MADHU CHHIBBER V. GREENBAY INFRASTRUCTURE PRIVATE LIMITED & 5 ORS.

1. MADHU CHHIBBER

Versus

7th FLOOR, INSIGNIA BUILDING,PLOT 1D, SECTION 126,
NOIDA EXPRESSWAY,NOIDA-201303 UTTAR PRADESH.
2. CHIEF MANAGING DIRECTOR

GREENBAY INFRASTRUCTURE PRIVATE LIMITED. RZ-D-
5, MAHAVIR ENCALVE, NEW DELHI-110045

3. ORRIS INFRASTRUCTURE PVT.LTD.
ORRIS HQ, M.G. ROAD,GURAON 122002
4. VIJAY GUPTA
CHIEF MANAGING DIRECTOR, ORRIS INFRASTRUCTURE
PVT. LTD. ORRIS GQ, M.G. ROAD, GURAON 122002
5. RAKESH GUPTA
DEPUTY MANAGING DIRECTOR, ORRIS
INFRASTRUCTURE PVT. LTD. ORRIS GQ, M.G. ROAD,
GURAON 122002
6. YAMUNA EXPRESSWAY INDUSTRIAL DEVELOPMENT
AUTHORITY

1st FLOOR, COMMERCIAL COMPLEX, P-2, SECTION-
OMEGA I, UTTAR PRADESH-201308

Case No: CONSUMER CASE NO. 1135 OF 2018

Date of Judgement: 13 Jan 2023

Judges:

For the Complainant : Ms. Kanika Agnihotri, Advocate
Ms. Yashodhara Gupta, Advocate

Mr. Sushant Kandwal, Advocate
Mr. Uday Pratap Singh, Advocate
For Opposite Party No.6 : Mr. Parangat Pandey, Advocate

Facts:
Complainant is a consumer under Consumer Protection Act. Preliminary objections regarding jurisdiction have no merit. Interim orders by Allahabad HC in writ petitions filed by farmers stalled development work and possession cannot be given. As per judgements of SC, inordinate delays entitle buyer to refund with interest. No possibility of handing over possession in near future. Complainant entitled to refund of paid amount with interest in view of contractual terms and SC judgements.

Arguments:
Complainant:
Did not receive possession despite assurances and expiry of due date as per Confirmation Letter. No development done at site due to land disputes. Entitled to refund as per contract and SC judgements.

OPs:
Sections:
Consumer Protection Act, 1986

Cases cited/referred:
Download Court Copy: https://dreamlaw.in/wp-content/uploads/2024/02/88.pdf

Full Text of Judgment:

1. Heard Ms. Kanika Agnihotri, Advocate, for the complainant and Mr. Ankit Singhal, Advocate, for opposite parties-1 and 2.

4. The opposite parties-1 to 5 contested the complaint and 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 developer 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 and (iii) in the allegation of fraud has been made, which can only be adjudicated by civil court, are also raised
5. The complainant filed their rejoinder reply on 12.04.2019 and Affidavit of Evidence of Madhu Chhibber. The developer filed Affidavit of Evidence of Naveen Sharma. Both the parties have filed various documentary evidence. Both the parties have filed their written arguments. The opposite parties also filed an amended written synopsis.
6. We have considered the arguments of the counsel for the parties and examined the record. 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. 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 she 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.
7. A Bench of three Judges of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services, it being a benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (In paragraph-12). Consumer foras can decide “unfair trade practice”, which is pari materia with the definition of fraud. Similar
view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233. This view has been reaffirmed by three Judges Bench of Supreme Court, in IFFCO TOKIYO General Insurance Company Ltd. Vs. Pearl Beverages Ltd., 2021 SCC OnLine SC 309.
O R D E R

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.