Date of Filing 08.05.2023

                                                                                                             Date of Disposal: 29.02.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                              ……MEMBER-I

               THIRU.P.MURUGAN, M.Com, ICWA(Inter), BL.,                                                            ……MEMBER-II

CC.No.38/2023

THIS THURSDAY, THE 29^th DAY OF FEBRUARY 2024

Mr.R.S.Janarthanan, S/o.R.Sriramulu,

No.38/62 Saffi Nagar,

2^nd Cross Street, IAF,

Avadi, Chennai 600 055.                                                                         ......Complainant.

                                                                              //Vs//

1.The Authorized Person / Manager,

   Sahara India Bhawan,

   No.1, Kapoorthala Complex,

   Lacknow 226024 (UP).

2.The Authorized Person / Manager,

    Sahara Prime City Limited,

    Site No.13, 15 Shalothi Nagar,

    Off Outer Ring Road, Bangalore 43.

3.The Authorized Person / Manager,

    Sameera Estates Private Limited,

   Poonamallee – Avadi Main Road,

   (Next to S.A.Engineering College),

   Veeraraghavapuram, Poonamallee,

   Thiruvallur District, Chennai 77.                                                     ….opposite parties.

Counsel for the complainant                                     : Mr.Abenesh, Advocate.

Counsel for the 1 & 2 opposite parties                    :  Exparte.

Counsel for the 3^rd opposite party                            : M/s.S.Namasivayam, Advocate.

This complaint coming before us on various dates and finally on 26.02.2024 in the presence of Mr.Abenesh counsel for the complainant and M/s.S.Namasivayam, counsel for the 3^rd opposite party and opposite parties 1 & 2 were set exparte for non appearance and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant U/S 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with regard to allotment of flat along with a prayer to direct the opposite parties to refund the advance amount of Rs.2,24,000/- with 9% interest and to pay a sum of Rs.5,00,000/- towards compensation for monetary loss, mental agony and hardship and to pay a sum of Rs.20,000/- towards litigation expenses to the complainant.

Summary of facts culminating into complaint:-

2. It was the case of the complainant that he booked a flat with Sahara City Homes, Chennai against control No.12401200019 and unit type – 022 in the year 2008.  At the time of booking i.e. on 05.11.2008 has paid advance amount of Rs.2,24,000/- for which the 3^rd opposite party issued a receipt for Rs.85,750/- only in the receipt No.38463853519. The complainant paid advance amount of Rs.2,24,000/- to the 3^rd opposite party by way of cheque No.698583 dated 14.07.2008 through ICICI Bank Branch, Cenotaph Road, Teynampet.  The opposite parties have not directly allotted the flat to the complainant by way of booking rather the opposite parties have transferred the flat already allotted to another customer of the opposite parties. The opposite parties have not commenced the project in the proposed site where the opposite parties have planned to construct the flats for the customers after receiving the advance amounts from them for certain period. The opposite party started construction of flats but stopped the construction in the middle for the best reason known to them only.  Thereafter the opposite party has not further proceeded to construct the flat system. Authorized signatory of opposite party branch office Sahara Prime City Limited having office at No.13-15 Shakthi Nagar off outer Ring Road, Bangalore -43 sent a letter to the complainant on 09.11.2011 and intimated and assured that the company offers to refund the advance amount of customers together with 9% interest from the respective dates of advance payments and also advised the complainant to avoid the refund facility and to approach the particular branch office where the complainant made booking and hence the complainant went to the branch office where he booked the house but it was closed. Thereafter complainant sent many letters and emails to the branch office i.e. 3^rd opposite party but there was no response from them.  Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to refund the advance amount of Rs.2,24,000/- with 9% interest and to pay a sum of Rs.5,00,000/- towards compensation for monetary loss, mental agony and hardship and to pay a sum of Rs.20,000/- towards litigation expenses to the complainant.

