JAI PARKASH MEHTA AND KRISHNA KUMARI vs ROSHNI BUILDERS PVT. LTD.

Complaint No.

5325 of 2022 &2 others Member ffi HARERA #"eunuennnt BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Order reserved on: ta.ot.2024 Order pronounced on 07.03.2024 COMM: Shri Vijay Kumar Goyal ORDER 1.

This order shall dispose of all the 3 complaints titled as above filed before this authority under Section 31 of the Real Estate (Regulation and DevelopmentJ Act, 2016 [in short, the Act) read with rule 28 of the Haryana Real Estate [Regulation and Development) Rules' 2017 (in short' the Rules) for violation of section 11(4)[a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations' ROSHNI BUILDERS PRIVATE LIMITED "M3M BROADWAY" Vineeta Kukreti dnd Gaurav ] Shri Chaltanya S'ngha' Mehta L Advocate v lS I \4s.

Shriyd Trkkdr Roshni Builders Privare Limited Advocdte lor Rl & M/s Chaahat Homes Infratech Shri Dhruv Lamh" P!t.

Ltd.

Advocare lor R2 Case title APPEARANCE NAME OF THE BUILDER PROIECT NAME S.

No.

Case No.

1. cRl5325/2022 2.

3. cR/5327 /2022 Vineeta Kukreti and Gaurav Mehta V/S Roshni Builders Private Limited & M/s Chaahat Homes Infiatech Pvt.

Shri Chaitanya Singhal Advocate Ms.

Shriya Takkar Advocate for R1 Shri Dhruv Lamba Advocate for R2 cR/532812022 ]ai Parkash Mehta & Krishna Kumari V/S Roshni Builders Private Limited & M/s Chaahat Homes Infratech Pvt. l,td.

Shriya Takkar Advocate for R1 Shri Dhruv Lamba Advocate for R2 Page 7 of 2+ /t ffiHARERA #-eunuennrr,r Complaint No.

5325 of 2022 & 2 others 2. responsibilities and functions under the provision of the Act or the rules and regulations made there under or to the allottee as per the agreement for sale executed inter se.

The core issues emanating from them are similar in nature and the complainant(s) in the above referred matters are allottees of the project, namely, "M3M Broadway" (Commercial Complexl being developed by the same respondent/promoter i.e., M/s Roshni Builders private Limited. e Limited.

The terms and conditions of the buye,r's agreements, fulcrum of the issue involved in all these cases pertainsjo failure on the part of the promoter to deliver timely possession ofthe units in question, seeking refund ofthe paid-up amount along with interest; , The details of the complaints, reply to status, unit no., date of agreement, possession clause, due date of possession, total sale consideration, total paid amount and relief sought are given in a table below: Proiect Name and Location Roshni Builders Private Limited at "M3M Broadway" situated in Sector- 71, Gurugram.

Possession Clausei - 7.

POSSESSION OF THE IJNIT 7,1 Schedule for possession oI the said lLnit: -The L understands that timely deli,,tery of possession ofthe Ilnit alon space(s), if any, to the Allottee and tlte Common Areos to the or the competent Authoriq), as the casc may be, os provided u 2.(1)A ofthe Rules, 2017, i: the essence ofthe Agreement.

Occupation certilicatc. - 13,l Z,2OZ 1 )eveloper agrees ond g with the car parking Association of Allottee nder the Act ond Rules Complaint No,, Case Title cR/s32s/2022 Vineeta Kukreti and Gaurav Mehkr v/s Roshni Builders Private Limited & M/s Chaahat Homes lnfratech Pvt.

Ltd. cR/s327 /2022 Vineeta Kukreti and Gaurav Mehta v/s Roshni Builders Private Limited & M/s Chaahat Homes Infratech Pvt.

Ltd. cR/5328 /2022 Jai Parkash Mehta and Krishna Kumari/S Roshni Builders Private Limited & M/s Chaahat Homes Infratech Pvt.

Reply status 27 .07.2023 by respondent no.1 and 27.01.2023 by respondent no.1 and 3.

Page 2 ol24 ffi HARERA ffiounuennHl Complaint No.

5325 of 2022 &2 others and 10.10.2023 respondent no.

2 70.1,0.2023 respondent no.

2 10.10.2023 respondent no.

