(Delivered on 26/02/2019)

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

1.         These ten complaints are filed under section 17 of the Consumer Protection Act, 1986. The common questions of law and facts are involved in all of them and hence, they are being disposed of by this common order

2.         The common case of the complainants as set out by them in these aforesaid ten complaints in brief is as under.

 a)         The original  opposite party  (for short O.P.)  is  “Sahara Prime City Limited Company”  and it advertised  the project  of  independent Row-houses, Flats and other buildings in the name as “ Sahara City Homes, Nagpur”. The complainants were interested in purchasing residential units of  the said project of which  details are given respective  complaints.  They accordingly entered  into contract  with the O.P. The price of  respective  unit was also fixed. The complainants  paid  booking  amounts on various dates  for respective units as per their  agreement. The balance  consideration was  to be paid  by the respective  complainants  in installments as per schedule of payment. The whole construction  was to be  completed  and possession was to be  handed over within  a period of 38 months  from the date of allotment /booking  of the respective  units. The complainants paid  in installments various amounts  from time to time to the O.P. as per  contract. The complaint wise material  details of aforesaid contract and transactions  are given in the following table. 

 b)         However, the O.P. though  received  huge  consideration  from the complainants  as specified  above, failed to make  construction within the stipulated time  and failed to give possession  of the residential units  to the respective  complainants.  They had requested the O.P. from time to time  to complete the part of  contract  on its part but it failed to do so.

 c.         Therefore, the complainants  alleging deficiency  in service on the part of the O.P and also alleging  unfair  trade practice  on the part of the O.P. filed  present ten complaints.  During the  pendency of the complaints,  the learned advocates of the  complainants pressed   for refund of consideration  with interest , compensation and cost only and they did not claim possession of  units with sale deed as above  due to  lapse of so many years from the date of booking and last payment  of  installments and as the construction  is still not completed and possession of unit is not delivered  to the respective complainants.  It is  also found that during the pendency of  these complaints  the Hon’ble Supreme Court has restrained the  O.P.  for parting with  moveable   and immovable  property. The order about  the same has been passed in one of the contempt petition.        

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

 i.          The material details of the aforesaid transaction  as specified  in the aforesaid table  are not disputed  by the O.P. However, their  main submission  is that  there is a term No. 16 in the contract about  “Force  Majeure”  which provides that  completion  of construction of  allotted units and township  as  above is subject to Force Majeure, which  means delay due to  circumstances  beyond  the control  of the company  including but not limited to disruption  in construction  due to  war or enemy action  or natural circumstances or any Act of God, as a result  of any notice, order , rule, notification of the  Government /Public or other  Competent Authority  or any other  reason whatsoever including non availability of building material and labour,  in which  case the scheduled date for handing over  the  possession shall be automatically extended.

 ii.          Moreover, the  delay has been occurred because of  the changes  brought  in by the Government  and O.P. had to bring  changes  in their project according to the  prevailing law and for these  changes  to be implemented  the O.P. had to time  and again take permission  from the  concerned authorities. The O.P. did not  cause any  delay  deliberately and  the complainants were made aware  of the situation by the O.P.

 iii.         Moreover, due to  the ongoing  litigation  between  the O.P. and Securities and Exchange Board of India. (for short SEBI) before the  Hon’ble Supreme Court, entire  projects of the O.P. across the country are at a standstill. The Hon’ble Supreme Court in Contempt Petition No. 412/2012 has passed orders  dated 17/07/2013 and 21/11/2013 and thereby  directed  that  “Sahara Group of Companies  (O.P.) shall not  part with any movable or immovable properties until   further  orders and  no High Court, Securities Appellate Tribunal and any other  Forums shall  pass any orders  against the  orders passed by  Securities and Exchange Board of India in implementation  of the said orders of the Hon’ble  Supreme Court. Hence,  the O.P. is  restricted from parting  with  or handing over the possession or  selling of the movable or immovable  properties.

 iv.        Moreover,  the name of the Securities and Exchange Board of India(SEBI) has been  incorporated  on record of right relating to the property  of the O.P. Hence, the  delay caused in construction & thus  no deficiency in service  can be attributed  to the O.P. They have also not adopted  unfair trade practice .

 v.         There is  also Arbitration  Clause in the contract and hence, the  dispute can be  resolved  by the arbitrator  only.  Thus, the O.P. requested that all these complaints may be dismissed  with cost.

 4.         The complainants  in respective  complaints filed all the documents  relating  to the allotment  of units,  contract, payment receipts, payment  scheduled and other relevant  documents. They also filed  their  respective affidavits.  

 5.         On the other hand, the  O.P. filed  in some of the complaints  copies of the order  passed by the  SEBI and order passed by the Hon’ble  Supreme Court in aforesaid  Contempt Petition. They also  filed copy of 7/12 extract in some of the complaints.

