Per Mr B A Shaikh, Hon’ble Presiding Member

1.      This is a complaint filed under Section 17 of Consumer Protection Act, 1986.

2.      The opposite parties (for short O.Ps) floated a scheme for construction of apartments / flats in the name & style as “Sahara City Homes” at Nagpur as specified in detail in Para No.3 of the complaint. The complainants intended to purchase the flat for his residence. The O.Ps had offered a flat / unit bearing No.C-1/606 Type–3 bedrooms at 6^thFloor, admeasuring 135.25 sq.mtrs. alongwith 0.0596% undivided share in land for a total consideration of Rs.26,93,065/- excluding the stamp duty, electricity connection and water connection charges.  The said consideration was agreed to be paid in 60 months by monthly instalments. The O.Ps had agreed to supply copy of agreement but it was not supplied to the complainants. The O.Ps had agreed to handover possession of the flat on 28.03.2011. The complainants paid in instalments Rs.27,40,619/- as against consideration of Rs.26,93,065/-, by means of cheques to the O.Ps.  The receipts thereof were also issued by the O.Ps. The complainants also paid Rs.50,250/- towards electricity connection on 27.02.2012, Rs.1.25 Lac towards common area for car parking on 27.02.2012 and holding charges of Rs.25,156/- The O.Ps also issued receipts of the same.  The recovery of Rs.1.25 Lac and Rs.25,156/- made by the O.Ps is illegal as no amount can be claimed for common area of parking and for holding charges when the complainants had already paid full consideration of the flat and there was no fault on the part of the complainants. Thus, the complainants paid total amount of Rs.29,15,869/- as above to the O.Ps.  The O.Ps failed to deliver possession of the flat to the complainants as agreed. At the instance of the O.Ps the complainants had engaged lawyer Mr Sandip Shastri for execution of the registered sale-deed and the complainants were required to purchase stamp paper for sale-deed. However, thereafter the O.Ps vide letter dtd.15.09.2012 called upon the complainants to seek refund of the stamp duty as they were not in a position to execute registered sale-deed of the flat. Hence, the complainants were forced to bear loss of Rs.6,735/- towards penalty for seeking refund. The O.Ps, thus, rendered deficient in service to the complainants. The complainants, therefore, filed the present complaint against the O.Ps, seeking direction to them to execute registered sale-deed of the flat and aforesaid undivided share in the land in favour of the complainants and also put them into peaceful possession thereof. The complainants also prayed that O.Ps be directed to pay them Rs.4,71,900/- towards refund of the parking place charges, holding charges, fees paid to the advocate for execution of the sale-deed, penalty incurred by the complainants for cancellation of stamp duty, legal fees and expenses of the complaint and compensation for physical & mental harassment. The complainants also prayed that the O.Ps be directed to pay them interest @ 18% p.a. over Rs.26,93,065/- paid to them and said interest be charged from the schedule date of delivery of possession i.e. from 28.03.2011 till delivery of actual possession of the flat and not to create third party interest in the flat.

3.      The O.Ps appeared before the Commission and resisted the complaint by filing their reply / written version.  They also filed separate preliminary objection against maintainability and jurisdiction of this Commission and limitation. According to the first objection, in view of the terms & conditions of the provisional booking, the dispute is required to be referred to an  Arbitrator for settlement and hence, the complaint is not maintainable.

4.      According to second objection, the complainants do not fall within the definition of “Consumer” as they hired services of the O.Ps for commercial purpose only. Third objection is that the complaint is barred by limitation as it is not filed within two years from 28.01.2008. Fourth objection is that the reliefs sought for can be granted only by the Civil Court.

5.      It is admitted by the O.Ps that the complainants booked a flat, described in the complaint, with it and paid various amounts as specified in detail in the complaint.  It is also admitted by the O.Ps that vide letter dtd.21.01.2008, flat / unit No. C-1/606 was allotted to the complainants alongwith all terms & conditions.  It is also admitted by the O.Ps that possession of the said unit was to be handed over within 38 months, but subject to certain terms & conditions mentioned in the application form submitted for booking. There is a term No.16 of the booking form signed by the complainants that if there is a delay due to force majeure including non-availability of the building material and labour, schedule date for handing over the possession of the flat shall be automatically extended.  Due to changes brought in by the Government, the O.Ps had to bring changes in their project. Therefore, the O.Ps are not responsible for the delay caused in delivery of the possession of the flat. The Sub-Registrar stopped the registration of the sale-deed and therefore the O.Ps cannot be held responsible for loss incurred by the complainants in seeking refund of stamp duty. Hence, the O.Ps prayed that the complaint may be dismissed with cost.

