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

1)       Complainants have 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 No.1 Ashok Vinayak Sakalikar claims to be senior  Citizen and was working as an Inspector in Electricity department of Government of Maharashtra. Complainant No.2 Ravikumar Sakalikar is residing abroad. Complainant No.3 Dipti is the daughter of complainant No.1. Complainant Nos.2 and 3 have executed power of attorney in favour of complainant No.1. Complainants have taken a plea that  they were desirous to own one flat at Nagpur and O.Ps. namely Sahara Prime City Ltd had given huge publicity to Sahara Housing Scheme which were engaged in the business as builders and developers. O.Ps. have developed the housing scheme at Nagpur Wardha Road. O.P. Nos. 4 and 5 who were in the sales department were frequently contacted with the complainant No.1 and also convinced the complainant No.1 to purchase one flat. Complainant Nos.1 to 3 became ready to book the unit bearing flat/unit No.C-12/404  consisting of three bedrooms, unit area 117.91 sq.mtr. on forth floor at the price of Rs.38,27,000/-. Out of total consideration amount of Rs.38,27,000/- complainant paid an amount of Rs.19,97,232/- from 19/12/2008 to 14/01/2011. O.Ps. had given assurances about completion of construction and also possession of the unit within 15 months. Complainants have  contended that they had made payment of Rs.19,97,232/-, but the O.Ps. failed to handover the possession. Complainants on numerous occasions made enquiry  with the O.Ps. regarding possession of the unit No.C-12/404.  But there was no response. Complainants had also submitted one application for cancellation of unit as they were fed up for delay which was taken place in handing over possession. Complainants have contended that they had invested hard earned money but the O.Ps. did not carried out the construction of the flat/unit and also did not hand over the possession. Complainant has contended that O.Ps. have utilising the hard earned money of the complainant and depriving him for the possession. O.Ps. have failed to discharge their contractual obligations and indulged in deficiency in service which is against the provision of Consumer Protection Act 1986. Complainants were therefore compelled to file the present complaint with the prayer to direct the O.Ps. refund of amount of Rs.19,97,233/- alongwith interest @Rs.18% p.a. and Rs.5,00,000/- towards physical and mental harassment, and so the present complaint.  

3.      The O.P.No.1 to 5 have appeared  and resisted the complaint  by filing their common written version.  At the  outset  the O.Ps. have taken a plea that  the complainant had booked the present unit  with the sole intention  to earn profit  and so they  do not come  within   purview   of  definition  of the term ‘Consumer’ under the Consumer Protection Act, 1986. The O.Ps. have also taken a specific plea that  their  contract is also governed  by  Term No. 18 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  orders  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.      I 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 I have also gone through the written version, evidence affidavit and written notes of arguments filed by the O.Ps. I have heard Mr.Salunkhe, learned advocate for the complainant and  Mrs. Renuka Nalamwar, learned advocate for the O.Ps.  It is submitted by Mr.Salunkhe, learned advocate  for  the complainant that  the  complainant had booked unit bearing flat/unit No.C-12/404  consisting of three bedrooms, unit area 117.91 sq.mtr. on forth floor at the price of Rs.38,27,000/-. Learned advocate for the complainant has submitted that complainant has parted with an amount of Rs.19,97,233/-  by taking loan from the bank and also  by  depositing  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 on going  litigation  between the O.Ps. namely Sahara Prime City Ltd. and  SEBI and I 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.Salunkhe, 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.Salunkhe, 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)      I have heard Mr.Salunkhe, 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 complainants 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.19,97,233/-. 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. I am also of this view that looking to the direction given by the Hon’ble Supreme Court that the O.P. was not in a position to hand over the possession of the unit purchased by the complainant and so I feel that suitable directions can be given to O.Ps. regarding refund of consideration alongwith interest. I am 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 I inclined to the award interest @ 18% p.a. over the amount paid by the complainant. I am 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. I therefore proceed to pass the following order.  

//ORDER//

i.        Consumer Complaint is hereby partly allowed.

ii.       O.P.Nos. 1 to 5 are hereby directed to pay jointly and severally an amount of Rs.19,97,233/- 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 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 to 5 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.