Per Shri A.Z.Khwaja, Hon’ble Judicial Member.
1) Complainant has filed the present complaint under section 17 of Consumer Protection Act 1986 for claiming vacant possession of flat and also for compensation and alternatively for refund of the amount of consideration. Short facts leading to the filing of the present complaint may be narrated as under :-
2) Complainant Jahid Ali Hussain Mujawar claims to be resident of Rai Town, Hingna Road, Nagpur. Complainant has contended that he desired to purchase one flat at Nagpur and there was huge publicity by O.Ps. regarding their Sahara Housing Scheme. O.Ps. are the companies engaged in the business as builders and developers. O.Ps. have developed the housing scheme at Nagpur Wardha Road known as “Ketubh City Homes” and selling flats, tenements and penthouses. Complainant therefore approached the O.Ps. and booked one residential unit of two bed rooms bearing unit No.B4/501 admeasuring 88.73 Sq.Mt. in the building known and styled as ‘CROWN’ on the 5th floor. Complainant has contended that the total consideration of the flat was fixed at Rs.17,66,283/- and complainant had paid the entire amount of consideration by way of instalments. First instalment of Rs.88,317/- was paid on 01/03/2005 and later on the complainant has paid the remaining amount by way of instalments. After executing the agreement of sale the O.P.No.2 have promised that the possession of the flat will be handed over very soon. But only bare promises were made and no steps were taken for handing over the possession of the flat. Complainant on numerous occasions made enquiry with the O.P. No.2 regarding possession of the property but every time O.P.No.2 stated that they had started the construction on the project site and would hand over the possession. However complainant came to know that O.Ps. did not complete the construction as per the promise made. Complainant was therefore compelled to file the present complaint with the prayer to direct the O.Ps. to complete the construction of the flat and hand over the vacant and peaceful possession of the flat. But during the pendency of the complaint the present complainant has waived his right to possession and has only claimed refund of amount of Rs.17,66,283/- alongwith penal interest @Rs.15% p.a. and so the present complaint.
3. The O.P.No.1 to 3 have appeared and resisted the complaint by filing their common 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 term ‘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. 18 regarding Force Majeure 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 including the present project had come to a 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 on 17/07/2013 and 21/11/2013 directing that the Sahara Group of Companies shall not part with any moveable or immoveable properties until further orders and these orders are still in force and the Sahara Group of companies have been restricted from parting with or handing over 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 with the complainant and so the dispute can be resolved only by the Sole Arbitrator. 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 present complainant is not tenable in law and deserves to be dismissed with costs.
5. We have gone through the complaint of the complainant, evidence affidavit as well as written notes of arguments filed by the complainant. In the same way we have also gone through the written version, evidence affidavit and written notes of arguments filed by the O.Ps. We have heard Mr.Dubey, learned advocate for the complainant and Mrs. Renuka Nalamwar, learned advocate for the O.Ps. It is submitted by Mr. Mr.Dubey, learned advocate for the complainant that the complainant had booked unit No.B4/501 admeasuring 88.73 Sq.Mt. in the building known and styled as ‘CROWN’ on the 5th floor and the agreed cost of the unit was Rs.17,66,283/-. Learned advocate for the complainant has submitted that he had paid the entire amount of the flat by taking loan from the bank and also by depositing the instalments in regular and meticulous manner but the O.Ps. namely Sahara Prime City Ltd. had not at all fulfilled the promises by completing the construction work within the stipulated period. O.Ps. have also failed to not only complete the project but also to hand over the possession of the unit despite having executed registered agreement of unit.
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. has also placed on record copy of the said orders as well as other papers to show the on going litigation between the O.Ps. namely Sahara Prime City Ltd. and SEBI and I 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.Dubey, learned advocate for complainant that looking to the developments 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 Mr. Dubey, learned advocate for complainant 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.
7) We have heard Shri Dubey, learned advocate for the complainant and also gone through the copies and various documents which were placed on record by the complainant including copy of agreement to sale entered in to with the O.Ps.. It is crystal clear that the present complainant had not only booked the unit with the O.Ps. on the basis of assurances given to him but also parted with huge amount of Rs.17,66,283/-. It is further clear from the pleadings and documents placed on record that the O.Ps. namely Sahara Prime City Limited had not kept its promise and had not completed the construction at all and thereby had put the complainant to huge financial loss by accepting part of the consideration from him. We are also of this view that looking to the direction given by the Hon’ble Supreme Court that the O.P. was not in a position to hand over the possession of the unit purchased by the complainant and so we feel that suitable directions can be given to O.Ps. regarding refund of consideration alongwith interest. We are also of the view that looking to the financial loss and delay in handing over possession no leniency can be shown as far as rate of interest and compensation is concerned and so we are inclined to the award interest @ 15% p.a. over the amount paid by the complainant. We are also feel that O.Ps. are liable to pay compensation in the sum of Rs.3,00,000/- towards mental and physical harassment caused to the complainant and Rs.15,000/- by way of cost of litigation. We therefore proceed to pass the following order.
//ORDER//
i. Consumer Complaint is hereby partly allowed.
ii. O.P.Nos. 1 to 3 are hereby directed to pay jointly and severally an amount of Rs. Rs.17,66,283/-./- along with interest at the rate of 15% 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 jointly and severally to the complainants compensation of Rs.3,00,000/- towards physical and mental harassment caused to the complainants.
iv. The O.P.Nos. 1 to 3 are hereby also directed to pay litigation cost of Rs. 15,000/- 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.
