(Passed On 7/11/2015)
Per Mr. S.B Sawarkar, Hon’ble Member
1. This complaint is filed under Section 12 of the Consumer Protection Act.
2. It is the complaint that the complainant with the intention to live in Nagpur and while in search of the House booked a Row House costing Rs. 63,00,000/-in the Housing Scheme floated by name Sahara City in Nagpur by OP Nos. 1 to 3. A group of Companies. The complainant paid Rs. 10,93,000/- as booking amount and the OP gave him the allotment letter on 13/2/2008 along with the schedule of payment with assurance to provide the possession after 38 months from the day of allotment. The complainant paid the installments and also paid Rs. 3,37,750/- extra than the requirement. However the OP neither constructed the Row House nor transferred its possession as per the allotment letter till 13/4/2011 and not till the day of complaint. The complainant therefore sent a notice on 11/2/2013 with a request to deliver the possession and to pay interest @ 15 percent on the excess amount paid. However the OP did not reply.
3. The complainant therefore feeling deficiency in service being consumer of OP Nos. 1 to 3 filed the complaint with a prayer to
A. Direct the OP to complete the construction and deliver the possession of the booked Row House with saledeed in favour of the complainant
B. To pay interest at the rate of 15 percent on the excess amount of Rs. 3,37,750/- from 1/12/2010 to 16/3/2012.
C. Pay interest at the rate of 15 percent on the 63,00,000/- Rs. Price paid from 13/4/2011 till realization. Alternatively
A. Direct the OP to refund the entire amount with interest at the rate of 15 percent from the dates of payment as shown in the schedule.
B. Direct to pay interest at the rate of 15 percent on the excess amount from 1/12/2010 to 16/3/2012.
C. Direct the OP to provide Rs. 5,00,000/- as compensation for mental agony and to give the benefit of price rise from 2011 as per the property price escalation in Nagpur from 2011 till the date of delivery.
3. On notice, the OP Nos. 1 to 3 appeared and through common written version countered the complaint admitting the booking of the Row House. The OP submitted that as per the term number 17 in the contract, the OP was not to be responsible for any impediment resulting out of Force Majeure upon which the OP has no control.
4. OP submitted that as per the direction of the NIT, it was required to change the design and the plan which has caused delay in construction. Hence OP is not responsible.
5. OP raised the reason of clause of arbitration, in the terms and hence claimed that in view of the clause of arbitration, the complaint is not tenable before the consumer commission.
6. The OP raised the claim of limitation bar as the complainant was filed after the due stipulation of two years.
7. The OP submitted therefore that as per the requirements of the directions by the local body and in the event of the requirements to change the design, the OPs are not responsible for delay as it has informed the complainant, the reasons of delay from time to time. Therefore the complainant cannot claim deficiency in service and hence the complaint deserves dismissal.
8. The complainant filed evidence on affidavit. The various documents like allotment of letter, brochure indicating the facilities which OP had advertised. Booking application, consents for maintenance, allotment letter dated 13/2/2008. Schedule of payment, chart of payment, copy of notice etc. The OP filed the reply but did not file any evidence to prove its inability because of the acts claimed by it as Force Majeure
9. We heard advocate Mr. Mohata for complainant and advocate Mr. Nalamwar for OP at the time of final hearing. The OP filed pursis with copy of the order passed by the Hon’ble Supreme Court of India dated 21/11/2013 prohibiting the OP not to part with any movable or immovable properties till further order. The advocate for the OP submitted in the application that as per the directions of the Hon’ble Supreme Court, as are submitted herewith the OP is are not in a position to undertake any construction which involves financial transactions. Also cannot part or pay any amount or cannot execute any saledeed. The name of SEBI has been incorporated in the property certificate of the company thereby putting complete bar on the transfer of property.
10. The advocate for the complainant submitted that the OP has caused the deficiency in service and unfair trade practice in not delivering the possession of the row house after taking huge amount. Hence in view of the order passed, by the Hon’ble Supreme Court an adverse view of the acts of opposite party be taken and appropriate order be now passed to protect the interest of the complainant.
11. In our consideration of the facts and reasons involved in the complaints, the following facts in issued emerge for passing the order.
Issues Findings
- Whether the complainant is a Consumer? Yes
- Whether the complaint is in limitation? Yes
- Whether the deficiency by Ops is proved ? Yes
- What order in the light of the directions issued by As per final order
Hon’ble Supreme Court?
12. We find that the complainant has booked the Row House. Received the allotment letter and paid the entire price along with the excess amount of Rs. 3,37,750/- but could get no row house for which he deserves the refund and interest upon it. The complainant has not received the possession after payment of the entire price of the Row House. It shows that the complainant is a consumer and has a cause to receive the possession. Hence the complaint is tenable before the Commission. As the possession is not given hence the complaint alive till possession. It is therefore within limitation. The arbitration clause does not bar the Commission to hear the complaint and pass order upon it. Hence the complaint falls under the Consumer Protection Act and can be decided by the Commission.
13. We find the OPs have raised the reason of circumstances created due to requirements of local body which caused the delay. The Ops have not shown or submitted any evidence to show that the OPs were compelled to stop the construction because of them. Hence the reasons submitted by the OP do not stand any ground.
14. In view of the reasons considered above, we hold that the OPs have caused deficiency of service to the complainant and the complainant deserves to get the possession of the Row House with compensation and cost.
15. However in view of the bar and the prohibition on transfer of property ordered by the Hon’ble Supreme Court, the order as to be executed by the OPs after the final decision and outcome of the case pending before the Hon’ble Supreme Court and after the properties become free of any encumbrance. We considered the prayer of the complainant, we find that the demand of 15 percent interest and compensation of Rs. 5,00,000/- is consonance with market yield of the paid amount and reasonable. Hence considering the ratio of interest on realistic parameter pass the order as below.
ORDER
- The complaint is partly allowed.
- The Ops have caused deficiency of service to the complainant.
- The Ops to individually or together to refund Rs. 63,00,000/- deposited by the complainant from the proposed date of possession that is from 13/4/2011 with interest at the rate of 15 percent per annum till final payment after being free through the decision in the case pending before the Hon’ble Supreme Court.
- The Ops individually or together to provide the interest on the excess amount of Rs. 3,37,750/- paid by the complainant at the rate of 15 percent per annum for the period 1/12/2010 to 16/3/2012 after the finalization of the case before Hon’ble Supreme Court.
- The OPs individually or together to provide the compensation of Rs. 4,00,000/- to the complainant as physical and mental harassment with cost of Rs. 1,00,000/- as litigation charges when the case before Hon’ble Supreme Court is over
- Copy of the order be provided to both the parties free of cost.
