JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

1.      The complainants who are husband and wife, booked a residential bungalow with the OP in a project namely Sahara City Homes (now known as Sahara Prime City) for a total consideration of Rs.1,11,00,000/-. Vide allotment letter dated 28.05.2008, Unit No. S4/17 was allotted to the complainants.  The possession was proposed to be delivered within 38 months from the date of allotment meaning thereby that it was to be delivered by 28.07.2011.  The complainants have already paid a sum of Rs.1,11,00,000/- to the OP.  However, possession of the said house has not been delivered to them.  Being aggrieved, they are before this Commission seeking refund of the amount paid by them alongwith compensation etc. 

2.      The complaint has been resisted by the OP which has admitted the allotment made to the complainants as well as the payment alleged by them.  It has been alleged in the reply filed by the OP that the construction of the bungalows was delayed on account of certain clearances having not been given and the unit in question was ready for being handed over, on the date the reply was filed, but in view of the direction of the Hon’ble Supreme Court dated 21.11.2013, the OP was unable to hand over the said unit to the complainants.  The learned counsel for the OP states that the aforesaid order has since been clarified by the Hon’ble Supreme Court and therefore, they are in a position to hand over possession of bungalow in question to the complainant. 

3.      A perusal of the allotment dated 28.05.2008 would show that the possession was to be delivered within 38 months from the date of the allotment, meaning thereby that the possession ought to have been delivered by 28.07.2011.  This complaint came to be filed on 01.09.2015.  Thus, the OP was not able to give possession of the bungalow booked by the complainants for more than four years after the date committed by them for delivering its possession.  Though a bald averment has been made that there was delay in obtaining the requisite clearances, there is no evidence to substantiate the said allegations.  There is no evidence as to on which date the statutory clearances were applied and on which date, the same were granted.  It is also not known what were the reasons for the statutory clearances not being granted in time.  If the delay in grant of statutory clearances occurred on account of deficiencies or short-comings on the part of the OP, it cannot take any advantage of such delays.  Therefore, I find no justification for the abnormal delay of more than four years in completing the construction of the bungalow booked by the complainants. 

4.      Moreover, this is not the case of the OP in the reply filed by it that it has obtained the requisite occupancy certificate in respect of the bungalow allotted to the complainants.  In the absence of occupancy certificate, neither the OP can offer possession of the bungalow to the complainants nor can they occupy the same.  The complainant who is present in the court states that in fact, the development of the project, as promised in the Brochure issued by the OP, is nowhere near completion and therefore, even if they take possession of the bungalow, they will not be able to live in the same.  In these circumstances, the complainants cannot be compelled to accept possession of the bungalow booked by them with the OP. 

5.      During the course of hearing, the learned counsel for the OP has drawn my attention to the orders dated 11.07.2016 and 03.08.2016 passed by the Hon’ble Supreme Court in certain applications filed in C.A. No. 9813 of 2011 & 9833 of 2011 and C.P. (C) No. 260 of 2013 in C.A. No. 8643 of 2012.  In my opinion, none of these orders comes in the way of this Commission directing refund of the amount paid by the complainant to the OP.  Of course, if there is an embargo on disbursement of the cash available with the OP or the amount which the OP has to deposit in SEBI Sahara Account, the OP will make disbursement only subject to the Hon’ble Supreme Court granting permission for such disbursement, to the complainants.   

6.      Considering all the facts and circumstances of the case and the prevalent rates of interest in the market, the complaint is disposed of with the following directions:

(i) The OP shall refund the entire amount of Rs.1,11,00,000/- to the complainants alongwith interest on that amount @ 9% per annum from the date of payment of each amount till the date on which the said amount is refunded to the complainants in terms of this order.

(ii) The OP shall also pay Rs.10,000/- as cost of litigation to the complainants.

(iii) The payment in terms of this order shall be made within three months, subject to the permission of the Hon’ble Supreme Court if required for making payment in terms of this order.