AVM Jonnalagadda Rajendra, Avsm Vsm (Retd), Member

1. The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short "the Act") against the Opposite Parties seeking to direct the OPs:

                          "a. Pass an order directing the opposite parties to refund the entire payment Rs 53 lakh along with interest @ rate of 18 per cent from the date of receipt of last payment till the date of filing of the present complaint and the same would amount to Rs 1, 07,85,000/-.

                          b. Pass an order awarding damages for mental torture to the family members of the complainant who sold their property to buy the cottage at proposed Global Yog Graam to the tune of Rs 10 lakh.

                          c. Award cost and also legal expenses to the tune of Rs. 1 lakh.

                         d. Pass such order or further orders as may be deemed fit in the facts and circumstances of the case."

2. Brief facts of the case, as per the complaint, are that GYG Nature Homes Private Limited (OP-1) and Global Yog Graam (OP-5), along with its Directors (OPs-.2 to 4), induced the complainant, a senior citizen, to invest Rs.53 lakh between November 2012 and March 2013 for the purchase of a one-acre plot with a cottage in the proposed "Global Yog Graam" project near Greater Noida, by their representations, brochures and repeated assurances. However, despite receipt of the entire consideration and issuance of money receipts acknowledging the same, the OPs neither executed any agreement nor delivered the possession within the promised period of two years. The project itself was found to be non-existent. OP-2 through various emails from 2015 to 2018, repeatedly admitted liability and sought time on false pretexts while offering alternative arrangements or refund, but failed to honour any commitment despite legal notice dated 09.08.2018. Thus, the acts of OPs constitute clear deficiency in service and unfair trade practice under the Consumer Protection Act, 1986, entitling the complainant to refund of Rs.53 lakh along with interest @18% per annum, compensation of Rs.10 lakh for mental agony, and litigation costs.

3. On being issued notice, the complaint was resisted by OP-1 by filing written statement contending that the present complaint is wholly misconceived, false, vexatious and not maintainable either in law or on facts, as no cause of action has arisen in favour of the complainant and OP-1 is presently a defunct company with no liability whatsoever. OP-1 denied that any consideration was paid to OP-1 in personal capacity, and that the alleged transaction pertains merely to a conceptual "vision" of a Global Yog Gram project and not to any concluded contract for sale of land. There being no written agreement, no promise of possession, and no stipulated timeline; the complainant failed to produce any cogent evidence regarding the alleged purchase of the alleged 1-acre plot and the document relied upon is merely a pamphlet reflecting a general vision rather than any binding offer. OP-1 contended that the amounts of Rs. 5 lakhs and Rs. 13 lakhs were paid respectively as a donation to an NGO and towards a separate partnership firm, namely M/s Global Yog Graam. There is no privity of contract with OP-1 and complainant, who was a gainfully employed government officer and a serial investor and thus does not fall within the definition of a "consumer" under the Consumer Protection Act. as the transaction was purely for investment/ commercial purposes and subject to market risks which were knowingly undertaken. Also, non-impleadment of a necessary party, namely Shri Satya Bhushan Arya, a partner in the firm and a material participant in the transaction, renders the complaint bad for non-joinder of necessary parties. OP-1 contended that any correspondence relied upon by the complainant was made purely out of personal goodwill and does not create any legal liability upon OPs. The complainant suppressed material facts, misrepresented the transaction and approached this Commission with unclean hands, thereby abusing the process of law. The dispute, if any, is purely civil in nature and outside the ambit of the Consumer Law, and OP-1 sought the complaint to be dismissed.

4. The complaint was also resisted by OP-2 to 4 by filing their written statement. They contended that the complaint is liable to be dismissed at the threshold as it is a gross abuse of the legal process and does not fall within the ambit of the Consumer Protection Act. The complainant is a habitual investor with multiple properties and not a "consumer" as defined under the Act. The complainant made a commercial investment of Rs.30 lakhs in a partnership firm, namely M/s Global Yog Graam, which is not even a party to the case. There is no privity of contract between the complainant and the answering respondents. No amount was ever paid to them in their personal capacity, and no oral or written agreement for sale of any plot or service was ever executed. The alleged brochure being merely a conceptual pamphlet outlining a proposed vision and not an offer or promise. The entire transaction, if any, was in the nature of a business investment subject to market risks, which he knowingly undertook. The subsequent communications relied upon were purely personal, benevolent gestures by OP-2 without any admission of liability, which culminated in the complainant availing one such option by purchasing a plot near Sikanderpur through a registered sale deed, thereby satisfying any alleged personal commitment. The allegations of deficiency in service, misrepresentation, entitlement to refund, interest, or damages are wholly false, misconceived and untenable. There being no sale of goods or services, no cause of action, and no deficiency attributable to the respondents, and thus the complaint is frivolous, vexatious, devoid of merit and deserves to be dismissed with costs.

