part of the OP as the complainant was to be provided with the unit as promised by the OP and it was not the concern of the complainant as to who was making construction of the unit on the site. It

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was the job of the OP for which they had entered into a contract to provide a unit for a cost which was duly paid by the complainant. Therefore, we find this contention of the OP as absolutely wrong and meaningless.

          Another issue has been raised by the OP is that this case was not maintainable in this Commission as in case of any dispute the matter was to be referred to an Arbitrator to be appointed by a Company whose decision shall be final and the courts at Kolkata shall have the jurisdiction. We do not find any substance in this contention of the OP also as firstly, the OP could not show any dispute which could be referred to the arbitration. Secondly, it has been decided in many cases that despite arbitration clause the matter could be raised in the Fora and therefore, it can not be said that this case could not be filed there in the State Commission and the argument that only courts at Kolkata have had the jurisdiction, is of also no relevance as the cause of action in all respects occurred in Lucknow and therefore, this State Commission certainly has the jurisdiction to deal with the matter.

The OP has also raised the issue that the Hon'ble Supreme Court in writ petition no.412 of 2012 in Civil Appeal no.9813 of 2011, SEBI vs. Sahara India Real Estate Corporation Ltd., has passed an order on 21.11.2013 wherein a direction has been issued that Sahara Group of Companies shall not part with any moveable or immoveable properties until further orders. And, on the basis of this order of the Hon'ble Supreme Court, it is argued that no order for giving possession of

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the property can be passed by this Commission. It is argued by the counsel for the complainant that this order was not applicable in the case of the complainants as the order which may be passed by the State Commission is under the Consumer Protection Act in a quasi judicial proceeding and no judicial or quasi judicial proceeding has been stayed by the Hon'ble Apex Court. The Hon'ble Apex Court has passed the aforesaid order restricting the Sahara Group of Companies from parting with any moveable or immoveable properties pertaining to the companies and it was not in anyway restricting the rights of the legitimate owners of flat of M/s Sahara Prime City, the OP. Therefore, the arguments advanced by the OP is a ploy to influence the State Commission. We find that the Hon'ble Supreme Court in the aforesaid order has not put any restriction for the Fora to pass the orders with regard to the property in question of the OP. So, the Hon'ble Apex Court's order does not stand in the way of providing justice to the complainants for getting possession.

In fact, it appears that the OP has unnecessarily raised aforesaid issues instead of addressing to the real issues raised by the complainant. This a simple case where the complainant has paid the entire cost as demanded by the OP with regard to purchase of a unit offered by the OP and that despite such payment and lapse of time required for giving the possession, neither the possession was given nor cost was refunded. Therefore, the OP has committed serious unfair trade practice as also deficiency in service.

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Therefore, the complainant is entitled to get possession of the flat in question.

The complainant has further sought interest @18% p.a. on the amount deposited by him and Rs.10,08,000.00 for the rent paid by him from 14.11.2010 to July, 2015 and for every succeeding month till the actual delivery of posses. Rs.1,67,875.00 as the amount of interest paid by the complainant with interest and Rs.10 lacs for harassment etc. and Rs.1 lac as cost of suit.

There is no denying the fact that a Kirti Chakra awarded Army Officer who got retired from the Army because of being seriously injured and such a handicapped man had to run from pillar to post after payment of the entire amount of the cost of the house and not getting the possession whereby he had to remain in a rented accommodation for years together and therefore, such a complainant deserves not only the refund of the amount deposited by him for the accommodation with interest but also compensation for physical and mental harassment.

Considering the facts of the case, we find that a sum of Rs.10 lacs shall be appropriate for physical and mental harassment caused to the complainant who also incurred financial loss by not being able to get possession of the house and had to remain on rented accomodation. He also deserves interest on the amount of Rs.42,31,880.00 from the date when the house was to be delivered i.e. from 14.11.2010 till the actual delivery of possession of the house @ 9% p.a. The complainant is also entitled to get Rs.10,000.00 as cost of the case. However, we do not find

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it appropriate to award amount of interest of Rs.1,67,875.00 towards the loan as the OP could not be held responsible for any payment of interest of the loan by the complainant. Accordingly, the complaint deserves to be allowed. 

ORDER

The complaint is allowed and the OP is directed to handover possession of the house in question to the complainant, to pay Rs.10 lacs for physical and mental harassment caused to the complainant and interest @ 9% p.a. on the amount of Rs.42,31,880.00 from the date when the house was to be delivered i.e. from 14.11.2010 till the actual delivery of possession of the house and Rs.10,000.00 as cost of the case.  

Compliance of this order be made within one month otherwise, the OP shall be liable to pay interest @ 12% p.a. on the entire amount.

Certified copy of the judgment be provided to the parties in accordance with rules.

                 (Vijai Varma)                  (Raj Kamal Gupta)

               Presiding Member                     Member

Jafri PA II

Court No.2