6.      The complainants filed reply to the objection raised by the O.Ps.  They also filed rejoinder to the complaint separately.  The complainants also filed evidence affidavit of complainants No.2 –Surinder Kumar by way of evidence. The complainants filed copies of booking transfer form, application for booking transfer, allotment letter, confirmation letter issued by the O.Ps, schedule of payment of consideration and letter corres-pondence made with the O.Ps by them. They also produced receipts of payment made about parking charges, holding charges and penalty paid for cancellation of stamp duty.  They also produced copies of notice dtd.31.12.2012 issued through their advocate to the O.Ps and the acknowledgements received about the same. 

The O.Ps on the other hand filed copies of booking transfer form, allotment letters, payment schedule and terms & conditions. Advocates of both parties also filed their respective Written Notes of Arguments.

7.      We have also heard learned advocates of both parties and perused the record of the entire complaint.

8.      At the outset it is made clear that the Hon’ble Supreme Court in I.A.No.147/2016 filed in Contempt Petition (Civil) Nos.412 & 413 of 2012 in C.A. Nos.9813 & 0833 of 2011 and C.A.No.8643 of 2012 granted permission as per order dd.27.04.2016 observing that the order of Hon’ble Supreme court dtd.21.11.2013 shall not prevent the concerned Disputes Rederessal commission from proceeding with and passing orders in accordance with law in present pending complaint case No.CC/13/15 filed by the present complainants.

9.      Thus, the permission has been duly obtained by the complainant from Hon’ble Supreme Court as above to proceed with the present complaint.  Hence, we have proceeded with the complaint against the O.Ps.

10.    It is not disputed that the complainants as per terms & conditions of the booking, have paid full consideration of flat  in dispute to the O.Ps and therefore they are entitled to sale-deed of the flat with possession thereof.

11.    It is well settled law that despite of arbitration clause in the agreement, the complaint before the Commission is maintainable in view of provisions of Section 3 of Consumer Protection Act, 1986. The said Section 3 provides that the provisions of Consumer Protection Act, 1986 are in addition and not in derogation of the provisions of any other law for time being enforce. This Commission can grant reliefs under Consumer Protection Act, 1986 as sought for in the complaint.

12.    Moreover, we also find that there is no evidence to show that the complainants purchased the flat purely for commercial purpose.  They purchased the flat for their residential purpose by paying full consideration thereof to the O.Ps.  Therefore, the complainants are consumers and the O.Ps are service provider as contemplated under Consumer Protection Act, 1986.  Therefore, we hold that the present complaint is maintainable before this Commission.

13.    So far as the question of limitation is concerned, we find that since the complainants already paid full consideration of the flat to the O.Ps, the cause of action is continuous and hence the complaint is not barred by limitation. Thus, we find that the aforesaid preliminary objections raised about non-maintaina-bility of the complaint and bar of limitation are devoid of merits.

14.    The main contention raised by the O.Ps for non-execution of the sale-deed and non-delivery of possession of the flat is about force majeure, which is said to be term No.16 mentioned in application form meant for booking.  However, no evidence is brought on record in support of the said term No.16 of about force majeure.  The O.Ps submitted in the reply / written version that due to changes brought by the Government, they were required to make changes in the project according to prevailing law.  There is no evidence about the same on record.  Thus, we hold that the O.Ps cannot take benefit of term No.16 of force majeure.

15.    The complainants besides seeking execution of the sale-deed and possession of the flat, also claimed refund of parking place charges of Rs.1.25 Lac, holding charges of Rs.25,165/-, fees of Rs.5,000/- paid by them to advocate of the O.Ps and penalty of Rs.6,735/- incurred by them for cancellation of stamp duty.  The learned advocate of the O.Ps submitted that the complainants are not entitled to the said amount.

