PER MRS.U.S.THAKARE, HON’BLE JUDICIAL MEMBER.
1) Complainants have filed consumer complaint under section 17 of Consumer Protection Act, 1986 by alleging deficiency in service against all opponents and for adopting unfair trade practice.
2) The complainants are the citizens of India and consumer of opponents. Opponent No.1 is a limited company duly incorporated and registered under the Companies Act 1956. The opponent No.2 is branch office of the opponent No.1 at Nagpur. The opponent No1 had floated the various housing schemes all over India. The opponent Nos.1 and 2 had projected for development of the housing scheme at Nagpur by name “Sahara City Home’s”. The complainant No.1 on 17/09/2007 applied for booking of unit with the opponents at Sahara City Homes, Nagpur. His application was allowed by the opponents and booking was made by the opponents in the name of complainant No.1. The opponent No.1 allotted to complainant an independent Row House bearing unit No.R5/346 having Unit Area/Plot Area/Terrace Area of 177.90 sq.mt, 171.32 sq.mt and 86.18 sq.mt at Sahara City Homes, Nagpur. Opponents received letter regarding registration of booking alongwith payment schedule to the complainants on 17/10/2007. The Complainant No.1 completed the instalments of his payment by paying of an amount of Rs.56,66,869/- to the opponents. Last instalment was paid on 23/04/2011. On 05/09/2011 the complainant No.1 applied for addition of name of his wife as a purchaser of the unit, alongwith complainant No.1. Another allotment letter in name of both the complainants was issued on 05/09/2011. The second allotment letter was the replica of first allotment letter, simply name of the complainant No.2 was added in as a complainant. Inspite of entire payment, the complainants did not get possession of booked unit. The complainants have suffered mental pain and agony. On 20/05/2014 the opponents issued letter to the complainants informing them about on going litigation between the opponents and SEBI and claiming that they would honour the agreement between the parties and requesting for some more time to handover the possession. The complainants were in constant touch with the opponents in order to obtain possession of the unit. On 15/09/2016 the opponents issued final communication to the complainants stating that they have agreed to reimburse the losses caused to the complainants for the delayed period at the rate “on which we have agreed” and quantified the same to be Rs.4,88,209/-. That the letter further stated that in case of any further delay additional reimbursement would be granted at the time of handing over of possession.
3) It is alleged by the complainants that they have booked the unit for residential purpose. They did not get possession of the unit in the year 2011 as per agreement. Construction of the unit is not completed. The complainants have invested heard earned amount in booking the unit. Amount of consideration paid to the opponents was not returned with interest. They are guilty of deficiency in service and unfair trade practice. Ultimately they have filed consumer complaint and claimed possession of the Row House bearing unit No.R5/346 having Unit Area/Plot Area/Terrace Area of 177.90 sq.mt, 171.32 sq.mt and 86.18 sq.mt at Sahara City Homes, Nagpur. They have also claimed to direct the opponents to execute sale deed of the unit infavour of the complainants. In the alternative they have asked for refund of entire amount paid against unit with interest @ 18% p.a. from the date of 29/04/2011 till actual realisation. They have claimed compensation, cost of litigation from the opponents.
4) The opponents have resisted the consumer complaint by filing written statement and denied all adverse allegations. It is specifically denied that the opponents are guilty of deficiency in service or they have adopted unfair trade practice. The complainants have booked the unit with sole intention to earn profit. They do not fall within purview of consumer. Complaint is not maintainable before the Consumer Forum. It is submitted that when the project was being completed, a litigation was cropped up between Sahara Groups of Companies and Security Exchange Board of India (SEBI). Litigation was filed before the Hon’ble Supreme Court. In contempt petition No.412/2012 the Hon’ble Supreme Court passed an order dated 17/07/2013 and order dated 21/11/2013 there by directing that the Sahara Groups of Company shall not part with any movable or immovable property until further order and no High Court, Securities Appellant Tribunal or any other Forum shall pass the order against the order passed by SEBI in implementation of the order of the Hon’ble Supreme Court. The order is still in force. Therefore opponents are not in a position to part or handover possession or sale of any movable or immovable property. Due to stay order it is not possible even to undertake the further construction of project at Nagpur and not possible to handover the unit to the consumer who booked the unit/flat. Even they can not part with the possession of the unit which are ready.
