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Judgment
Heard Mr. Aditya Parolia, Advocate, for the complainant and Mr. Ankit Singhal, Advocate, for opposite party.
M.G. Fincap Pvt. Ltd. has filed above complaint for quashing demand of Rs.1703047/- raised through letter dated 17.10.2017 and directing Greenbay Infrastructure Pvt. Ltd. to (i) handover possession of the plot allotted to the complainant within 3 months, after complete development of infrastructure as per brochure; (ii) not to levy holding charges till handing over possession; (iii) not to levy interest on pre-mature demand; (iv) pay interest @15% per annum on the deposit of the complainant; (v) pay delayed compensation in the form of interest @15% per annum on the deposit of the complainant from due date of possession, till offer of possession; (vi) pay Rs.10/- lacs, as damages for mental agony and harassment; (vii) pay Rs.1.25/- lacs, as litigation costs; and (viii) any other relief, which is deemed fit and proper.
The complainant moved IA/5131/2021 for amending the prayer clause, for directing the opposite party to (i) refund entire amount deposited by the complainant with interest @15% per annum from the date of respective deposit till the date of refund; (ii) pay Rs.10/- lacs, as compensation for mental agony and harassment; (vii) pay Rs.1.25/- lacs, as litigation costs; and (viii) any other relief, which is deemed fit and proper in the facts and circumstances of the case.
This Commission, vide order dated 05.08.2021, dismissed the complaint with liberty to file a fresh complaint for the relief sought to be amended. The complainant challenged the order of this Commission in Civil Appeal No.6319 of 2021. Supreme Court allowed the appeal vide order dated 29.04.2022 and set aside the order dated 05.08.2021 and remanded the matter. So far as prayer for refund is concerned, it has already been allowed by order dated 18.03.2019 passed in IA/2114/2018. Therefore, IA/5131/2021 is also allowed. After order of Supreme Court, the complainant has filed RA/115/2022 to revive the complaint, which is allowed.
The complainant stated that Greenbay Infrastructure Private Limited and Orris Infrastructure Private Limited were companies, incorporated under the Companies Act, 1956 and engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. Orris Infrastructure Private Limited created Greenbay Infrastructure Private Limited (the opposite party) as a Special Purpose Vehicle for development of the project “Greenbay Golf Village”. In the year 2011, the opposite party launched a project of township in the name of “Greenbay Golf Village” at plot TS-06, Sector-22-D, Yamuna Expressway, district Gautam Budh Nagar and made wide publicity of its amenities and facilities. The complainant booked a plot, in this project on 15.04.2011 and deposited Rs.820000/-. The opposite party issued an Allotment Letter dated 15.04.2011, allotting Unit No. 47, Block-B, super area 500 sq.yrd. total cost of Rs.10350000/- and a Confirmation letter on 15.01.2013. As per demand of the opposite party, the complainant deposited total Rs.9540000/- till 30.12.2015. Clause-4.1 of the Confirmation letter provides 18 months period from the date of confirmation for delivery of possession with grace period of 90 days. Due date of possession including grace period expired on 02.06.2015. The opposite party, vide letter dated 17.10.2017, offered “Permissive Possession”, along with demand of Rs.1703047/-. The complainant, vide email dated 23.10.2017, inquired about completion certificate and reason for reduction of area and also issued reminder dated 25.10.2017 and 21.12.2017. The complainant wrote a letter dated 23.01.2018, in this respect. The opposite party did not respondent rather they gave a reminder dated 12.02.2018, in which it has been mentioned that they had obtained “completion certificate”. This complaint was filed on 19.03.2018, alleging deficiency in service.
The opposite party filed its written reply on 08.10.2018, in which, material facts have not been denied. It has been stated that the farmer raised agitation in 2011, against acquisition of the land by State Government. They also filed various writ petitions before Allahabad High Court, challenging the land acquisition, in which interim orders had been passed. Although Yamuna Expressway Industrial Development Authority, allotted the land of Plot No.- TS-6, Secore-22-D, Noida to the opposite party on 17.02.2011 and executed lease deed dated 28.03.2012, but actual possession over the land could not be handed over due farmer’s agitation and interim orders passed by Allahabad High Court, in various writ petitions filed by the farmers. Due to prevalent force majeure, the development work was being delayed. The farmer’s agitations and interim orders passed by Allahabad High Court had been widely reported in the newspapers time to time. The complainant invested money in this project, knowing entire facts. Possession over the plot in dispute cannot be given, during continuance of interim orders passed by High Court. Preliminary objections that (i) the complainant is not a consumer rather investor and the complaint is not maintainable, (ii) Confirmation agreement contains an arbitration clause as such the complainant be relegated to go before Arbitrator hae been raised.
The complainant filed their rejoinder reply on 12.04.2019 and Affidavit of Evidence of S.C. Goyal. The opposite party filed Affidavit of Evidence of Naveen Sharma. Both the parties have filed various documentary evidence and their written arguments.
We have considered the arguments of the counsel for the parties and examined the record. The preliminary issues have no force. The opposite party did not file any evidence to prove that the complainant was purchasing and selling immovable property. The counsel for the opposite party relying upon judgment of Supreme Court in Ganeshlal Vs. Shyam (2014) 14 SCC 773, submitted that as the complainant has purchased the plot as such it cannot be treated as a consumer. In the present case, the complainant purchase residential plot in development project of the opposite parties. It is not a simple sale of immovable property but linked with services of development as promised by the opposite party, which is covered in the definition of “service” as defined under Consumer Protection Act, 1986. So far as arbitration clause in the Confirmation is concerned, Arbitration and Conciliation Act, 1996 does not exclude jurisdiction of consumer foras.
The complainant booked the plot, in this project on 15.04.2011 and deposited Rs.9540000/- between 15.04.2011 to 30.12.2015 out of total consideration of Rs.10350000/-. However, due to interim orders passed by Allahabad High Court, in various writ petitions filed by the farmers, no progress in the project has been done. The opposite party vide letter dated 17.10.2017, offered “Permissive Possession”, along with demand of Rs.1703047/-. The complainant, vide email dated 23.10.2017, inquired about “completion certificate”, asked to supply it and reason for reduction of area and also issued reminder dated 25.10.2017 and 21.12.2017. The complainant wrote a letter dated 23.01.2018, in this respect. The opposite party has not filed “completion certificate” even in the complaint. In paragraph-20 of written version, the opposite party has stated that “completion certificate” has been cancelled. There is no possibility that the opposite party will be able to hand over possession over the developed plot allotted to the complainant, in near future. Clause-4.1 of the Confirmation letter provides 18 months period from the date of confirmation for handing over possession, which expired on 02.06.2015. Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that in case of inordinate delay in offer of possession, the buyer was entitled for refund of money.
ORDER
In view of aforementioned discussions the complaint is allowed. The opposite party is directed to refund entire amount deposited by the complainant with interest @9% per annum, from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment.