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

1)      Complainant Abdul Rehman claims to be a resident of village Deoli, district Wardha has preferred the present Consumer Complaint under section 17 of the Consumer Protection Act, 1986. Short facts leading to the present complaint may be stated as under. 

2)      The complainant Abdul Rehman resident of village-Deoli was  having a desire to purchase flat/dwelling unit at Nagpur for his personal residence and that of his family. Complainant was also searching for residential unit in new and up coming projects launched by various builders and during the course of the search he visited the office of opponent No.2 namely “Sahara Prime City”. Complainant also came to know that one Abdul Hanif Sheilkh had  booked one flat bearing unit No.83/203, type 1 for valuable consideration of Rs.13,19,251/-, but due to some personal reason he was unable to pay the remaining instalments. Accordingly on the suggestion of appellant No.2 namely Sahara Prime City, the complainant Abdul Rehman booked the said flat bearing unit No.A-3/203 and also submitted letter to the opponent. As such the earlier purchaser namely Abdul Hanif Sheilkh also submitted letter to the opponent. As such the earlier purchaser namely Abdul Hanif Sheilkh also submitted letter to the opponent and he gave no objection for transfer of the said flat in the name of the complainant, provided the complainant paid the balance instalments. Complainant has contended that thereafter he paid the entire amount of consideration i.e. Rs.13,19.251/- to the opponents as per the chart of payment which is annexed with the complaint. Complainant has contended that as per the terms of agreement, the opponent Nos.1 and 2 namely Sahara Prime City Ltd. were to deliver possession of the flat to the complainant on or before 22/01/2011, but the same did not materialise and only assurances came to be given by the opponent Nos.1 and 2 from time to time. Complainant also informed the opponent Nos.1 and 2 from time to time to execute the sale deed and also to handover possession of the flat as promised. But there was no response from the opponent Nos.1 and 2. Since there was extreme delay in delivery of possession of the flat, complainant was compelled to reside in rental house and was also compelled to pay rent for the same. Complainant thereafter issued legal notice to the opponent No.1 on 05/01/2017 calling upon him to handover the possession of the flat and pay the compensation. But still there was no response from the opponent. The complainant was therefore compelled to prefer the said complaint as the same has caused serious mental agony and torture to the complainant. Complainant therefore prayed for execution of sale deed or in the alternative to direct the opponents to refund the earnest amount of Rs.13,19,251/- alongwith interest  @ 24% p.a. from the due date of possession of the flat. During the pendency of the complaint, the complainant also filed separate Pursis to the effect that the amount of consideration be refunded alongwith interest.

3)      Opponent Nos.1 and 2 appeared and resisted the complaint by filing written version. Opponents have also filed their written notes of argument on record. Opponents have not disputed that the disputed unit was transferred in the name of present complainant Abdul Rehman  from Abdul Hanif Sheikh on 23/10/2007. At the out set, the opponent has taken a plea that the complainant does not come within purview of definition of ‘Consumer’ under Consumer Protection Act, 1986. Opponents have also taken a plea that the terms of agreement were governed by term No.18 relating to ‘Force Majuire’ which implies the delay due to circumstances beyond the control of the Company. Opponents have also taken a specific plea that the delay if any had taken place due to on going litigation between opponents and SEBI before the Hon’ble Supreme Court and due to the same the progress of the project were at the stand- still. Opponent has also taken a plea that Hon’ble Supreme Court in contempt petition No.412/2012 has passed orders dated 17/07/2013 and order dated 21/11/2013 that ‘Sahara Group Companies’ shall not part with any movable or immovable properties until further orders. Moreover the name of SEBI has been incorporated on the 7/12 extract of the property. Opponents were bound by the orders of Hon’ble Supreme Court restraining from parting with or handing over possession of the properties.

4)      Opponents have also taken specific plea that there was Arbitration clause in the contract entered into and so the dispute can be resolved by the Arbitrator only. Further opponents were also bound by the changing rules of Town Planning Authority and Local Bodies. The complaint filed by the complainant is not tenable in law and deserves to be dismissed with cost.

5)      We have heard learned advocate Mr.A.M.Haque on behalf of complainant and Mrs.Renuka Nalamwar, learned advocate for the opponents namely ‘Sahara Prime City Ltd’.

6)    It is vehemently submitted for the complainant that the complainant had parted with huge consideration of Rs.13,19,251/- with the sole aim to have residential flat at Nagpur and further with the fond hope of residing in the said flat. But the dreams of staying in the flat were not fulfilled and rather shattered since the opponent Nos.1 and 2 neither handed over possession of the flat nor executed any sale deed nor completed the project in all respects as promised. It is submitted by the learned advocate Mr.A.M.Haque that the complainant Abdul Rehman was subjected to great mental and physical harassment due to inaction on the part of opponents. Mr.A.M.Haque, learned advocate for the complainant has submitted that the complainant was no longer interested in the execution of the sale deed or delivery of possession and would be satisfied if the amount of consideration of Rs.13,19,251/- is refunded, but after saddling interest @ 24% p.a. We have also heard Mrs.Renuka Nalamwar, learned advocate for the opponents and she has drawn our attention to several orders passed by the Hon’ble Supreme Court as well as Hon’ble National Commission. Mrs.Renuka Nalamwar, learned advocate has submitted that opponents have been restrained from parting with the possession until further orders, as per orders passed in Contempt Petition No.412/2012 dated 17/07/2013 and 21/11/2013 and we have gone through the same. However Mrs.Renuka Nalamwar, learned advocate for the opponents has fairly conceded that opponent is ready to refund the amount of consideration of Rs.13,19,251/-. We are very much conscious of the fact that the complainant Abdul Rehman can not receive possession in view of certain orders passed by Hon’ble Supreme Court in connected matters, the matters are still pending. We are also conscious of the fact that the complainant is waiting for possession of the flat since long time.

7)      We are thus of the view that looking to the long passage of time, it would be desirable to give directions for refund of consideration subject to permission of being obtained from the Hon’ble Supreme Court. We are therefore of the view that directions need to be given to the opponent Nos.1 and 2 to refund the amount of Rs.13,19,251/- alongwith interest @ 18% p.a.

8)      Opponent Nos.1 and 2 are further directed to pay to the complainant compensation of Rs.2,00,000/- towards physical and mental harassment caused to the complainant and Rs.10,000/- towards cost of litigation.

9)      The payment of the amount in compliance of above order shall be made in the span of three months from the receipt of copy of the order by the opponent subject to permission of Hon’ble Supreme Court for making the said payment.

10)      Copy of the order be provided to both parties free of cost.