(Delivered on 07/01/2021)
PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.
1. Complainant Nos. 1 to 3 who are resident of Nagpur have moved the present Consumer Complaint under Section 17 of the Consumer Protection Act, 1986.
2. Short facts leading to the present complaint may be narrated as under:-
Complainant No. 1- Mrs. Madhu Jitendra Agrawal is wife of Complainant No. 2 Jitendra Rupkishore Agrawal whereas Complainant No. 3- Ritesh Jitendra Agrawal is son of complainant Nos. 1&2. Complainant Nos. 1&2 were residing at Nagpur. The complainant No. 3 did his M.S. and thereafter doctorate in Computer Science and is presently working at San Francisco (U.S.A). Complainant Nos. 1&2 being wife and husband were keen to own house at Nagpur after their retirement and so they were searching for a good house. The O.P. namely Sahara Prime City Limited claimed to be reputed builder who are providing residential flat along with all possible amenities. The O.P. No. 1-Sahara India Commercial Corporation Limited, Homes Marketing and Sales Corporation had floated residential scheme under the name and style as “Sahara City Home and building name as “Gorgeous” was proposed to be constructed at Mouza Gavasi (Manapur) , Nagpur. The complainant therefore approached the O.Ps. and also entered into an agreement with the O.P on 15/01/2010 for purchase of residential unit No. C3/106 Block No. C3 admeasuring 135.25 square meters. The complainants had agreed to purchase the unit/flat for consideration of Rs. 26,93,065/- and an amount was to be paid in 38 installments. Accordingly, immediately the complainant paid the sum of Rs. 1,11,000/- as booking amount. The complainants have alleged that thereafter they have paid almost sum of Rs. 25,78,202/- from time to time as per condition mentioned in the agreement but the O.P. had failed to complete their part of contract and did not complete the construction work of the building and also did not hand over possession allotment letter and only false promises came to be made from time to time. The complainant has come to the conclusion that by not performing their part of the contract and also by not constructing the building as well as not handing over the possession of the promise unit to them, the O.P. Nos. 1 to 3 have indulged in deficiency in service and same amounted to unfair trade practice. The complainant Nos. 1 to 3 were therefore left with no other option but to file present Complaint under section 17 of the Consumer Protection Act, 1986.
3. The O.Ps. have appeared and resisted the complaint by filing written version. The O.Ps. have also filed their written notes of argument on record. At the outset the O.Ps. have taken a plea that the complainant had booked the present unit with the sole intention to earn profit and so they do not fall within purview of definition of the term ‘Consumer’ under the Consumer Protection Act, 1986. The O.Ps. have also taken a specific plea that their contract is also governed by Term No. 16 regarding Force Majure which implies the delay due to circumstances beyond the control of the company. The O.Ps. have taken a plea that the delay if any had taken place due to on going litigations between O.Ps. and SEBI before the Hon’ble Supreme Court and so the completion of all the projects had come to stand still. The O.Ps. have also taken a plea that the Hon’ble Supreme Court has in Contempt Petition 412/2012 passed an orders directing that the Sahara Group of Companies shall not part with any moveable or immoveable properties unit until further orders and same are still in force .
4. The O.Ps. have also taken a specific plea that there was Arbitration Clause in the contract entered into and so the dispute can be resolved by the Arbitrator only. It is also contended by the O.Ps. that the O.Ps. are also bound by changing rules of Town Planning Authority and other Local Bodies. The complaint filed by the complainants is not tenable in law and deserves to be dismissed with cost.
5. We have heard Mr. R.A. Haque , learned advocate for the complainant and Mrs. Renuka Nalamwar, learned advocate for the O.Ps. It is argued by learned advocate for the complainants that the complainant Nos. 1&2 being wife and husband respectively and having retired from service had parted with huge amount by consideration in the hope of securing the flat for their post retirement life. Secondly, it is argued by Mr. R.A. Haque, advocate that the complainants had deposited entire amount by way of installment in prompt and regular manner but the O.Ps namely Sahara City Home Limited had not at all fulfill the promises and high hope given by them and neither completed the construction of the building nor handed over the possession of the flat as promised and therefore the complainant Nos. 1 to 3 have under gone huge mental agony and harassment for which compensation needs to be awarded.
6. On the other hand, Mrs. Renuka Nalamwar, learned advocate appearing for the O.Ps. has submitted that the O.Ps. have been restrained from parting with the possession until further orders , as per orders passed in Contempt Petition Nos. 412/2012, dated 17/07/2013 and 21/11/2013. Mrs. Renuka Nalamwar, learned advocate for the O.Ps. also placed on record the copy of the said orders as well as other papers to show on going litigation between the O.Ps. and SEBI and we have carefully perused the same. There can be no dispute regarding the fact that certain orders have come to be passed by the Hon’ble Supreme Court relating to handing over the possession of the unit purchased by the complainants.
7. We have gone through these judgments on which reliance is placed. After going through various cases which were cited at bar and judgment delivered by the National Commission, we are of the clear view that since the O.P. namely Sahara Prime City has miserably failed to construct the building as promised and to hand over the possession of the flat the complainant Nos. 1 to 3 who were admittedly “Consumer” were entitled for refund of the entire amount paid by way of consideration to O.P. We are also conscious of the fact that certain directions have been given by the Hon’ble Supreme Court and so permission of the Hon’ble Supreme Court was necessary.
8. We are also of the view that looking to the passage of time and huge delay in completing the project or handing over the possession no leniency can be shown so far as rate of interest and compensation is concerned and so we are inclined to award interest on the amount at the rate of 18% p.a. from the date of deposit of amount by the complainants till realization . We are further of the view that the O.Ps. are also liable to pay compensation in the sum of Rs. 5,00,000/- towards mental and physical harassment caused to the complainants and litigation cost of Rs. 10,000/-. We therefore, proceed to pass the following order.
ORDER
i. Consumer Complaint No. CC/15/105 is hereby partly allowed.
ii. O.P. Nos. 1 to 3 are hereby directed to pay an amount of Rs. 25,78,202/- 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 to 3 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 to 3 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 in the 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.
