Delhi

North

CC/14/2021

RUMANSHU GUPTA - Complainant(s)

Versus

NATURES GREEN INFRATECH PVT. LTD. - Opp.Party(s)

HEMANT KUMAR

03 Jul 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.:14/2021

 

In the matter of

 

Sh. Rumanshu Gupta

S/o Late Sh. Subhash Gupta,

House no.1779,

Kucha Lattu Shah,

Dariba Kalan, Chandani Chowk,

Delhi                                                  …                                 Complainant

 

                                                          Vs

 

Natures Green Infratech Pvt. Ltd.

At:

1. D-3/30, Kanwarsingh Nagar

Nangloi, Delhi-110041.

 

2. B-121, 2^nd floor,

Sector-2, Noida,

Uttar Pradesh-201301.

 

3. E-44, 3^rd floor,

Sector-63, Noida,

Gautam Buddh Nagar,

          Uttar Pradesh.                        …                                   Opposite Party

 

ORDER

03/07/24

 

Ashwani Kumar Mehta, Member:

 

(1)     The present complaint has been filed under Section 35 of the Consumer Protection Act, 2019. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that around December 2013, the Complainant and his mother decided to shift their residence from their existing house in old Delhi, to a better suited location. Thereafter, the Complainant and his mother came across an advertisement published by Natures Green Infratech Pvt. Ltd for their upcoming residential project named "Sai Residency", situated Opposite LG Showroom, Near Yatharth Hospital, Near Sector 110, Noida Expressway, Noida. Impressed by the Opposite Party's prominent advertising and confidence inducing claims, the Complainant and his mother decided to visit the project site, to learn more about it. The Complainant and his mother intended to purchase properties in such a fashion that they, alongwith her daughter Mrs. Ruchika Sharma W/o Sh. Gaurav Sharma, and her family could stay together, each in one flat. After meeting with the directors of the Opposite Party, the Complainant and his mother was informed that an initial batch of flats will be constructed within a period of 18 months, from the execution of the Buyer's Agreement. During one meeting, Sh. Sanjay Bhatnagar informed the Complainant and his mother that the construction shall start soon after the Bhoomi Poojan and the Foundation Stone Laying ceremony, which was scheduled for 26.02.2014 and invited them. (Ex. CW1/A).  Believing in such alluring assurances by the Opposite Party and its employees, the Complainant and his mother decided to purchase three adjacent residential units, on the same floor of the above project, with the intention that each unit could be used to reside by the Complainant, his mother, and Mrs. Ruchika Sharma, with her family. The Complainant and his mother signed an application form dated 05.02.2014, whereby they applied for the purchase of a flat bearing number SR410.  A sum of Rs.4,00,000/- (Rupees Four Lacs Only) was paid as Booking Amount with respect to said Flat vide cheque number 26624963, dated 05.02.2014, drawn on Vijaya Bank, Chandni Chowk, Delhi-110006.

 

(2)     Subsequently on 26.02.2014, attended the Bhoomi Poojan as well as the Foundation Stone Laying ceremony, and signed Application Forms Dated 26.02.2014, with respect to flats bearing numbers SR 408 and SR 409. (Ex. CW1/B Colly). The Complainant was also issued Provisional Allotment Letter Dated 07.03.2014 with respect to Flat bearing number SR410, and whereas two letters Dated 23.03.2014 pertaining to flats bearing numbers SR408 and SR409 in the name of the Complainant and his mother respectively (Ex. CW1/C Colly).  Accordingly, the Complainants co-applied for three flats, which were priced by the Opposite Party in the below manner.

