SAHARA CITY HOMES (SAHARA PRIME CITY LTD.) & 3 ORS. vs MOHD. NAJAB KHAN & ANR.

The opposite parties (OPs) M/s. Sahara City Homes (Sahara Prime City Ltd.) and Ors. have filed this appeal against the impugned order dated 10.07.2005, passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow, (hereinafter referred to as "the State Commission") in Consumer Complaint No. 97/2014, Mohd. Najam Khan & Anr. Vs. Sahara City Homes (Sahara Prime City Ltd.) & Ors., filed by the present respondents, vide which, the said complaint was allowed and the appellants were directed to hand over the possession of the flat in question, after obtaining the balance amount payable from the complainants. It was also stated that if the said flat had not been completed, then some other flat of same value and size should be allotted to the complainants.

The facts of the case are that the complainant no. 1, Mohd. Nazab Khan, who is a handicapped person and the complainant no. 2, Smt. Shagoofa Naaz booked a three bedroom apartment with the OPs and they were allotted unit no. C-25/105, first floor, having an area of 158.41 sq. mtr. at a total cost of Rs. 45,70,000/- at Sahara City Homes, Lucknow. It has been stated that the complainants were in need of the said apartment at Lucknow, because complainant no. 1 wanted to go for physiotherapy treatment near that place. The net sale value of the said flat after discount, was fixed at Rs. 31,99,000/- and an amount of Rs. 28,85,000/- was deposited with the OPs, but the possession of the said flat was not given to them, despite the assurance that the said unit shall be delivered in March, 2013. Despite making requests through letters as well as verbally, neither the physical possession was delivered nor the money was refunded to the complainants. The complainants visited the construction site, when it was revealed that the construction activity was on halt and the persons available there told the complainants that the apartments were likely to be completed by 2015. The partial construction work done by the OPs was also found to be defective and sub-standard. The complainants filed the consumer complaint in question, seeking directions to the OPs to provide physical possession of the allotted flat and also to pay interest @ 24% p.a. on the amount deposited by them and in addition, compensate them for deficiency in service etc. and to pay litigation cost.

The complaint was resisted by the OPs by filing a written statement before the State Commission, in which they denied the allegations against them, but admitted that booking was done in favour of the complainants on 21.05.2012 and the amount fixed for the flat was Rs. 31,99,000/- after giving discount of 30% for the special category. The OPs stated that as on 28.02.2014, an amount of Rs. 24,29,297/- alongwith Rs. 63,059/- as interest had been received from the complainants. A ''No Objection Certificate'' had also been issued to the complainants for sanction of loan from UCO Bank on 10.07.2013. Regarding the request of the complainants for cancellation of the booking, they were intimated that cancellation could be done only if a ''No Objection Certificate'' was received from the Bank. The OPs further stated that the construction was being carried out only after procuring all due payments. They also took the plea that in such constructions relating to buildings, flats etc., time is not the essence of contract. The OPs requested that the complaint against them should be dismissed.

Vide impugned order, the State Commission partly allowed the said complaint and gave directions that within two months of the said order, the balance payable amount in respect of the cost of the flat and registration charges etc. without any penal interest should be paid by the complainants to the OPs. The OPs/appellants were directed to hand over the possession of the flat in question and it was also stated that if the flat was not completed then another flat of the same value and size should be given to the complainants within a period of two months from the date of payment of the remaining amount. Being aggrieved against the said order, the appellants are before this Commission by way of the present First Appeal.

The impugned order in this case is dated 10.07.2015, whereas the appeal has been filed on 28.01.2016 and hence, a delay of 167 days has been reported to have taken place in filing the appeal. However before the filing of the appeal, the complainants filed a caveat in the case, which

was received in the Registry on 30.07.2015. The learned counsel for both the parties have been heard and the record available has been examined.

The learned counsel for the appellants stated that the payment for the flat had not been received by the OPs from the complainants in time, and hence, the possession could not be delivered to them. On the other hand, the learned counsel for the respondents stated that there had been an inordinate delay of 167 days in filing the appeal and hence, the appeal should be dismissed on this ground alone. At this stage, they have made 100% payment to the builder in pursuance of the impugned order of the State Commission. The appeal, however, had been filed after the complainants filed an execution petition against them.

During proceedings before this Commission, an I.A. No. 4673/2016 was filed on behalf of the appellants that Rishidev Upadhyay should be substituted as Authorised Representative of the Appellant Company as the previous Authorised Representative had left the Company. They also filed affidavit of the said Rishidev Upadhyay in this regard. In the absence of anything to the contrary, the said application is allowed. The appellants filed another application, I.A. No. 4674/2016, saying that appellant nos. 3 and 4 should be deleted from the array of the parties as they had left the services of the Company. This application is also allowed without prejudice to the interest of the complainants.

An important point for consideration in the present case is whether there is sufficient justification for condonation of delay in filing the appeal. It has been stated in the application for condonation of delay as follows:-

"3. That on 22.01.2016, the counsel at New Delhi received instructions for drafting of the instant appeal as the Complainant had initiated execution proceedings and same are listed on 29.01.2106. That the certified copy of the Impugned Order was received by the counsel for the Appellant on 27.01.2016."

It is clearly admitted in the above version of the complainant that they initiated the proceedings for filing the present appeal only after the execution proceedings had been initiated against them, and their counsel at New Delhi received information for drafting the instant appeal as late on 22.01.2016. The copy of the impugned order dated 10.07.2015 is stated to have been received by the appellants on 15.07.2015 as per the endorsement made on a certified copy of the impugned order. The appellants have not given any reason why they did not make any effort to present the appeal within the permissible time of 30 days. Since no explanation or justification has been given in the memo of appeal or in the application for condonation of delay, the said delay cannot be condoned at all, and hence, the present appeal is clearly barred by limitation and deserves to be dismissed on this ground alone.

Coming to the merits, it has been clearly admitted by the appellants/OPs that a substantial amount of money against the cost of the flat had been paid by the complainants to them. However, they could not deliver the possession of the flat in time. They have tried to say in various documents that the possession could not be delivered due to force majeure conditions, but the appellants have failed to explain what kind of conditions or problems they were facing which prevented them from completing and delivering the flat in time. The State Commission, after carrying out a detailed analysis of the facts on record, made a well-reasoned order, in which they d i r e c t e d t h e c o m p l a i n a n t s t o d e p o s i t the balance amount within a period of two months, without penal interest and they further directed the OPs/Appellants to hand over the possession of the flat in question to the complainants. The State Commission in their wisdom also directed that if the appellants/OPs were not in a position to deliver the said flat, they could offer another flat of the same value and size to the complainants within a period of two months from the date of payment of the remaining amount. In pursuance of the said order, the complainants deposited the balance amount, but the appellants do not seem to have taken any steps for the delivery of the possession to the complainants. When the execution proceedings were filed by the complainants, they engaged the services of an Advocate and decided to file the present appeal, which is barred by limitation as stated above. In the light of the facts stated, it is very clear that there is no illegality, irregularity or jurisdictional error in the impugned order of the State Commission.

Based on the foregoing discussion, the present First Appeal is ordered to be dismissed, being barred by limitation as well as on merits and the impugned order passed by the State Commission is upheld. There shall be no order as to costs.