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

1)      Complainant has filed the present complaint under section 17 of Consumer Protection Act 1986 for claiming vacant possession of flat and also for compensation and alternatively for refund of the amount of consideration. Short facts leading to the filing of the present complaint may be narrated as under :- 

2)      Complainant Dr.Vidita Vijay Ghule claims to be medical practitioner and resident of Ramkrishna Nagar, Ajni Square, Wardha Road, Nagpur. Complainant has contended that she completed her M.B.B.S. from Government Medical College and Hospital Nagpur and thereafter obtained Post Graduate Degree (D.G.O.) from Kolkata University and thereafter she went to United Kingdom for further education and took higher education in Gynecology from Masters of Royal College, London. Complainant has contended that she was always desiring and planning to come back to India and to serve the people in Nagpur. Complainant has also contended that she had executed registered power of attorney infavour of her father Vijay Ghule who was resident at Ramkrishna Nagar, Nagpur. Complainant has contended that she  come to know through news papers that opposite party namely Sahara India Corporation is dealing in the business of infrastructure and had launched various residential housing projects in several cities including at Nagpur. Sahara India Commercial Corporation had also claimed that the residential housing project would be constructed in township and also facilities like community centre, hospital, shopping mall etc. will be provided to the residents who purchase their flats and bungalows.  Opposite party namely Sahara India Corporation was also having branch office at Nagpur. Complainant therefore taking into consideration her own planning and desire decided to purchase two Bed Room residential flat in the year 2007 in the township to be constructed in prominent area situated at Wardha Road, Nagpur. Complainant therefore booked flat on 29/08/2007 registered as unit No.2-C/101 on first floor having flat area of 117.91 sq.Mt. for a consideration of Rs.31,72,000/- which was to be paid in 38 installments. Complainant also paid an earnest amount of Rs.3,17,000/- by cheques on 14/08/2007 through State Bank of India out of the total consideration. 

3)      Complainant has contended that since she was serving in United Kingdom, she had executed general power of attorney in the name of her father who completed all necessary formalities as well as  conditions. Complainant has taken plea that after booking the flat with the opposite party, the Complainant regularly paid 37 installments by cheques and last installment was paid on 15/10/2010 of an amount of Rs.74,910/-. Complainant has also given chart of payment of installments which is a part and parcel of the present complaint. Complainant has alleged that she has paid total amount of consideration of Rs.31,72,000/- for purchase 117.91 sq.mtr. of flat/unit No.C-2/101 on first floor at Sahara City Home. After making the entire payment the Complainant was waiting for handing over possession of the flat booked by her and also for execution of sale deed. On 27/11/2012 complainant received letter from the office of Opposite party that a fit out possession of the aforesaid flat shall be handed over and actual physical possession will be handed over after completing other legal formalities which implied that the Opposite party was not ready to give the physical possession. Complainant requested the opposite party to hand over possession and execute the sale deed from time to time, but there was no response and reply of the opposite party was that the company was under financial crisis and was put under various restrictions by the SEBI. Complainant was in constant touch with the local branch office of the opposite party and also issued a letter on 04/11/2015, but there was no reply. Complainant had already paid all the installments of the loan and claimed to be entitled not only for possession but also entitle for execution of sale deed by the Opposite party, but the same was not done. Complainant has contended that earlier she had filed the complaint with specific prayer directing the opposite party to deliver the possession and execute the sale deed, but during the pendancy of the complaint the present Complainant has waived her right by filing an application and has only claim refund of an amount of Rs.31,72,000/- alongwith penal interest @ 15% p.a., and so the present complaint.

4)      O.P. has appeared and resisted the complaint by filing detailed written version. Opposite party has admitted that the complainant Dr.Vidita Ghule was allotted the flat bearing unit No.C-2/101 on first floor, admeasuring 117.91 sq.mtr. Opposite party has also admitted that the consideration of the flat was fixed at Rs.31,72,000/- and further the opposite party has also admitted that the complainant had paid total amount of Rs.31,72,000/- by way of installments. However, opposite party has denied that it had failed to handover possession or  that it had given an under taking to complete the construction and provide all the amenities within the stipulated period. Opposite party has in the written version categorically denied all the allegations. Opposite party has also taken a plea that the complainant had no cause of action and the complaint was barred by limitation as the complaint was not filed within a period of two years from 15/10/2010. Opposite party has come with a specific plea that the contract entered into by them with the complainant Dr.Vidita Ghule was governed by the Term No.18 of the Terms and Conditions regarding ‘Force Majuere’  which implies  inter-alia the delay  caused due to  circumstances  beyond   the control  of the company namely 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.      I have heard advocate Ms.Shilpa Maraskolhe holding for Advocate Mr.Sadavarte, learned  advocate for the complainant and  Mrs. Renuka Nalamwar, learned advocate for the O.P. Nos.1 and 2 representing Sahara India Commercial Corporation  Ltd. It is argued by learned  advocate  for the complainant Ms.Shilpa Maraskolhe holding for Advocate Mr.Sadavarte that  on the basis of several assurances given by the O.P.Nos.1 and 2 and relying upon the same the Complainant had parted  with  the huge  consideration of Rs.31,72,000/- which is also described in the chart annexed with the complaint. But despite the payment of entire consideration, the O.P. did not provide the amenities but also did not  only handed over the possession of the booked flat/unit nor execute any sale deed to the same. The Complainant who was having a dream of living in her own house at Nagpur has been subject to great mental pain and agony.

6.      On the other hand, Mrs. Renuka Nalamwar, learned advocate appearing for the O.Ps. has fairly 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. has 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 India Commercial Corporation and SEBI and the matter is also subjudice before the Hon’ble Supreme Court. The learned advocate for the complainant Ms.Shilpa Maraskolhe holding for Advocate Mr.Sadavarte has emphasised that the Complainant after having invested huge amount can not be kept waiting endlessly for possession of the flat or for registration of the sale deed. Complainant is therefore not at all keen on getting the possession of the flat/unit purchased by them but he is now interested only in refund of entire amount in the backdrop of the fact that the O.P./Sahara India Commercial Corporation Ltd. has not fulfilled the promise. It is submitted on behalf of Complainant that the Complainant has therefore waived his right to claim compensation and so O.P./Sahara India Commercial Corporation Ltd. may be directed to refund the amount paid towards consideration alongwith interest @ 15% p.a. Complainant has 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 Complainant as well as the copy of judgment delivered in Contempt Petition No.412/2012 passed by the Hon’ble Supreme Court, I am of the view that the O.P./Sahara India Commercial Corporation Ltd. can not be directed to either deliver possession or to execute sale deed in favour of Complainant. At the same time we can not lose sight of the fact that complainant had already paid huge amount of Rs.31,72,000/- to the O.P. long back for the flat/unit and was eagerly waiting for possession of the flat/unit purchased. Complainant Dr.Vidita Ghule must have gone through much pain and anguish which can not be compensated easily in terms of money and so the Complainant Dr.Vidita Ghule is entitled not only for refund of the entire amount paid by her but also for compensation. We are further inclined to also award interest       @ 15% p.a. as claimed by the complainant. I am 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 complainant due to non delivery of the unit/flat for long time despite making payments. Complainant is further entitled for Rs.10,000/- towards cost of litigation. We therefore proceed to pass the following order. 

//ORDER//

i.        Consumer Complaint No.  CC/16/31 is hereby partly allowed.

ii.       O.P.Nos. 1 and 2 are hereby directed to pay an amount of Rs.31,72,000/- along with  interest  at the rate of 15% p.a. from the  date of deposit  of amount  till  the date  of  realization of the same by the complainant.

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

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

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.