The crux of the defence put forth by the 3^rd opposite party:-

3. The 3^rd opposite party was a group of company of the Sameera and they have purchased various parcels of property pertaining to various survey number from Sahara Groups of Companies amounting to 117 acres situated at Parivakkam and Veeraraghavapuram village, Poonamallee Taluk, Thiruvallur District in order to develop the said lands based on the directions of the Hon’ble Supreme Court by its order dated 11.07.2016 in IA Nos.185-187 and 188-189.  There is no privity of contract with the complainant by the 3^rd opposite party.  That at the time of booking i.e. on 05.11.2008 he had paid an advance amount of Rs.2,24,000/-for which the 3^rd opposite party issued a receipt for Rs.85,750/- vide receipt No.38463853519 and not issuing receipt for the entire advance amount of Rs.2,24,000/- received from the complainant was a blatant lie since the 3^rd opposite party purchased the property from the Sahara Groups after the order of the Hon’ble Supreme Court on 11.07.2016.  Hence there was no substance in the allegation that the complainant paid an advance amount of Rs.2,24,000/- to the 3^rd opposite party by way of cheque No.698583 dated 14.07.2008. Complainant failed to avail the offer extended by the predecessor in title on 09.11.20211 to take refund of the advance amount of Rs.85,750/- along with 9% interest from the respective dates of the advance payment. The belated claim after lapse of almost 12 years was not sustainable as the claim of the complainant was barred by limitation period to file a complaint under Consumer Protection Act.  The complainant did not raise any disputes or objection following the offer letter dated 09.11.2011.  Thus they sought for the complaint to be dismissed.

4. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A10 were submitted. On the side of 3^rd opposite party proof affidavit was filed and documents marked as ExB1 to Ex.B3 were submitted. Though notice was served to the opposite parties 1 & 2 they did not appear before this commission to file any written version and hence they were called absent and set exparte on 03.11.2023 and 29.12.2023 respectively for non appearance and non filing of written version within the mandatory period as per statute.

Points for consideration:-

1)    Whether the complaint is hit by limitation?

2)    Whether the opposite parties had committed deficiency in service and unfair trade practice as alleged by the complainant in receiving an advance amount of Rs.2,24,000/- for booking the flat and in not delivering the flat or in refunding the same?

3)     If so, to what relief the complainant is entitled?

Point No.1:-

5. Heard both the learned counsels appearing for the complainant and the 3^rd opposite party.

6. The case of the complainant is that he had booked a flat with the 1^st and 2^nd opposite parties by paying an advance amount of Rs.2,24,000/- by way of cheque No.698583 dated 14.07.2008 through ICICI Bank, Teyenampet.  The flat allotted to the complainant was earlier allotted to one Mrs. T.Vijaya Lakshmi and transferred thereafter to the present complainant.  However as the opposite parties had not commenced the project in the proposed site some of the customers who had advanced money approached the Hon’ble State Consumer Disputes Redressal Commission, Chennai wherein an order was passed for refund of the amount along with compensation.  Following the same the complainant sought for refund of money along with compensation which was denied by the opposite parties and hence now has come up with the present complaint and prayed the complaint to be allowed as prayed for.

7. It is further argued by them that the Authorized Signatory of the opposite party Branch Office Saraha Prime City Limited on 09.11.2011 assured the complainant that the company offers to refund the advance amount to the customers with 9% interest.  However, several times when the complainant contacted them they did not respond and finally on 21.03.2023 the complainant sent an email for which no response was sent by the opposite party.

8. On the other hand, the 3^rd opposite party argued that the complaint was clearly hit by limitation as the advance payment was made in the year 2008.  Further they also disputed their liability to refund the amount whatever said to have been received by the opposite parties 1 & 2.  The learned counsel also disputed the quantum of amount said to have been paid by the complainant at the time of booking of the flat.

LIMITATION:-

9. Being a question of law when the same was raised by the 3^rd opposite party we deem it appropriate to decide the same at the first instance before going into the merits of the complaint.

10. It is not in dispute that the booking amount was paid to the opposite parties 1 & 2 and that a letter dated 09.11.2011 under Ex.A3 was issued by the 2^nd opposite party to the complainant offering to refund the advance amount of Rs.85,750/- paid to them.  However, the complaint was filed only on 08.05.2023. When it comes to allotment and purchase of a flat, though the booking was made in the year 2008 till today the flat was not allotted which aspect was not disputed by either of the parties and therefore as per the existing law and precedents until the flat is allotted the same constitutes a continuous wrong and gives a continuous cause of action to the complainant for filing the complaint.

