(Delivered on 30/11/2019)
PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.
1. Complainant No. 1- Mr. Nathmal Shrikishan Agrawal and Complainant No. 2- Mrs. Usha Nathmal Agrawal being the husband and wife and resident of Buddha Vihar, Nagpur have preferred the present 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- Mr. Nathmal Shrikishan Agrawal and Complainant No. 2- Mrs. Usha Nathmal Agrawal being the husband and wife and resident of Nagpur where in search of suitable location for their permanent residence. The complainants were also searching for good and comfortable residential units in new and up coming projects launched by the builders and developers. The O.P. namely Sahara Prime City Ltd. claimed themselves to be reputed builders who were providing residential flats along with all possible amenities . The O.P. namely Sahara Prime City Ltd. had also given advertisement showing the various amenities and comforts provided in the flats to be constructed. The O.P. had launched the scheme at place Gavsi Manapur which was situated on 106.65 Acres of land on Survey Nos. 37/1, 37/2, 38/1, 36, 32, 31/2, 31/3, 26/3, 26/4, 9/2, 9/3, 9/4, 9/5. The O.P. had also advertised that they were providing all amenities like Swimming Pool, Play area, Sport Ground etc. The complainants and other buyers were invited to visit the site. The complainant Nos. 1 & 2 therefore, visited the site of the O.Ps. and chose unit No A-3/103, type -1 on first floor name and styled as ‘Great’ at Sahara City Homes, Nagpur. The complainants also entered into an agreement for purchase of the flat/unit for consideration of Rs.13,19,251/-. The complainants had contended that the agreement of sale was already entered into by both the parties on 11/11/2007 in respect of unit No. A-3/103 and complainants paid an amount of Rs. 65963/- towards booking charges and Rs.1,31,925/- towards allotment charges. The complainants also agreed to pay the remaining amount in equal installments of Rs. 31,149/- per month for the period of 38 months . Accordingly, the first installment was paid by the complainant on 01/09/2007 and last installment was paid on 01/08/2010. The complainant has thus paid 99% of the consideration to the O.Ps. before due date. The complainants have alleged that the O.P. has promised to complete the construction and the possession was to be delivered on or before March -2012. The complainants have contended that they had deposited total consideration of Rs.12,88,103/- by taking loan from the bank and interest was being charged. The complainants have contended that despite promises and terms of the agreement the O.P. failed to carry out the construction work and also did not hand over the possession within the stipulated time despite lapse of period of 38 months and despite request made by the complainants from time to time. The complainants have contended that therefore, the O.P. had failed to complete their part of the contract and it indulged in deficiency in service and same amounted to unfair trade practice. The complainants were therefore compelled to file the instant 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 come within purview of definition of the ‘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 further orders and these orders are still in force . The O.Ps. are bound by the order of the Hon’ble Supreme Court restraining from parting with or handing over the possession of moveable or immovable property in the projects.
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 Mrs. Anuradha Deshpande, learned advocate for the complainant and Mrs. Renuka Nalamwar, learned advocate for the O.Ps. It is submitted by Mrs. Anuradha Deshpande, learned advocate for the complainants that the complainant Nos. 1&2 being husband and wife had parted with entire consideration by borrowing money and taking loan from the bank and also by depositing the installment in regular and meticulous manner but the O.Ps. namely Sahara City Homes Ltd. had not at all fulfilled the promises made by them and nor hand over the possession of the unit nor completed the project in all respect as promised. Mrs. Anuradha Deshpande, learned advocate for the complainants has also submitted that the complainants have been subjected to great mental and physical harassment for which the O.Ps. were alone responsible.
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. and also placed on record the copy of the said orders as well as other papers to show 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. However, it is submitted by Mrs. Anuradha Deshpande , learned advocate that looking to the development which have taken place and the fact that the matter is pending before the Hon’ble Supreme Court they are no longer keen on getting the possession of the flat/unit purchased by them but they are keen regarding refund of entire amount in the backdrop of the fact that the O.Ps. has not completed construction as yet nor delivered the possession of the flat. During the course of argument Mrs. Anuradha Deshpande , learned advocate has submitted that the O.Ps. may be directed to refund the amount which was paid towards consideration and similar orders have come to be passed earlier by the Hon’ble National Commission on this aspect. Mrs. Anuradha Deshpande , learned advocate has relied upon the case of Sanjay Kumar Airean and another Vs. Sahara Prime City Ltd. and another in consumer complaint No. 988/2015, order dated 05/01/2017. We have also gone through the same. Mrs. Anuradha Deshpande, learned advocate has also relied upon other judgment in the case of Ujwal Nilkanth Walke Vs. Sahara Prime City Limited. We have gone through this judgment on which reliance is placed. After going through various cases which were cited at bar and judgment delivered by the Hon’ble National Commission, we are of the view that necessary direction can be given relating to the refund of amount incase the O.Ps. namely Sahara Prime City is not in a position to hand over the possession of the flat. We are also required to take note of the fact that the complainant Nos. 1&2 being husband and wife who were in search of accommodation had parted with the entire consideration and so suitable direction can be given as regards the permission of the Hon’ble Supreme Court.
7. We are also of the view that looking to the passage of time and delay in 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 at the rate of 18% over return. We are also of the view that the O.Ps. are 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/18/12 is hereby allowed.
ii. O.P.Nos. 1 to 3 are hereby directed to pay an amount of Rs. 12,88,103/- 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 a 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.
