(Delivered on  10/01/2019)

Per Mr. S.B. Sawarkar, Hon’ble Member

1. The complainants in the listed chart have filed the complaints under section 17 of the Consumer Protection Act,1986 against the opposite parties   listed against their names.

2. A chart list  is placed on record of this order as all the complainants have filed the complaints claiming themselves to be the Consumer as they have booked a flat  or a row house(Dwelling unit in short) listed respective before of their names with the opposite party (in short O.P.) which are companies, registered and all belong to the Sahara Group of companies in India.

3. As the complainants have complaints against the similar O.Ps.  who belong to the one group of companies and as the complaints are similar and as all the complainants have submitted in their prayer that they all now want to have the return of the entire amount paid by them in place of the agreed and contracted  D.U.  with paid  compensations. We have grouped the complaints together to decide them and dispose them of together, being with same issue and law.  
4. The chart is exhaustive which show the number of the complaint, name of the complainant, the booking category of the dwelling house, date of allotment, the date of agreement, if made the date of assurance of possession, the consideration price of the dwelling house decided in each case and the amount paid by each complainant.

5. The complainants  made common complaint  as  under :

a.         The O.Ps.  companies which belong to the Sahara Group of Companies decided to set up a project called as  Sahara Prime City/ Sahara City Home on Wardha Road in Nagpur which was a big complex with Row houses, flats and tenements in high rise buildings with well published facilities of security, gated community, roads, paths, club house, proper water and electric supply.

b.         On booking of the respective dwelling units by the complainants the O.Ps. provided the allotment letters with a defined payment schedule of the price amount.  Accordingly each complainant had claimed that the complainant paid the installments and finally paid the amount as is shown against their name in the chart.  However the complainants submitted that the opposite parties had assured to give the possession of the completed dwelling house on the date(around the time) listed infront of each complainant. But the O.Ps. did not construct  dwelling units  and did not provide the possession of the dwelling  unit  inspite of payment of sizeable and in many cases complete amount of price.

c.         The complainants  were not given the possession of the flats and dewing units in the defined periods of around 38 months and on the date decided inspite of the entire payment of the price and also have not given the possession by constructing them even after a lapse of long many years. The complainants repeatedly pestered  and requested the O.Ps.  with letters and request to give possession of the flats. However when it was not given inspite of assurances,  the complainants claimed unfair trade practice on the part of O.Ps.  severally and together and filed the complaint respectively in the Commission claiming deficiency in service and with a prayer to provide the complainants the booked respective dwelling unit  by directing the O.Ps.  to construct it or to provide an alternate similar and equal dwelling house. In the alternative direct the ops to return the amount of price paid by them with interest at the rate of 15%  p.a. upon them with service tax. The complainants further requested respectively to provide them the shown amount as compensation for causing physical and mental harassment and also a compensation for unfair trade practice and loss of dwelling benefit and rent with cost of complaint shown against each complaints.

6. Each complainant along with the complaint filed  evidence affidavits  & copies of  documents in their  form of  allotment letters, registration of booking letters showing the defined installment schedule, the evidence of payment of the price of installments, the change of name and booking in case the complainant had changed their flats with the consent of O.Ps. allotment letters of the changed flats and Row houses, the letters sent by the O.Ps. demanding the appropriate service tax, the copies of the advertisement published by the O.P.  giving information about assured facilities, copies of the receipts given by the O.Ps., the reminders and request letter submitted by the complainants requesting for possession of the units, the evidence is submitted by each complainant  to show that they have booked the dwelling unit , paid the prices however could not get the possession of the dwelling unit. Hence to claim their prayers they had filed the evidence.

7. On notice the aforesaid parties listed respectively made by each complainants appeared through their advocate Mr. Nalamwar and Mrs.  Nalamwar and filed their respective written versions before the Commission in each  of the complaint and further submitting   to  treat them as evidence on affidavit.  Then followed  by written notes of arguments. The O.Ps.  which are similar and belong to Sahara Group of Companies   the conglomerate of companies filed  identical written versions  in each complaint countering the allegations.

8.         The O.Ps.  in their  written versions claimed that  the complainants  booked  the flats  /row houses in short  dwelling  unit (D.U.) with the purpose  to resale it and hence, are not the consumers  as per the definition given under Consumer Protection Act,1986.  The complainants have booked their flats by understanding  the brochure  and  the agreement  provided to them in which  under term  No. 17, it is  very clearly explained  and  which is understood by the complainant  that the completion  of dwelling units   if get delayed  under  force majeure like  war, national circumstances or  the action of the government or competent  authority  orders  or  due to  paucity  of  building  material in which case  the  possession  duration  would stand  automatically extended.