5. The Complainant filed its Rejoinder and reiterated the facts of the complaint. He filed evidence on Affidavit in support of his contentions and relied on Memorandum and Articles of Association as Ex.CW-1/1, copy of brochures as Ex.CW1/2, payment receipt dated 09.11.2012 for Rs.5 Lakhs as Ex.CW1/3, copy of payment receipt dated 09.11.2012 for Rs.30 Lakhs as Ex.CW1/4, copy of payment receipts dated 30.01.2013 for Rs.4.2 Lakhs and Rs.98 Thousand as Ex.CW1/5, copy of payment receipt dated 01.03.2013 for Rs.13 Lakhs as Ex.CW1/6, copy of email dated 15.03.2015 as Ex.CW1/7, copy of email dated 16.03.2015 as Ex.CW1/8, copy of email dated 21.09.2015 as Ex.CW1/9, copy of email reply dated 21.09.2015 as Ex.CW1/10, copy of email dated 01.12.2015 as Ex.CW1/11, copy of the email dated 16.02.2016 as Ex.CW1/12, copy of email dated 22.02.2016 as Ex.CW1/13, copy of email dated 27.02.2016 as Ex.CW1/14, copy of email dated 25.10.2016 as Ex.CW1/15, copy of email dated 03.12.2016 as Ex.CW1/16, copy of the email dated 09.04.2018 as Ex.CW1/17, copy of email dated 16.07.2018 as Ex.CW1/18, copy of legal notice dated 09.08.2018 as Ex.CW1/19.

6. OPs Nos.2, 3 &4 filed their evidence on Affidavit and reiterated the contentions made in the written statement.

7. The learned counsel for Complainant reiterated the contentions made in the complaint and rejoinder and argued that the present complaint arises out of a clear case of misrepresentation, inducement, and deficiency in service on the part of the OPs. The complainant, a 78- year-old senior citizen, was approached in October-November 2012 by OP-2 who projected himself as the founder of the Global Yog Gram project under GYG Nature Home Pvt. Ltd., and induced the complainant to invest a total sum of Rs.53 lakh for allotment of a cottage along with one acre of land at Village Mursudpur near Greater Noida, on the basis of attractive representations regarding a holistic, eco-friendly and spiritually conducive residential project. Acting on such representations and assurances, the complainant arranged and paid the entire consideration through cash and cheque between November 2012 and March 2013, duly acknowledged by receipts explicitly stating that the payments were made towards purchase of one acre plot in Global Yog Gram, with a promise of delivery within two years. However, upon expiry of the stipulated period, the project was found to be non-existent and illusory. Despite repeated follow-ups, the OPs failed to either deliver possession or refund the amount, though OP-2 admitted liability in communications and assured repayment. In a blatant afterthought, the OPs have falsely contended that portions of the amount were towards investment in a partnership firm or donation, which stands contradicted by their own written receipts and is a fabricated defence. Even the alleged partnership firm has not been substantiated by any credible document. In any event, OP-2, being the principal actor and promoter, along with OP-1 and its Directors cannot evade liability. The conduct of the OPs clearly establishes fraud, unfair trade practice, and gross deficiency in service, entitling the complainant to refund of the entire amount along with interest, compensation for mental agony, and costs.

8. Per contra, the learned counsel for OPs argued that the present complaint is misconceived and devoid of merit, as the OPs never launched any concrete real estate project but only conceptualized a vision of a Global Yog Gram, in which the complainant voluntarily chose to invest with full knowledge of the attendant risks. There is no cogent or credible evidence on record to establish that any specific plot of one acre at Village Mursudpur, Greater Noida, was ever booked or allotted to the complainant, and the so-called brochure relied upon is merely a private pamphlet outlining a conceptual vision, containing neither any offer for sale nor any promise, commitment or timeline for delivery of plots or units. It was further argued that Rs.5 lakhs was voluntarily paid by the complainant as donation to Global Yog Alliance, an NGO, for which he also availed tax benefits, while Rs.13 lakh was paid towards a proposed allotment in Global Yog Gram at Village Jaganpur Duaba, and the remaining amounts were in the nature of investment, thereby clearly demonstrating the commercial intent of the complainant. There existed no written agreement or contract stipulating terms of allotment or possession, and it was mutually understood that any allotment would be subject to the project attaining viability, which unfortunately could not materialize due to circumstances beyond the control of OPs and thus the complainant, like other investors, bore the inherent market risks. The complainant has also failed to implead necessary parties, including Shri Satya Bhushan Arya and the partnership firm M/s Global Yog Graam, despite being fully aware of their involvement. It rendered the complaint bad for non-joinder of necessary parties. Moreover, he did not fall within the definition of "consumer" under the Act, as the transaction was purely an investment for commercial purposes by a financially well-placed individual, and not for personal residential use. There is also neither privity of contract with individual OPs in personal capacities, nor have they received any consideration personally. The emails relied upon by the complainant merely reflect a gesture of goodwill and personal acquaintance by OP-2 to mitigate perceived losses and do not constitute any admission of legal liability. In view of the above, the OPs cannot be held liable for any deficiency in service or unfair trade practice, and the complaint deserves to be dismissed.