2 Unit no.

R4 106 I As per page no.

50 ofthe complaintl R4 707 I As per page no.

92 of the complaintl R4 105 I As per page no, 94 ofthe complaintl Area admeasuring 403 sq. ft. [As per page no.

50 ofthe complaintl 403 sq. ft. (carpet area) and 809.06 sq.

809.06 sq. ft. (super areal I As per page no.

92 ofthe complaintl 403 sq. ft. (carpet area) and 801.43 sq. ft. fsuper areaJ I As per page no.

94 of the complaintl Date of agreement for sale Annexed but not executed [As per page no.

46 ofthe complaintl Annexed but not executed [As per page no.44 ofthe complaintl Annexed but not executed [As per page no.

45 of the comnlaintl Due date of handing over of possession 31.70.2023 [As per RERA registrationJ 31.10.202i) [As per RERA registrationl 37.10.202i (As per RERA registration) Offer of possession Not offered Not offered Not offered Cancellation of the unit 30.7r.2027 [As per page no.

105 of the complaintl 30.1r.202r [As per page no.

103 ofthe complaintl 27.77.2021 [As per page no.

105 of the comDlaintl Total Consideratio Total Amount paid by the complainant (s) TSC: Rs.7,20,67,967 /- [As per payment plan on page no.30 of the complaint) APt Rs.72,O6,196/- [As per sum of receipts annexed by the complainants) TSC: Rs.l,21,7 6,A06 / - [As per payment plan on page no.

94 of the compiaint) AP: Rs.12,17,680/- (As per sum ofreceipts annexed by the complainants) TSC: Rs.l,2O,61,972l- (As per payment plan on page no.

30 of the complaintl AP: Rs.12,06,196l- As per sum ofreceipts annexed by the complainantsl The complainants in the above complaintli; trivi-ugtrt ttrifollo*ing ref iefs,-- 1.

Direct the respondent company to refu4d the entire amount of Rs.12,02,196/- pard bJ,J tle complainants along with interestat {he prescribed rate on the paid amount from rht date ofpayment till actualisation. j 2.

Directthe respondent to pay the litigation cost.

I 3.

To impose a penalty of at least RS.25,0O,OOO/- under section 63 of the Act of 2016 ori arcount of misleading advertisement on respondent no.

1(promoter) and contraveninl the provisions of section 11(2) of the Act of 20i6 and directions ro thl builders/promoters with regardto adveftisementof real estate projects.

4.

To cancel the RERI registration of respondent no. ondent no.

2 on account of mrsleadrnl advertisement.

Note: In the table referred affi They are elaborated as follows: Abbreviation Full form TSC Total Sale consideration AP Amount paid by the allotteefsl rL Page 3 of 24 ffi HARERA S oLtnuennr',r Complaint No.5325 of 2022 & 2 others 4.

The aforesaid complaints were filed by the complainants against the promoter on account of different payment plan in the allotment letter issued to the complainants than shown in the booking scheme and cancelling the unit way before the due date on account of non-payment, seeking refund of the amount paid along with interest.

It has been decided to treat the said complaints as an application for non- compliance of statutory obligations on the part of the promoter/ respondent in terms of sectioh 34(0 of the Act which mandates the authority to ensure complialce:i of the obligations cast upon the promoters, the allottee(s] and the real estate agents under the Act, the rules and the regulations made thereunder.

The facts of all the complaints filed by the complainant(s)/allottee(s)are also similar.

Out of the above-mentioned case, the particulars of lead case CR/5325/2022, case titled as Vineeta Kukreti and caurav Mehtu V/S Roshni Builders Priiate Lfinited & M/s Chaahat Homes lnfratech PvL 5.

6.

Itd. are being taken into consideration for determining the rights of the A.

Unit and proiect related deLits 7.

The particulars ofthe proiect, the details ofsale consideration, the amount paid by the complainants, date of proposed handing over the possession and delay period, if any, have been detailed in the following tabular form: S, No.

Particulars Details 1.

Name ofthe proiect "M3M Broadway, Sector- 71, Gurugram.

2.

Project area 7 .8487 5 acres 3.

Nature ofthe proiect Commercial Complex 4.