9.         The O.Ps.  submitted that  the complainants understood the  conditions and then have signed the agreement.  Also further submitted that the Maharashtra Owner Ship of Flat (Regulation of the Promotion of the Construction, Sell, Management and Transfer)l Act, 1963 in short (MOFA, Act) is repealed  by  Maharashtra Housing (Regulation and Development ) Act, 2012 from  06/09/2015. Hence, the complainants cannot seek relief under the provisions of MOFA, Act.

10.       The O.Ps. further submitted that the complainants have paid the amount as price installments and interest   and they   themselves delayed the schedule of payment  & hence the  O.Ps. are not responsible for that.

11.       The O.Ps. further submitted that after the planning   of the complex in village Gavasi, Manapur in the  precincts  of Nagpur,  the Town Planning Department and  the Nagpur Improvement  Trust made changes  in the planning  which  required  the O.Ps.   to make changes   in the  project  planning and design. Therefore the O.Ps. are not  responsible for the delay  of which  the O.Ps. have  properly  informed  the complainants  and the complainants are well aware that  and have suppressed  these facts in the complaints.

12.       The  O.Ps. further claimed that the complainants have filed the complaint  after a long time  than  the date of  proposed  hand over.  They  have sat over  their  claim.  Hence,  cannot now claim the benefit  of continuous  cause of action  claimed  in their  complaints, which are barred by limitation.

13.       The O.Ps. further  submitted that  when the project was being  completed, in between  the  litigation of the  Sahara Groups of Companies  and  the SEBI (Security  and  Exchange Board of India) was  filed  in the Supreme Court and  in the Contempt Petition  vide No. 412/2012 the Hon’ble Supreme Court passed orders  dated 17/07/2013 and 21/11/2013 thereby directing that the Sahara Group of Companies that they  shall not part  with any  moveable or immoveable properties until further orders and  no High Court,  Securities Appellate Tribunal  and  any other Forums  shall pass any orders against the orders passed by the SEBI in implementation of the orders of the Hon’ble Supreme Court.  The orders still hold  field. The O.Ps. therefore submitted that  they are not in a position  to part  or hand over  the possession  or sale  of any  moveable  or immoveable  property.  The O.Ps. further  claimed that due to  this  stay it is not possible even to undertake  the further  construction of the project at Nagpur  and  it is not possible to hand over the units  even in case of those  which are  constructed.  

14.       The O.Ps. further submitted that the SEBI  has put its name  in the  record of rights    ( 7/12  extract ) of  on the land  of the company and hence,  no property can be transferred by it. The O.Ps. have placed the copies of the above  order as well  the copies  of the 7/12  extract on record of the Commission for perusal.

15.       The O.Ps. denied  all the allegations in the complaints  and  claimed that  in view of the orders passed by the Hon’ble Supreme Court,  on 17/07/2013 and 21/11/2013, it is not possible  for the O.Ps.  either  to complete the construction  of the dwelling units  and  also not possible to hand over their possession. The O.Ps. further  claimed that as per the  condition No. 17 of the agreements  it is specifically accepted  by the complainant that  in the event of any dispute between the complainants and the O.Ps.  the opinion of the O.Ps. shall prevail. If  the complainants  are agreed  then  the matter would be referred to  the Arbitration  appointed by the parties and the award shall be binding   upon both of them.  The O.Ps. therefore claimed  no deficiency in service and  submitted that  they are unable  to hand over the property in view of the directions  and orders  passed by the Hon’ble Supreme Court. Hence no unfair  trade practice.

16.       Advocate Shri P.N. Upadhya appeared on behalf of the complainant  in complaint Nos. 19/2016,19/2017,20/2017,21/2017, 65/2018 & 59/2013, and  advocate Shri Kharbade appeared  on behalf of complainant  in complaint No. 150/2015. Advocates Mr. Kunal Nalamwar and Smt. Renuka Nalamwar appeared  on behalf of the O.Ps.  in all the  above complaints.

