1)      Complainant Nos.1 to 3 have preferred the present Consumer Complaint under Section 17 of the Consumer Protection Act, 1986. Short facts leading to the present complaint may be stated as under. 

2)      The complainant Nos.1 to 3 are resident of Nagpur and they were interested in booking a flat for residential purpose. Opponent Nos.1 to 3 namely ‘Sahara Prime City’ are well known and reputed developers dealing in the business of building and constructions all over the country. Opponent No.1 to 3 had launched a scheme at Nagpur at it site Gavsi Manapur on Khasara No. 9/2, 9/3, 9/4, 9/5, 26/3, 26/4, 32, 36.   and had also given an advertisement in the daily news paper. Accordingly complainant Nos.1 to 3 have booked unit No.B-6-A/501 of 2 BHK, situated on the 5^th  floor  and the agreed price was Rs.32,33,980/-. Complainants Nos.1 to 3 were to pay the amount in 38 instalments. Complainants have contented that they had paid the booking amount of Rs.3,33,500/- alongwith service tax and further instalment of Rs.1,66,700/- were paid on 10/11/2012. Opponent thereafter also issued letter of allotment dated 07/12/2012. Complainants have contended that the opponent had given assurance that the work shall start in two or three months and the possession will also be handed over. But the same was not done. Complainants had sent letters on 25/10/2012 and also on 30/11/2012. But there was no response. Complainant had also taken loan of Rs.25,00,000/- and same was sanctioned by HDFC Bank, but the loan amount could not be disbursed as there was no progress in the construction of the unit by the opponent. Complainants have contended that the opponent had deliberately cheated the complainants with a malafide intention and were also enjoying the some of money paid by the complainants. Complainants have contended that the opponent Nos.1 to 3 did not even reply to the notice issued by the complainants and so the opponent Nos.1 to 3 had indulged in deficiency in service amounting to unfair trade practice as per the provisions of Consumer Protection Act of 1986. Complainants therefore were compelled to file the complaint seeking a direction to opponents to deliver possession of the flat/unit or in the alternative to refund the amount of Rs.5,04,500/- which was paid by the complainants.  

3.      The O.Ps. have  appeared  and resisted the complaint  by filing written version. The O.Ps. have also  filed their written notes of argument on record.  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 ‘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. 16 regarding ‘Force Majuere’  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  litigation between O.Ps. and  SEBI before the  Hon’ble  Supreme Court  and  so the  completion  of all  the projects had come to 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  directing that  the Sahara Group of Companies   shall not  part with any  moveable or immoveable properties unit  further  orders  and these orders are still in force.  The O.Ps. are   bound by the order  of the Hon’ble Supreme Court restraining  them from  parting  with  or  handing  over  the 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  and so the dispute can be resolved  by the  Arbitrator  only.  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 complainants is not tenable in law and deserves to be dismissed with cost.

5.      We have heard Mr.A.S.Samdekar, learned  advocate for the complainant and  Mrs. Renuka Nalamwar, learned advocate for the O.Ps. It is submitted by Mr.A.S.Samdekar, learned  advocate  for the  complainants  that  the  complainant had parted  with  mostly entire  consideration  by  borrowing  money  and  taking loan  from the bank and also  by  depositing  the instalment  in regular  and meticulous  manner but the  O.Ps. namely Sahara  City Homes  Ltd.  had not at all  fulfilled   the promises made by them  nor handed over the possession  of the unit nor completed  the project in all respect  as  promised. Mr.A.S.Samdekar, learned advocate  for the  complainants  has also  submitted that  the complainants  have been  subjected  to great  mental   and physical   harassment  for which  the O.Ps. were alone  responsible.

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.  also  placed on  record the copy  of the said orders  as well as other papers  to show  to show  on going  litigation  between the O.Ps. and  SEBI and we 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.A.S.Samdekar, learned advocate  that looking  to the   development  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 only regarding  refund  of entire  amount of consideration 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.A.S.Samdekar, learned advocate 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. Mr.A.S.Samdekar, learned advocate  has relied   upon  the case of  Sanjay Kumar Airean and another  Vs. Sahara Prime City  Ltd. and another in consumer  complaint  No. 988/2015, order dated 05/01/2017. We have also gone through the same. Mr.A.S.Samdekar, learned  advocate  has also  relied upon   other   judgment  in the case of Ujwal Nilkanth Walke  Vs.  Sahara  Prime City  Limited.  We have gone through  this   judgment  on which  reliance  is placed. After going through   various cases  which were cited  at bar and judgment  delivered  by the Hon’ble  National Commission, we are of the view that  necessary direction  can be given  relating to  the refund  of amount incase  the O.Ps. namely  Sahara Prime City  is not in  a position to  hand over  the possession  of the flat.  We are also  required to take  note of the fact that  the complainant  Nos. 1 & 2 being  husband and  wife who were  in search of  accommodation  had parted with  the entire consideration   and so  suitable directions  can be given  regarding refund of consideration alongwith interest @ 18% p.a. subject to permission being granted by the Hon’ble Supreme Court.

7.      We are also of the view that  looking to the passage  of time  and delay  in handing  over the possession  no leniency can be shown  so far as  rate of interest  and compensation  is concerned  and so we are inclined  to  award  interest  at the rate of 18% over  return. We are also of the view that the O.Ps. are liable to  pay compensation  in the sum of Rs.2,00,000/- towards mental  and physical harassment  caused to the  complainants and litigation cost of  Rs. 10,000/-. We therefore, proceed to pass the following order.

//ORDER//

i.        Consumer Complaint No.  CC/17/144 is hereby allowed.

ii.       O.P.Nos. 1 to 5 are hereby directed to pay an amount of Rs.  Rs.5,04,50/- 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 to the complainants  compensation  of Rs. 2,00,000/- towards  physical and mental  harassment caused to the  complainants.

iv.      The O.P.Nos. 1 to 5 are hereby also directed to pay  a litigation cost of Rs. 10,000/- 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.