PER MRS.U.S.THAKARE, HON’BLE JUDICIAL MEMBER. 

COMMON JUDGMENT

 1.     All these nine complaints are being disposed of by this Common order as common question of law and facts are involved in them.

2.      These nine complaints are filed by the various complainants against the common opposite parties (for short O.Ps.) under section 17 of Consumer Protection Act,1986, on common grounds seeking identical reliefs.

3.      The common case of the complainants as set out in these seventeen complaints in brief is as under.

a)      The O.P. No.1 floated housing scheme at Nagpur to develop their land described in the complainants and to construct their on Flats, Row-houses, Tenements and Paint Houses.  They gave public advertisement calling the general public for purchasing the said residential units. The complainants in these complaints wanted to purchase residential units under the said scheme called as “Sahara City”.

b)      The complainants therefore approached the O.Ps. and entered in to contract with the O.Ps. for purchasing the respective units from them. They accordingly booked residential units described in the respective complaint. The prices of those units were accordingly fixed and the letters of allotments were issued by the O.Ps. to all the complainants. Moreover, the agreements in writing were also entered in to between some of the complainants and the O.Ps. The complainants also paid in installments the part of consideration or full consideration or more amounts than full consideration, as per their respective case.

c)      The O.Ps. had agreed to make construction of the units and to give possession of the same within a period of 38 months from the date of the allotment letters. However, though the complainants made payments towards consideration in installments to the O.Ps. as demanded by them, as per agreements, the O.Ps. did not make full construction of the said residential units within a stipulated time. The complainants therefore wrote letters and issued notice to the O.Ps. making their grievance and calling upon the O.Ps. to make the construction as per agreements and to give possession of the units to them alongwith the sale deeds. The details of the same are given in the complaints.

d)      However, the O.Ps. failed to discharge their contractual obligations. Hence they rendered deficient service to the complainants and adopted unfair trade practice. Therefore complainants filed these nine consumer complaints against the common O.Ps., seeking various relief in terms of the aforesaid contract. However after both the  parties adduced their respective evidence in all these complaints in these nine complaints, the complainants through their respective advocates filed pursis/memo restricting the  reliefs  in  those complaints  for refund of  the aforesaid amount paid with interest, compensation and cost of which details are given in the aforesaid complaints.

e)      As after the lapse of so many years from the respective dates of the allotment letters, the construction under the scheme was not completed and as there was no possibility of completion of construction of residential units in near future, none of the complainants has now claimed relief of sale deeds and possession of the residential units.

4.      The O.Ps. in each of the aforesaid nine complaints filed reply/written version and thereby resisted all the said complaints.

          The O.Ps. have made common submission in their respective reply/written version while opposing all these complaints.

a)      However the O.Ps. have admitted the following  material facts.

          The O.Ps. are engaged in the construction activities. They had launched a scheme of development of the land in the name as “Sahara City” at Nagpur. They accepted the booking of the residential units from the respective complainants on the respective dates. The complainants paid in installments the various amounts as specified by them in their respective complaints. They issued receipts for the same in their favour. The letters of allotments were executed showing the price of each of the residential unit as specified in the complaints. Moreover agreements to sell were executed infavour of some of the complainants. The installments were to be made as per stages of the constructions. The constructions of the residential units were to be completed within a period of 38 months from the respective dates of agreement. But the construction could not be completed within the said stipulated period.

b)     The O.Ps. raised preliminary objection in some of the  complaints regarding maintainability of the complaints on  the ground that  there is a Arbitration clause in the agreements executed in some of  the  complaints and hence the complaints can not be  entertained by this Commission. Moreover the complainants have not hired or availed any service of O.Ps. and they are not consumers under Consumer Protection Act, 1986. The complaints are also barred by limitation.         

c)          The main defence raised in the reply of the O.Ps. filed in all the complaints in brief is as under.

i)           The government brought in changes in policies which affected the entire project of the O.Ps. Therefore it had to be redeveloped to bring in the said changes, which was the initial reason for not giving possession of the residential units to the respective complainants. The Hon’ble Supreme Court has restrained the O.Ps. and directed not to part away its any of the property as per direction given in Contempt Petition No.412/2012 In civil appeal No.9813/2011. As per order passed by Securities and Exchange Board of India (SEBI) the property has been already attached and the name of the SEBI has been recorded by way of mutation in record of rights of the said land. Therefore the O.P. can not be made responsible for the delay in construction and giving possession of the respective residential unit to the complainants. There is a clause of force majeure mentioned in the agreement which is applicable to the present case. Therefore it is prayed by the O.Ps. in its reply filed to the respective complaint that  the said complaints may be dismissed.