17.       We also  considered  the  order  passed by the Hon’ble National Commission in such  identical complaint Case Vide Sanjaykumar Airen  Vs.  Sahara Prime City Ltd. on 05/01/2017 in which  the Hon’ble National Commission  ordered  the payment  in terms of the said order in three months subject  to the permission of the Hon’ble Supreme Court if required for making payment in terms of the said order. In the light of   the observations  recorded  we decided  to  proceed  with  for final hearing . We heard advocates of  both the parties  in all above complaints together.

18.       The advocates for the complainants  in all the complaints listed above after reiterating the case of the respective  complainants submitted that  the O.Ps. have  falsely submitted that they were required to bring changes  in the project in view of the directions of the authorities and they have brought  it to the notice of the complainants.  The advocate for the  complainants submitted that  the O.Ps. have received   the 100% consideration  for the dwelling units (D.U.)  but have not  handed over the possession  within the stipulated time  and not  at all till the filing of the complaints  and the present  hearing of the case.  It was incumbent upon them to provide the possession in the time frame  which  they have not done and hence,  have committed deficiency in service and  unfair trade practice.  The advocate for the complainants submitted that the complainants have now  decided to  ask for  the entire consideration  paid  by them along with compensation  and cost for filing  of  the complaints  in view of the inordinate delay and now the complainants do not want  the possession of the flats. Hence, the complainants  request  the  return of entire amount with  interest till date of realization with interest  at the rate of 24% p.a.  from the date of payment which  would be a proper compensation  to the complainants towards  escalation  price. The advocates for the complainants submitted and appended  given chart showing  the  total amount of  consideration paid  the compensation  claimed and cost claimed  totaling it to  a specific amount to be returned with interest at the rate of 24% p.a.  

19..      The advocate for the O.Ps.  submitted that  the O.Ps. are not in a position  to provide   possession in view of the directions of the Hon’ble Supreme Court. Also  the O.Ps. are not permitted to part with the  movable  property hence,  are not in a position  to provide the compensation also.  The advocate for the O.Ps. submitted that in view of the fact that the complainants are the investors  which can be seen from the fact that  their dwelling address   given in the complaint are different. They have entered in to  agreements after understanding  all the conditions which  provide for  the delay which is caused  because of the directions of the Town Planning  Authority  not in the hands of the O.Ps. and further because of the directions of the Hon’ble Supreme Court which are also not  in the  hands of the O.Ps.  The complainants are well aware of the facts that hence, the complaints deserve to be dismissed in view of the situation  prevalent  in the case of the project.

20.       We thus  heard both the parties.  The complainants  have filed  a pursis (memos) with the information  that  they have  given  up their prayer of sale  deed and possession of the dwelling  units and  are restricting  in the  claim for  refund of the  entire amount with interest , compensation  & cost.

21.       We considered the contentions of both the parties.  As seven  complaints are filed with common cause and similar requests  for refund, we  considered the contentions of  the advocates of complainants on one side and the  advocates of the O.P. on the other side.  The complainants have filed  a voluminous  evidence  and  have also  cited  authorities  to consider the ratios out of it.  We therefore,  considered  the  following cases  cited by  the complainants  along with their  arguments  as below.

1. Sanjay Kumar Airen and another……V/s……Sahara Prime City Limited and another, decided by Hon’ble National Commission on 05/01/2017 in consumer complaint No. 988/2015. In that case the attention of the Hon’ble National Commission was brought to the order passed by Hon’ble Supreme Court in contempt petition No.260 of 2013 in C.A.No.8643/2012. The Hon’ble National Commission partly allowed that complaint and directed the O.P. to refund Rs.1,11,00,000/- to the complainant alongwith interest @ 9% P.A. from the date of payment of each amount till the date on which the said amount is refunded to the complainant in terms of the  said order and also to pay Rs.10,000/- as litigation cost to the complainant. The Hon’ble National Commission also observed that the payment in terms of the  said order shall be made within three months subject to the permission of Hon’ble Supreme Court if required for making payment in terms of the  said order.

2.     Jiwan Gupta Alias Jiwan das Gupta……..V/s……Sahara India Commercial Corporation Ltd, in consumer complaint No.13/17, decided as per order dated 07/11/2015 by this Commission. The said complaint was partly allowed and direction was given to refund Rs.63,00,000/- to the complainant with interest @ 15% P.A. from 13/04/2011 till final payment after being free through the decision in the  case pending before Hon’ble Supreme Court. Moreover further direction was given to the O.P. to refund excess payment of Rs.3,37,750/- with  interest @ 15% P.A. from 01/12/2010 till 16/03/2012 till realization after finalization of the case before Hon’ble Supreme Court. This Commission also directed the O.P. to provide compensation of Rs.4,00,000/-  for physical and mental harassment with cost of Rs.1,00,000/- to the complainant.

