(Delivered on 23/01/2019)

Per Shri B.A.Shaikh, Hon’ble Presiding Member.

 1.         These five complaints are being disposed of by this common order as common questions of law and facts are involved in them.

 2.         These five complaints are filed by the various complainants against the common opposite parties (for short O.Ps.) under section 17 of Consumer Protection Act,1986, on common grounds seeking identical reliefs.

 3.         The common case of the complainants as set out  by them  in the aforesaid  five complaints in brief is as under.

a)         The O.P. No.1 floated housing scheme at Nagpur in the name as “Sahara City Homes” by developing  their land described in the complaints, by constructing  thereon  Flats, Row-houses, Tenements and Pent houses and to sell them  to the prospective purchasers.  They also gave public advertisement about the aforesaid scheme.   The complainants were interested in purchasing residential units under the said scheme

 b)         The complainants therefore approached the O. Ps. and entered in to contract with them  for purchasing the respective units.  The complainants  booked  residential units for the price  agreed between both the parties. The O.Ps. issued letters  of allotment  to the complainants. As per contract  it was agreed  by the O.Ps.  that  construction  would be completed  and possession  of the respective units  will be  given in the 38 months  from the date of booking/allotment of units. The complainants paid  amounts in installments. The complaintwise details of above particulars  are give below  in tabular form.

 c)         However,  the  O.Ps. did not  complete the  construction  and did not give possession  of the aforesaid units  to the complainants as agreed within 38 months  from the date of booking /allotment  of units,  though  requests were made from time to time. The O.Ps.  failed to discharge  their  contractual  obligation as above. Thus they rendered  deficient service  to the complainants  and also adopted  unfair trade practice. Hence, these five  complaints are  filed  by the aforesaid  complainants  against the  common O.Ps. They   had initially sought sale deed along with  possession of  the above  units. But subsequently they have  given up their  said relief  and claimed  only refund  of money paid  by them,  with interest , compensation and cost.

 4.         The O.Ps. appeared before this Commission  in each of the above five  complaints  and filed  reply/written version  and thereby resisted  the said complaints.  The O.Ps. have made  common  submissions  in their reply /written version  which  in brief  is as under,

 i.          The facts which  are not disputed by the O.Ps.  are that they had launched a scheme of development of the land in the name as “Sahara City” at Nagpur. They accepted the booking of the residential units from the respective complainants on the respective dates. The complainants paid in installments the various amounts as specified by them in their respective complaints & mention above. Letters of allotment /booking  of flats  were also issued  to the  complainants by the O.Ps.  However,  the registered agreement to sell  was executed  by the O.Ps.  in favour  of the  complainant in the complaint  bearing No. CC/12/40. The construction of the residential units was  to be completed within a period of 38 months from the respective dates of allotment of units. But the construction could not be completed within the said stipulated period.

ii.          The O.Ps. have  raised  the following  preliminary objections in each of the aforesaid  complaints.

             As per  terms and conditions  of the provisional booking,  in case of any  dispute  between  both the parties,  proceeding  will  be   conducted in accordance with  provisions  of the Arbitration  and Conciliation  Act, 1996, and the award  of arbitrator  shall be final and binding  upon  the parties. Hence,  complaints  before this  Commission are  not  maintainable. The Commission has no jurisdiction  to entertain  and decide these complaints  under the Consumer Protection Act, 1986. The complainants have  invested  amounts  in booking of units with the O.Ps.  with view  to re-sale  the units for earning profits. Hence, they do not fall within  the definition of Consumer  as given   under section 2(1)(d) of the  Consumer Protection Act, 1986. The complaints are also barred by limitation. The  complaints  involve  intricate  questions of  facts  and law and  interpretation of contract, which can only be adjudicated by conducting  proper  trial  in the form of  evidence and cross  examination of the witnesses.  Therefore, same can  be  decided  by the competent  Civil Court only and hence, this Commission  has no jurisdiction  to  entertain  the complaints.  Thus  on those grounds  the complaints are  liable  to be dismissed.