9. We have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned counsels for both the parties.

10. The main issued for determination in the present case are:

                          A. Whether the complainant qualifies as a "consumer" within the meaning of the Consumer Protection Act, 1986? B. Whether the Opposite Parties failed to comply with the terms and thus liable for any deficiency in service or unfair trade practice? C. Whether the complainant is entitled to refund of the amount paid, along with interest and compensation?

11. Careful appreciation of the material on record reveals that the complainant paid a total sum of Rs.53,00,000/- to the OPs between November 2012 and March 2013. The payment receipts and email communications placed on record clearly demonstrate that the said amounts were received in connection with the proposed "Global Yog Graam" project for allotment of land along with a cottage. The OPs contention is that the transaction was merely a "conceptual vision" and not a concluded contract is untenable. The issue of specific receipts acknowledging amounts as consideration for purpose defined, coupled with subsequent email communications indicating acknowledgment of liability and assurances of refund or alternative arrangements, clearly establishes inducement and a binding obligation arising from such representations. The OPs objection regarding the complainant is not a "consumer" is devoid of merit. In Kavita Ahuja v. Shipra Estates, (2016 SCC OnLine NCDRC 769), it has been held that the burden to prove that the transaction was for a commercial purpose lies on the builder. Further, in Faqir Chand Gulati v. Uppal Agencies Pvt. Ltd. (2008) 10 SCC 345, the Hon'ble Supreme Court has held that even in the absence of a formal agreement, a person who hires services for construction or allotment would fall within the ambit of a "consumer". In this case, no evidence was adduced by OPs to prove any commercial intent. Thus, the complainant is held to be a "consumer" under the Act.

12. It is not in dispute that the complainant paid Rs.53,00,000/- to OPs and the OPs neither delivered possession of the plot nor refunded the amount was paid. In Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, the Hon'ble Supreme Court has held that failure to deliver possession after accepting consideration amounts to deficiency in service. Further, in Kolkata West International City Pvt. Ltd. v. Devasis Rudra, (2019) 17 SCC 613, it was held that delay or failure in handing over possession entitles the allottee to seek refund. In this case, the OPs failed to deliver possession or develop the project, establishing deficiency in service. The Hon'ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghavan, (2019) 5 SCC 725, held that a homebuyer cannot be compelled to wait indefinitely and is entitled to seek refund in the event of failure to deliver possession within a reasonable time. In Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna, (2021) 3SCC241, it was reiterated that delay defeats the very purpose of the contract and justifies refund. Also, in Experion Developers Pvt Ltd v. Sushma Ashok Shiroor (2022) 7 SCC 410, the Hon'ble Supreme Court upheld the grant of refund along with interest in non-delivery of possession. In this case, as the project admittedly not materialized, refund is the only just and equitable relief. At the same time, however, it is evident from the record that the complainant paid Rs.5,00,000 as a donation to an NGO, namely Global Yog Alliance. There is no material to indicate that this amount was paid in consideration for any service. A voluntary donation does not fall within the ambit of a "consumer dispute" under the Act, 1986. Accordingly, the said amount is not liable to be refunded. With respect to the remaining Rs.48,00,000/-, the OPs failed to deliver possession or refund the amount despite repeated assurances. This conduct clearly amounts to deficiency in service and unfair trade practice.

13. As regards the rate of interest, in DLF Homes Panchkula Pvt. Ltd. v. DS. Dhanda, (2019) 20 SCC 31, the Hon'ble Supreme Court held that interest awarded must be reasonable and compensatory in nature. Further, in Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor, (2022) 7 SCC 410, award of interest in similar circumstances has been upheld. In the facts of the present case, interest @ 9% per annum is considered just and reasonable.

14. In view of the foregoing discussion and findings, the complaint is partly allowed, and the Opposite Parties are jointly and severally directed:

                          A. To refund Rs.48,00,000 to the complainant, along with simple interest @ 9% per annum from the respective dates of deposit till realization. This payment shall be made within a period of 30 days from the date of this order. In the event of default, the interest liability for delayed period shall be @ 12% per annum;

                          B. To pay Rs.50,000 as costs of litigation;

15. All pending applications, if any, stand disposed of accordingly.