Rajasthan

StateCommission

CC/102/2019

Smt. Alka Mathaur W/O Ravishankar Mathur - Complainant(s)

Versus

Sahara Prime City Limited - Opp.Party(s)

D.M.Mathur

23 Dec 2020

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

 

COMPLAINT CASE NO: 102/2019

 

Smt.Alka Mathur w/o Ravishankar Mathur r/o House No. 104/35 Agarwal Farm, Mansarovar, Jaipur 302020 & ors.

Vs.

Sahara Prime City Ltd., (Sahara City Homes) Head office- Sahara India Centre-2, Kapoorthala Complex, Aliganj, Lucknow & ors.

 

Date of Order 23.12.2020

 

Before:

Hon'ble Mr. Atul Kumar Chatterjee- Member Judicial

Mr.Shailendra Bhatt-Member

 

Mr. D.M.Mathur counsel for the complainant through V.C.

Mr.Narendra Kumar Sharma counsel for the non-applicants through V.C.

 

 

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BY THE STATE COMMISSION ( PER HON'BLE MR.ATUL KUMAR CHATTERJEE, MEMBER JUDICIAL)

 

The complainant has filed the complaint against the non-applicants with the facts that he is allottee of Flat No. R/63 in the Sahara City Homes Scheme at village Bilwa, Tonk Road, Jaipur. This flat was originally allotted to Sh.Abhishek Jindal and it was subsequently purchased by complainant and the allotment was got transferred in her name. The complainant has paid the entire consideration amount of Rs.61,43,678/- between the period of 14.6.2008 to 24.8.2012. According to the complainant the deficiency in service and unfair trade practice alleged against the opponents is that despite depositing the entire consideration amount the flat has not been fully constructed and the necessary development works have not been done and as per the promise the possession of the flat has not been handed over till the filing of complaint. The complainant has sought the relief to refund the deposited amount of Rs.61,43,678/- with interest besides compensation for the physical, mental and economical loss alongwith the prosecution cost.

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In the reply the non-applicants have raised preliminary objection regarding lack of jurisdiction of this Commission saying that the matter relates to recovery of money hence, it requires trial in competent civil court and that existence of arbitration clause in the agreement debar the jurisdiction of this Commission. Further due to implementation of RERA,2016 the jurisdiction lies with the tribunal established under this Act.

 

In the parawise reply the facts regarding allotment of the flat to complainant and receiving the amount have been admitted. The reason of delay in completion of the scheme has been shown to be non-availability of river sand (bajri) and stay by Hon'ble apex court in the Sahara SEBI matter. Further it is pleaded that SEBI is a necessary party. On this basis the non-applicants have denied the allegation of deficiency in service and unfair trade practice.

 

Both the sides have adduced its evidence both oral as well as documentary.

 

Heard the rival contention. We have perused the record.

 

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In this matter it is an admitted position that complainant is the allottee of the flat no. R/63 in the Sahara City Homes Scheme of non-applicants and an amount of Rs.61,43,678/- has been received by the non-applicants. As such the relation of consumer and service provider inter se between the parties is not in dispute. As regards the alleged deficiency &/or unfair trade practice against the non-applicants the delay in completion of the scheme has also been admitted by the non-applicants. In our view the reasons/justification as pleaded by non-applicants that the construction could not be completed due to non-availability of river sand (bajri) or due to stay of Hon'ble Apex court in Sahara SEBI case, cannot be accepted so as to relieve the non-applicants of their liability qua the complaint.

 

Here it is worthwhile to mention that time and again Hon'ble the Apex court as well as the National Commission have held that a consumer cannot be forced to wait for possession of the property for indefinite period. Moreover the plea of complainant regarding non-completion of construction of flat and not doing the necessary developments have not been controverted by the counter plea of completion of flat and

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doing the necessary development works. As such the factum of

deficiency in service and unfair trade practice stand proved against the non-applicants.

 

As regards the lack of jurisdiction of this Commission as pleaded in the reply, in our view the plea regarding trial by a competent civil court is not acceptable because it cannot be treated to be a suit for recovery of money but is definitely a consumer dispute in the given facts and circumstances. So far as existence of arbitration clause and availability of remedy under RERA ( as mentioned in the written submissions) in our view these remedies cannot be taken to be exclusive rather that can, at the most be, taken to be coexistent with the remedy under Consumer Protection Act, 1986. In our humble view in the given circumstances SEBI can't be held to be a necessary party for adjudication of this consumer dispute. As such the complainant cannot be held to be debarred from filing the complaint before this Commission.

 

In our view of the above, the complaint filed by the complainant deserves acceptance hence, the same is allowed. In a similar matter another coordinate bench of this

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Commission has allowed interest @ 10% p.a. We too adhere to this view. Therefore, the complaint of the complainant is allowed and it is hereby ordered that the non-applicants are held liable jointly as well as severelly to pay to the complainant the total amount deposited i.e. Rs.61,43,678/- with 10 % interest from the date of each deposit. The complainant is further entitled to get Rs. 2 lakhs as compensation for mental agony and Rs.50,000/- as cost of proceedings which should be paid to the complainant within one month otherwise it will carry 9% interest from the date of the order.

 

 

(Shailendra Bhatt) (A.K.Chatterjee)

Member Member Judicial

 

 

 

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