 iii.         The complainants  have  not paid  installments  as per schedule  of payment  though  demanded from  them  from  time to time.  Thus, they failed to perform  their part  of contract  as per terms of  the contract. The possession  was to be given  only after receipt  of final installment  along with all other due charges, fees, one time maintenance amount etc. and after  execution of lease deed. Therefore, the complainants cannot blame  the O.Ps. for delay caused  in making construction  and  giving  possession of unit to them.

 iv.        There is a term in the contract about  “Force  Majeure”.  As per  that term  the completion  of construction of  allotted units and township  as  above was  subject to Force Majeure, which  means delay due to  circumstances  beyond  the control  of the company (O.Ps.).  In that case  schedule date  for handing over the  possession  shall  be automatically  extended. The Government brought some changes  in the project of the O.Ps. according to the prevailing law and for  these changes  to  be implemented , the O.Ps. had  to time and again take permission  from  the concerned authorities. Hence, complainants cannot  make  the O.Ps.  responsible  for the delay caused.

 v.         The Hon’ble Supreme Court in Contempt Petition No.412/2012 in civil appeal No.9813/2011. passed orders on 17/07/2013 & 21/11/2013 that the Sahara Groups of Company shall not  part with  any moveable   and immovable  property  until further  order  and   no High  Court, Securities Appellate Tribunal and any other  Forum shall pass any orders  against  the  orders passed by the Securities and Exchange Board of India (SEBI) in implementation of the order  of the Hon’ble Supreme Court. The O.Ps.  are bound  by the said order and they cannot conduct any activity  of the construction  of the aforesaid units and thus they are unable  to give possession  of  the residential  units to the complainants.

 vi.        The O.Ps. thus requested  that  all these complaints  may be dismissed.

 5.         The complainants  along with complaints  filed copies of following documents.  

            Allotment letters  of flat/unit, schedule  of installments, statement of payments, advertisement  given by the O.Ps., the complainant  in complaint No. CC/12/40 filed  registered  agreement to sell of  flat, letter of registration,some of the  complainants also produced letter issued by the O.P. to them, price list of flat/unit  and statement of payments, Some of the  complainants also  produced  letter of allotment  of unit and registration of booking  and letter of parking  option  given to them by the O.Ps., brochure and  lay out plan. The complainant  in complaint No.  CC/15/137 also produced copies of  four  payment receipts in addition  to other  documents.

 6.         The complainants also filed  their respective  affidavit  in each of the complaint. Their advocate also filed  written notes of arguments  in each of the above  complaints.

 7.         On the other hand, the O.Ps. in the aforesaid complaints  filed copies of documents  namely booking applications, transfer application  made by some of the complainant about transfer of the unit, letters issued to the  complainants  by the O.P. informing  that  possession of the unit will be  handed over within 38 months subject to  terms  and conditions mentioned  in the application form and  reminders  issued some of the complainants for non payment of dues. Advocate of the O.Ps. also  filed written notes of argument.

 8.         We have heard learned advocate of both parties and perused the record and proceeding of these complaints.

 9.         At the out set it is worthy to note that this Commission already decided identical complaints filed by various complainants against the O.Ps. of the present complaints, by passing common order and thereby partly allowed all those complaints. Thus identical seventeen complaints which are listed below are decided by this Commission as per common order dated 11/12/2018.

10.       We find that the observations made by this Commission while deciding all those seventeen complaints are attracted while deciding these five complaints as the  facts and circumstances of the present complaints are identical to  those  of the aforesaid seventeen complaints.

 11.       It is well settled law that despite of arbitration clause in the agreement, the  complaints under Consumer Protection Act, 1986 are maintainable as the remedy provided under the said Act is in addition to and not in derogation of any other law, as provided under section 3 of the said Act.

