Per Shri A.Z.Khwaja, Hon’ble Presiding Member.
1) Complainant Prakash Porey has preferred the present Consumer Complaint under Section 17 of the Consumer Protection Act, 1986. Short facts leading to the present complaint may be narrated as under.
2) The complainant Prakash Porey has claimed to be resident of Ravinagar Nagpur where as opposite parties Sahara Prime City Pbt.Ltd. is registered under the Companies Act, 1056 and floated various housing scheme all over India and also at Gavasi Manapur, Wardha Road, Nagpur. Complainant Prakash Porey was in search of one flat/unit and so complainant Prakash Porey approached to OP.s. Sahara Prime City Ltd. and on 14/06/2008 booked one unit/flat B-8/801 on 8th floor in the town ship named as Sahara City Home. Complainant has contended that the price of the flat was fixed at Rs.28,28,000/- but thereafter complainant has made payment of Rs.30,06,095/-. Complainant has further contended that after having paid the entire amount he was waiting for handing over of possession and execution of sale deed on the part of O.Ps./Sahara Prime City Ltd. The complainant was disappointed since the O.Ps. did not deliver the possession as per terms, within the stipulated period nor the O.Ps. executed the sale deed. Complainant has contended that in order to pay consideration to O.Ps. he had also availed of Home loan of Rs.14,00,000/- from the Union Bank of India at Gogulpeth Branch and was also required to pay interest on the home lone @ 8.5% p.a. The complainant had also paid all the instalments of the home loan and also obtained No Due Certificate. But despite payment of entire consideration the O.Ps. did not at all fulfil their part of the contract comprising of delivery of possession and execution of sale deed. Complainant had to undergo great mental agony and pain due to inaction on the part of O.Ps. in complying with the terms and conditions of the contract. Complainant has contended that earlier he had filed the complaint with specific prayer directing the O.Ps. to deliver the possession and execute the sale deed, but subsequently complainant has waived his right and has claim refund of entire sum of Rs.30,06,095/- and so the present complaint.
3. The O.Ps. have appeared and resisted the complaint by filing written version. The O.Ps. have admitted that the complainant was allotted one unit/flat B-8/801 on 8th floor in the town ship named as Sahara City Home and also admitted the fact that the price of the flat was fixed at Rs.28,28,000/-. O.Ps. have however denied that it had failed to hand over possession or complete the construction within the stipulated period. O.Ps. have further admitted that the complainant had paid sum of Rs.30,06,095/- towards the price of the flat/unit in the construction carried out by Sahara Prime City. However O.Ps. have come with specific plea that the contract entered in to by them with the complainant was also governed by clause regarding ‘Force Majuere’ which implies inter-alia the delay caused due to circumstances beyond the control of the company namely Sahara Prime City. The O.Ps. have taken a plea that after the contract was entered into some litigation started between the O.Ps./Sahara Prime City and Security and Exchange Board of India (SEBI) and the same had reached the Hon’ble Supreme Court. The O.Ps. 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.
4. The O.Ps. have also taken a specific plea that there was Arbitration Clause in the contract and so the dispute can be resolved only by the Arbitrator. The complaint filed by the complainants is therefore not tenable in law and deserves to be dismissed with cost.
5. We have heard Ms.Disha Khandelwal, learned advocate for the complainant and Mrs. Renuka Nalamwar, learned advocate for the O.P. Nos.1 to 3 representing Sahara Price City Ltd. It is submitted by learned advocate for the complainant Ms.Disha Khandelwal that on the basis of assurances given by the O.P.Nos.1 to 3 the complainant had parted with the entire consideration of Rs.30,06,095/- which is also described in the chart annexed with the complaint. But despite the payment of entire consideration, the O.Ps. have not fullfilled the promises nor handed over the possession of the flat/unit purchased by the complainant and so complainant has been subjected to great mental pain and agony.
6. On the other hand, Mrs. Renuka Nalamwar, learned advocate appearing for the O.Ps. have submitted that the O.Ps. have been restrained from parting with the possession of the flat or executing any sale deed until further orders in view of the order passed in Contempt Petition Nos. 412/2012 in civil appeal No.9813/2011, dated 17/07/2013. Mrs. Renuka Nalamwar, learned advocate for the O.Ps. have also placed on record the copy of the said orders as well as other papers which goes to point out that litigation is going on in between the Sahara Prime City and SEBI and the matter is also subjudice before the Hon’ble Supreme Court. The learned advocate for the complainant has emphasised that the complainant after having invested huge amount can not keep waiting endlessly for possession of the flat or for registration of sale deed. Complainant is therefore not at all keen on getting the possession of the flat/unit purchased by them but he is now interested in refund of entire amount in the backdrop of the fact that the O.Ps./Sahara Prime City have not fulfilled the promise. It is submitted on behalf of complainant that the complainant has therefore waived his right to claim compensation and so O.Ps./Sahara Price City may be directed to refund the amount paid towards consideration. Complainant has further also filed affidavit on record in support of the said contention.
7. After going through the various documents and papers placed on record relating to the payments made by the complainant as well as the copy of judgment delivered in Contempt Petition No.412/2012 passed by the Hon’ble Supreme Court, we are of the view that the O.Ps./Sahara Prime City can not be directed to either deliver possession or to execute sale deed. At the same time we can not lose sight of the fact that complainant had already paid huge amount of Rs.30,06,095/- to the O.Ps. long back and so the complainant Prakash Porey is entitled for refund of the entire amount of consideration. We are further inclined to also award interest @ 18% p.a. as claimed by the complainant. We are of the view that O.Ps. are also liable to pay compensation in the sum of Rs.5,00,000/- towards mental pain and agony caused to the complainant due to non delivery of the unit/flat despite making payments. Complainant is further entitled for Rs.10,000/- towards cost of litigation. We therefore proceed to pass the following order.
//ORDER//
i. Consumer Complaint No. CC/19/2016 is hereby allowed.
ii. O.P.Nos. 1 to 3 are hereby directed to pay an amount of Rs.30,06,095/- 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 complainant.
iii. O.P. Nos. 1 to 3 are hereby also directed to pay to the complainant compensation of Rs.5,00,000/- towards physical and mental harassment caused to the complainant.
iv. The O.P.Nos. 1 to 3 are hereby also directed to pay a 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 a 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..