5) The opponents have raised the defence as per condition No.17 of agreement. It is submitted that in case of dispute between the parties it should be referred to an Arbitrator. It is the contention of the opponents that in view of orders passed by Hon’ble Supreme Court dated 17/07/2013 and 21/11/2013. It is not possible for the opponents either to complete the construction and not possible to handover their possessions to respective purchasers, as such they are not guilty for deficiency in service or for unfair trade practice. They have requested to dismiss the consumer complaint with cost.
6) Both parties have adduced evidence by filing affidavits of evidence. They have filed brief notes of argument. Heard learned advocate Mrs.Radhika Bajaj for the complainants and advocate Mrs.Renuka Nalamwar for opponents.
7) On pleadings of the parties, following pointes arise for our determination and we record our findings for the reasons below :-
Sr.No. | Points | Findings |
i | Whether the consumer complaint is maintainable in view of Arbitration clause in the agreement ? | Yes |
ii | Whether the opponents are guilty for deficiency in service ?. | Yes |
iii | Whether the complainants are entitled for possession of the booked unit/flat ? | No |
iv | Whether the complainants are entitled for refund of paid amount of consideration with interest ? | Yes |
v | Whether the complainants are entitled for compensation and cost ? | Yes |
vi | If yes to what extent ? | As per final order. |
vii | What order ? | As per final order. |
As to point No.i - The opponents have pleaded that the consumer complaint is 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 complaint is maintainable and we answer point No.(i) for determination in affirmative.
As to point No.ii – It is admitted fact that the complainants independent Row House bearing unit No.R5/346 having Unit Area/Plot Area/Terrace Area of 177.90 sq.mt, 171.32 sq.mt and 86.18 sq.mt at Sahara City Homes, Nagpur for consideration of Rs.56,30,000/- in the township named as “Sahara City Home’s” situated at Nagpur which is the project under taken by opponents. Allotment letter was issued in the name of complainants. The complainants have paid amount of Rs.56,66,869/- towards consideration with interest on late payment to the opponent No.1.
8) 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.
9) Under these circumstances the opponents can not part with possession of the booked unit/flat to the complainant and can not execute sale deed in his 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 complainant alongwith interest. But the opponent No.1 did not take any step to refund the amount to the complainant with interest.
10) 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 the complainants by opponents. This conduct also amount to deficiency in service. As such we answer point No.(ii) for determination in affirmative.
As to point Nos.iii to vii – The complainants have claimed possession of the booked unit/flat. In view of directions given by the Hon’ble Apex Court, we can not direct the opponents to part with possession of the unit/flat. The complainants are not entitled for getting possession of the unit/flat, but the complainants are entitled for refund of paid amount with interest @ 18% p.a. from date of each payment.
11) It is to be noted here that Consumer Protection Act is a benevolent legislation. Suitable order can be passed in order to meet ends of justice. It is admitted fact that complainants have paid late payment towards consideration with interest. The complainants have claimed interest on total amount of consideration. The opponents accepted late payment with interest. 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 Mrs.Radhika Bajaj has placed reliance on the judgment passed by 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.
12) Advocate Mrs.Renuka Nalamwar fairly submitted that in other groups of consumer complaints against the opponents, same rate of interest is granted. Hence same rate of interest can be awarded. The complainants are entitled for interest @ 18% p.a. from respective date of each date.
13) The complainants have suffered mental pain and agony as the unit/flat was booked in the year 2008 but till today the complainants did not get possession of booked unit/flat. The complainants have invested hard earned amount in getting possession of dream house. Now in year 2020 the complainants can not purchase new flat in same area for same consideration. The complainants are entitled for amount of Rs.5,00,000/- towards mental pain and agony. The complainants were required to file consumer complaint for getting justice. They were required to appoint an advocate and to attend consumer case. They are entitled for an amount of Rs.10,000/- towards cost of litigation. Accordingly we answer points Nos. iii to vii for determination and pass the following order.
//ORDER//
- Consumer complaint is partly allowed.
- It is hereby declared that the opponents are guilty of deficiency in service.
- Opponents are directed jointly or severally to refund amount of Rs.56,66,869/- to the complainants with interest @ 18% p.a. from date of each payment.
- The opponents do pay jointly or severally an amount of Rs.5,00,000/- to the complainants towards compensation for mental pain and agony.
- The opponents do pay jointly or severally an amount of Rs.10,000/- to the complainants towards cost of litigation and shall bear their own.
- The payment of the amount in compliance of the above order shall be made in the span of three months from the receipt of copy of order by the opponents subject to permission of Hon’ble Supreme Court for making said payment.
Copy of order be supplied to both parties free of cost..
