Per Shri A.Z.Khwaja, Hon’ble Judicial Member.
1) Complainant Pushpa Bhoyar has preferred the present Consumer Complaint under Section 17 of the Consumer Protection Act,1986. Short facts leading to filing of the present complaint may be narrated as under :-
2) The complainant Pushpa Bhoyar claims to be resident of Ram Mandir Ward, Hinganghat where as opposite parties Sahara Prime City Pvt.Ltd. is registered under the Companies Act. and has floated various housing schemes all over India and also at Gavasi Manapur, Wardha Road, Nagpur. Complainant Pushpa Bhoyar was in search of one flat/unit. Complainant booked unit/flat No.C-8/505 on 5th floor admeasuring 135.25 sq.mtr. Complainant has contended that the agreed cost of flat was Rs.50,23,000/- and the said amount was payable in the 14 monthly instalments of Rs.3,55,796/-. Complainant has contended that he booked the said unit and paid the booking amount of Rs.2,51,150/- and receipts were also issued by the Opposite Parties. Complainant had paid the instalment of Rs.3,55,796/- to the Opposite Parties. Complainant has also given the amount paid by him as per the table mentioned in the complaint. Complainant has contended that he had paid total amount of Rs.50,60,445/- as per the schedule of payment of the Opposite Parties. Opposite Parties was expected to hand over the possession of the unit within 40 month from the date of allotment. Complainant was always ready to comply with their part of the contract. But the Opposite Parties failed to hand over the said property after completion. Complainant then issued letter to Opposite Parties on 26/07/2014 through registered post A/d and requested for possession of the unit/flat. But the Opposite Parties failed to give reply and also failed to hand over possession of the flat. Complainant has contended that as per the provision of Maharashtra Ownership of Flats Act the Opposite Parties were to execute the agreement to sell to the propose purchaser, but they failed to do so. Complainant on numerous occasions made the enquiries with the Opposite Parties regarding the progress of the construction of the unit. The Opposite Parties failed to discharge their contractual obligation and failed to complete the contract. Complainant was therefore force to undergo great mental agony and pain due to inaction on the part of the Opposite Parties in complying the terms and condition on the part of the Opposite Parties. Complainant has contended that he had paid her hard earned money and in case the possession is not delivered the complainant will be forced to face huge loss and inconvenience. Complainant had already paid an amount of Rs.50,60,445/- in several instalments. Complainant was therefore left with no other option but to file the Consumer Complaint under the provisions of Consumer Protection Act 1986 for seeking various reliefs. However, complainant has subsequently filed the pursis waiving his right to claim the other reliefs claimed in the complaint and has only claim refund of amount of Rs.50,60,445/- alongwith interest @ 18% p.a. and so the present complaint.
3. The Opposite Parties have appeared and resisted the complaint by filing written version. The Opposite Parties have admitted that the complainant was allotted one flat bearing No.C-8/505 on 5th floor. Opposite Parties however denied the rest of the contentions made by the complainant in the complaint. Opposite Parties had denied that it had failed to handover the possession and complete the construction within stipulated period. Opposite Parties have came with specific plea that the contract entered in to by them with the complainant was also governed by clause regarding ‘Force Majuere’ which implies inter-alia the delay caused due to circumstances beyond the control of the company namely Sahara Prime City. The Opposite Parties have taken a plea that after the contract was entered into some litigation started between the Opposite Parties/Sahara Prime City and Security and Exchange Board of India (SEBI) and the same had reached the Hon’ble Supreme Court. The Opposite Parties have also taken a plea that it was beyond the control of the opposite parties Sahara Prime City to transfer or alienate any property in view of certain directions given by the Hon’ble Supreme Court in Contempt Petition 412/2012 which was filed by SEBI and the said orders are still in force. The opposite parties are bound by the orders passed by the Hon’ble Supreme Court restraining them from parting with or handing over the possession of moveable or immovable properties in the projects. The Opposite Parties have also taken a plea that name of SEBI has been incorporated in 7/12 extract of the company and bar has been put on any transfer of property. The Opposite Parties have also taken a specific plea that there was also Arbitration Clause in the contract and so the dispute can be resolved only by the sole Arbitrator. The complaint filed by the complainant/ Pushpa Bhoyar is therefore not tenable in law and deserves to be dismissed with cost.
4. We have heard Mr.Majithia, learned advocate for the complainant and Mrs. Renuka Nalamwar, learned advocate for the Opposite Parties Nos.1 to 3 representing Sahara Price City Ltd. It is submitted by learned advocate for the complainant Mr.Majithia that on the basis of assurances given by the Opposite Parties Nos.1 to 3 the complainant had paid all the amount of Rs.50,60,445/- to Opposite Parties. It is also further submitted by the learned advocate for complainant that the Opposite Parties after entering into contract had escalated the price of the flat and thereafter had also failed to complete the construction and so the complainant is no longer interested in the possession of the penthouse and is praying for refund of the amount of Rs.50,60,445/- which was paid to Opposite Parties Nos.1, 2 and 3. Learned advocate for the complainant has also prayed for grant of interest on the same amount as it was the hard earned money of the complainant. Complainant has also claimed compensation by way of physical and mental agony caused to her and also for litigation expenses.
