1)      Complainant has preferred the present Consumer Complaint under Section 12 of the Consumer Protection Act, 1986. Short facts leading to the present complaint may be stated as under. 

2)      The complainant is permanent resident of Laxmi Nagar, Nagpur and they were interested in booking a flat for residential purpose. Opponent Nos.1 and 2 namely ‘Sahara Prime City’ are well known and reputed developers dealing in the business of building and constructions all over the country. Opponent No.1 had  also advertised  and shown attractive plan of the Sahara City Homes for Nagpur situated on prominent location adjacent to I.T. Hub and SEZ and just 10 Km. from /Airport and the township is spread across 113.33 acres. Complainant has contended according to advertisement there will be over 3901 residential units of various categories in Sahara City Home. Complainant was very much impressed by the advertisement given by O.P.No.1 and so he had booked unit No.R-5/456, type Independent Row House having unit area as 177.90 sq.mtrs. at Sahara City Homes, Wardha Road Nagpur. Complainant has contended that the price of independent Row House was originally fixed at Rs.73,00,000/-. O.P. had also issued allotment letter on 14/07/2008 and also promised to hand over the possession of the independent Row House within a period of 38 months from the date of allotment. Complainant has contended that O.P. had also entered into agreement to sale inrespect of independent Row House with the complainant and the same was also registered before the Sub-Registrar, Nagpur on 19/09/2008 and the same was inrespect of Row House No.R-5/456. Complainant has contended that he had delayed one month instalment by 14 days due to some financial problem and so the O.P. has also charged interest for the same in the month of July 2910. Complainant visited the site and found that the construction of the unit was not even started whereas O.P. had taken the amount of Rs.48,86,965/-. Complainant has contended that as the construction had not started and the O.P. had not taken any steps the complainant applied for shifting of unit from the said unit to ready possession unit. O.P. had raised a condition of cancellation of agreement. Complainant has contended that as per his request the unit was changed and O.P. also issued letter of shifting on 17/02/2012. Complainant has contended that the O.P. had given possession of unit No.R-5/295 in the month of September 2013. Complainant has contended that though the possession was handed over the O.P. has not maintained the premises  and premises is in miserable condition and complainant can not stay in the said surrounding and it is not fit for occupation. O.P. has also not transferred the possession and title of the same. Complainant has contended that earlier the Independent Row House was allotted in the year 14/07/2008 and possession was given in the year 2011. Complainant has contended that though he had paid the amount of consideration he could not get the sale deed of the property booked and so there is deficiency in service on the part of complainant. O.P. has taken the entire amount towards the independent Row House including the charges of amenities, but the O.P. has not executed the sale deed and has not maintained the property in habitable condition. Complainant has therefore contended that he was no longer interested in possession of the unit and is also only claiming refund of the amount. Complainant has also taken a plea that the respondent has committed deficiency in service as well as Unfair Trade Practice. Complainant has therefore prayed for refund of Rs.73,08,259 +  Rs.9,21,447/- = 82,29,706/- along with  interest  at the rate of 24% p.a. and also Rs.15,00,000/- by way of compensation  towards mental agony and Rs.1,00,000/- towards cost, so the present complaint.

3.      After filing of the complaint due notices were issued to O.Ps. The O.Ps. have  appeared  and resisted the complaint  by filing written version.  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 Majuere’  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  litigation 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 until further  orders  and these orders are still in force.  The O.Ps. are   bound by the order  of the Hon’ble Supreme Court restraining  them 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 costs.

5.      We have heard Mr.Bhushan Mohata, learned  advocate for the complainant and  Mrs. Renuka Nalamwar, learned advocate for the O.Ps. It is submitted by Mr.Bhushan Mohata, learned  advocate  for  the  complainant  that  the  complainant had parted  with  huge  consideration  by  borrowing  money  and  taking loan  from the bank and also  by  depositing  the instalment  in regular  and meticulous  manner but the  O.Ps. namely Sahara  City Homes  Ltd.  had not at all  fulfilled   the promises made by them  nor handed over the possession  of the unit nor completed  the project in all respect  as promised. Mr.Bhushan Mohata, learned advocate  for the  complainants  has also  submitted that  the complainant  has 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.  also  placed on  record the copy  of the said orders  as well as other papers  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 Mr.Bhushan Mohata,  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 only regarding  refund  of  amount of consideration paid 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 Mr.Bhushan Mohata, learned advocate has  submitted that    the O.Ps.  may be  directed  to refund  the amount which  was  paid  towards  consideration.

 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 O.Ps./Sahara Prime City can not be directed to either deliver possession or to execute sale deed. We have also heard advocate Mrs.Renuka Nalamwar for O.P. and she has submitted that the O.P. namely Sahara Prime City has been restrained from transferring any flat or property by the Hon’ble Supreme Court of India due to ongoing litigation. The learned advocate for O.P. has submitted that the O.P. is ready to refund the amount paid by the complainant. From the pleadings and the documents placed on record it is clear that the complainant was waiting for possession of the independent row house bearing No.R-5/456 but the same was neither constructed nor the possession was delivered.  During the course of final hearing the complainant has also filed a pursis in writing stating that in case the prayer claimed in the complaint can not be accepted and possession can not be delivered then the complainant is ready to accept the refund of amount paid by him to the O.Ps. In view of the same we are of the view that though the O.P. has committed deficiency in service, it would be proper if the amount paid by the complainant is refunded to him alongwith suitable interest and so we pass the following order.   

//ORDER//

i.        Consumer Complaint is hereby partly allowed.

ii.       O.P.Nos. 1 to 3 are hereby directed to pay an amount of Rs.73,08,259 +  Rs.9,21,447/- = 82,29,706/- 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.      O.P. Nos. 1 to 3 are hereby also  directed to pay to the complainants  compensation  of Rs.3,00,000/- towards  physical and mental  harassment caused to the  complainant.

iv.      The O.P.Nos. 1 to 3 are hereby also directed to pay  a litigation cost of Rs.50,000/- to the complainant.

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.