DTCP license no. and validiW status 7L of 2018 dated 25.10.2018 valid till 24.LO.2023 allottee[s) qua refund of the compensation. pensation. paid-up amount along with interest and PaBe 4 of 24 /4" HARERA MGUI?UORAM Complaint No.

5325 2022 & 2 others 5.

Name of licensee Roshni Builders Pvt.

Ltd., Highrise Propbuild Pvt.

Ltd 6.

RERA Registered/ not registered 31 0f 2018 Aated r+.lz.zorgJridE; 3L.70.2023 7.

Unit no.

R4 106, 1.t floor & Block-4 (As per page no.45 ofthe comDlaint L Unit area 403 sq. ft. [As perpage no.50 ofthe complaint 9.

Date ofbooking 26.07.2020 (As alleged by the complainant on page no.

10 ofthe complaint) 10.

Allotment letter 07.08.2020 @qpr page no.

24 of the complaintl 11.

Date of execution of agreement for sale Annexed but not executed @qaer page no.46 of the complaintl 1,2.

Possession clause (As per annexed agreement for sale) 7, POSSESSION OF THE UNIT 7.7 Schedule fff possession of the said UntE - The Developer agrees ond understands that timely delivery ol /rossession of the Unit along with the cor parking space(s), if qny, to the Allottee and the Common Areqs to the Associqtion of Allottee or the competent Authority, qs the case moy be, as provided under the Act and Rules 2(1)A of the Rules, 2017, is the essence of the Agreement, (As per page no.

24 ofthe complaint) 13.

Due date ofpossession 31,.70.2023 [As per RERA registrationl '1,4.

Total sale consideration Rs.1,20,6L,967 /- (As per payment plan on page no.

30 of the complqint) 15.

Amount paid by the complainant Rs.72,06,L96/- (As per receipt information on page no.

37- 42 ofthe complaintl 76.

Occupation certificate /Completion certifi cate 13.L2.2027 [As per page no.

106 of the reDlyl 17.

Offer ofpossession Not Offered 18.

Pre cancellation notice 11.71.2027 (As per page no.

104 ofthe complaintl 1,9.

Demand letter 22.10.2021 I& per page no.

102 ofthe complaintl 20.

Cancellation letter 30.J,1,.202t [As pqr page no.

105 ofthe complaintl Pagc 5 ot'24 I I I lL B.

8.

HARERA ffiGURUGRAM Facts ofthe complaint: The complainants have made the following submissions: I.

That on 26.07. on 26.07.2020, the complainants on being lured and deceived by representations and tall claims of the respondent booked a commercial unit in respondent's project ,,M3M BROADWAY" located in Sector- 71, Gurugram, Haryana through RERA registered agent namely "M/S CHAAHAT HOMES INFRATECH PRIVATE LIMITED" and paid an amount of Rs.3,50,000/- towards the booking of the said unit via cheque bearing no.

OO43Z9 dated 3O.OZ.Z0Z0 in favor of the respondent no.

1 II.

That on 07.08.2020, the respoldent sent an allotment letter to the complainants through speed ptist.

As per the terms of allotment letter the complainants were allotted commercial unit no.

R4- 106 having carpet area of 403 sq. ft. for a total sale consideration of Rs.1.,20,67,967 /-: Furthei as pqr the paymenr plan anached to the allotment letter, paymenl of th( unit was to be made in 4 stages (i.e.

2.9 o/o of total sale consideratlon on booking, 7.J, o/o oftotal sale i consideration on signing of builder buyer's agreement, g0% of total sale consideration on application of 0C and 100/0 of total sale consideration on offer of possession.) III.

That the complainants were surprised and was in a state of utter shock to see the payment plan attached with the allotment letter since it was agreed at the time of sale/ bool(ing between the complainants and the respondent that the complainants had to pay only 100/0 of the total sale consideration on booking and rest 900/o of the total sale consideration on "Offer of Possession" after receiving occupation certificate in the year 2023.

The complainants had opted for ,,10: 90 payment plan,, at the time of booking/ sale wherein 10 percent amount was to be paid Complaint No.5325 of 2022 & 2 others PaEe 6 of 24 lL HARERA GURUGRAM Complaint No.

5325 of 2022 & 2 others on booking and rest 90 percent was to be paid on offer of possession, however the respondent sent a different payment plan annexed with the allotment letter.

