CONSUMER DISPUTES REDRESSAL COMMISSION – X

                               GOVERNMENT OF N.C.T. OF DELHI

                                       UdyogSadan, C – 22 & 23, Institutional Area

                                          (Behind Qutub Hotel)

                                New Delhi – 110016

                         Case No.268/2021

SMT. SHASHI DEVI GUPTA,

W/O SH. SHRI KRISHAN GUPTA,

R/O HOUSE NO.634, GALI NO.7,

GOVINDPURI, KALKAJI,

NEW DELHI – 110019…..COMPLAINANT

Vs.

M/S, GREENBAY INFRASTRUCTURE PRIVATE LTD.

REGISTERED OFFICER: C-3/260,

JANAK PURI,

NEW DELHI – 110058.

CORPORTATE OFFICE:  J-10/5, DLF PHASE-II,

M.G. ROAD,

GURGAON – 122002 (HARYANA)

THROUGH ITS MANAGING DIRECTOR            …..RESPONDENTS

Date of Institution-28.06.2018

Date of Order-04.08.2023

         O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency of service on part of OP in delay in possession of allotted flat.

2. The facts as stated in complaint are that the complainant and his son went to the office of M/s Orris Infrastructure where she was informed that multi-storied flats were being constructed by M/s Orris Infrastructure. She was apprised of a project named Curiocity in Sector-22D on Yamuna Expressway, Gautam Budh Nagar, wherein she agreed to purchase one residential plot admeasuring 200 square yards @25,250/-. She paid a sum of Rs.5,00,000/- by way of cheque to aforesaid M/s Orris Infrastructure Pvt. Ltd. as booking amount.  The cheque was encashed on 31.10.2012. She was allotted a plot bearing no. C2/68 on 29.10.2012. The complainant was assured that the said project had received all required sanctions and approvals and was free from all sort of encumbrances.

3. In April, 2013, she was informed that M/s Orris Infrastructure has sold half of the land in the aforesaid project to M/s ATS. M/s Orris Infrastructure offered complainant another plot admeasuring 205 sq. yard bearing no. B14 at new rate of Rs.23,600/- per square yard. The complainant was assured that the plot was equally good. She agreed to purchase the said plot and plot no. B/14 was allotted to her vide allotment letter dated 10.04.2013. The complainant paid another sum of Rs.4,67,600/- and Rs.4,83,800/- by way of cheque on 07.06.2013 and 05.07.2013 respectively to M/s Orris Infrastructure Pvt. Ltd.  Thus, the complainant states that she paid Rs.14,51,400/- towards consideration for the booked plot to M/s Orris Infrastructure Pvt. Ltd.

4. The complainant submits that she was informed by the office of M/s Orris Infrastructure Pvt. Ltd. that the project Curiocity is getting delayed and she was persuaded to shift her aforementioned allotment to another allotment of a flat in Golf Homes in Greenbay Golf Village, TS-06 in Sector- 22D, YEIDA, Yamuna Expressway, Gautam Budh Nagar (UP). It is alleged that M/s Orris Infrastructure Pvt. Ltd. and M/s Greebay Infrastructure Pvt. Ltd. are sister concerns and belong to a consortium of companies having common directors, officers and authorized signatories.

5. The complainant alleges that on 23.08.2014, a representative, an employee from OP’s office, visited the complainant’s residence and asked her to sign certain documents. The complainant being an old housewife signed the documents without reading the contents. Later on, she came to know that the documents included an application for registration of residential apartment in another project namely Golf Homes alongwith an affidavit cum undertaking from her. She also came to know that a flat/unit No.T2-1204 has been allotted to her by OP in their project Golf Homes. She could not differentiate between the names of the companies as the allotment letter contained word Orris at the top and bore the signature of same authorized signatory which was there on previous allotment letter.

6. The complainant upset by delay in handing over possession of the allotted plot refused to agree for further change. She informed M/s Orris Infrastructure Private Limited about her unwillingness to opt for any change and requested the company to handover possession of plot after taking the remaining consideration or to refund her money with interest.

7. The complainant filed a complaint against M/s Orris Infrastructure Private Limited in hon’ble State Commission. It is stated that the complaint was dismissed by hon’ble State Commission with observation that refund should have been sought from M/s Greenbay Infrastructure Private Limited.