3.      K.A.Nagamani………V/s…….HSG. COMMR. Karnataka HNG. Board, decided by Hon’ble Supreme Court in petition for special leave to appeal (Civil) Nos.35226 and 35227 of 2011. The Hon’ble Supreme Court in the said case held that, the complainant succeeded in showing the deficiency of service on the part of the respondent which was also accepted by the State Commission. In spite of such finding, no separate compensation was allowed in favour of the complainant. Thereby though the State Commission failed to exercise its jurisdiction and proceeded with material irregularity, the National Commission erred in holding that the petition was not maintainable and wrongly imposed cost on the complainant.

            Similar case fell for compensation before this Court in Ghaziabad Development Authority…V/s….Balbir Singh (2004) 5 SCC 65. In the said case, the question for consideration before this Court was whether grant of interest at the rate of 18% per annum by the Consumer Forums in all cases under consideration was justifiable or not. While dealing with the matter the Court held :

            “However, the power and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above, what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to correlate with the amount of loss or injury. Thus the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard-and-fast rule can be laid down. However, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brouchure. The Commission/Forum would then need to determine the loss. Loss could be determined on the basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.”

            In the said case the Court further proceeded and gave certain illustrations as to what type of cases where in a higher interest amount can be paid apart from the compensation and observed as follows :

             That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss in as much as he had deposited the money on the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher. Further if the construction is not of good quality or not complete, the compensation would be the cost of putting it in shape or completing it along with some compensation for harassment. Similarly, if at the time of giving possession a higher price or other amounts are collected unjustifiably and without there being any provision for the same, the direction would be to refund it with a reasonable rate of interest. If possession is refused or not given because the consumer has refused to pay the amount, then on the finding that the demand was unjustified the consumer can be compensated for harassment and a direction to deliver possession can be given. If a party who has paid the amount is told by the authority that they are not in a position to ascertain whether he has paid the amount and that party is made to run from pillar to post in order to show that he has paid the amount, there would be deficiency of service for which compensation for harassment must be awarded depending on the extent of harassment. Similarly, if after delivery of possession, the sale deeds or title deeds are not executed without any justifiable reasons, the compensation would depend on the amount of harassment suffered. We clarify that the above are mere examples. They are not exhaustive. The above shows that compensation cannot be the same in all cases irrespective of the  type of loss or injury suffered by the consumer.”

            The case of the complainant is covered by one of the examples cited by this Court in Ghaziabad Development Authority ……V/s…..Balbir Singh as quoted above. In this case also the amount was simply returned and the complainant is suffering a loss in as much as she had deposited the money in the hope of getting a flat but she is being deprived of that flat and thereby deprived of the benefit of escalation of the price of that flat. Therefore the compensation in this case would necessarily have to be higher, as per the decision of this Court.

            For the reasons aforesaid, we allow the appeals and pass the following order:

(i)         The respondent is directed to pay the appellant-complainant interest at the rate of 18% per annum on Rs.2,67,750/- from date of its respective deposit till the date of realization with further direction to refund the amount of Rs.3,937/- to her, as directed by the Consumer Forum,

(ii)        The respondent is directed to pay the appellant-complainant further sum of Rs.50,000/- as compensation for deficiency in service on their part.

(iii)       The respondent is also directed to pay the appellant-complainant a sum of Rs.20,000/- towards cost of the litigation incurred by her.

           The aforesaid amount be paid in favour of the appellant/ complainant on an early date but not later than four weeks from the date of receipt/production of copy of this order. The orders passed by the State Commission and the National Commission are set aside and the order passed by the District Forum stands modified to the extent above.” 

iv.)       Ravi Bhagwandas Gattani……V/s…..Sahara Prime City Limited, in CC No.13/52, passed by Circuit Bench, Nagpur on 23/10/2015. In that case following order was passed as (i) If the O.Ps. due to any legal difficulties, are unable to handover the possession of the row-house to the complainant and to execute the sale-deed then they shall refund Rs.56,31,163/- with interest @ 15% P.A. from the date of complaint i.e. from 19/10/2013 till its realization by the complainant. (ii)  The O.Ps. shall also pay to the complainant Rs.20,00,000/- as a compensation towards escalation of the price of the row-house, if the possession of row-house with sale-deed is not handed over to him as above. (iii)  The O.P. Nos.1 to 5 shall also pay to the complainant compensation of Rs.1,00,000/- towards physical and mental harassment and cost of Rs.25,000/-.

v)         Ramesh Bhagwantrao Talewar……V/s…..Sahara India Commercial Co.Ltd, in first appeal No. CC/11/8, passed by Circuit Bench, Nagpur on 04/11/2015. In the case order passed was as under.

(i)   The O.Ps. to hand over possession of 13 Type Unit Pent House of two bed room, study and terrace and to execute registered sale-deed of the same in favour of complainant after accepting balance consideration of Rs.18,19,514/- from the complainant. The complainant shall bear expenses of sale-deed. (ii)  If O.Ps. are unable to handover possession of aforesaid unit and to execute sale-deed in favour of complainant, due to any difficulty then they shall refund Rs.4,02,486/- to the complainant, with interest at the rate of 15% P.A. from the date of complaint i.e. from 09/06/2011 till realization of the same by the complainant and also pay to her compensation of Rs.5,00,000/- towards unfair trade practice adopted by them and towards escalation in price of the tenements. (iii) The O.Ps. shall also pay to the complainant, compensation of Rs.1,00,000/- towards physical and mental harassment.  (iv) The O.Ps. shall also pay to the complainant cost of Rs.10,000/-. (v)  Copy of order be furnished to both the parties, free of cost.

vi)        Dr.Arti Wd/o Gautam Darda……V/s…..Sahara Prime City Limited, in CC No.13/29, passed by Circuit Bench, Nagpur on 22/09/2014. In that case, the following order was passed.

            Advocate Mr.Nalamwar is present for the O.P. Both advocates filed a compromise pursis signed by advocates of the complainant and O.P. They have also filed letter of amicable settlement and copy of the demand draft of Rs.80,08,008/-. They also filed Special power of attorney executed by the complainant in the name of Dr.Ms.Medha Goutam Darda. They also filed separate authority letter. We are satisfied from the documents filed on record and submission made before us by both the parties that the settlement has been reached in between both the parties and accordingly the aforesaid D.D. has been handed over to the special power of attorney holder of the complainant today. Therefore, we find that as complainant does not wish to proceed with the complaint, the complaint stands disposed of as withdrawn.

vii)       M/s.Sahara India Commercial Corporation Ltd and others…..V/s…..Mukamala Nataraja Rao and another, In first appeal No.393 of 2006, passed on 09/09/2014. It is held in the said case that more importantly, the complete failure on the part of the appellants/O.Ps. to construct and provide the Hospital, a significant and highly projected feature of the township, without any acceptable explanation, makes it a clear case of deficiency of service as well as unfair trade practice, within the meaning of the provision in Section 2(1)(g) and 2(1)(r) of th Act. It adversely affects a large body of consumers who have been deprived of the promised services. The lapse of the O.Ps. is compounded further by their attempt to mislead the consumer for a through a false affidavit. If such conduct were to go unpunished, developers of similar projects in future will get emboldened and encouraged to assure special features and facilities to attract prospective buyers, without any serious intent or effort to provide them. Therefore, considering the enormity of their conduct, we deem it necessary and proper to impose punitive damages of Rupees fifty lakhs on the O.Ps./Sahara India Commercial Corpn. Ltd. The same shall be deposited into the Consumer Welfare Fund of the Central Government, in terms of the provision in Rule 10A of the Consumer Protection Rules, 1987. The amount shall be deposited within a period of three months from the date of this Order, failing which, interest at the rate of 9% per annum shall be payable for the duration of delay. All appeals and revision petition are disposed of in the aforesaid terms.

viii)       New Generation Real Estates Pvt.Ltd……V/s….Ramesh Chander Khurana and others, reported in I (2015) CPJ 567 (NC).  In that case there was misleading advertisement and delay in execution of sale deed. Moreover site plan was amended without consent of allottees. It is held that this is arbitrary and arrogant action on part of O.P. Compensation granted by District Forum was quite reasonable, just and adequate. Petitioners were directed to pay Rs.1,00,000/- to each of the complainants and order of State Commission also be complied with and that allottees are entitled to all facilities mentioned in agreement.

ix)        M/s.Aliens Developers (P) Ltd……V/s……Krati Rungta, reported in 2015 (4) CPR 356 (NC). In that case it was found that no progress is made by OP towards construction and time allowed for construction was lapsed. It is held that interest @ 15% p.a. cannot be said to be on higher side.