IV.

That at the time of booking the respondent no. ondent no.

1 and real estate agent respondent no.

2 had showed an advertisement brochure of the proiect "M3M BROADWAY" to the complainants wherein the 10:90 payment plan was mentioned in which 90% payment was to be made on offer of possession.

That pursuant to it the complainants got interested in investing money i4 buying the commercial unit and paid a booking amounr of Rs.12, 06;i.i_6l..to the respondent.

V.

That on 31.08.2020, the resfondent sent 2 copies of BBA to the complainants via speed post for ratification, signatures and to return the duly signed cop;r of BBA to the respondent and to get the BBA registered in the sub-registrar office.

However, the complainants did not signed the copy of agreement for sale/ BBA to the respondent since the terms and conditions rcgarding the payment plan in the BBA and provisional allotment lefier were not acceptable to the complainants since the complairnants had opted for 10:90 payment plan under the "3D Scheme" which was showed to the complainants at the time of sale/booking.

VI.

That after receiving copy of BBA,the complainants immediately rushed to the office of the respondent and met Mr.

Gaurav Jain (CRM) for getting the payment plan changed in the allotment letter and builder buyer's agreement.

The respondent assured the complainants that they will execute an addendum (additional clausesl to the allotment letter and BBA and will change the payment plan.

However, the respondent did not execute the "Addendum Agreement,, for changes in PaEe 7 of 24 /d, HARERA ffiGURUORAM allotment letter and BBA in spite of various requests and kept on sending demand letters.

VII.

The complainants on 02.09.2021 sent an e-mail to the respondent objecting the wrong payment plan annexed to allotment letter and BBA and requested respondent to change it to 10:90 plan as originally agreed at the time of sale/ booking and gave reminder to execute addendum to allotment letter and BBA for correct payment plan but the respondent did not reply to t reply to the said e-mail.

VIII.

That on 02.09.202L and 30.09.1021, the complainants through e_mail gave a second reminder and third reminder to Mr.

Gaurav lain (CRM Head) of respondent to execr,ite addendum agreement for changing payment plan in allotment litfer and BBA.

However the respondent did not reply to the said e-mails.' IX.

That on O1.L0.2OZL, the resppndent replied to the e-mail dated 30.0g.2027 of the iomplalnants,;gave acknowledgment and stated that they have forwarded the query 0f complainants to Ms. preeti Chauhan (CRM Teaml of the respondent.

That on 08.10.2021, ihe respondent sent an e-mail to the complainants informing that demand on "Application of OC,, has been deferred to "on offer of possession" after receipt of occupation certificate and that no interest will be charged on the said deferment.

That on 25.10.2021, the respondent sent an e-mail attached with a "demand letter" of Rs.96,49,578/- demanding 80% payment of the total sale consideration on account of making application for grant of occupation certificate.

That the said demand letter was illegal and was in total contradiction to the previous e-mail of the respondent dated 04.L0.2021 wherein the respondent have assured that they will raise Complaint No.5325 of 2022 & 2 others x. xt.

Page B of 24 rL HARERA MGURUGRAM demand of payment only on "offer of possession,, after receiving occupation certifi cate.

XII.

That on 27.70..2027, the respondent sent an e-mail to the complainants informing that the respondent has extended pre_ handover benefits till the offer of possession instead of on ,,Application of OC".

XIU.

That on 13.1,t.2027, the respondent sent an e-mail along with pre- cancellation letter dated 77.1.1..?O2l to the complainants stating that the respondent has cancelled the unit on account of non-payment of Complaint No.

5325 ol' 2022 & 2 others dues.

XIV, That in response to the pre-cancel ncellation letter, the complainants wrote an e-mail to the respondent on 1.4.tL. on 1.4.tL.ZOZl wherein they objected to the pre-cancellation letter and gave reference to his previous e-mails communication with the respondent dated 08.10.2021 wherein the respondent have informed that the demand of money will be raised only on "offer of possession" after receiving occupation certificate not before that.

The complainants further stated that the respondcnt didn't abide by the payment plan mentioned in the allotment letter and BBA sent by the respondent and further stated that at the rimc o[ booking it was communicated by the respondent through advertisements and marketing brochures that sale was made under the "3D Scheme" in which 3 deals were there in 1 offer.

