Per Shri A.Z.Khwaja, Hon’ble Presiding Member.

1)    Complainant No.1 Shri Jay S/o Shriram Marathe and complainant No.2 Sou.Vaidehee w/o Shriram Marathe have preferred the present complaint under Section 17 of Consumer Protection Act,1986.

2) Short facts leading to the present complaint may be narrated as under –

             Complainant No.1 Shri Jay S/o Shriram Marathe and complainant No.2 Sou.Vaidehee w/o Shriram Marathe were  interested in purchasing residential flat and were in search of the same. At that time they came across a scheme floated by O.P.No.1 M/s.Sahara Prime City in which O.P. No.1 had made several promises highlighting the project. O.P.Nos.1 and 2 had also published brochure and the brochure spoke about several amenities like centralized control station with CC TV net work, fire fighting set up, greenery and open area and other facilities. Complainants were very much impressed and attracted by the scheme floated by O.P.Nos.1 and 2 and so they booked one unit No.C-8/806 in Block No.C-8 having area admeasuring 135.25 sq.Mtr. in the building know as “Gorgeous”. As per the terms and conditions the consideration was fixed at Rs.42,95,000/- out of which complainant paid earnest amount of Rs.6,44,250/-. Complainant has contended that subsequently looking to the promises made by O.P.Nos.1 and 2 the complainant had paid an amount of Rs.41,12,167/- which was equivalent to 96% of the cost of the flat. Complainants have further alleged that despite payment of the entire amount of the flat the O.P.Nos.1 and 2 did not start the construction and continued to delay project  on one pretext or the other. Complainant has also contended that they were regularly following up the matter with the local officers but there was no response. Complainants were therefore convinced that the O.P.Nos.1 and 2 had failed to abide by assurances given by them and also failed to fulfill the terms and conditions of the contract or complete the construction. Complainants found that there dream of residing in the unit was shattered and O.P.Nos.1 and 2 have indulged in deficiency in service as well as unfair trade practice. Complainant Nos.1 and 2 were therefore left with no option accept to refund of entire amount paid to O.P.Nos.1 and 2 alongwith interest and so the present complaint.

3)            O.P.No.1 and 2 appeared and resisted the complaint by filing written statement on record. At the out set O.P.Nos.1 and 2 contended that complaint is not tenable in law. However O.P.Nos.1 and 2 have admitted that the complainant had booked the unit No.C-8/806 at block No.C-8 and has also paid the amount as stated by the complainant. O.P.Nos.1 and 2 have however denied that they had failed to handover the possession or to complete the construction within stipulated period. O.P.Nos.1 and 2 have also denied that they have given false assurances to the complainants. However O.Ps. have come with specific plea that the contract entered in to by them with the complainant was also governed by clause regarding ‘Force Majuere’  which implies inter-alia the delay  caused due to  circumstances  beyond   the control  of

the company namely Sahara Prime City.  The O.Ps. have taken a plea  that after the contract was entered into some litigation started between the O.Ps./Sahara Prime City and Security and Exchange Board of India (SEBI) and the same had reached the Hon’ble  Supreme Court.  The O.Ps. have also taken a plea that it was beyond the control of the opposite parties Sahara Prime City to transfer or alienate any property in view of certain directions given by the Hon’ble Supreme Court in Contempt  Petition 412/2012 which was filed by SEBI and the said orders are still in force. The opposite parties are bound by the orders passed by the Hon’ble Supreme Court restraining them from parting with or handing over the possession of moveable or immovable  properties  in the  projects.

4.      The O.Ps. have also taken  a specific plea  that there was Arbitration  Clause  in the contract  and so the dispute can be resolved only by the  Arbitrator. The complaint filed by the complainants is therefore not tenable in law and deserves to be dismissed with cost.

