(Delivered on 27/02/2019)

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

1. This appeal is filed by original opposite party ( for short OP) Nos. 1,2 and 3, feeling aggrieved by an order dated 2/5/2016 passed by learned District Consumer Forum, Wardha by which the consumer complaint No. 23/2016 has been partly allowed.
2. It was the case of the original complainant/ respondent herein before the Forum that though he paid total consideration of Rs. 11,06,250/- to the appellant towards price of the unit, the OP did not complete the construction  of that unit as yet  and failed to execute the sale-deed of the same in his favour and thus adopted unfair trade practice and rendered deficient service to the respondent. Therefore he  filed consumer complaint under Section 12 of Consumer Protection Act, 1986 seeking direction to the OP/appellant to refund him total consideration of Rs. 11,06,250/- with interest at the rate of 24 percent from 26/07/2013 till realization of the same by him and also to pay him compensation of Rs. 3,00,000/- for physical and mental harassment and further compensation of Rs. 4,00,000/- for causing delay and further claimed litigation cost of Rs. 10,000/-
3. The District Consumer Forum, Wardha had issued notice of that complaint to the OP Nos. 1,2 and 3/appellants. They were served with that notice but failed to appear. Therefore the District Consumer Forum proceeded exparte against the OP Nos. 1,2 and 3.
4. The District Consumer Forum after considering the evidence brought on record  accepted the aforesaid case of the respondent and passed   impugned order. The Forum below  thereby directed the OP/appellant to refund to the original complainant/respondent herein Rs. 11,06,250/- with interest at the rate of 9 percent per annum from 31/12/2013 till realization of the same by him within 30 days of the receipt of copy of that order and also directed in case of default, the said amount will carry interest at the rate of 15 percent per annum and also to pay him compensation of Rs. 3,00,000/- towards the loss sustained by him and also to pay him further compensation of Rs. 1,00,000/- for physical and mental harassment and litigation cost of Rs. 3,000/-.Thus, feeling aggrieved, the OPs have filed this appeal.
5. We have heard learned advocate Smt. Renuka Nalamwar appearing for the appellant and learned advocate Mr. M.R. Rajgure appearing  for the respondent and perused the record of the appeal.
6. The learned advocate of the appellant argued in brief that the appellant did not receive the notice of the Forum and hence they could not  appear before the Forum. Secondly, the Hon’ble Supreme Court has restrained the appellant from parting  with movable and immovable property. She also filed copy of the said order passed by Hon’ble Supreme Court. She further submitted that the order passed by Hon’ble Supreme Court was not brought to the notice of the District Consumer Forum, Wardha and hence it erred in partly allowing the complaint by proceeding with the complaint. Hence she requested that impugned order may be set aside.
7. On the other hand, the learned advocate of the respondent submitted that the appellant had received the notice of the complaint and acknowledgments were also placed on record. He also filed  copies of the said acknowledgments in appeal. He further submitted that the appellants did not appear before the Forum despite service of notice and hence no defence can be raised in appeal by them. He also submitted that the interest awarded at the rate of 15 percent per annum may be increased to 18 percent per annum as this Commission in some other matters recently awarded the interest at the rate of 18 percent  per annum against the appellants. He also submitted that compensation of Rs. 3,00,000/- may be enhanced to Rs. 5,00,000/- as awarded by this Commission in other matters. He requested that the appeal may be dismissed by enhancing rate of interest and compensation.
8. In reply, the advocate of the appellants submitted that there is no question of enhancement  of the rate of interest and compensation since the respondent has not filed appeal  against impugned order & that respondent cannot seek enhancement of compensation and rate of interest in appeal filed by appellants.
9. We find that notices issued were duly served to the appellants as found by District Consumer Forum below. The copies of the acknowledgments are also filed along with reply by the appellant in appeal. Therefore,  it cannot be said  that notices of the complaint were not served to them. Hence the Forum below has rightly proceeded exparte against them as   they remained absent.
10. We also find that the original complainant/respondent herein filed payment receipt and other relevant documents in support of the complaint and the Forum below has rightly relied on the same. Thus, the Forum has rightly directed  appellant to refund  Rs. 11,06,250/- with interest, compensation and cost as specified above.
11. We also find that there is no question of enhancement of rate of interest and compensation in this appeal which is filed by original OP Nos. 1,2 and 3. The original complainant/respondent herein has not filed any counter appeal  for enhancement of rate of interest and compensation. Hence the request made by the learned advocate of the respondent for enhancement of rate of interest and compensation awarded by the Forum, cannot be considered in this appeal.
12. It is also not disputed that the Hon’ble Supreme Court in contempt petition filed by SEBI against  Sahara India Real Estate Corporation Ltd.  &  Ors.  listed as contempt petition No. 412/2012 in Civil Appeal No. 9813/2011, passed an order on 17/07/2013 and another order dated 21/11/2013 and thereby restrained the appellants for parting with movable and immovable property. The said orders were not brought to the notice of learned District Consumer Forum, Wardha.
13. The Hon’ble National Commission in complaint case No. 988/2015 in complaint  case of Sanjay Kumar Airen  & Anr Vs. Sahara Prime City Ltd. and another passed an order  on 5/1/2017 partly allowed the  said complaint and directed that the refund of the amount be made as per that order subject to permission of Hon’ble Supreme Court if required for making the payment in terms of the said order. In the instant case, also we find that the refund of above amount  can be made only after permission is granted by Hon’ble Supreme Court. Hence direction to that effect can be given in the present appeal. The appeal thus, deserves to be dismissed with the aforesaid direction.

ORDER

1. The appeal is dismissed.
2. The impugned order passed by  District Consumer Forum, Wardha in consumer complaint No. 23/2016 dated 2/5/2016 is confirmed. However, the payment in terms of the said order  shall be made within three months from today subject to permission of Hon’ble Supreme Court.  
3.  No order as to cost in appeal.
4. Copy of the order be furnished to both parties, free of cost.