According to the "3D Scheme" first deal was a "10:90 payment plan,,in which 10 % was to be paid at the time of booking and remaining 900/0 was to be paid at the time of offer of possession.

That second deal was ,,Exit Anytime" and third deal was "9 year Lease Guarantee,,.

The complainants further stated in the email that it was a clear cut case of Page 9 of 24 HARERA MGURUGRAM mis-selling and that the complainants will not bear any losses arising out ofthe said illegal cancellation.

XV.

That on 30.11.2021, the respondent sent cancellation letter through speed post and cancelled the unit of the complainants on account of non-payment of dues.

XVI.

That in response to the cancellation letter the complainants wrote a detailed e-mail to the respondent on 2L.12.2021 challenging the cancellation letter and stated that the complainants did not abide by the payment plan mentioned:'in the allotment letter sent by the respondent and further statedi!{ai it was conveyed to complalnants by respondent no.

1 and 2.atthetilTe ofsale/ booking that 10:90 plan will be applicable upon them.

XVll.

The complainants had continuously written e-mails to the respondent for changing the payment plan to 10:90 payment scheme which was originally agreed at the time of'booking however the respondent did not pay any heed to ny heed to it and cdntinued to send demand letters for payment and finally cancelled thb allotment of the complainants.

XVIII.

That the respondent received occupation certificate of its proiect "M3M BROADWAY" on 73.12.2021.

That prior to receiving OC and prior to offering possession, the respondent sent illegal demand letters and wrongly cancelled the uniLof complainant.

XIX.

Thus keeping in view the above mentioned facts it is a clear cut case of mis-selling and the respondent had violated Section 1Z ofAct of 2016.

Therefore, the complainants are seeking refund of Rs.12,06,196/- paid to the respondent along with interest and compensation.

XX.

That the respondent had committed grave and unfair trade practices by providing false advertisement brochure to the complainants which violates Section 12 of REM.

5325 of 2022 &2 otherc Page 10 of 24 /N- HARERA MGURUGRAM XXI.

That the cause of action firstly arose at the time of booking/ sale when the respondent depicted false, fabricated and misleading brochures to the complainants for purchase of the commercial unit and lured the complainants to invest his money in to the project of the respondent.

The cause of action further arose when the respondent sent allotment letter and copy of builder buyer's agreement with different payment plan and not 10:90 payment plan which was opted for at the time of sale/ booking.

That the cause of action further arose when the respondent sent early payment demands to the complainant before receiving occupation certificatelend before offering possession.

That the cause of action further drose when the respondent sent pre- cancellation notice and .cancellation letter to the complainants on account o[ illegal demand of payments prior to offering possession.

That the cause of action is a,continuing cause of action and still subsisting one since the tesDondent had wrongly cancelled the unit of the complainants and had violated Section 12 of RERA Act and failed to return the amount p e amount paid by c{mplainants along with interest and compensation.

C.

Relief sought by the complainant: 9.

The complainants have sougtrt following relief(s): i.

Direct the respondent to refund the entire amount of Rs.L2,06,196/- paid by the complainants along with interest at the prescribed rate on the paid amount from the date of payment till actualisation. ii.

Direct the respondent to pay the litigation cost. iii.

To impose a penalty of at least Rs.25,00,000/- under section 63 of the Act of 2076 on account of misleading advertisement on respondent no.

1(promoter) and contravening the provisions of section 11[2) of Complaint No.

5325 of 2022 &2 others Page 1l of24 ffiHARERA S* eunuennr,,r Complaint No.

5325 of 2022 & 2 others the Act of 2016 and directions to the builders/promoters with regard to advertisement of real estate projects. iv.

To cancel the RERA registration of respondent no.

2 on account of misleading advertisement.

D, Reply by the respondent no, 1: 10.

The respondent contested the complaint on the following grounds: a.

That at the very outset, the complaint filed by the complainants is baseless, vexatious and is not tenable in the eyes of law.

That the complainants have neither a.nilri,nuse of action or any local standi to maintain the present complaint'i[ail6t ttre respondent especially when the complainants have actually ulted in making the payments and are attempting to seek complete now amendment/modification/rewriting of the terms and conditions of the application form/allotment letter which cannot be permitted under law. b.