FLAT	AREA (FT.2)	COST (PER FT.2)	CONSIDERATION (RS.)
SR408	800	3300/-	30,87,545/-
SR409	800	3300/-	30,87,545/-
SR410	1150	3300/-	42,86,250/-
TOTAL CONSIDERATION			RS.1,02,76,250/-

 

(3)     Subsequently, the Complainant and his mother paid a sum of Rs.2,99,000/- (Rupees Two Lacs Ninety Nine Thousand Only) each, vide cheques bearing numbers 33204311 and 26624964, both drawn on Vijaya Bank, Chandni Chowk, Delhi-110006, as Booking Amount for Flats Nos. SR408 and SR409, respectively. The said cheques were honoured by the Complainant and his mother's banks on 04.03.2014. The account statement pertaining to the accounts of the Complainant and his mother, representing the payment of such amount as detailed above is at Ex. CW1/D (Colly). Based on the said application and the payments thereto, the Opposite Party issued acknowledgment vide receipts Dated 26.02. 2014 and 05.02.2014 towards the Complainant and his mother (Ex. CW1/E Colly). The Complainant and his mother demanded from the Opposite Party's representatives a Buyer's Agreement but they informed them that its execution shall take a few months but in the meantime agreed to share a payment schedule, which was also subsequently found annexed with the Buyer's Agreement executed between them later. The said payment schedule was the construction linked plan.

 

(4)     The Complainant and his mother were served with various Demand Notices by the Opposite Party. (Ex. CW1/F Colly).  On receipt of the first Demand Notice, the Complainant and his mother observed that the payment schedule mentioned therein was in excess to the one provided to them by Sh. Sanjay Bhatnagar. On Inquiry Sh. Sanjay Bhatnagar told them that these technicalities won't impact their agreement and they could make payments as and when convenient to them. Considering their cordial relationship with Sh. Sanjay Bhatnagar, the Complainant and his mother did not doubt his word and made payments in compliance with the demand raised through the schedule provided, in complete discharge of their contractual obligations. As such, the Complainant paid an amount of Rs.16,79,000/- (Rupees Sixteen Lacs and Seventy Nine Thousand Only) while Complainant's son paid an amount of Rs.14,99,000/- (Rupees Fourteen Lacs and Ninety Nine Thousand Only), over the course of time and the same is well reflected in their account statements. The payments were made to the Opposite Party's absolute satisfaction and 30% amount Rs.31,78,000/- (Rupees Thirty One Lacs and Seventy Eight Thousand Only) out of the total consideration for the three flats, to the tune of Rs.1,02,76,250/- (Rupees One Crore Two Lacs Seventy Six Thousand Two Hundred Fifty Only) was paid by the Complainant and his mother in accordance with the Payment schedule, as enumerated in the below table:- 

ACCOUNT NAME: SH. RUMANSHU GUPTA
CHEQUE NO.	DATE		AMOUNT (Rs.)
33204311	04.03.2014		2,99,000/-
33173083	13.05.2014		4,50,000/-
33224501	08.07.2014		4,54,000/-
33224502	13.08.2014		4,76,000/-
ACCOUNT NAME: MRS. KANTA GUPTA
CHEQUE NO.		DATE	AMOUNT (RS.)
26624963		08.02.2014	4,00,000/-
26624964		04.03.2014	2,99,000/-
26624967		07.06.2014	4,00,000/-
26624968		13.06.2014	4,00,000/-
TOTAL:			31,78,000/-

 

(5)     Subsequently, around the middle of June 2014, Sh. Sanjay Bhatnagar, approached the Complainant and his mother at their residence with a copy of a Buyer's Agreement. The agreements were already signed on behalf of the Opposite Party, and he asked them to append their signatures on them and asked them to retain the copies for themselves. Accordingly, the Complainant signed two Buyer's Agreements, both dated 18.05.2014, with respect to flats Bearing No. SR409 and SR410, whereas Complainant's son signed the Buyer's Agreement Dated 08.06.2014 pertaining to flat bearing No. SR408. (Ex. CW1/G Colly).  Thereafter, Sh. Sanjay Bhatnagar left their residence and they found, on perusal of the agreements,  that they had been handed over two Agreements pertaining to flat SR410 & SR408 and none for flat bearing number SR409. They raised this issue with Sh. Sanjay Bhatnagar, who told them that this is a minor error from their side and he shall hand over fresh agreements in due course of time. He also stated that since the Demand Notices pertained to all three flats, i.e., SR408, SR409 and SR410, it was enough proof to show that they had opted for and purchased three flats. Further he approached the complainant subsequently and took the original agreements, informing them that he shall furnish proper agreements subsequently.

