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.69/2023

DEEPIKA KRISHNA,

W/O SHRI. RAJEEV KRISHNA,

FLAT NO. 299/29, SECTOR-29, NOIDA,

GAUTAM BUDDHA NAGAR,

UTTAR PRADESH, 201301, INDIA…..COMPLAINANT

Vs.

WTC NOIDA DEVELOPMENT COMPANY PVT. LTD.

GF-09, PLAZA M-6, DISTRICT CENTRE, JASOLA,

NEW DELHI – 110025

ALSO AT

AUGUST RESIDENCY PRIVATE LTD (ARPL).

FLAT NO. 502, 502-A, 5^th FLOOR,

BARAKHAMBA ROAD, NARAIN MANZIL,

NEW DELHI-110001.

ALSO AT

WTC NOIDA DEVELOPMENT COMPANY PRIVATE LIMITED

PLOT NO. TZ-13A & 13B, SECTOR TECH ZONE,

GREATER NOIDA INDUSTRIAL DEVELOPMENT AREA,

DISTRICT GAUTAM BUDH NAGAR (U.P.)

ALSO AT

WTC NOIDA DEVELOPMENT COMPANY PRIVATE LIMITED

A-02/1, SECTOR 132, NOIDA, DISTRICT GAUTAM BUDH NAGAR, (U.P.)

ALSO AT

WORLD TRADE CENTERS ASSOCIATION

115 BROADWAY, SUITE 1202

NEW YORK, NY 10006                                         …..RESPONDENTS

Date of Institution-28.02.2023

            Date of Order-04.08.2023

         O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency in service on part of OP in non payment of assured return.

2. The brief facts as stated in complaint are that the Agreement to sale/ lease dated 29.06.2019 was executed between both the parties. The complainant received a welcome letter dated 17.06.2019 from OP stating that she has been provisionally allotted SU-A-00-25, Ground floor in Tower-A in Project WTC-NOIDA-CBD. The plan opted was 95% DPP with 12% Return. It is stated that OP promoter was supposed to pay return @12% per annum on the amount received from the complainant by 10^th of succeeding month. The date of offer of possession was mentioned as 27.02.2024 in Schedule A. OP has also mentioned that the return shall be payable till 31.10.2021 or the date of offer possession whichever is earlier. The complainant submits that OP had also agreed to pay interest @12% per annum if he fails to offer a possession of unit by 31.10.2021. Complainant also alleges that two dates for offer of possession i.e. 31.10.2021 and 27.02.2024 has been mentioned by OP to illegally grab 12% promised annual returns.

3. Complainant submits that the annual returns were paid till in April 2021 @12%. Thereafter, the annual returns were adjusted at 6% annually. No monthly annual return was paid from September 2022. Complainant has filed OP email dated 05.02.2023 wherein OP was directed by UPRERA to file Agreements with allottees in the format as notified by UPRERA/Government. The said letter also states that the commercial entitlements of allottee shall be settled at the stage of offer of possession.

4. The complainant alleges that OP cannot impose new payment schedule. She further alleges that OP has sent email to complainant expressing inability to complete the project on time. The complainant visited OP’s office many time but the issue could not be resolved.

5. The complainant prays for payment of 12% Annual Return from the date of last paid annual return, pay interest @24% per annum on pending Annual Returns and a sum of Rs.2,00,000/- for  mental agony and harassment.

6. The complainant has filed following annexures:

1. Copy of Agreement to Sell is annexed at Annexure-I.
2. Welcome letter is annexed at Annexure-II.
3. Schedule A, Floor Plan Schedule B is annexed at Annexure-III.
4. Schedule ‘C’ Payment Plan-III (Institutional) is annexed at Annexure-IV.
5. AR Sheet is annexed at Annexure-V.
6. OP email is annexed at Annexure-VI.
7. OP’s email is annexed at Annexure-VII.
8. Agreement for Sale as prescribed by UPRERA is annexed at Annexure-VIII.
9. Uttar Pradesh Sasan Avas Evam Shahri Niyojan Aubhag-3 is annexed at Annexure-IX.
10. Copy of Legal Notice sent to OP is annexed at Annexure-X.
11. Copy of conciliation request is annexed at Annexure-XI.
12. Copy of complaint sent to RERA is annexed at Annexure-XII.

7. The complainant has filed an application for amendment for amending/adding the paragraph 3A mentioning that the Agreement to sale/lease/allotment dated 29.06.2019 was executed for the purpose of earning livelihood by the complainant by means of self-employment and self-use.

8. The case was listed before us for admission hearing on 16.03.2023 when learned counsel appeared and advanced his arguments. He sought time to submit supporting documents. The matter was taken up on 06.04.2023, 15.05.2023, 02.06.2023 and 21.07.2023. Arguments were again advanced. We have also perused the pleadings and documents in the case.

9. Perusal of the complaint shows that the complainant had entered into the agreement to sale wherein she was promised annual return.
10. Hon’ble State Consumer Disputes Redressal Commission in Kusum Goenka & Anr. vs M/S Wianxx Impex Pvt. Ltd. Complaint No.1636/2017 has observed that:

However, he has also mentioned about the assured returns. The Hon'ble NCDRC have laid down that issue relating to assured return tantamount to commercial transaction, which means, from that angle the complainants keeping  in view the provisions contained under Section 2(1)(d), would not be a consumer. 

…………

The Hon'ble NCDRC in the matter of Smt. Priti Arora vs. M/s. ARN Infrastructure India Pvt. Ltd., CC. no. 246/13  decided on 06.04.2017 has ruled that any transaction having assured returns is a commercial transaction. Commercial transaction is not covered within the definition of consumer.   

Having regard to the discussion done we are of the considered view that the transaction of the complainants is of a commercial nature and if that is the case they are not entitled to raise the consumer dispute under the provisions of the Consumer Protection Act, 1986.

11. In the present case, the complainant entered into Agreement to sale with OP with promise of assured annual return @12% per annum. Admittedly, the annual return was paid by OP till December, 2021 @12% per annum. Subsequently, annual return was paid @6% till September, 2022. OP did not pay any annual return thereafter. The complainant in her prayer seeks reinstatement of annual return along with interest and compensation.

12. In the light of discussion above, such transactions relating to annual return are of commercial nature. Hence, the complaint is dismissed with no order as to costs