5.        All most all the complainants in their respective complaint filed voluminous documents i.e. allotment letters, payment receipts, letters of communication made in between the complainants and the O.Ps., affidavits. Moreover some of the complainants also filed the agreements entered in to between them. The learned advocates of the complainants also filed written notes of arguments.

6.      The learned advocate of the O.Ps. also filed written notes of arguments and copies of the decisions of the Hon’ble Supreme Court referred to in the reply filed to the complaints by the O.Ps. Affidavits of the O.Ps. are also filed in some of the  complaints.

7.      We have heard advocate Mr.Bhushan Mohata appearing for the complainants. We have heard advocate Mrs.Renuka Nalamwar for O.Ps. in all the complaints. We have also perused records and proceedings of all the complaints.

8.      Learned advocate Mr.Bhushan Mohata appearing for the complainants has reiterated the case of the respective complainant in his argument and submitted that there is no substance in the defence of the O.Ps. He relied on decision in the following case.

1. Sanjay Kumar Airen and another……V/s……Sahara Prime City Limited and another, decided by Hon’ble National Commission on 05/01/2017 in consumer complaint No. 988/2015. In that case the attention of the Hon’ble National Commission was brought to the order passed by Hon’ble Supreme Court in contempt petition No.260 of 2013 in C.A.No.8643/2012. The Hon’ble National Commission partly allowed that complaint and directed the O.P. to refund Rs.1,11,00,000/- to the complainant alongwith interest @ 9% P.A. from the date of payment of each amount till the date on which the said amount is refunded to the complainant in terms of the  said order and also to pay Rs.10,000/- as litigation cost to the complainant. The Hon’ble National Commission also observed that the payment in terms of the  said order shall be made within three months subject to the permission of Hon’ble Supreme Court if required for making payment in terms of the  said order.

9)         At the out set we find that reliefs of all these complaints are restricted for refund of amount with interest, compensation and cost. The complainants have given up the reliefs of possession and sale deed of respective units as the O.Ps. are unable to provide the same to them even after laps of so many years from stipulated time period.

10)        O.Ps. have pleaded that the consumer complaints are not tenable before District Fora in view of Arbitration clause in the agreement. Now it is settled by law that in view of Section 3 of Consumer Protection Act, 1986, consumer complaint is tenable before Consumer Fora. Section 3 of the Act has clarified that Consumer Protection Act is not in derogation of any other law. Provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. As a result we hold that consumer complaints are maintainable.

11)         We have perused the order passed by Hon’ble Apex Court in case of SEBI….V/s….Sahara India Real Easted Corporation and others. Stay order is passed in Contempt Petition No.47/2012 in Civil Appeal No.1813/2011 dated 21/11/2013. On perusal of both the orders it is abundantly clear that the Hon’ble Apex Court has directed Sahara Group of Companies not to part with any movable or immovable properties until further order.

12)        The complainants have given up their claims for possession of unit, otherwise also in view of directions given by the Hon’ble Apex Court, we can not direct the O.Ps. to part with possession of the unit. The complainants are not entitled for possession of units booked by them, but they are entitled for refund of paid amount with interest from the date of each payment.

13.           Therefore there is no substance in the defence raised by the O.P. in their reply filed to the respective complaints. The complaint wise details relating to names of the complainants, dates of allotment, dates of agreement, unit numbers, price of the units fixed and amounts paid by each of the complainant are given in the following table. The said particulars are not disputed by both parties.

14.         Thus it is clear from the aforesaid particulars given in that table that the complainants have paid sizable amounts to the O.Ps. with a hope that they will get the possession alongwith the sale deeds of the  respective units within stipulated time. Moreover the O.Ps. enjoyed their said huge amounts and they did not give possession alongwith the sale deeds of the respective units. On the contrary the O.Ps. have come with a case that they are unable to deliver the possession of the respective units and to execute the sale deed of the same infavour of the respective complaints due to direction given by Hon’ble Supreme Court in the above mentioned contempt petition and as the Securities and Exchange Board of India (SEBI) has already attached the said property which was agreed to be sold by the O.Ps. to the respective complainants.

