IMPORTANT POINT
Booking cannot be cancelled before due date of payment.

V.R. Kingaonkar, Presiding Member—These two appeals arise out of same judgement rendered by the State Consumer Redressal Commission, Rajasthan, in complaint case No. 42/2009. By that judgement, the State Commission partly allowed the complaint and directed payment of Rs. 8,18,322 to the complainant with interest at the rate of 9% p.a. and cost of Rs. 20,000.

2. For the sake of convenience, the parties are referred to by their nomenclature in the proceedings of the complaint case. Ms. Divya Rathore is the original complainant and M/s Sahara Prime City Ltd. and other authorised officers of Sahara City Home, Sahara Commercial Corporation Ltd. were the original opponents before the State Commission.

3. It is an admitted fact that a housing scheme in the name “Sahara City Homes” was floated in 217 cities throughout India. An advertisement was published in pursuance to the sale campaign. There is no dispute about the fact that Ms. Divya Rathore booked a Row House in one of such scheme to be completed in Jaipur Township. There is also no dispute about the fact that the Row House was booked on 20th December 2005 and that Ms. Divya Rathore paid an amount of Rs.8,18,322 in all till July 2009. It is an admitted fact that initially, she had booked a Row House No. 3/76 but on her own application, it was changed as Row House No. 3/34.

4. Briefly stated, the case of Ms. Divya Rathore was that though it was agreed that possession of the Row House would be given within period of three (3) years from the date of the booking yet the project had not started even till May 2009. The remaining amount was to be paid at the time of the allotment of the Row House. However, the Sahara Prime City Ltd. had not started construction of the houses to implement the scheme. The Row House could have been purchased by her if the construction had been completed within the period of three years. The amounts of the properties were increased. Later on the booking was cancelled by the Sahara Prime City Ltd. Hence, Ms. Divya Rathore claimed back the amount deposited by her alongwith due interest. .

5. The defence of M/s Sahara Prime City Ltd. and others was that the condition of three (3) years period for delivery of possession was part of the publication of the Brochure but it was in respect of only some of the projects to be implemented in the first phase. However, it was never agreed that the Houses would be made available to all the perspective purchasers at all the places in 102 cities by the end of 2007. It was alleged that Ms. Divya Rathore had stopped payments of the due installments before the stipulated period of 23 months as shown vide letter dated 29th May 2009 (Annexure A6). Her booking was cancelled due to non-payment of the installments. She was not entitled to claim refund of the amount because she committed breach of the terms of the agreement. Consequently they sought dismissal of the complaint.

6. The State Commission came to the conclusion that M/s Sahara Prime City Ltd. had no legal right to forfeit the amount deposited by the consumer i.e. Ms. Divya Rathore. The State Commission directed to refund the said amount alongwith interest and costs as indicated at the outset.

7. Feeling aggrieved, M/s. Sahara Prime City Ltd. and others filed F.A. No. 304/2010 whereas Ms. Divya Rathore has preferred appeal F.A. No. 75/2011 as she felt aggrieved due to denial of part of her claim.

8. We have heard the learned Counsel for the parties on behalf of M/s Sahara Prime City Ltd. and Others, Learned Counsel Mr. G.L.N. Murthy submitted that the cancellation of the booking was due to defaults in payment made by Ms. Divya Rathore. He contended that the time was not essence of the contract. He contended that Ms. Divya Rathore was not entitled to claim possession within three years period. He argued that M/s Sahara Prime City Ltd and Ors. were entitled to deduct amount of loss to the extent of 5% to 12.5% from the booking amount as per terms and conditi