PER MRS.U.S.THAKARE, HON’BLE JUDICIAL MEMBER.
1) Complainant has filed consumer complaint under section 17 of Consumer Protection Act, 1986 by alleging deficiency in service against all opponents and for adopting unfair trade practice.
2) The complainant is citizen of India and consumer of opponents. Opponent No.1 is a limited company duly incorporated and registered under the Companies Act 1956. The opponent No.2 is branch office of the opponent No.1 at Nagpur. The opponent No1 had floated the various housing schemes all over India. The opponent Nos.1 and 2 had projected for development of the housing scheme at Nagpur by name “Sahara City Homes”. The complainant on 14/08/2007 had applied for transfer of booking a unit for her residence from one Lalit Thakur of Gondia to her name, which unit was to be constructed and sold by the present respondents at Sahara City Homes, Nagpur. This application was allowed by the respondents and a transfer of booking was made by the opponents from the name of Lalit Thakur to the name of complainant. That, thus the complainant falls under the definition of “Consumer”.
3) According to the complainant, in pursuance of her application, opponent No.1 vide letter dated 30/10/2007 allotted unit No.A3/202, Type 1 Bedroom on second floor having Unit Area/Plot Area/Terrace Area of 66.25 sq.mt. at Sahara City Homes, Nagpur to the complainant. The opponents fixed the price of the unit at Rs.13,19,251/-, falling under the monthly instalment plan. This letter of allotment directed the complainant to make payments as per the payment schedule provided by the opponents at the office of opponent No.2. The letter of allotment declared in clear terms that, the possession of the unit would be handed over to the complainant within a period of 38 months from the date of allotment of the same, i.e. till 30/12/2010.
4) It is alleged that the complainant made payment of consideration as per payment schedule. Last instalment was paid on 31/12/2010 by paying amount alongwith late interest of Rs.3053/-. The complainant paid entire amount of Rs.13,19,449/- alongwith late interest of Rs.3053/-. Infact the opponents have received total amount of Rs.17,99,957/- from the complainant. Even after a period of three and a half years, despite several communications and letters by the complainant to the opponents, the opponents did not handover the possession of the said unit to the complainant. That, on 20/05/2014 the opponents issued a letter to the complainant informing her about an on going litigation between the opponents and SEBI and claiming that they would honor the agreement between the parties and requested for some more time to handover the possession.
5) It is further alleged by the complainant that she had booked unit for residential purpose. She did not get possession of the unit in the year 2010 as per agreement. Construction of the unit is not completed. Complainant has invested heard earned amount in booking the unit. Amount of consideration paid to the opponents are not returned with interest. They are guilty of deficiency in service and unfair trade practice. Ultimately she has filed consumer complaint and claimed possession of unit No.A3/202, Type 1 Bedroom on second floor having Unit Area/Plot Area/Terrace Area of 66.25 sq.mt. at Sahara City Homes, Nagpur. She has also claimed to direct the opponents to execute sale deed of the unit infavour of the complainant. In the alternative they have asked for refund of entire amount paid against unit, with interest @ 18% p.a. from the date of 30/10/2007 till actual realisation. She has also claimed compensation, cost of litigation from the opponents.
6) The opponents have resisted the consumer complainant by filing written statement and denied all adverse allegations. It is specifically denied that the opponents are guilty of deficiency in service or they have adopted unfair trade practice. It is submitted that when the project was being completed, a litigation was cropped up between Sahara Groups of Companies and Security Exchange Board of India (SEBI). Litigation was filed before the Hon’ble Supreme Court. In contempt petition No.412/2012 the Hon’ble Supreme Court passed an order dated 17/07/2013 and order dated 21/11/2013 there by directing that the Sahara Groups of Company shall not part with any movable or immovable property until further order and no High Court, Securities Appellant Tribunal or any other Forum shall pass the order against the order passed by SEBI in implementation of the order of the Hon’ble Supreme Court. The order is still in force. Therefore opponents are not in a position to part or handover possession or sale of any movable or immovable property. Due to stay order it is not possible even to undertake the further construction of project at Nagpur and not possible to handover the unit to the consumer who booked the unit/flat. Even they can not part with the possession of the flat which are ready.
7) The opponents have raised the defence as per condition No.17 of agreement. It is submitted that in case of dispute between the parties it should be referred to an Arbitrator. It is the contention of the opponents that in view of orders passed by Hon’ble Supreme Court dated 17/07/2013 and 21/11/2013, it is not possible for the opponents either to complete the construction and not possible to handover their possessions to respective purchasers, as such they are not guilty for deficiency in service or for unfair trade practice. They have requested to dismiss the consumer complaint with cost.
8) Both parties have adduced evidence by filing affidavits of evidence. They have filed brief notes of argument. Heard learned advocate Mrs.Radhika Bajaj for the complainant and advocate Mrs.Renuka Nalamwar for opponents.
9) On pleadings of the parties, following pointes arise for our determination and we record our findings for the reasons below :-
Sr.No. | Points | Findings |
i | Whether the consumer complaint is maintainable in view of Arbitration clause in the agreement ? | Yes |
ii | Whether the opponents are guilty for deficiency in service ?. | Yes |
iii | Whether the complainant is entitled for possession of the booked unit/flat ? | No |
iv | Whether the complainant is entitled for refund of paid amount of consideration with interest ? | Yes |
v | Whether the complainant is entitled for compensation and cost ? | Yes |
vi | If yes to what extent ? | As per final order. |
vii | What order ? | As per final order. |
As to point No.i - The opponents have pleaded that the consumer complaint is not tenable before District Fora in view of Arbitration clause in the agreement. Now it is settled by law that in view of Section 3 of Consumer Protection Act, 1986, consumer complaint is tenable before Consumer Fora. Section 3 of the Act has clarified that Consumer Protection Act is not in derogation of any other law. Provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. As a result we hold that consumer complaint is maintainable and we answer point No.(i) for determination in affirmative.