 6.         We have heard  the learned advocates of both the parties  and perused  the record and proceedings of  all these  complaints.  It is not  disputed  that  in other identical  seventeen  consumer complaints  filed by other  complainants  against  the same  O.P.,  this Commission   passed  common order on 11/12/2018 after hearing  of both the parties. Those consumer  complaint are  bearing Nos. as CC/14/16, CC/15/15,  CC/12/17, CC/12/30, CC/12/31, CC/15/35, CC/15/37, CC/12/38, CC/13/39, CC/16/39, CC/16/43, CC/17/45, CC/16/65, CC/16/66, CC/16/67, CC/15/112 and CC/15/141. The learned advocate of the complainants have relied  on the said decision  by  which  all those  complaints  have been  partly allowed giving direction  to the said  O.P. to refund  the respective amount paid to them by the complainants,  with interest at the rate of 18% P.A.  from the respective dates of deposit and also to pay  them compensation of Rs. 5,00,000/-  for physical and mental  harassment  and litigation cost of Rs. 10,000/- in each of the  said seventeen  complaints.  It is also directed in those complaints  that  the  payment  as per said  common order be made within  three months  from the receipt  of  copy of   that  order subject to permission  from the Hon’ble  Supreme Court  about  making of the payment  in terms  of the said order. We also find that   the observations  and findings  recorded in the said common order  are squarely applicable  to the facts and circumstances  of the present complaints.

 7.         We find that  in view of the well settled law, even though  there is  arbitration clause  in the contract  the jurisdiction  of the consumer Fora  is not ousted  due to  existence of that clause  as  the remedy provided under the Consumer Protection Act,1986 is in addition to and not in derogation of  provision  of any other law for  time being   in force. Hence,  the contention raised  by the O.P. that  only  the  arbitrator can resolve the dispute  has got  no substance

 8.         We also find that  the term No. 16 relating to  the Force Majeure  is not applicable to the present  cases since  the  stipulated period of 38 months  was already lapsed  before the Hon’ble  Supreme Court passed orders  in  Contempt Petition  restraining  the  O.P. from  parting  with moveable  and immovable  property. It was therefore  obligation  on the part of the O.P. to complete the  construction  and to deliver  the possession  of the respective  units as per contract within  the period of 38 months from the respective date of allotment . However, it was not completed  within that period  of 38 months.  Hence, the O.P. not only  rendered  the deficient  service  to these complainants but also adopted  unfair  trade practice.  Moreover, the O.P. has not filed any document  to show that  certain changes  were made  by the Government  in  the project, which caused delay. Thus, in the absence of any documentary  evidence  to prove  the same, we are not inclined  to accept  that  due to  change in the plan  of the project from time to time by Government , the delay was caused  in making construction.  

 9.         We also find that  the complainants have   not claimed  possession and sale deed of the  units but they simply wanted  to get refund of their  money with interest  in the background  of the facts that  the O.P. have not  completed the construction  and have not delivered  the possession  of unit to them on  the given time. Moreover,  the long period  of about 6 to 12 years has been already  passed, since the booking  of the respective  units by the complainants.   Hence, they cannot  now wait for  indefinite  period for fulfilment  of their dream  by way of getting  flats with deed of conveyance. They now want  the refund  of money with interest, compensation and cost. Hence, they are entitled  to make  said claim. However, as  the Hon’ble  Supreme Court has restrained   the O.P. from  parting with movable and immovable  property, the permission  of the Hon’ble Supreme Court is required  for the same.  The Hon’ble National Commission in one of the case of Sanjay Kumar Airen and Another . Vs. Sahara Prime City Limited and Another  in consumer complaint  No. 988/2015 passed an order on 05/01/2017 & partly allowed that complaint  and directed  the  same O.P. to refund   the amount & that  refund  be made  subject to  permission  of the Hon’ble Supreme Court if required.   Thus,  direction can be given  in the present complaints  also  as regards the permission of Hon’ble Supreme Court.  

10.       We also find that  no leniency can be shown  to O.P.  so far as rate of interest  and compensation  is concerned  in as much as  the complainants  have parted with huge amounts long back. They are entitled  to interest at the rate of 18% P.A. from the date of respective payments  in the light of the decision  of the Hon’ble Supreme Court in the case of A.A. Nagmain Vs. H.S.C Commissioner, Karnataka Hsg. Board , in appeal Nos. 35226 & 35227 of 2011.  In that  case the Hon’ble Supreme Court directed that  the amount  be refunded  with interest at the rate of 18% P.A.  form the date of  respective deposits. Therefore, we are inclined to award interest at the rate of 18% P.A. over the refund . Moreover,   we are also inclined to  grant compensation  of Rs. 5,00,000/-  to the complainants in each of the complaints  for physical  and mental  harassment  and litigation cost  of Rs. 10,000/- in each of the  complaint. Accordingly,  we proceed to pass the following order.  

ORDER

i.          The complainants bearing Nos. CC/13/14,  CC/13/37,  CC/13/38,  CC/14/50,  CC/14/53,  CC/15/33,  CC/16/105, CC/16/122,  CC/16/128  &  CC/16/53      are  hereby partly allowed as under.

 ii.          The O.P. in all these  complaints jointly and  severally shall refund    to  the respective complainants the amounts paid by them to the O.P.  as specified complaint wise  in the  following table 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.P. in all these complaints jointly and severally shall pay compensation of Rs.5,00,000/- in each  of the  complaints to the complainants for  physical and mental harassment and also to compensate  them towards  loss suffered by them due  to escalation in the  price of the residential  units.

 iv.        The O.P. in all  these complaints jointly and severally shall  also 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.P., 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.