5.      We have heard Mr.Pachbudhe, learned  advocate for the complainants and  Mrs. Renuka Nalamwar, learned advocate for the O.P. Nos.1 to 4 representing Sahara Price City Ltd.  It is submitted by learned  advocate  for the complainants Mr.Pachbudhe that  on the  basis of assurances given by the O.P.Nos.1 and 2 the  complainants had parted with  huge consideration of Rs.41,12,167/- which was paid in instalments and the details of the same are also described in the chart annexed with the complaint. But despite the payment of entire consideration, the O.Ps. have not fulfilled the promises nor handed over the possession of the unit purchased by the complainants and so complainants have been subjected to great mental pain and agony. The O.Ps. also failed to provide various amenities promised to complainants and so the complainants were put to great mental pain and agony.

6.      On the other hand, Mrs. Renuka Nalamwar, learned advocate appearing for the O.Ps. have submitted that  the O.Ps. have been  restrained  from  parting with  the possession  of the flat or executing any sale deed until  further orders  in view of the order passed in Contempt Petition Nos. 412/2012 in Civil Appeal No.9813/2011, dated 17/07/2013.   Mrs.  Renuka Nalamwar, learned advocate for the O.Ps. have also  placed on  record the copy of the said orders  as well as other papers which goes to point out that litigation is going on in between the Sahara Prime City and SEBI and the matter is also subjudice before the Hon’ble Supreme Court. The learned advocate for the complainants have emphasised that the complainants after having invested huge amount can not keep waiting endlessly for possession of the flat or for registration of sale deed. Complainants are therefore not at all keen on getting the possession of the flat/unit purchased by them but he is now interested in refund of entire amount in the backdrop of the fact that the O.Ps./Sahara Prime City have not fulfilled the promise. It is submitted on behalf of complainants that the complainants have therefore waived his right to claim possession and so O.Ps./Sahara Price City may be directed to refund the amount paid towards consideration. Complainants have further also filed affidavit on record in support of the said contention.

7.     After going through the various documents and papers placed on record relating to the payments made by the complainants as well as the copy of judgment delivered in Contempt Petition No.412/2012 passed by the Hon’ble Supreme Court, we are of the view that the O.Ps./Sahara Prime City can not be directed to either deliver possession or to execute sale deed. At the same time we can not lose sight of the fact that complainants had already paid huge amount of Rs.41,12,167/- to the O.Ps. long back. However, the complainants are entitled for refund of entire amount of  consideration from the O.Ps. We are further inclined to also award interest as claimed by the complainants. In this regard learned advocate Mrs.Renuka Nalamwar have vehemently submitted before us that interest of 18% p.a. claimed by the complainants is excessive and on this aspect we have heard both the learned advocates. But this submissions of the learned advocate of O.Ps. cannot be accepted due to peculiar facts of this case. We are of the view that O.Ps. are also liable to pay compensation in the sum of Rs.5,00,000/- towards mental pain and agony caused to the complainants due to non delivery of the possession of the row house/unit despite making payments. Complainants are further entitled for Rs.10,000/- towards cost of litigation. We therefore proceed to pass the following order. 

//ORDER//

i.        Consumer Complaint is hereby allowed.

ii.       O.P.Nos. 1 and 2 are hereby directed to pay an amount of Rs.41,12,167/- along with  interest  at the rate of 18% p.a. from the  date of deposit  of amount  till  the date  of  realization of the same by the complainants.  

iii.      O.P. Nos. 1 and 2 are hereby also directed to pay to the complainants  compensation  of Rs.5,00,000/- towards  physical and mental  harassment caused to the  complainants.

iv.      The O.P.Nos. 1 and 2 are hereby also directed to pay  litigation cost of Rs. 10,000/- to the complainants.  

v.       The payment of the amount in compliance of the above order shall be made within a span of three months from the receipt of the copy of the order by the O.Ps. subject to  permission  of the Hon’ble Supreme Court, for making the said payment.

vi.      Copy of order be furnished to both the parties free of cost.