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

1)      

)       Complainants Siddartha Tukaram Kusare 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 Siddartha Tukaram Kusare  claims to be a permanently resident of Nagpur and presently working at Saudi Arabiain Chemical  Company.  Complainant wanted to settle down at Nagpur in future and so he was in search of  good residence. In the year 2009 the complainant came across  the scheme floated by O.P.Nos. 1 and 2 namely Sahara Prime City Ltd. and so the complainant approached the O.P.Nos.1 and 2 and came to know that the O.P.Nos.1 and 2 have floated scheme of flats under the name of  Sahara Prime City Ltd. Complainant also came to know that some flats were available on the consideration of Rs.29,14,000/-. Complainant then filed an application on dated 01/12/2009 and deposited the booking amount of Rs.5,05,903/-. Complainant was allotted one flat bearing unit No.B/10/205 by allotment letter dated 05/01/2010 on second floor admeasuring 88/73 sq.mtr. for consideration of Rs.29,14,000/-. Complainant has contended that the payment was to be made in a period of 38 months and possession of ready flat was to be given within 38 months. Complainant has contended that when he approached the O.Ps. on 26/08/2013 O.Ps. allotted the unit No.B-7/204 on second floor instead of unit No.B-10/205 on second floor admeasuring 88.73 sq.mtr. and also assured to complainant that the possession of unit No.B/7/204 will be handed over within 10 months. Complainant has contended that looking to the assurances made by O.Ps. the complainant had paid total sum of Rs.28,50,000/- from time to time and also was visiting O.P.Nos.1 and 2. The O.Ps. had assured to handover the possession by 05/01/2010 but even by 05/03/2013 the O.Ps. failed to handover the possession and even did not start the construction work. Complainant has contended that on 20/05/2014 he received letter from O.Ps. that one litigation  was going on  in the Supreme Court between Sahara India and SEBI and so further developments could not take place. Complainant has contended that during intervening period the complainant has paid 33,55,903/- which amounted  to full consideration, but the O.Ps. did not complete the construction work and also did not handover the possession causing immense mental agony as well as monetory loss to the complainant. Complainant has contended that since there was no chance of getting the possession of the flat, the complainant was convinced that there was deficiency in service on the part of O.Ps. and so the complainant has prayed for refund of entire amount alongwith compensation of Rs.5,00,000/-.  

3.      After filing of the complaint due notices were issued to O.P.Nos.1 and 2 and they have appeared  and resisted the complaint  by filing their common written version. O.Ps. have admitted that the complainant had booked one flat in Sahara City Homes. O.P.Nos.1 and 2 have also admitted that the complainant had made payment of consideration. However O.Ps have contended that the complainant was not a Consumer as the complainant had no intention to reside in the flat and had booked  the flat with the sole intention to earn profits. O.Ps. have further contended that the complainant had not made payments as per the payment schedule. O.Ps. have further contended that the parties were governed by close No.17 of the terms and conditions and term No.17  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  order  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.Taksande, learned advocate for the complainant and  Mrs. Renuka Nalamwar, learned advocate for the O.Ps.  It is submitted by Mr.Taksande, learned advocate  for  the complainant that  the  complainant had booked unit bearing No.B/10/205 by allotment letter dated 05/01/2010 on second floor admeasuring 88/73 sq.mtr. for consideration of Rs.29,14,000/-. Learned advocate for the complainant has submitted that complainant had deposited 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 ongoing  litigation  between the O.Ps. namely Sahara Prime City Ltd. and  SEBI and we 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.Taksande, 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.Taksande, 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 Mr.Taksande, 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.29,14,000/-. 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 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 award interest @ 12% 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  and 2 are hereby directed to pay jointly and severally an amount of Rs.29,14,000/-  along with  interest  at the rate of 12% p.a. from the date of payment  till  the date  of  realization of the same by the complainants.

iii.      O.P. Nos. 1 and 2 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 and 2 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.