Versus
- Sahara Prime City Limited, Sahara India Centre, 2, Kapoorthala Complex, Aliganj, Lucknow-226024 through authorized signatory.
- Sahara Prime City Limited, D-Block, Model Town Extension, Ludhiana through authorized signatory.
- Sahara Green Realtors P. Ltd., Sahara India Sadan, 2, A Shakespeare Sarani, Kolkata-71, through authorized signatory. …..Opposite parties
Complaint Under Section 35 of the Consumer Protection Act.
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
SH. JASWINDER SINGH, MEMBER
MS. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. M.S. Sethi, Advocate.
For OPs : Exparte.
ORDER
PER SANJEEV BATRA, PRESIDENT
1. Briefly stated, the facts of the complaint are that the complainant vide application No.24291800047 dated 23.12.2006 applied for residential flat of type-2 bedroom on 5th floor with area of 88.73 sq. meter at Sahara City Homes, Lucknow with OP1 and OP2 as she was planning to shift to Lucknow from Ludhiana. OP1 on 25.03.2009 issued an allotment letter Ex. C1 disclosing that Unit No.B28/506 Type-2 bedroom on 5th floor having area of 88.73 sq. meter has been allotted to her for a price of Rs.21,73,000/- and assured that the possession of the unit would be delivered within 38 months from the date of allotment i.e. 24.05.2012. The complainant paid the requisite amount of sale consideration in installments till 16.04.2012 which was also acknowledged in the statement of deposit Ex. C2 by OP1. Thereafter, the opposite parties failed to deliver the possession within the prescribed period nor communicated any further prospective date of possession of allotted unit. The complainant along with her husband visited the site on 09.11.2014 and 05.03.2016 but found that the project was still under construction at the site. The complainant took photographs Ex. C3 to Ex. C6 and submitted a hand written letter dated 08.03.2017 Ex. C7 to opposite party No.2. Also the complainant issued a legal notice dated 04.04.2016 Ex. C8 to the opposite parties calling upon to deliver the possession but nothing was done at their end. The complainant had been submitting letters dated 20.05.2017 Ex. C10, 24.08.2017 Ex. C11 and 26.02.2019 Ex. C12 but there was no response on the part of the opposite parties. On 25.07.2021, the complainant again visited opposite party No.2 in order to know the status of possession but opposite party No1. orally advised them firstly to make a payment of Rs.5,29,025/- for getting the physical possession and for registration of sale deed. Under the compelling circumstances, on 26.07.2021 the complainant issued three cheques for a sum of Rs.2,12,680/-, 3,44,014/- and Rs.17,000/- regarding which opposite party issued receipts Ex. C16 to Ex. C20.
2. The payment receipt dated 16.08.2021 issued in response of payment of cheque No. 189744 where it has been disclosed that they are charging the amount of Rs.14,000/- towards some connection. Similarly, the payment receipt dated 18.08.2021 was issued against cheque No.189743 where it has been disclosed that the amount of Rs.3,44,104/- is being charged on account of SGST/CGST towards one time maintenance charges. The receipt of payment dated 16.08.2021 issued by the opposite parties towards the cheque No.189742 which has been shown to be charged towards the outstanding charges being CGST and SGST. It was further stated that besides charging the above said amount, a sum of Rs.44,006/- on account of value added tax, service tax and S.C.H. regularization fee was charged by opposite party No.1. Thereafter, on 18.10.2021, they issued a possession letter and delivered the possession of the allotted unit and the complainant also got the sale deed of the allotted flat registered by paying the stamp duty of Rs.1,52,700/- on the basis of sale consideration value stated by the opposite parties. Copy of possession letter and sale deed is Ex. C21 and Ex. C22. The complainant stated that the opposite party No.1 and 2 had collected a sum of Rs.3,44,014/- being one time maintenance which is not fair and justified. There is no agreement to this effect between the complainant and the opposite parties. There is no binding contract even disclosed in the sale deed. One time maintenance charges have been charged even before the delivery of possession and that amounts to unfair trade practice as well as rendering deficient and negligent services by the opposite parties. Opposite party No.1 and 2 had charged a sum of Rs.21,72,990/- till 16.04.2012 as sale consideration as disclosed in the allotment letter dated 25.03.2009 Ex. C1 but at any stage never disclosed in writing for enhancement of the sale consideration from Rs.21,73,000/- to Rs.23,23,000/- and the difference of Rs.1,50,000/- has been charged illegally from the complainant and the receipt dated 16.10.2021 Ex. C18 has been issued in this regard and in fact, no outstanding dues were pending. Further charging of the amount of Rs.1,50,010/- and Rs.18,000/- being CGST and SGST above the charges sale consideration is also unfair trade practice as well as deficiency in service on the part of the opposite parties. Further the collection of sum of Rs.44,006/- in the name of value added tax, service tax and regularization fee vide receipt ex. C19 has also been arbitrarily charged. It was further stated that opposite party No.1 had mis-represented the material facts regarding the construction of the year 2011 in the sale deed for the allotted unit whereas till the filing of the complaint, the competent authority has not issued any completion or occupation certificate to opposite party No.1 and execution of sale deed as well as delivery of possession also amounts to unfair trade practice. It has been further statd that the complainant applied for flat vide application dated 23.12.2006 which was allotted vide letter dated 25.03.2009 and opposite party No.1 promised to deliver the possession within 38 months i.e. up to 24.05.2012 but the physical possession was delivered only on 18.10.2021 vide Ex. C21 without any completion certificate and occupation certificate from the competent authority. As such, the complainant is entitled for claiming interest @12% per annum on the paid sale consideration of Rs.21,73,000/- from the date of payments till realization. The complainant had made the following prayers:-
i) To allow refund of the collected amount of Rs.3,44,104/- Ex. C17 along with interest @12% PA till refund.