 

(6)     It has been further stated that since the Complainant and his mother were making payments in lump-sum terms, and not specifically in terms of the payment schedule, given as per their understanding with Sh. Sanjay Bhatnagar and they are not in possession of the ledger accounts as maintained by the Opposite Party wherein it would be clear as to what amount has been adjusted with respect to which property. It is pertinent to mention here that the Opposite Party has represented in the said agreements that they are possessed with all permissions, licenses, requisitions, approvals and sanctions in connection with the sanctioning, development, construction and completion of the property in question. The Complainant and his mother regularly inquired about the construction's status, which was delayed, for various flimsy reasons. Despite specific assurances that the construction shall be completed within 18 months from the date of signing of the agreement and after having so mentioned in the agreement itself, the construction did not even start till December 2016.

 

(7)     It has further been alleged that having understood that the entire project was not likely to see the light of the day as per the conduct of the Opposite Party and its representatives, the Complainant and his mother decided to withdraw from the project and to seek refund of the amount paid by them towards the project for which they tried to contact officials of the Opposite Party, but in vain, as OPs continued to avoid any interaction. Accordingly, the Complainant and his mother contacted Sh. Vipin Choudhary, Sh. Sanjay Bhatnagar and Sh. Sunil Mehndiratta on various occasion, telephonically and in person, and informed them that they planned to initiate necessary legal action to seek the property promised to them. Thereafter, in the first week of March 2017, meeting took place between the parties at the Opposite Party's site office where the Opposite Party assured the Complainant that they would refund the entire amount in three instalments commencing from 01.06.2017. Thereafter in June 2017, Sh. Sanjay Bhatnagar and Sh. Vipin Choudhary, informed the Complainant that the reimbursement would happen by the month of September 2017. Compelled by the circumstances, the Complainant and his mother decided to wait till September 2017, hoping to obtain such refund as had been promised to them.

 

(8)     It has further been alleged that instead of fulfilling the promise,  the Opposite Party served  an illegal Demand Notice Dated 19.08.2017, seeking a further payment of Rs.2,50,000/- (Rupees Two Lacs Fifty Thousand Only) for a flat no. SR410, despite there being no actual construction at the premise. On receipt of the notice, the Complainant and his mother again started contacting the various representatives of the Opposite Party but none of them responded or met them when they attempted to visit their various offices. In the meantime, the Complainant was telephonically contacted by Sh. Sanjay Bhatnagar, who informed him that the representatives of the Opposite Party, ie., Sh. Vipin Choudhary, Sh. Sanjay Arora and Sh. Sunil Mehendiratta, were running a racket in the name of "Sai Residency" and "Natures Green Infratech" and have been floating various projects without requisite permissions or licenses to do so. He further informed that the delay in executing the construction of the property was only because the Opposite Party did not have necessary licenses and permission to undertake such construction, and they had made false averments to innocent investors, only to usurp their money. Thereafter, the Complainant made enquiries from the locals and other people who had invested with the Opposite Party and found out his averments to be true.

 

(9)     The Complainant and his mother also found out that Sh. Sanjay Bhatnagar was never a Director with the Opposite Party and this fact was misrepresented to them, in order to secure their investment. Further, the Complainant and his mother have also not found any person with the name Sh. Sunil Mehndiratta as the director of the Opposite Party, which makes it appear that someone had been impersonating as a Director and inducing the Complainant and his mother to make payments. (Ex. CW1/H). The Complainant and his mother have been subjected to continuous harassment and mental anguish by the Opposite Party's illegal conduct owing to the fact that the Complainants, even after fulfilling their part of the agreement and paying the due amounts on time, the Opposite party has completely failed to uphold its end of the contract.