 We find support of our decision by the order passed by the Hon’ble National Consumer Disputes Redressal Commission in Navin Sharma Vs Unitech Project Private Limited reported in 2016(2) CLT 452 wherein it has been held that unless or until the complainant gets possession they have a continuous cause action.  Also in meerut Development Authorities Vs M.K.Guptha 2012 CPJ the Hon’ble Supreme Court held that when the buyer did not get possession of the flat he has a recurrent cause of action for filing the complaint.  Therefore when neither the flat was allotted nor refund was made we could safely hold that the complainant has a continuous cause of action and that the complaint as filed is within the limitation period.  Thus we answer the point accordingly in favour of complainant.

Point No.2:-

11. The factum of complainant booking the flat with the opposite parties 1 & 2 by paying an amount of Rs.85,750/- was not in dispute as the opposite parties 1 & 2 had issued a receipt Ex.A1 in favour of the complainant confirming the same.  However on verification of records it is found that vide Ex.B3 the 3^rd opposite party had purchased the property of the 1^st and 2^nd opposite parties in pursuance of a SEBI order filed as Ex.B2.  It is seen that when the 3^rd opposite party had purchased the same in “as is where is” basis they are answerable to the persons who had booked the flats with the opposite parties 1 & 2.  It is not denied by the 3^rd opposite party that the properties were purchased from Sahara Groups (Opposite parties 1&2) after the orders of Hon’ble Supreme Court dated 11.07.2016.  In such circumstances when the property was purchased by the 3^rd opposite party along with liabilities (Encumbrances) they were answerable to the liabilities. Hence we hold that the 3^rd opposite party has the liabilities to refund the booking amount to the complainant.

12. Thus, when they refused to pay the same it amounts to deficiency in service and unfair trade practice.  We answer the point accordingly in favour of the complainant and as against the opposite parties.

Point No.3:-

13. We have held above that the 3^rd opposite party is liable to refund the booking cost paid by the complainant however there arises certain disputes over the quantum of the amount to be refunded.  Though it is contended by the complainant that he had paid around Rs.2,24,000/- to the opposite parties 1 & 2 and a Bank Statement (Ex.A10) was filed by him, the same could not be accepted for the reason that no receipt was issued by any of the opposite parties towards receipt of the said amount.  The only receipt in favour of the complainant is for a sum of Rs.85,750/- . It was also not proved by the complainant that the money transferred vide Ex.A10 in the name of one Mr.MA Mohamed Ibrahim was an agent of opposite parties who received the amount on behalf of them. Therefore we conclude that the complainant is entitled for refund of only Rs.85,750/- as the same was also admitted by the 2^nd opposite party vide letter dated 09.11.2011 (Ex.A2).  Thus, being the purchaser of the property with liabilities from the opposite parties 1 & 2, the 3^rd opposite party is liable to refund the said amount to the complainant with 12% interest from 31.12.2004 to till the date of realization.  As the 3^rd opposite party except purchase of property from opposite parties 1 & 2 had not committed any act causing mental agony and hardship to the complainant. Hence, we are not awarding any compensation to the complainant.  Towards litigation cost we award a sum of Rs.10,000/- to the complainant.

In the result, the complaint is partly allowed directing the 3^rd opposite party

a) to pay a sum of Rs.85,750/- (Rupees eighty five thousand seven hundred fifty only) with 12% interest from 31.12.2004 till date of realization to the complainant within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.10,000/-(Rupees ten thousand only) towards litigation expenses to the complainant;

c) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, enhanced interest at the rate of 15% will be levied on the said amount from 31.12.2004 till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 29^th day of February 2024.

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 MEMBER-II                                           MEMBER-I                                           PRESIDENT

List of document filed by the complainant:-

List of documents filed by the 3^rd opposite party:-

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MEMBER-II                                           MEMBER-I                                           PRESIDENT