15)      Under these circumstances the opponents can not part with possession of the booked unit/flat to the complainants and can not execute sale deed in their favour.  The opponents realised that the opponents could not part with possession of the unit/flat to the complainant. Then as provision of MOFA (The Maharashtra Ownership Flats Act,1963), the opponents were supposed to return amount of consideration to the complainants alongwith agreed interest. But the opponent No.1 did not take any step to refund the amount to the complainant with interest.

16)    Advocate Mrs.Nalamwar for the opponents vehemently urged that the opponent No.1 was ready to refund the amount. But the opponent No.1 never tried to tender, amount of consideration received from the complainant. If really the opponent No.1 was interested in refund of amount, the opponents should have called the complainant by sending letter or notice. The opponent No.1. could have straight way deposited the amount of consideration in the account of the complainant by RTGS or by demand draft. Mere pleading that the opponent No.1 was ready to refund the amount is not sufficient to discharge the liability. The opponents retained and utilised amount of consideration paid by the complainants for long time. The opponents can not ask the complainants to wait for indefinite period for possession of booked unit. The opponents should have refunded hard earned amount of complaint to him, in view of Section 8 of The Maharashtra Ownership Flats Act,1963. Retention of amount by the opponents is against provisions of law. Non refund of amount of consideration by the opponent No.1 to the complainants amounts to deficiency in service. Inspite of accepting huge amount of consideration, agreement of sale is not executed infavour of some complainants by opponents. This conduct also amount to deficiency in service.   

17)      The complainants have claimed interest @ 24% p.a.  It appears to be excessive and not as per agreed terms. Hence said rate of interest can be awarded. The State Commission while deciding several consumer complaints against the present opponents issued direction of refund of amount of consideration with interest @ 18% p.a. from the date of respective deposits. The learned counsel Mr.Mohata has placed reliance on the judgments passed in this Commission in consumer complaint Nos.CC/13/14, CC/13/37, CC/13/38, CC/14/50, CC/14/53, CC/16/53, CC/16/105, CC/16/122, CC/16/128, CC/15/33 dated 26/02/2019. Advocate Mrs.Renuka Nalamwar for opponents fairly submitted that in other groups of consumer complaints against the opponents, same rate of interest is granted.  The complainants are entitled for interest @ 18% p.a. from respective date of each date.

18)           The complainants have suffered mental pain and agony as they did not get possession of their dream house. Some of the complainants have booked unit in the year 2007, some of them have booked in the year 2008, 2010 and 2011. Only complainant Mr.Rajkumar Motwani has booked his unit in the year 2014. Complainants have invested their heard earned amount in getting possession of dream house. They neither received possession nor refund of amount. Now a days in year 2020 the complainants will not get same unit in same area for same consideration due to escalation in price. They are entitled for amount of Rs.5,00,000/- in each  complaint case towards mental pain and agony. The complainants were required to file consumer complaints for getting justice. They were required to appoint an advocate and to attend consumer complaints, hence each complainant is entitled for an amount of Rs.10,000/- for cost of litigation. With this view we proceed to pass the following order.                  

//ORDER//

1. Consumer complaints are partly allowed.
2. It is hereby declared that the opponents are guilty of deficiency in service.
3. The O.Ps. in all these complaints jointly and  severally shall pay to  the respective complainants amounts as specified in the  following table as against the respective names of the respective complainants, with interest @ 18% P.A. from the date of the respective deposit of the  amounts, till the date  of realization of the  same by the  respective complainants.

4. The O.Ps. in all these complaints jointly and severally shall pay compensation of Rs.5,00,000/- in each  of the  aforesaid complaints to the complainants towards physical and mental harassment and to compensate the complainants towards the loss suffered by them due  to escalation in the  price of the residential  units.
5. The O.Ps. in all  these complaints jointly and severally shall pay  to  the  complainants in  each of the  complaint litigation cost of Rs.10,000/-.
6. The payment in terms of the present order shall be made within three months from the receipt of the copy of the present order by the O.Ps. subject to permission of Hon’ble Supreme Court for making the said payment in terms of this order.
7. Copy of the order be furnished to both parties free of cost..