The National Consumer Disputes Redressal Commission (NCDRC) has asked Greenbay Infrastructure Pvt Ltd to refund Rs1.20 crore along with interest at a rate of 9% to the buyer for failing to hand over possession of a developed plot of land. Interestingly, in this case, the buyer filed but later withdrew her complaint from Uttar Pradesh Real Estate Regulatory Authority (UP RERA) and preferred NCDRC.
In an order issued earlier this month, the bench of Justice Ram Surat Ram Maurya (presiding member) and Dr Inder Jit Singh (member) says, "The complainant booked the plot, in this project on 28 March 2012 and deposited Rs1.20 crore between 28 March 2012 to 4 September 2015. 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. There is no possibility that the developer would be able to hand over possession of the developed plot allotted to the complainant in near future. The opposite party is directed to refund the entire amount deposited by the complainant with interest at 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."
During the hearing, the bench also reiterated that consumer foras can decide 'unfair trade practice', which it says is pari materia with the definition of fraud.
"In the present case, the complainant purchased a residential plot in the 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 the arbitration clause in the confirmation is concerned, Arbitration and Conciliation Act, 1996 does not exclude jurisdiction of consumer foras," the NCDRC says.
In 2012, one Madhu Chhibber booked a plot in Greenbay Golf Village project launched by Greenbay Infrastructure, a special purpose vehicle (SPV) of Orris Infrastructure Pvt Ltd. She was allotted plot no71 in block B, with a super area of 500 sq yards and also received a confirmation letter from the developer providing 18 months for delivery of possession with a grace period of 90 days. Ms Chhibber completed her entire plot payment by 4 September 2015.
The due date of possession, including the grace period, expired on 16 April 2014. When asked, the developer told her that road work was completed and possession would be delivered soon. However, no possession was handed over to her. After sending emails and letters, and receiving similar replies from Greenbay Infrastructure, Ms Chhibber visited the site. She found that there was no development at all. On inquiry, she came to know that an area on 35,329.97 sq mtrs of the project land was under dispute with some farmers, who were original owners, due to which, the developer was not able to proceed with any development work over part of the project land.
Ms Chhibber then filed a complaint before RERA in UP seeking a refund of her amount, along with other consequential reliefs, in which the notice was issued to the developers. The developer then issued a letter on 4 November 2017, informing that the letter dated 18 October 2017 was erroneously issued. Ms Chhibber then on 12 November 2017, gave a letter to the developer for a refund. In spite of the service of this letter, Greenbay Infrastructure did not respond. She then filed a withdrawal application on 7 March 2018 before RERA and filed a complaint against the developer in NCDRC alleging a deficiency in service.
During the hearing, Greenbay Infrastructure submitted that on 17 February 201, Yamuna Expressway Industrial Development Authority had allotted the land of plot noTS-6 in sector-22-D at Noida to the company. While the lease deed was executed on 28 March 2012, actual possession of the land could not be handed over due to the 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 delayed.
"The complainant (Ms Chhibber) invested money in this project, knowing entire facts. Possession over the plot in dispute cannot be given, during continuance of interim orders passed by HC. The complainant is not a consumer rather investor and the complaint is not maintainable, confirmation agreement contains an arbitration clause as such the complainant be relegated to go before arbitrator and in the allegation of fraud has been made, which can only be adjudicated by civil court, are also raised," Greenbay Infrastructure contended.
After considering the arguments of the counsel for the parties and examining the records, the NCDRC stated, "The preliminary objections have no force. The opposite party did not file any evidence to prove that the complainant was purchasing and selling immovable property. A consumer forum is an alternate forum, established under the Consumer Protection Act, to discharge the function of a civil court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected by the Supreme Court in paragraph-12 in Dr JJ Merchant vs Shrinath Chaturvedi (2002) 6 SCC 635."
The bench then directed the developer to refund, within two months, the entire amount of Rs1.20 crore paid by Ms Chhibber, with an interest of 9% per annum, from the date of deposit till the date of refund.
(Consumer Case No1135 of 2018 Date: 13 January 2023)