10. Puneet Malhotra Nitin Bhatia and another……V/s……Parsvnath Developers Ltd, reported in II(2015) 18 (NC). It is held in the said case that O.P. was duty bound to complete construction irrespective of recession in market, reduction in bookings and alleged default on part of some allottees in making timely payments. Hence O.P. was directed to refund amount along with interest @ 18% p.a. from date of deposit till date of refund.

11. M/s.Purvankara Projects Limited and anothers……V/s….. Kiran Dhir, reported in 2015(4) CPR 183 (NC). It is held in the said case that no leniency should be shown to such type of litigants, who in order to cover up own fault and negligence, goes on pursuing litigation having no merit and legal force at all.

xii)       Sahara India Commercial Corporation Ltd and others……V/s…..Mukamala Nataraja Rao and anothers, reported in IV (2014) CPJ 172 (NC). In that case it was found that the infrastructure facilities expressly assured in brochure were not provided. Several services and facilities assured to purchasers of residential units in Sahara States Township had not been provided when consumer complaint was filed in the year 2003.  Construction of Hospital, a major facility promised to flat buyers in his project, was yet to start. There were defects in construction and long delays in provision of services like adequate potable water, external electrification, parks and gardens. It is held that it amounts to deficiency in service. However, impugned order directing operational control and title over facilities like parks, gardens, school, shopping plaza was set aside. Award of compensation to individual complainants in impugned order was upheld and punitive damages @ Rs.50,00,000/- were  imposed.

xiii)       Subhash Chander Mahajan and anothers……V/s….. Parsvnath Developers Ltd, reported in II (2014) CPJ 719 (NC).  In that case it was found that there was  booking of flat and full payment of price was made under down payment plan. There was huge delay of about four years in handing over possession of premises in dispute. The complainants and his wife were compelled to live in house of their daughter. In complaint No.144/2011, OP was directed to pay Rs.50,78,998/- with interest @ 18% p.a., compensation @ Rs.7,00,000/- for harassment, mental agony, anguish, frustration, anger and sadness and Rs.2,00,000/- towards cost. In complaint No.200/2011, OP was directed to pay Rs.56,02,399/- with interst @ 18% p.a. compensation @ Rs.7,00,000/- and costs @ Rs.2,00,000/-.

ivx)      Vora Land Developers…….V/s……Jayantilal Hirji, reported in I(2014) CPJ 56 (NC).  In that case it was found that the agreement for sale of flat was executed between parties. Petitioner had deliberately left date of handing over of possession of flat, as blank. It is held that  this shows that date of handing over of possession was mischievously left blank. Mala fide intention of petitioner in misrepresenting respondent about status of various sanctions obtained for purpose of flat, are writ large. Thus deficiency in service is proved.

xv)       Gurdeep Singh Khurana and others…..V/s….KST Infrastructure Ltd, reported in II (2014) CPJ 356 (NC). In that case it was found that due to defective title Bank refused to sanction loan and hence mental agony and harassment was caused. The refund of deposited amount was sought. It is held that granting or not granting loan is the discretion of financial institution. The O.P. does not have any free, clear and marketable title. Power of attorney is revocable and claim of complainant is genuine. The O.P. was directed to pay interest @ 18% p.a. on principal amount of money deposited by each complainant and total compensation @ Rs.10,00,000/-  be shared in equal proportion by all complainants).

xvi)      Kushal K.Rana…….V/s……DLF Commercial Complexes Ltd, reported in IV (2014) CPJ 287 (NC). In the said case  deficiency was proved and refund of entire amount i.e. Rs.85,94,000/- was directed and interest @ 18% p.a. was awarded. Compensation @ 2,00,000/- towards mental harassment, mental agony and litigation charges was awarded.

xvii)     Sanjay Goyal…….V/s…..Unitech Ltd. and others, reported in III (2013) CPJ 51 (NC). In that case it was found that O.Ps. have received entire price of apartment at the time of execution of Agreement and even after the lapse of six years, flats were not ready. It is held that O.Ps. have to honour their commitment. There was a change of flat without consent of complainant. It is held that it is clearly indicative of their arbitrariness. O.Ps were directed to hand over premises within a period of 6 months and on failure, extra penalty of Rs.25,000/- p.m. will be payable by them to complainant. They will also pay rent of residence to complainant @ Rs.42,500/- p.a. from 1/10/2010 to 31/08/2012 and Rs.50,000/- p.m. w.e.f. 01/09/2012 till possession is handed over, in addition to above said penalty.

