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

1)    Complainant No.1 Mr.Arun Dalichandbhai Khara is the husband of complainant No.2 Mrs.Jyotsna Arun Khara Both have preferred the present Consumer Complaint under Section 17 of the Consumer Protection Act, 1986. Short facts leading to the present Complaint may be narrated as under : 

2)      The complainant No.1 Mr.Arun Dalichandbhai Khara is the  husband of complainant No.2 Mrs.Jyotsna Arun Khara Both have claimed to be   resident of  Yavamal. During the pendancy of the complaint Mr.Arun Dalichandbhai Khara died and complainant No.1 Mr.Arun Dalichandbhai Khara is brought  on record as her sole legal heir.  O.P.No.1/Sahara Prime City is the Private Limited Company. engaged in the business of Builder and Developer  and dealing in Real Estate project. O.P.No.2 is the head of Infrastructure division. O.Ps. have floated various housing scheme all over India and also developed their housing scheme at Nagpur name as Sahara City Homes and selling Row houses and tenements. O.P.No.3 is the branch office of O.P.No.1 and 2. O.Ps. were selling the row houses and tenements by publishing advertisements. Complainant No.1 and 2 have also decided to purchase one Row house for residential purpose and accordingly booked one independent Row house/unit No.R-5/330   having area of 177.90 sq.mtr. alongwith terrace. Complainants claims to be Senior Citizens having two married sons and grand children. Complainants have contended that at the time of booking the Row house the O.Ps. have given huge advertisement regarding several common amenities like shopping mall, multiplex, exclusive club as well as community centre. Complainant Nos. and 2 both have very much impressed by the scheme  floated by the O.Ps. Complainants have contended that the agreed cost of the Row house/unit was Rs.75,01,648/- and the same was payable in 38 monthly instalment commencing from 24/10/2007. Complainants have contended that they have booked the Row house and paid the booking amount of Rs.68,04,537/- and also paid the amount from time to time. Complainants have thus paid total amount of Rs.68,04,537/-. O.Ps.  agreed to handover the possession within the stipulated period but failed to handover the same inspite of the agreement. O.Ps. were under obligation to perform their part of contract by providing all amenities as promised but the same were also not fulfilled. On the contrary O.Ps. have issued letter on 05/07/2008 stating that the value of the Row house booked by the complainants has increased to Rs.75,01,648/-. Complainants have purchase the property with the dream to resides in the Row house of Sahara City at Nagpur but the dream was shattered. Complainants have contended that meanwhile the rate of row house was increased and the O.Ps. were selling the said type of unit on higher rate of Rs.86,50,000/-. O.Ps. have also failed to complete the construction in time. Complainants have contended that since their dream of residing in the Row hose was shattered they were now praying for refund of Rs.68,04,537/- and also increase value of Row house of Rs.12,25,671/- alsongwith interest @ 24% p.a. Complainants have also stated that since O.Ps. have not completed construction and have not provided amenities they were waiving claim of possession and only claiming refund of Rs.68,04,537/- and so the present complaint.        

3.      The O.Ps. have appeared  and resisted the complaint  by filing written version on record. The O.Ps. have admitted that the complainants was allotted one Row house/unit bearing No.R-5/330 having area of 177.90 sq. mtrs. in the town ship named as  Sahara City Home and also admitted the fact that they have received the amount of Rs.68,04,537/-. O.Ps. have however denied that it had failed to hand over possession or complete the construction within the stipulated period. However O.Ps. have come with specific plea that the contract entered into by them with the complainants 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 O.Ps. have taken a plea  that after the contract was entered into some litigation started between the O.Ps./Sahara Prime City and Security and Exchange Board of India (SEBI) and the same had reached the Hon’ble  Supreme Court.  The O.Ps. 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.

4.      The O.Ps. have also taken  a specific plea  that there was Arbitration  Clause  in the contract  and so the dispute can be resolved only by the  Arbitrator. The complaint filed by the complainants is therefore not tenable in law and deserves to be dismissed with cost.

5.      We have heard Mr.Nalin Majithia, learned  advocate for the complainants and  Mrs. Renuka Nalamwar, learned advocate for the O.P. Nos.1 to 4 representing Sahara Price City Ltd.  It is submitted by learned  advocate  for the complainants Mr.Nalin Majithia that  on the basis of assurances given by the O.P.Nos.1 to 4 the  complainants had parted with  huge consideration of Rs.68,04,537/- which was paid in instalments and the details of the same are also described in the chart annexed with the complaint. But despite the payment of entire consideration, the O.Ps. have not fulfilled the promises nor handed over the possession of the Row house/unit purchased by the complainants and so complainants have been subjected to great mental pain and agony. The O.Ps. also failed to provide various amenities promised to complainants and so the complainants were put to great mental pain and agony.

6.      On the other hand, Mrs. Renuka Nalamwar, learned advocate appearing for the O.Ps. have submitted that  the O.Ps. 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 O.Ps. 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 O.Ps./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 possession and so O.Ps./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 complainants 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. At the same time we can not lose sight of the fact that complainants had already paid huge amount of Rs.68,04,537/- to the O.Ps. long back. Complainants have also claimed further sum of Rs.12,25,671/- regarding escalation of the  price of the row house but the same cannot be permitted in the absence of evidence on record. However, the complainants are entitled for refund of entire amount of  consideration from the O.Ps. We are further inclined to also award interest as claimed by the complainants. In this regard learned advocate Mrs.Renuka Nalamwar have vehemently submitted before us that interest of 18% p.a. claimed by the complainants is excessive and on this aspect we have heard both the learned advocates. But this submissions of learned advocate for O.Ps. cannot be accepted due to peculiar facts of this case. We are of the view that O.Ps. are also liable to pay compensation in the sum of Rs.5,00,000/- towards mental pain and agony caused to the complainants due to non delivery of the possession of the Row house/unit despite making payments. Complainants are further entitled for Rs.10,000/- towards cost of litigation. We therefore proceed to pass the following order.  

//ORDER//

i.        Consumer Complaint is hereby allowed.

ii.       O.P.Nos. 1 to 5 are hereby directed to pay an amount of Rs.68,04,537/- 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 complainants.

iii.      O.P. Nos. 1 to 5 are hereby also directed to pay to the complainant  compensation  of Rs.5,00,000/- towards  physical and mental  harassment caused to the  complainants.

iv.      The O.P.Nos. 1 to 5 are hereby also directed to pay litigation cost of Rs. 10,000/- to the complainants.

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 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.