16.    On the other hand, the learned advocate of the complainants relied on the decision of the Hon’ble Supreme Court in the case of Nahalchand Laloochand Pvt Ltd Vs. Panchali Co-operative Housing Society Ltd., AIR 2010 Supreme Court 3607. The Hon’ble Supreme Court held that the common areas including parking areas open or stilt parking place are not flats & hence cannot be sold by the promoter.

17.    The learned advocate of the complainants further submitted that there is no question of recovery of the holding charges from the complainants when they were not at fault in any way and therefore they are also entitled to refund of holding charges.

18.    We find that the O.Ps have no right to recover Rs.1.25 Lac for parking space allotted to the complainants and they have also illegally recovered holding charges of Rs.25,165/- from the complainants when they were not at fault in any way.  Moreover, the complainants are also entitled to get refund of Rs.5,000/- paid to the advocate of the O.Ps for execution of sale-deed and also Rs.6,735/- paid towards penalty for cancellation of stamp duty. Therefore, the complainants are entitled to total amount of Rs.1,61,900/- with interest @ 9% p.a.

19.    The learned advocate of the complainants also prayed for grant of interest @ 18% p.a. over Rs.26,93,065/- paid by the complainants to the O.Ps towards full consideration of the flat as the possession of the flat is not yet delivered.  He claimed the said interest with effect from schedule date of delivery of possession of flat i.e. from 28.03.2011. He relied on the observations by Hon’ble National Commission in the case of Satinder Pal Singh Bawa & Anr. Vs. M/s Sahara India Commercial Co Ltd in consumer case No.77 of 2008, decided on 11.08.2015, in support of his submission that the complainants are entitled to compensation of Rs.2.50 Lacs for physical & mental harassment and cost of Rs.60,000/- In that case, the compensation was awarded for the delay in offering possession and further compensation was awarded towards the mental agony and harassment.

20.    The learned advocate of the O.Ps, on the other hand, submitted that no such compensation and interest can be awarded since the delay in delivery of the possession has been occurred not because of any fault of the O.Ps.

21.    We find that the complainants is entitled to interest @ 18% p.a. by way of compensation over Rs.26,93,065/- w.e.f. schedule date of delivery of possession i.e. from 28.03.2011 till delivery of the possession of the flat as the complainants are deprived of possession and enjoyment of the flat despite payment of huge amount of consideration to the O.Ps.  Moreover, they are also entitled to further compensation of Rs.2.00 Lacs for physical & mental harassment and cost of Rs.10,000/- from the O.Ps under the aforesaid facts & circumstances of the present case.

22.    Thus, we hold that the O.Ps have rendered deficient service to the complainants by not executing sale-deed of the flat and by not giving possession of the flat to them as per schedule date of delivery i.e. as on 28.03.2011 and by making illegal recovery of parking space charges and holding charges from them and by not refunding them, advocate’s fees and penalty incurred by them for cancellation of stamp duty.  Thus, complaint deserves to be partly allowed as below.

ORDER

i.        The complaint is partly allowed.

ii.       The opposite party Nos.1 to 3 jointly & severally shall execute the sale-deed of the flat with undivided share in the land as described in detail in complaint in favour of the complainants and shall also deliver possession of the same to them at the time of execution of the sale-deed.

iii.      The complainants shall bear expenses of execution and registration of the sale-deed.

iv.      The opposite party Nos.1 to 3 jointly & severally shall refund Rs.1,61,900/- to the complainants with interest @ 9% p.a. from the date of complaint i.e. from 15.03.2013 till realisation of the same by them.

v.       The opposite party Nos.1 to 3 jointly & severally shall also pay interest @ 18% p.a. over Rs.26,93,065/- from the schedule date of delivery of possession of the flat i.e. from 28.03.2011 till the delivery of possession of the flat by them to the complainants.

vi.      The opposite party Nos.1 to 3 jointly & severally shall pay compensation of Rs.2.00 Lacs for physical & mental harassment to the complainants and they shall also jointly & severally pay cost of Rs.10,000/- to the complainants.

vii.     Copy of the order be supplied to both parties free of cost.