xviii)     S.S.Construction and another……V/s……Mathew Varghese and Anothers, reported in IV (2013) CPJ 58 (NC). In that case petitioner was enjoying fund of complainant from the year 2000 to 2008 and also enjoyed fund received from sale of flats in the year 2006. State Commission directed petitioner to refund money along with 24% p.a. interest only from 20/10/2008 and has not granted interest from date of making payment. It is held that there is no infirmity or illegality in impugned order.

xix)      Silver City Housing and Infrastructure Ltd…..V/s…..Sjumit Kumar, reported in III (2013) CPJ 247 (NC). In that case flat was booked in January 2006. Respondent paid Rs.13,55,000/- out of sale consideration amount of Rs.14.50 lacks within stipulated time and possession was to be given on or before 31/07/2007. Appellant extended the date and failed to deliver the possession in spite of having received 95% of sale consideration amount. Remaining 5% was to be paid at the time of execution of conveyance deed. It is held that the respondent has been deprived of possession of flat as well as interest on amount which was deposited with appellant. Hence respondent was directed to hand over possession and interest.

xx)       Ramesh Chandra Lucknow…….V/s…..Sahara Prime City Ltd, passed in complaint case No.CC/33/2016 by learned State Consumer Commission Lucknow. In that case the complaint was allowed and the O.Ps. were directed to handover possession of the allotted flat No.C-21/705 to the complainants immediately or to refund Rs.48,09,300.00 with interst @ 18% p.a. from 17/05/2013 till final payment is made alongwith Rs.1 lac as compensation for mental and physical harassment and Rs.5,000/- as cost of suit and the compliance of the order was to be made within a month.         

xxi)      Shri Bhagwandas s/o Badiram Sukhdeve…….V/s……Shri Natthu Gangadhar Rambhad, decided by this Commission as per order dated 23/04/2018. In that case complaint was partly allowed  and O.P.Nos.1 and 2 were directed to refund Rs.10,00,000/- with interest @ 15% p.a. from 15/01/2014 till realization of the complaint same by the complainant and also to pay them compensation of Rs.1,00,000/- for physical and mental harassment and litigation cost of Rs.25,000/-.

xxii)     Swarn Talwar and two others…..V/s….Unitech Ltd in consumer complaint No.CC/347/2014 decided with three other complaints bearing Nos. 348/2014 and 350/2014 by the Hon’ble National Commission as per common order dated 14/08/2015. In that case complaints were partly allowed and O.P. was directed to refund the amount paid to it by the complainants alongwith compensation in the form of simple interest on that amount @ 18% p.a. from the date of deposit till the date of payment and it was directed that the payment shall be made within six weeks from the date of that order.

xxiii)     Sanjay Kumar Airen and anothers……V/s…..Sahara Prime City Limited and anothers, by Hon’ble National Commission in consumer complaint No.988/2015 as per order dated 05/01/2017. The observations made in the said case is already referred to above which is also relied on by the learned advocate of the aforesaid complainants.

xxiv)    Jitender Pal Singh and anothers……..V/s…..M/s.Bee Gee Builtech and Another, in M.A.No.1587/2015 by the State  Commission, Punjab, as per order dated 08/03/2017. The said application was decided along with the other applications. The learned State Commission had dismissed all the said applications which were filed by the opposite party for referring the matter to Arbitration. The learned State Commission referred to various decisions in that order and held that in view of the settled law by the Hon’ble Supreme Court and Hon’ble National commission in various cases, the complaint filed under Consumer Protection Act are very much maintainable despite there being an Arbitration clause in the agreement.      

22.       We find that the O.Ps.  had admitted  the contentions of the complainants to the extent that the O.Ps.  embarked  on the construction of the massive residential   complex in Nagpur  in which  the complainants  booked  their  dwelling units  and also paid  the entire consideration  with  required charges  for registration  and  other  purpose. 