5. On the other hand, Mrs. Renuka Nalamwar, learned advocate appearing for the Opposite Parties have submitted that the Opposite Parties have been restrained from parting with the possession of the flat or executing any sale deed until further orders in view of the order passed in Contempt Petition Nos. 412/2012 in civil appeal No.9813/2011, dated 17/07/2013. Mrs. Renuka Nalamwar, learned advocate for the Opposite Parties have also placed on record the copy of the said orders. as well as other papers which goes to point out that litigation is going on in between the Sahara Prime City and SEBI and the matter is also subjudice before the Hon’ble Supreme Court. The learned advocate for the complainant has emphasised that the complainant after having invested huge amount can not keep waiting endlessly for possession of the flat or for registration of sale deed. Complainant is therefore not at all keen on getting the possession of the flat/unit purchased by them but he is now interested in refund of entire amount in the backdrop of the fact that the Opposite Parties/Sahara Prime City have not fulfilled the promise. It is submitted on behalf of complainant that the complainant has therefore waived his right to claim possession and so Opposite Parties/Sahara Price City may be directed to refund the amount paid towards consideration. Complainant has further also filed affidavit on record in support of the said contention.
6. After going through the various documents and papers placed on record relating to the payments made by the complainant as well as the copy of judgment delivered in Contempt Petition No.412/2012 passed by the Hon’ble Supreme Court, we are of the view that the Opposite Parties/Sahara Prime City can not be directed to either deliver possession or to execute sale deed. At the same time we can not lose sight of the fact that complainant had already parted huge amount of Rs.50,60,445/- to the Opposite Parties and so the complainant/Pushpa Bhoyar is entitled for refund of the entire amount paid by her. We are also of the view that complainant is not entitled for the amount towards appreciation of the value of flat of Rs.10,00,000/- as claimed by her. Further the complainant/ Pushpa Bhoyar is also entitled to claim interest on the said amount which was lying with the Opposite Parties. At this stage Smt.Renuka Nalawmar, learned advocate for the Opposite Parties have submitted that the interest earlier awarded @ 18% p.a. was excessive in nature and complainant is entitled for interest at saving Bank rate. On this aspect Mrs.Renuka Nalamwar, learned advocate for the Opposite Parties has placed reliance upon series of judgment delivered by the Hon’ble Supreme Court and Hon’ble National Consumer Commission on this aspect as under :-
i) Order passé by Hon’ble National Consumer Commission in the case of DLF Southern Town Pvt.Ltd…….V/s…….Dipu C.Seminlal, in RP No.1973/2014 decided on 07/01/2015.
ii) The Central Warehouse Corporation New Delhi…….V/s…..Central Bank Hyderabad, reported in AIR 1974 AP 8.
iii) Kolkata West International City Pvt.Ltd……V/s……Devasis Rudra, reported in II(2019) CPJ 29 (SC)
iv) Order passé by Hon’ble National Consumer Commission in the case Shalabh Nigaam……V/s……Orris Infrastructure Pvt.Ltd and others, in Consumer Case No.1702 of 2016 Decided on 06/05/2019.
v) Order passé by Hon’ble National Consumer Commission in the case Jacob Thomas Kadakampallia and 3 others……..V/s……Sahara Prime City Ltd, in Consumer Case No.969 of 2016 Decided on 11/10/2021.
7) We have gone through the said judgments. At this stage it is necessary to point out that the complainant/ Ragini Gupta had invested her hard earned amount of Rs.50,60,445/- in paying consideration for flat owing to promises made by the Opposite Parties/Sahara Prime City. Complainant has claimed to be aged of 77 years and was keen to have a flat of her own and for this purpose she had invested the amount in the scheme floated by the Opposite Parties instead of investing the amount in some other scheme where she could have earned much more interest. No doubt in the aforesaid judgments in which reliance have been placed, Hon’ble National Consumer Commission has awarded 10% interest p.a. on the amount paid to the builder. However, in the peculiar fats of the present case, the complainant was also waiting endlessly in the hope of own penthouse and so we are of the view that the complainant was entitled for higher rate of interest looking to her age at the purpose for which she had paid the consideration. As such the case on which reliance have been placed by the learned advocate will not go to help the Opposite Parties. We are therefore inclined to award interest @ 18% p.a. as claimed by the complainant in the peculiar facts of the present case. We are further of the view that the Opposite Parties are also liable to pay compensation in the sum of Rs.3,00,000/- towards mental and physical agony caused to the complainant due to non delivery of the penthouse despite of making payment. Complainant is further entitle for Rs.15,000/- towards cost of litigation. We therefore pass the following order.
//ORDER//
i. Consumer Complaint is hereby allowed.
ii. Opposite parties Nos. 1 to 3 are hereby directed to pay an amount of Rs.50,60,445/- 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 complainant.
iii. Opposite parties Nos. 1 to 3 are hereby also directed to pay to the complainant compensation of Rs.3,00,000/- towards physical and mental harassment caused to the complainant.
iv. The Opposite parties Nos. 1 to 3 are hereby also directed to pay litigation cost of Rs. 15,000/- to the complainant.
v. The payment of the amount in compliance of the above order shall be made within a span of three months from the receipt of the copy of the order by the Opposite parties 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.
