| PER HON’BLE A.Z.KHWAJA, PRESIDING MEMBER. |
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1) Complainant Giriraj Vyankatesh Uttarwar claims to be resident of Banglore and has filed the present complaint through his power of attorney Shri Abbhijeet Ramesh Padmawar who is residence at Warora, District Chandrapur under Consumer Protection Act 1986. Short facts leading to the filing of the present complaint may be narrated as under :-
2) Complainants were searching for flat for their residential purpose. O.P.Nos.1 and 2 namely Sahara Prime City Ltd. was dealing in the business of construction of flat and building and is a reputed Builders and Developers and they given a huge publicity about their scheme of flats and also regarding construction of one building at Mouza Jamtha, Wardha Road. O.P. has also started construction of the building in the year 2005. Complainant therefore decided to purchase the flat and so he approached to O.Ps namely Sahar Prime City and O.P. informed the complainant that one flat of one Mr.Mohammad Ansari resident of New Delhi was vacant and it was to be transferred for consideration of Rs.26,98,058/-. Complainant on assurance of the O.P. agreed to book the flat for a consideration of Rs.26,98,058/-. Subsequently the flat unit type 031 consisting of three bedrooms came to be transferred in the name of complainant. Complainant has contended that as per the terms of agreement he paid monthly instalments of Rs.63,586/- and had paid the sum till 01/10/2011. Complainant has contended that subsequently O.P. changed the allotment and allotted another flat bearing No.C/12/706 on 7th floor. Complainant has contended that he was in need of flat on the upper floor of the building and so he continued to pay the installments as per schedule. Complainant has contended that he had already paid sum of Rs.26,98,058/- from time to time but the O.P. despite having given assurances have failed to complete the construction. Complainant then sent the mail to O.P. On 24/08/2011 informing that he had paid the entire consideration but the O.P. clarified that the construction of the building No.C/12 was incomplete. O.P. was avoiding the completion of the building and handover the possession on one or the other pretext. O.P. also made an offer to the complainant to allot another ready flat bearing unit No.C-9/706 but complainant refused the same and also found that the O.P. was committing deficiency in service and also indulged in Unfair Trade Practice. Complainant therefore has filed the present complaint for seeking possession of the Unit bearing No.C-12/706 situated on 7th floor alongwith compensation and cost of litigation.
3) During the pendency of the complaint the complainant has filed pursis waiving his right to claim possession of the flat bearing No.C-12/706 and has claimed refund of the amount of Rs.26.98,058/- alongwith interest and so the present complaint.
4) At the outset O.P.Nos.1 and 2 have denied all the contentions made by the complainant in his complaint. O.Ps. have contended that complainant is not at all a Consumer and complaint was not tenable in law. O.Ps. have contended that the complainant had booked the unit No.B-8/106 but subsequently had requested for change in payment plan and so revised allotment letter was issued to the complainant on 17/09/2008. Complainant had booked the flat after going through the terms and conditions and complainant was never kept in dark about transaction. O.Ps. have further contended that the complainant was bound by the terms of agreement and more particularly term No.18 relating to ‘Force Majuere’ which implies inter-alia the delay caused due to circumstances beyond the control of the company namely Sahara Prime City. The Opposite parties have taken a plea that after the contract was entered into litigation started between the Opposite parties/Sahara Prime City and Security and Exchange Board of India (SEBI) and the same had reached the Hon’ble Supreme Court. The Opposite parties have also taken a plea that it was beyond the control of the opposite parties Sahara Prime City to transfer or alienate any property in view of certain directions given by the Hon’ble Supreme Court in Contempt Petition 412/2012 which was filed by SEBI and the said orders are still in force. The opposite parties are bound by the orders passed by the Hon’ble Supreme Court restraining them from parting with or handing over the possession of moveable or immovable properties in the projects. The Opposite parties have also taken a plea that name of SEBI has been incorporated in 7/12 extract of the company and embargo has been put for any transfer of property. The Opposite parties have also taken a specific plea that there was also Arbitration Clause in the contract and so the dispute can be resolved only by the Sole Arbitrator. The complaint filed by the complainant is therefore not tenable in law and deserves to be dismissed with costs.
5) We have gone through the contents of the complaint, evidence affidavit as well as written notes of arguments filed by the complainant. In the same way we have also gone through the written version, evidence affidavit and written notes of arguments filed by the O.Ps.
6) We have heard Mr.Pandhare, learned advocate for the complainant and also gone through the copies and various documents which were placed on record by the complainant including copy of allotment letters dated 18/09/2008 and 19/09/2008. From allotment letter dated 18/09/2008 it is amply clear that complainant had booked flat bearing No.C/12/706 on 7th floor for a consideration of Rs.26,98,058/-. Complainant has also placed on record one copy of statement showing the payment of instalments from time to time. Complainant also filed on record copy of mails exchange between the parties. We have heard advocate Mrs.Renuka Nalamwar for O.P. We have also gone through the copy of order passed by the Hon’ble Supreme Court in Contempt Petition 412/2012 which was filed by SEBI and the same clearly shows that the Hon’ble Supreme Court has put an embargo on transfer of moveable and immovable property. During the course of argument learned advocate for complainant has drawn our attention to one Pursis whereby complainant has waived his right to claim possession of flat allotted to him and only claimed refund of the amount paid by him. Learned advocate for O.P. has also admitted the receipt of the amount as contended by the complainant and there is no dispute on this count. In view of the aforesaid discussion we are of the opinion that the O.P. namely Sahara Prime City has indulged in deficiency in service by not handing over the possession of the flat booked by complainant within stipulated period. It is further clear that in view of the embargo put by the Hon’ble Supreme Court O.P. Sahara Prime City cannot alienate or transfer any flat to the complainant and therefore the amount paid by the complainant to O.P. will have to be refunded back. It is needless to mention that due to the assurances given by the Sahara Prime City Complainant was waiting invain for getting the flat, but all his hopes were shattered. Complainant is therefore entitled for compensation as well as interest on the amount paid by him to O.P. and so we pass the following order.
//ORDER//
i. Consumer Complaint is hereby partly allowed.
ii. O.P.Nos. 1 and 2 are hereby directed to pay jointly and severally an amount of Rs.26,98,058/- along with interest at the rate of 12% p.a. from the date of deposit of amount till the date of realization of the same by the complainant.
iii. O.P. Nos. 1 and 2 are hereby also directed to pay jointly and severally to the complainants compensation of Rs.3,00,000/- towards physical and mental harassment caused to the complainant.
iv. The O.P.Nos. and 2 are hereby also directed to pay litigation cost of Rs.10,000/- to the complainant.
v. The payment of the amount in compliance of the above order shall be made within 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.