23.       The complaints show that the complainants have not received the possession of the dwelling units and they are deprived of the service assured to them and are the victim of  unfair trade practice. Hence, they deserve to get the full benefits of the amount paid by them as consideration.  They also deserve  to be compensated  for  the  physical and mental  harassment undergone by them  in not  getting the  possession of the  dwelling units  and the  appropriate  use and service for which  they paid  the  consideration.

24.       The grounds raised by the O.P.  cannot be considered  as below.

(i)         The O.P. has raised the ground of delay to complaint but as the possessions are not given by the O.Ps.  in spite of  taking full consideration  the cause of complaint  becomes  a continuous cause  of action  for filing  complaints  in view of  the  referred cases  as above.

(ii)        The O.Ps. have raised  the ground of  force-majeure  in  the reason that  the project got delayed due to the authorities making changes  in the orders. We find that the  O.Ps. have  not  filed  evidence to show as to how the government directions have resulted  in the  change of the  project designs  and how  it  affected  the delay  in construction of the dwelling houses in  side the project. Also it is necessary for the O.P. to plan   their  constructions  in such a way  that  it does not cause the delay in the delivery  of the dwelling unit. Hence, this contention cannot be accepted.

(iii)       The O.Ps. have raised the ground  that  in agreements there is  condition of  arbitration. However,  the  relied cases  show that  the clause of arbitration  does not prevent  the  Consumer Commission to take the cognizance of the  complaints under    the Consumer Protection Act, 1986  which is  in addition to the  provisions  of Arbitration Act. Hence,  the O.Ps. cannot  deny the service by raising  the clause of  Arbitration in agreements.

(iv)       The ground raised by the O.Ps.  regarding  a stay by the Hon’ble Supreme Court in parting  with the  moveable and immoveable  property is already  considered  by the Hon’ble  National Commission in the aforesaid  case of Sanjay Kumar  Airen & another  Vs. Sahara Prime City Ltd. & another, in complaint  No. 988/2015. Thus directions for refund  can be given  subject to permission  from Hon’ble Supreme Court.

(v)        The O.Ps.  have  not provided  any evidence  to show that  the complainants  are not the consumers  and  are investor only. Hence, this ground cannot be accepted.

25.       In view of    the  reasons  recorded  and in view of  the ratios  before us  submitted by the  complainants  we find that  the complainants  deserve to get  the  refund  with interest  & compensation.  The complainants have filed  a pursis  thereby  restricting their  prayer  to the return  of  the  paid consideration  with interest  compensation and  have decided  not to press  or pray for the  possession of the units.  Thus  subject  to permission  of the Hon’ble Supreme Court we decide to  direct  the  return of the  paid consideration by each  complainant  as  charted  in the  chart  below with interest at the rate of 18% p.c.p.a.  from the  date of the respective payment  with  compensation and cost as below..

26.       We thus find that the complainants have righty claimed  the refund of  the amount paid  with interest and compensation  in view of  the  non delivery  of the dwelling units. The O.Ps. have  rendered  a deficient service to the complainants and have  resorted to  unfair  trade practice in not performing  their part of contract  to give the possession along with sale deed with stipulated  time. Hence,  the complainants  deserve to get  the refund of amount  with interest at the rate of 18% from the O.P. from the date of  respective deposits of amount. The complainants also deserve to get a compensation  in each of the complaint   as  Rs. 5,00,000/- for physical and mental harassment  and  also  a  litigation cost of Rs. 10,000/- each  in each  of the complaint.  Thus  arriving  to  above decision  we proceed  to pass the order as below.

ORDER

i.          The complaints bearing Nos.  CC/150/2015, CC/19/2016, CC/19/2017, CC/20/2017, CC/21/2017, CC/65/2018, & CC/59/2013 are partly allowed.

ii.          The O.Ps. jointly or severally shall pay to the respective complainants  the amounts  as specified  in the following table  shown against  the respective names  of the complainant with  interest at the rate of 18% p.a. from the date of  respective deposits of the amount till the date of  realization of the same by the  respective complainants.

iii.         The O. Ps.  in all the complaints  jointly or severally shall pay to the complainants  a compensation of Rs. 5,00,000/-  in  each of the complaint  towards  physical and mental harassment  and the loss  suffered by them  due to escalation and enjoyment .

iv.        The O. Ps. In each of  the complaints  jointly or severally shall 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 the order be provided to both parties in each complaint, free of cost.

vi.        The seven charts specified in above  order are annexed below.

CHART - I

CHART-II

CHART-III

CHART-IV

CHART-V

CHART-VI

CHART-VII