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

1)    Complainant Ranjana Gupta 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 Ranjana Gupta claims to be resident of  Ramdaspeth, Nagpur where as Opposite Parties Sahara Prime City Pvt.Ltd. are registered under the Companies Act. and has floated various housing schemes all over India and also at Gavasi Manapur, Wardha Road, Nagpur. Complainant Ranjana Gupta was in search of  one flat/unit. O.P. had floated the scheme of construction of flat as well as penthouse. Complainant has contended that one Roshanidevi had booked penthouse with the O.P. and had also paid the booking amount in the year 2004 and accordingly allotment letter was issued on 12/09/2007. Subsequently the said penthouse was transferred in the name of the complainant. Complainant thus booked the penthouse for residential purpose for her family members. Complainant has submitted that at the time of booking of the penthouse the Opposite parties had advertised that the said penthouse and township will have several amenities like shopping mall and multiplex, Hotel and Club House and Community Centre etc. The agreed cost of the unit was fixed at Rs.23,23,697/- and the same was to be paid in 38 monthly instalments commencing from 01/08/2007. Complainant has contended that she had paid total amount Rs.3,48,555/- as demanded by the Opposite parties from time to time  but the Opposite parties have not allotted the penthouse as promised  and no amenities were provided as per the promises made by the Opposite parties. Opposite parties had also agreed to handover  the possession of the penthouse after payment of instalments. Complainant thereafter wrote a letter to Opposite parties on  15/04/2008 but Opposite parties has failed to give reply.  

3)      Complainant has contended that, Opposite parties have  agreed that they will hand over the possession of the penthouse during payment of instalments. The complainant has paid booking amount and instalments to the Opposite parties from time to time as per schedule of  the payments to the Opposite parties. Opposite parties have written  letter to the complainant stating there is an excessive demand of penthouse and they are kept on waiting list. The said letter  shows that they were avoiding to allot the penthouse and selling the penthouse on enhance value. Complainant submitted that Opposite parties have  written letter on 17/03/2008 and given option for purchase of other units. The complainant submitted that the options given by the Opposite parties were not suitable to the complainant. Complainant has submitted that looking to the promises made by the Opposite parties she had paid the sum of Rs.3,48,555/-  but the Opposite parties had failed to perform their obligations and had  not completed the project and had also not handed over possession and so there was gross deficiency in service on the part of the Opposite parties Nos.1, 2 and 3. Complainant had therefore prayed for refund of the amount of Rs.3,48,555/-. Complainant had initially prayed for total amount of Rs.25,47,303/- alongwith interest @18% p.a. , but subsequently the complainant has waived the prayer regarding relief  of possession of flat and also the claim of Rs.25,47,303/- Complainant has thus claim the refund of the amount of consideration of Rs.3,48,555/- alongwith interest.      

4.      The Opposite parties have appeared and resisted the complaint   by filing written version on record. The Opposite parties have admitted that the  complainant was allotted one pent house. Opposite parties however  denied the rest of the contentions made by the complainant in the complaint. Opposite parties have 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 on 7/12 extract of the company and bar has been put for 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/ Ranjana Gupta is therefore not  tenable in law and deserves to be dismissed with cost.

5.      We have heard Mr.Majithia, learned advocate for the complainant and Mrs. Renuka Nalamwar, learned advocate for the Opposite parties representing Sahara Price City Ltd.  It is submitted by  learned  advocate  for the complainant Majithia that  on the basis of assurances given by the Opposite parties the  complainant had parted   with  the an amount of Rs.3,48,555/- and also ready and willing to pay entire amount of consideration. 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 penthouse and thereafter had also failed to complete the construction and so the complainant is no longer interested in the possession of the pent- house and is praying for refund of the amount of Rs.3,48,555/- which was paid to Opposite parties. Learned advocate for the complainant has also prayed for grant of interest on the same amount as it was the heard 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.  

6.      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 compensation 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.

7.     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.3,48,555/- to the Opposite parties and so the  complainant Ranjana Gupta 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 penthouse of Rs.25,47,303/- as claimed by her. Further the complainant Ranjana Gupta is also entitled to claim interest on the said amount which was lying with the Opposite parties.

8.       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 back rate. On this aspect Mrs.Renuka Nalamwar, learned advocate for the Opposite parties have placed reliance upon series of judgment delivered by the Hon’ble Supreme Court and Hon’ble National Consumer Commission on this aspect are 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.

9.         We have gone through the same.  At this stage  it is necessary to point out that the complainant Ranjana Gupta had invested her heard earned amount of  Rs.3,48,555/- in paying consideration for penthouse owing to promises made by the Opposite parties/Sahara Prime City. Complainant has claimed to be aged of 71 years and was keen to have a penthouse to 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 foresaid cited 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 pent- house 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 case to 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.3,48,555/- 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 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 are hereby also directed to pay a 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.