8. Thereafter, the complainant sent a letter dated 11.08.2021 to OP to handover possession of the allotted flat after receiving the balance consideration. A reminder letter dated 04.09.2021 was also sent. Even after these reminders, no demand was raised by OP nor an offer of possession made to the complainant.

9.  The complainant has paid Rs.14,51,400/- till date and no possession has been given to the complainant. The complainant prays for a refund of sum of Rs.14,51,400/- paid to OP with interest @18% per annum, Rs.5,00,000/- for compensation for harassment and agony inclusive of legal expenses.

10. Notice was issued and duly served on OP but none appeared. OP was proceeded ex-parte vide order dated 19.09.2022. Complainant has filed ex-parte evidence and also filed additional documents.

11. Perusal of the file shows that complainant has filed an application under Order 1 Rule 10 read with Section 151CPC for impleadment of M/s Orris Infrastructure Private Limited to the complaint. This application is dated 17.01.2022 and was received by the Commission on 31.01.2022. Order sheet dated 13.12.2021 is as follows:
12. Counsel for complainant. (Physically appeared)

File is taken up today on an application for preponement. This case was listed on 16/11/2021 when the Commission was closed on account of direction by the Govt. of NCT of Delhi under Section 5 of Environment Protection Act, 1986. The matter is at the admission stage; however, date of 14.01.2022 was given. The applicant submits that she is a senior citizen and requests for a short date in the matter. Hence, file is taken up today.

We have heard the submissions. The Ld. Counsel for the complainant intends to include some more respondents and to file the amended memo of parties.  In view of request made is adjourned for admission hearing on 17.01.2022.

Thereafter, subsequent order sheets show that this application was never taken on record and the complainant never pursued this application.

12. Complainant has filed evidence by way of affidavit and exhibited the following documents:-

1. Copy of allotment letter is marked as MARK-A.
2. Copy of allotment letter is marked as MARK-B.
3. Copy of letters is exhibited as EXT.CW-1/1 and copy of receipt is EXT. CW1/2.
4. Certified copy of judgment is exhibited as EXT. CW1/3.
5. Copy of letter is exhibited as EXT. CW1/4 its postal receipt as EXT.CW1/5 and delivery report as EXT.CW1/6.
6. Copy of reminder is exhibited as EXT CW-1/7, its postal receipt is exhibited as EXT CW-1/8 and delivery report is exhibited as EXT CW-1/9.
7. Copy of notice is exhibited as EXT. CW1/10, its postal receipt as EXT.CW1/11 and delivery report as EXT.CW1/12.

13. Complainant has filed written argument in consonance with the averments made in the complaint.

14. Commission has considered the pleadings and documents filed by the complainant. Allotment letter dated 06.11.2012 shows that a plot bearing no.C2/68 admeasuring 200 square yard in project CURIOCITY at Sector–22D, Yamuna Expressway, Dist. Gautam Budh Nagar was allotted to complainant by Orris Infrastructure Pvt. Ltd. A sum of Rs.5,00,000/- had been received by the said Orris Infrastructure Pvt. Ltd.

15. Letter dated 10.04.2013 shows that a plot number 14 in project CURIOCITY at plot no. TS-06, Sector – 22D, Yamuna Expressway, DIst. Gautam Budh Nagar admeasuring 205 square yard has been allotted in the name of complainant by said Orris Infrastructure Pvt. Ltd. after a payment of Rs.4,00,000/-.

16. Letter dated 23.08.2014 shows that a flat no. 1204 in project GOLF HOMES GROUP HOUSING at plot no. TS-06, Sector – 22D, Yamuna Expressway, Dist. Gautam Budh Nagar admeasuring 1503 square feet has been allotted to the complainant by OP and a payment of Rs.4,63,905/- has been received by OP from the complainant. The letter head contains the name Orris Greenbay Golf Village on the left side.

17. Letter dated 25.08.2014 shows that a unit no. T2-1204 in Golf Homes, Greenbay Golf Village, TS-06, Sector – 22D, Yamuna Expressway, Dist. Gautam Budh Nagar has been allotted to complainant. The letter is accompanied by payment plan, receipt and intimation-cum-demand letter. The said payment plan shows that Rs.43,06,417/- is a total amount to be paid by the complainant. The receipt dated 23.08.2014 acknowledges receipt of a sum of Rs.14,51,400/- relating to  T2-1204 of Golf Homes. The intimation cum demand letter dated 23.08.2014 shows that the amount paid by the complainant is Rs.14,51,400/- and amount payable is Rs.41,646/-.