 12.       Moreover we also find that these complaints are not barred by limitation since the cause of action is continuing because of not making full construction of the units by the O.Ps. despite of their taking sizeable amounts from the complainants as noted in the aforesaid table. We also find that O.Ps. have not adduced any evidence to  prove that due to  certain changes made in the project by the government authorities, they were required to change the plan of the project and they were required to  obtain fresh permission for construction. We hold that clause of Force Mejure is not attracted in the present cases since the period of 38 months was already passed much  before the order passed in above contempt petition by the Hon’ble Supreme Court restraining the O.Ps. from  parting with movable or immovable properties. Therefore it was incumbent on the O.Ps. to make full construction and to handover possession of the  units alongwith  sale deed within the stipulated period of 38 months as per contract. However they failed to do so and hence they have rendered deficient service to the complainants and also adopted unfair trade practice.

  13.       We also find that the relationship of consumer and service provider exists in between complainants on one  side and O.Ps. on another side since the complainants hired services of the O.Ps. by paying huge consideration to them in installments as specified in  the above table and hence all these  complaints filed  under the Consumer Protection Act, 1986 before this Commission are maintainable in law.

 14.       There is no evidence to prove that the complainants purchased the residential units for commercial purpose i.e. to resell those units and to earn profits. Hence the complainants fall within the  definition of Consumer as given under section 2(i)(d) of the Consumer Protection Act, 1986.

 15.       The complainants are not seeking reliefs of possession of units and the sale deeds and therefore there is no question of transfer of any said unit in the name of the complainants by the O.Ps. We are of the considered view that as the O.Ps. are unable to handover possession of the units alongwith sale deeds as per contract, the complainants have rightly sought refund of the amounts paid by them, with interest, compensation and litigation cost.

 16.         The complainants have paid sizable amounts as described in the aforesaid table to the O.Ps. with a hope that they will get  possession alongwith the sale deeds of the respective units within stipulated time. Moreover the O.Ps. also enjoyed their said huge amounts for long time and they did not give possession alongwith the sale deeds of the respective units. Therefore we hold that as the O.Ps. have rendered deficient service to the complainants and adopted unfair trade practice, direction can be  given to the O.Ps. to  refund the aforesaid respective amounts with interest @ 18% P.A. from the respective dates of the  deposits till realization of the same by the complainants.  We also find that no leniency can be shown to the O.Ps. while considering rate of interest and the amounts of compensation under peculiar fats and circumstances of present case discussed above.  We also  hold that the complainants in each of the complaint are entitled to compensation of Rs.5,00,000/- for physical and mental harassment and for loss suffered by each of them due to escalation in the price of  the residential units since the date of allotment of the units to them by O.Ps. We also hold that the complainants are also entitled in each of the complaint litigation cost of Rs.10,000/-. Accordingly we proceed to pass the following order.

ORDER

i.          The complainants bearing Nos.CC/12/40, CC/13/10, CC/13/11, CC/16/94, and CC/15/137 are partly allowed as under.

 ii.          The O.Ps. in all these  complaints jointly and  severally shall pay to  the respective complainants the amounts as specified in the  following table as against the respective names of the respective complainants, with interest @ 18% P.A. from the date of the respective deposit of the  amounts, till the date  of realization of the  same by the  respective complainants.

iii.         The O.Ps. in all these complaints jointly and severally shall pay compensation of Rs.5,00,000/- in each  of the  aforesaid five complaints to the complainants towards physical and mental harassment and towards the loss suffered by them due  to escalation in the  price of the residential  units.

 iv.        The O.Ps. in all  these five complaints jointly and severally shall pay  to  the  complainants in  each of the  complaint litigation cost of Rs.10,000/-.

 v.         The payment in terms of the present order shall be made within a period of three months from the receipt of the copy of the present order by the O.Ps., subject to permission of Hon’ble Supreme Court for making the said payment in terms of this order.

 vi.        Copy of the order be furnished to both parties free of cost.