ii) To allow refund of the amount of Rs.1,50,010/- and Rs.18,001/- total Rs.1,68,011/-
iii) To allow refund of sum of Rs.44,006/- along with interest @12% PA from the date of payment till realization
iv) To allow compensation on account of registration of sale deed as well as giving physical possession without getting approval/completion and occupation certificate etc. from the competent authorities being illegal act and conduct of the opposite party No.1 which amounts to unfair trade practice as well as rendering of deficiency and negligent services as such, opposite parties jointly and severally liable to be penalized to Rs.3 Lacs.
v) To allow interest @12% PA on the sum of Rs.21,73,000/- from dt. 16.04.2012 till 18.10.2021.
vi) To allow compensation of Rs.5 Lacs on above grounds being rendering of deficient/negligent and for adopting unfair trade practice and for causing mental tension, harassment, agony and financial loss to the complainant.
3. Upon notice, the opposite parties did not appear despite service and were proceeded against exparte vide order dated 28.09.2022.
4. In support of her claim, the complainant tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 to Ex. C23 and closed the evidence.
5. We have heard the arguments of the counsel for the complainant and also gone through the complaint, affidavit and annexed documents produced on record by the complainant.
6. The first and foremost question which requires consideration and adjudication of this Commission is that whether the complainant is entitled to interest on sum of Rs.21,73,000/- w.e.f. 16.04.2012 to 18.10.2021 on account of delay in delivering the possession to the complainant, if so at what rate?
7. It is crystal clear that as per the allotment letter Ex. C1, the possession of the unit was proposed to be handed over within 38 months from the date of allotment i.e. from 24.05.2012 and they could not deliver the possession within the promised period and ultimately the possession was delivered on 18.10.2021 vide possession letter Ex. C13. According to the complainant, the said possession was without completion and occupation certificate. It can also be noticed that during this period, the complainant has been representing through letters and also visited personally along with her husband at the location and impressed upon the opposite parties to expedite the process of delivery of possession but the opposite parties continued to proceed on snail’s pace and took about nine years in discharging their contractual obligation. The correspondence placed on record also does not figure any mitigating circumstance(s) in favour of the opposite parties which could justify such an inordinate delay in delivering the possession. The payment of entire basic price of the unit shows the bonafide approach of the complainant. The circumstances clearly shows that the opposite parties had made false statement of facts with regard to the delivery of possession and the opposite parties were under legal obligation to deliver the possession and within the stipulated time. Non-delivery of possession in spite of receiving the full amount not only amounts to deficiency of service but adoption of unfair trade practice on the part of the opposite parties. So the complainant is entitled to compensation for harassment and mental agony. So the grant of interest @6% from the date of promised delivery would be an adequate relief in the form of compensation. So the complainant is entitled to interest @6% per annum on the amount of Rs.21,73,000/- from 16.04.2012 to 18.10.2021 along with composite compensation of Rs.5,000/-.
8. With regard to the other reliefs, the complainant himself has made the payment without any protest. Mere assertion that it was made under compelling circumstances is not sufficient to order the refund of amount under various heads. So the reliefs claimed on other heads i.e
i) To allow refund of the collected amount of Rs.3,44,104/- Ex. C17 along with interest @12% PA till refund.
ii) To allow refund of the amount of Rs.1,50,010/- and Rs.18,001/- total Rs.1,68,011/-
iii) To allow refund of sum of Rs.44,006/- along with interest @12% PA from the date of payment till realization
is hereby declined.
9. As a result of above discussion, the complaint is partly allowed with direction to the opposite parties to pay interest @6% per annum on the amount of Rs.21,73,000/- from 16.04.2012 to 18.10.2021 to the complainant within 30 days from the date of receipt of copy of the order. The opposite parties shall also pay a composite compensation of Rs.5,000/- (Rupees Five Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of the order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
11. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Monika Bhagat) (Jaswinder Singh) (Sanjeev Batra) Member Member President
Announced in Open Commission.
Dated:12.12.2022.
Gobind Ram.
Smt. Kailash Gupta Vs Sahara Prime City Ltd. CC/22/277
Present: Sh. M.S. Sethi, Advocate for complainant.
OPs exparte.
Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to the opposite parties to pay interest @6% per annum on the amount of Rs.21,73,000/- from 16.04.2012 to 18.10.2021 to the complainant within 30 days from the date of receipt of copy of the order. The opposite parties shall also pay a composite compensation of Rs.5,000/- (Rupees Five Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of the order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
(Monika Bhagat) (Jaswinder Singh) (Sanjeev Batra) Member Member President
Announced in Open Commission.
Dated:12.12.2022.
Gobind Ram.