18. An order was passed by hon’ble State Commission on 07.05.2021 vide CC No.177/2017. The relevant portion is as follows:-

The complainant has solely filed this complaint and sought refund on the ground that the Opposite Party arbitrarily changed her allotment from one allotted plot to another. However, based on the evidence before us, it is clear that the complainant herself sought the booking in Greenbay Infrastructure's project vide her application form dated 23.08.2014.

Even if the complainant sought cancellation of the aforesaid booking in the project "Golf Homes" which is to be executed by Greenbay Infrastructure, the complainant ought to have sought refund from Greenbay Infrastructure ltd.

Based on the aforesaid discussion, we see no ground to delve into the merits of the present case and accordingly the complaint is dismissed.

In the aforementioned complaint, the complainant had made Orris Infrastructure Pvt. Ltd. as respondent from which refund was sought. Hon’ble State Commission had directed the complainant by the aforesaid Order to seek refund from Greenbay Infrastructure i.e. OP.

19. Subsequently, the letter dated 11.08.2021 was sent by the complainant to OP, Greenbay Infrastructure, requesting handing over of the flat in question after taking remaining consideration amount. Complainant sent another reminder letter dated 04.09.2021 to OP requesting the handing over of the flat in question.

20. From the chronology of event it can be seen that a plot bearing No.C2/68 admeasuring 200 square yard was allotted to the complainant by Orris Infrastructure Pvt. Ltd. in CURIOCITY project at Sector–22D, Yamuna Expressway, Dist. Gautam Budh Nagar in November 2012. Subsequently, a plot no. 14 was allotted in CURIOCITY at plot no. TS-06, Sector–22D, Yamuna Expressway, Dist. Gautam Budh Nagar admeasuring 205 square yard in April, 2013. Thereafter, a flat no. T2-1204 in Golf Homes, Greenbay Golf Village, TS-06, Sector – 22D, Yamuna Expressway, Dist. Gautam Budh Nagar in August, 2014. 

21. The complainant has clarified that the Orris Infrastructure has sold half of the land of the project to M/s ATS and hence the site plan was changed the complainant was offered alternate plot in April, 2014. The complainant has further clarified that he was informed by Orris Infrastruure that the project CURIOCITY is getting delayed and was persuaded to shift to another project namely Golf Homes, Greenbay Golf Village at TS-06, Sector – 22D, Yamuna Expressway, Dist. Gautam Budh Nagar. OP has not refuted the same as it is failed to appear before this Commission.

22. The intimation cum demand letter by OP shows that an amount of Rs.14,61,400/- has been received and an amount of Rs.41,646/- is payable. The letter head also contains the name Orris Greenbay Golf Village.

23. The complainant made the first payment in year 2012. She was shifted to another plot in year 2013. Thereafter, she was offered and accepted a shift to another project i.e. Golf Homes in Greenbay Golf Village at the same address in 2014. Till date, there is no whiff of completion of project from OP. The complainant was ready to pay the balance consideration but there was no demand for remaining amount to be paid nor there was an offer of possession.

24. Hon’ble National Commission in a similar matter against OP Madhu Chhibber Vs. Greenbay Infrastructure Private Limited, Consumer Case no. 1135 of 2018 decided on 13.01.2023 has observed that:

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 booked the plot, in this project on 28.03.2012 and deposited Rs.12010000/- between 28.03.2012 to 04.09.2015. 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 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 16.01.2014. 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.   

25. Hence, in the facts and circumstances of the case, the Commission finds OP guilty of deficiency of service and unfair trade practice and following directions are passed:-
25. OP is directed to pay Rs. 14,51,400/-  with interest @6% from the date of withdrawal till realization.
26. OP is directed to pay an amount of Rs. 10,000/- as compensation for the mental agony and the discomfort caused due to deficiency in service.
27. OP is directed to pay Rs.5000/- towards litigation charges.

26. Order to be complied within 90 days from the date of order.

27.  File be consigned to record room.