NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Jacob Thomas Kadakampallil and Ors. – Complainants
versus
Sahara Prime City Ltd. – Opp. Party
Consumer Case No.969 of 2016
Decided on 11.10.2021

IMPORTANT POINT
“Allottees of Flats cannot be made to wait indefinitely for possession of their flats.”

Headnote:

Consumer Protection Act, 1986 – Sections 12, 21 and 2(1)(g) : Consumer Protection Act, 2019, Sections 35, 58 and 2(11) – Allotment of Flat – Delay in delivery of possession – Refund of amount deposited – Inordinate delay in handing over the possession of flats looked by complainants in Project launched by respondent-Builder – They had already paid majority of amounts towards total costs of their Flats but the Project is still nowhere near completion – Complainants cannot be made to wait for indefinitely for possession of their flats – Builder, directed to refund the amount deposited along with simple interest @ 8% p.a. – Costs of Rs. 50,000/- also allowed.

Held: A perusal of the afore-extracted Chart containing the details of the Complainants, allotted units, date of allotment letters, promised date of handing over the possession, total costs, amount paid etc. would reveal that most of the Complainants had paid the major amount of the total costs ranging from 81% to 100% but despite that the Builder has failed to complete the construction of the Project and hand over the possession of the allotted Units to the Complainant within the stipulated time i.e. latest by 15.01.2015 except in the case of Bobby Abraham where it was 15.06.2016. Nevertheless, the Opposite Party has not contested the Complaint by filing its reply despite opportunities having been granted and finally Vide Order dated 23.03.2018 its right to file Written Version was forfeited. Hence, the facts averred in the Complaint remain unrebutted and under these circumstances, the questions regarding reasons for delay in completing the Project and as to when the Builder will be in a position to complete the entire Project and hand over the possession to the Complainants also remain unanswered. The defence taken by the Builder that delay in completing the construction of the Project and handing over the possession of the allotted Units to the Complainants has taken place due to default on the part of the Complainants in making the payments of installments in time and a pending litigation between Sahara and SEBI wherein an Order was passed by the Hon’ble Supreme Court restraining them from parting with any moveable or immovable property, does not hold water and deserves to be rejected. If there was any default in making the payment of installments by the Complainants, the Builder was at liberty to cancel the booking. With regard to pendency of case before the Hon’ble Supreme Court, the Builder has informed to the Complainants during the period from May 2014 to July 2014 that there was delay in construction on account of said litigation. Further, vide letter dated 10.10.2014, the Complainants were informed that the work has restarted at the site. Even if it is presumed, for the sake of argument, that there was some delay on account of said litigation, the work was restarted in October, 2014 but yet the Builder has failed to complete the Construction till the date of filing of complaint in the year 2016.

In the case of Emmar MGF Land Ltd. & Ors. vs. Amit Puri - [II (2015) CPJ 568 (NC)], this Commission has held that 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.

Further, in the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - II (2019) CPJ 29 SC, the Hon’ble Apex Court has observed as under:-

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

In the instant case also, the Complainants cannot be made to wait indefinitely for possession of their Flats, when there is absolutely no response from the Opposite Parties and the Complainants are entitled for refund of the principal amount with interest. Accordingly, keeping in view the ratio laid down by the Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd Vs. D.S. Dhanda - II (2019) CPJ 117 (SC), that compensation under multiple heads cannot be awarded, we are of the considered view that simple interest in the form of compensation @ 8% p.a. would meet the ends of justice together with costs of Rs.50,000/-.

In the result, this Complaint filed under Section 12(1)(c) of the Act i.e., for the benefit of all Consumers/Complainants is allowed in part directing the Opposite Party Builder to refund the deposited amount to the Complainants with compensation in the form of simple interest @ 8% p.a. from the respective dates of deposit till the payment is made together with costs of Rs.50,000/. This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 10% p.a. for the same period. (Paras 11 to 15)

Result: Complaint Allowed.