 

(10)   It has further been alleged that according to the terms of the Buyer's Agreement dated 08-06-2014, the Complainant was to be given possession of the flats no. SR408 within 18 months of the date of execution of the Buyer's Agreement but till date they have neither received the possession nor any compensation in lieu of the appalling delay in giving possession of the flat. The Complainant aggrieved by the malafide conduct and repeated failures of the Opposite party have filed complaint before this commission. 

 

(11)   It has also been alleged that the act of the Opposite Party falls in the category of deficiency in service as it had no intention to finish the project in the time frame promised by them and the Complainant and his mother have been deceived and cheated of their hard earned money and the Opposite Party has unjustly enriched itself. Therefore, the complaint has been filed praying for directions to the Opposite Party to:-

 

1. pay Rs.16,79,000/- (Rupees Sixteen Lacs Seventy Nine Thousand) towards refund of amount paid by the Complainant alongwith interest at @24% amounting to Rs. 24,17,760/-; totalling to Rs.40,96,760/- (Forty Lacs Ninety Six Thousand Seven Hundred and Sixty Only);
2. pay Rs.20,00,000/- (Rupees Twenty Lacs Only) towards Compensation for harassment and mental agony suffered by the Complainants;
3. pay Rs.10,00,000/- (Rupees Ten Lacs Only) towards delayed possession,
4. pay a sum of Rs.2,00,000/- (Rupees Two Lacs only) towards litigation expenses incurred by the Complainant
5. Pass such other further orders as deemed fit in the facts and circumstances of the present case.

 

 (12)  Accordingly, notice was issued to the OP to defend the complaint before this commission but the OP neither appeared nor did he send any communication despite service of the notice. Since the OP has chosen not to contest the allegations levelled in the complaint despite service and has been proceeded Ex-parte, the allegations remained un-rebutted.

 

 (13) The complainant has filed ex-parte evidence by way of affidavit and written arguments. In the written arguments, the complainant has referred the judgment in the cases of (i) Fortune Infrastructure v. Trevor D'Lima' (2018) 5 SCC 442, passed by the Hon'ble Apex Court (ii) 'Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors.' 2020 (3) RCR (Civil) 544, passed by the Hon'ble Apex Court (iii) 'Satish Kumar Pandey and Ors. vs. Unitech Ltd III (2015) CPJ 440 (NC) passed by the Hon'ble National Commission (iv) IREO Grace Realtech Pvt. Ltd. V. Abhishek Khanna and Ors.' 2021 SCC OnLine SC 14, and (v) Meerut Development Authority v. M.K. Gupta', IV (2012) CPJ 12 passed by the Hon'ble Supreme Court, in support of the allegations levelled against the OP. However, no copy of these judgments has been filed.

 

(14)   The complaint has been examined on the basis of the documents/evidences and material available on records. Since the OP has been proceeded ex-parte and the allegations remained unrebutted, a thorough examination of the allegations were required to be examined by the Commission on the basis of the available records, for judicious adjudication of the matter. However, on the perusal of the allegations levelled in the complaint and the documents filed with the complaint, it has been found that the complaint has been placed before us in a haphazard manner by mixing the documents of three flats purchased by the complainant and his mother jointly from the same OP.  As per documents filed with the Complaint, the Complainant along with his mother has booked three flats with the OP and made payment and signed separate application forms, Builder Buyer Agreements. The details of these documents have been found as under:-       