As to point No.ii – It is admitted fact that the complainant has booked unit having Unit Area/Plot Area/Terrace Area of 66.25 sq.mt. at Sahara City Homes, Nagpur for consideration of Rs.13,19,251/- in the township named as “Sahara City Homes” situated at Nagpur which is the project under taken by opponents. The complainant has paid amount of Rs.17,99,957/- towards consideration to opponent No.1. She paid amount more than amount of consideration as interest was charged on late payment.
10) We have perused the order passed by Hon’ble Apex Court in case of SEBI….V/s….Sahara India Real Easted Corporation and others. Stay order is passed in Contempt Petition No.47/2012 in Civil Appeal No.1813/2011 dated 21/11/2013. On perusal of both the orders it is abundantly clear that the Hon’ble Apex Court has directed Sahara Group of Companies not to part with any movable or immovable properties until further order.
11) Under these circumstances the opponents can not part with possession of the booked unit/flat to the complainant and can not execute sale deed in his favour. The opponents realised that the opponents could not part with possession of the unit/flat to the complainant. Then as provision of MOFA (The Maharashtra Ownership Flats Act,1963), the opponents were supposed to return amount of consideration to the complainant alongwith interest. But the opponent No.1 did not take any step to refund the amount to the complainant with interest.
12) Advocate Mrs.Nalamwar for the opponents vehemently urged that the opponent No.1 was ready to refund the amount. But the opponent No.1 never tried to tender, amount of consideration received from the complainant. If really the opponent No.1 was interested in refund of amount, the opponents should have called the complainant by sending letter or notice. The opponent No.1. could have straight way deposited the amount of consideration in the account of the complainant by RTGS or by demand draft. Mere pleading that the opponent No.1 was ready to refund the amount is not sufficient to discharge the liability. The opponents retained and utilised amount of consideration paid by the complainant for long time. The opponents can not ask the complainant to wait for indefinite period for possession of booked unit. The opponents should have refunded hard earned amount of complaint to him. In view of Section 8 of The Maharashtra Ownership Flats Act,1963, retention of amount by the opponents is against provisions of law. Non refund of amount of consideration by the opponent No.1 to the complainant amounts to deficiency in service. Inspite of accepting huge amount of consideration, agreement of sale is not executed infavour of the complainant by opponents. This conduct also amount to deficiency in service. As such we answer point No.(ii) for determination in affirmative.
As to point Nos.iii to vii – The complainant has claimed possession of the booked unit/flat. In view of directions given by the Hon’ble Apex Court, we can not direct the opponents to part with possession of the unit/flat. The complainant is not entitled for getting possession of the unit/flat, but the complainant is entitled for refund of paid amount with interest @ 18% p.a. from date of each payment.
13) It is to be noted here that Consumer Protection Act is a benevolent legislation. Suitable order can be passed in order to meet ends of justice. It is admitted fact that complainant has paid late payment towards consideration with interest @15% p.a. The complainant has claimed interest on total amount of consideration. The opponents accepted late payment with interest. The State Commission while deciding several consumer complaints against the present opponents issued direction of refund of amount of consideration with interest @ 18% p.a. from the date of respective deposits. The learned counsel Mrs.Radhika Bajaj has placed reliance on the judgment passed by this Commission in consumer complaint Nos.CC/13/14, CC/13/37, CC/13/38, CC/14/50, CC/14/53, CC/16/53, CC/16/105, CC/16/122, CC/16/128, CC/15/33 dated 26/02/2019.
14) Advocate Mrs.Renuka Nalamwar fairly submitted that in other groups of consumer complaints against the opponents, same rate of interest is granted. Hence same rate of interest can be awarded. The complainant is entitled for interest @ 18% p.a. from respective date of each date.
15) The complainant has suffered mental pain and agony as the unit/flat was booked in the year 2007 but till today the complainant did not get possession of booked unit/flat. The complainant has invested hard earned amount in getting possession of dream house. Now in year 2020 the complainant can not purchase new flat in same area for same consideration. The complainant is entitled for amount of Rs.5,00,000/- towards mental pain and agony. The complainant was required to file consumer complaint for getting justice. He was required to appoint an advocate and to attend consumer case. He is entitled for an amount of Rs.10,000/- towards cost of litigation. Accordingly we answer points Nos. iii to vii for determination and pass the following order.
//ORDER//
- Consumer complaint is partly allowed.
- It is hereby declared that the opponents are guilty of deficiency in service.
- Opponents are directed jointly or severally to refund amount of Rs.17,99,957/- to the complainant with interest @ 18% p.a. from date of each payment.
- The opponents do pay jointly or severally an amount of Rs.5,00,000/- to the complainant towards compensation for mental pain and agony.
- The opponents do pay jointly or severally an amount of Rs.10,000/- to the complainant towards cost of litigation and shall bear their own.
- The payment of the amount in compliance of the above order shall be made in the span of three months from the receipt of copy of order by the opponents subject to permission of Hon’ble Supreme Court for making said payment.
- Copy of order be supplied to both parties free of cost..
