Sahara Prime City Ltd vs Divya Rathore

THESE two appeals arise out of same judgment rendered by the State Consumer Disputes Redressal Commission, Rajasthan, in complaint case No. 42/2009. By that judgment, 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.

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.

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.

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 along with due interest.

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 instalments before the stipulated period of 23 months as shown vide letter dated 29th May , 2009 (Annexure A-6). Her booking was cancelled due to non-payment of the instalments. 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.

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 along with interest and costs as indicated at the outset.

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.

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 conditions of the mutual agreement. He further argued that Clause No. 14 (iii) of the terms and conditions is the normal forfeiture clause. He referred to Sahara India Ltd. v. P. Gajendrachari, III (2010) CPJ 190 (NC). He also submitted that the terms of the contract are required to be interpreted as they are. He referred to M.P. Housing Board v. Progressive Writers and Publishers, IV (2009) SLT 47=II (2009) CLT 270 (SC)=AIR 2009 SC 1585. Per Contra, Ms. Gokhle, learned Counsel appearing for Ms. Divya Rathore submitted that the remaining claim should have been allowed and the amounts deposited by her could not be retained or forfeited by M/s. Sahara Prime City Ltd. and Ors.

WE deem it proper to consider merits of the appeal preferred by Sahara Prime City Ltd. and Ors. (FA 304/2010) in the first place, a letter dated 25.9.2009 (Annexure A-6) was issued to Ms. Divya Rathore by M/s. Sahara Prime City Ltd. and Ors. It does not show period of 23 months scheduled for delivery of possession. In spite of omission in the said letter dated 29.5.2009 to specify period of 23 months as scheduled for making the payments. However, Sahara Prime City Ltd. and Ors. stated before the State Commission that before expiry of that period Ms. Divya Rathore has stopped payment of further instalments and therefore the booking was cancelled vide letter annexed at Annexure A-9. We do not find any document to infer that Ms. Divya Rathore had agreed to make the payments in 23 instalments. It appears that the housing scheme had not commenced when the cancellation was communicated "to Ms. Divya Rathore. The contention of M/s. Sahara Prime City Ltd. was that due to incident of Fire in the Industrial area of Sitapura, the I.O.C. was caught in fire therefore the housing scheme could not be implemented in the relevant period. The State Commission noticed that so-called incident of fire in Sitapura industrial area has no nexus with the implementation of the Housing Scheme. It is on record that M/s. Sahara Prime City Ltd. committed delay in implementation of the Housing Scheme. The amounts were paid by Ms. Divya Rathore from time-to-time. It is true that she submitted application for change of Row House and same was granted by Sahara Prime City Ltd. in June 2009. The re-scheduling of the instalments was sought by Ms. Divya Rathore vide letter dated 13.7.2009. It is obvious, therefore, that till July 2009, she was very much ready and willing to purchase the Row House in question (R/34).

WE have noticed that by letter dated 4.8.2008 Ms. Divya Rathore was informed by M/s. Sahara Prime City Ltd. that her booking was cancelled because she had not deposited the dues within the given period. The cancellation was made without giving particulars of the defaults. The payment of on of the instalment was made by Ms. Divya Rathore on 31.7.2008. The next instalment was payable by the end of August 2009. She paid that instalment on 18.8.2009. Even then, before the due date of such payment, on 4.8.2008 the booking was cancelled. The unilateral act of M/s. Sahara Prime City Ltd. is therefore improper and unjust.

IN case of M/s. Sahara India Corporation Ltd. v. P. Gajendrachari (supra), the booking was cancelled at instance of the consumer on account of his financial difficulties. The consumer had informed M/s. Sahara India Corp. Ltd. for refund of the booking amount. The facts of the said case are on different footings. The contention that the agreement has to be interpreted in terms of the document itself is acceptable but in the present case the default was not committed by Ms. Divya Rathore and therefore unilateral cancellation of the booking was not justified and proper. The claim of the consumer (Ms. Divya Rathore) for refund of the amount was therefore justified. M/s. Sahara Prime City Ltd. and Ors. cannot forfeit the amount deposited by Ms. Divya Rathore nor can deduct any amount. That would amount to unjust enrichment though the cancellation of the booking was not at all justified and proper. Under the circumstances, we do not find any error committed by the State Commission while allowing refund of the amount along with due interest and cost as imposed, vide the impugned judgment. It follows, therefore, that the appeal preferred by M/s. Sahara Prime City Ltd. and Ors. (F.A. No. 304/2010) is meritless.

SO far as the counter-appeal of Ms. Divya Rathore is concerned, there is considerable delay of 153 days in filing of that appeal. The reasons stated in the condonation application are not satisfactory. The contention of Ms. Divya Rathore is that she was engaged in her examination and was unable to consult her parents. It may be pointed out that in the proceedings before the State Commission, Ms. Divya Rathore appeared and there was no documentary evidence to show that she was taking education. The affidavit of Ms. Divya Rathore also does not show in which school or college she was taking education and for which examination she was required to appear. The delay is not at all properly explained. We are of the opinion that she preferred the appeal (F.A. No. 75/2011) only after receiving the notice of the appeal filed by M/s. Sahara India Ltd. and Ors, by way of strategic stance. It is stated in the delay condonation application that time was consumed in translation of the Hindi documents. Such kind of reason is unacceptable. The delay is not properly explained to our satisfaction. The appeal (F.A. No. 75/2011) will have to be therefore dismissed.

IN the result, both the appeals are dismissed. M/s. Sahara Prime City Ltd. and Ors. shall pay cost of Rs. 5,000 consolidated in both the appeals and shall bear their own costs. Appeals dismissed.