Allottee Name	Flat No.	Amount paid, receipt no. and date	Application form filed with complaint at pages	Builder Buyer Agreement and date
Rumanshu Gupta & Kanta Gupta	408	Rs.2,99,000/-, NIL & No date	Pages 15-24	08.06.2014
Kanta Gupta & Rumanshu Gupta	409	Rs.2,99,000/-, NIL & No date	Pages 25-32	08.06.2014
Kanta Gupta & Rumanshu Gupta	410	Rs.4,00,000/- NIL & 05.02.2014	Pages 33-44	18.05.2014

         

(15)   On perusal of these documents it has been observed that in addition to the  payment made as per table above, the Complainant and his mother has also paid following  amount by cheque to the Builders/OP:-

 

Rumanshu Gupta	Date	Amount
	13.05.2014	Rs.4,50,000/-
	08.07.2014	Rs.4,54,000/-
	13.08.2014	Rs.4,76,000/-

 

Kanta Gupta	Date	Amount
	04.03.2014	Rs.2,99,000/-
	07.06.2014	Rs.4,00,000/-
	13.06.2014	Rs.4,00,000/-

 

         

In the absence of any receipt from the OP against the above payments, we are unable to conclude as to how much payment has been made against each flat?  It is settled law that the person who levelled allegations against the OP is liable/duty bound to place all the true facts before the adjudicating authorities for proper adjudication of the disputes but the Complainant has mixed the payments made against all the three flats without any proper receipt except the bank statement which is not sufficient to calculate the quantum of payment made against each flat to examine the prayer fairly. We have also seen the payment notices issued by the OP and in the absence of any communication from the OP to confirm or rebut the allegations, these documents are not sufficient to believe the contention of the Complainant for proper adjudication of the dispute.

 

(16)   In this regard, the observations made by the Hon’ble NCDRC in CC No.1095/2017 in the matter of Jatinder Kaur & Anr. Vs. JaiPraksh Associates Ltd. decided on 05.05.2017, are relevant.  In this case, it has been held that “ the complaint pertains to two separate bookings, one made by complainant no. 1 for Rs.39,66,825/-  and other made by Complainant no. 2 for Rs.59,44,100/-, each booking constituted a separate cause of action and therefore, a separate complaint ought to be filed in respect of each booking.  The complainants cannot be allowed to join their distinct causes of action even if the said causes of action are against the same opposite party.”

 

(17)   In addition to above findings,  the Hon’ble NCDRC in CC No.615/2015 in the matter of Dr. Ramesh Goyal Vs. Vatika (A.K.A Vatika Landbase Pvt. Ltd.) decided on 14.12.2016, has also observed that “ a joint complaint in respect of two separate purchases made by the complainants though from the same builder is not envisaged or maintainable under the Consumer Protection Act. Every purchase is governed by a separate allotment and a separate Buyers Agreement executed between the parties. Therefore, the complainants had a separate cause of action in respect of each flat purchased by them. There is no provision in the Consumer Protection Act for clubbing such causes of action against the same opposite party. Section 12 of the C.P. Act permits a joint complaint only where one or more consumers, where there are numerous consumers having the same interest approach a consumer forum on behalf of or for the benefit of all consumers so interested. Such a complaint is in the nature of class action and cannot be restricted to a particular complainant. Therefore, the present complaint is not maintainable under section 12(1)(c) of the Consumer Protection Act. The complaint is, therefore, dismissed with liberty to the complainants to file separate complaints in respect of each cause of action available to them. The original documents, if any, shall be returned to the complainants after keeping the certified copies on record.”

 

(18)   It has further been observed that there is no provision in the Consumer Protection Act for joinder of two distinct causes of action against the same service provider. In view of these observations/discussion, the complaint is, therefore, dismissed with liberty to the complainant to file separate complaints in respect of each booking by placing only relevant records with the complaint.

 

 (19)  Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

ASHWANI KUMAR MEHTA                                 DIVYA JYOTI JAIPURIAR        

              Member                                                                   President       

      DCDRC-1 (North)                                                     DCDRC-1 (North)