The complainants are not entitled to any relief whatsoever: i.

That after making independent enquiries and only after being fully satisfied about the proiect "Ul3M Broadway", a commercial project being developed in a planned and phased manner consisting of modern office spaces, a.entertainment, food and beverage outlets, modern office spaces, upscalg efficient lofts situated in Sector 71, Gurugram, Haryana. , Haryana.

The complainants applied for booking of tra,o units in the said project.

The complainants submitted an application form with an amount of Rs.3,50,000/- towards booking of a unit in the project'M3M Broadway' through their broker M/s.

Chaahat Homes Infratech Pvt.

Ltd. i.e. respondent No.

Z herein.

In due consideration of the complainants commitment to make timely payments, the respondent allotted commercial unit no.

R4 106 vide allotment letter dated 05.08.2020.

That the complainants as per PaBe 72 of24 /4, HARERA Complaint No.5325 of 2022 &2 others MGURUGIiAII .

IV, l . their own free will and after fully understanding their obligations opted for specific payment plan i.e.

10:80:10 plan.

That vide demand letter dated 06.09.2020, the respondent raised the second demand.

That post receipt of the allotment letter and the aforementioned demand letter, the complainants made the payment of Rs.1,50,000/-on 09.08.2020, Rs.3,58,j.18/- on 24.08.2020, Rs.3,40,000/- on 26.08.2020 and Rs.8,078/- on 2Z .08.2020 respectively.

It is submitted that the complainants had accepted the said payment plan and in furtherance of the same had made the said payments.

The complainarits were bound by the terms and conditions contained in the allotment letter and the payment plan attached as it clearly emph4iied the fact that timely payment is the essence.

It is submitted that in furtherance of the allotment letter, the respondents herein dispatched copies of buyer,s agreement to the complainants for due execution at their end along with covering letter dated 31.08.2020.

But despite making repeated requests the complainants did not executb the buyer's agreement for reasons best known to them.

That the respondent has paid an amount of Rs.1,41,4S9/- to rhe complainants as pre-handover amount from the period of 31.08.2020 to 0L.1,0.2021, and the same was duly accepted by the complainants. plainants.

That the respondent completed the construction and development of the complex much before the agreed time limit and the applied for the grant of occupation certificate on 31.08.2021.

Thereafter the complainants being very well aware about the stage of construction for the very first time raised frivolous issues regarding the unit in question being booked under the 3D scheme in September,2021.

It Page 13 of 24 /L HARERA Complaint No.

5325 of 2022 & 2 others M GURUGRAI/ is submitted that the unit in question was never booked under any scheme. [t is submitted that the complainants have raised the said issue after more than one year ofbooking with the sole motive to get rid of their contractual obligations.

It is submitted that the complainants have miserably failed to bring to the notice of the Authority any document to substantiate their alleged claim that the unit was booked under the 3D scheme. v.

That vide demand letter dated Z2.IO.Z0Z7, the respondent raised the demand due on applicatiop for grant of occupation certificate.

It is submitted that all the dempnds were raised as per the payment plan opted by the complainants on the achievement of the relevant construction milestone.

That since the complainants failed to come forward to clear their outstanding dues despite continuous reminders and follow ups as a result of which the respondent was compelled to issue pre-cancelfation notice dared 11.11.2021 calling upon the complainantsto cleaf their outstanding dues. vi.

That on account of wilful brehch of t}le terms of the allotment and non-execution of the buyer'J agreement and also on account of failure to clear outstalding dues despite repeated requests, the respondent was constrained to terminate the allotment of the unit vide cancellation notice dated 80.11.2 021. vii.

021. vii.

That the default of the complainants in making timely payments and complying with other obligations is duly covered under the application form/allotment letter, and the cancellation and forfeiture of the earnest money along with other non- refundable amounts has been in accordance with the same. viii.

That the total loss suffered by the respondent comes io Rs.77 ,49;168/- approx.) which includes earnest money deduction PaEe 14 of 24 lL HARERA Complaint No.

5325 of 2022 & 2 others P*GURUGRAN/ @LDo/o to the tune of Rs.72,06,L92 /- and Rs.2,17,115/- GST on earnest Money/-, taxes to the tune of Rs.l,Z9,3Z4/-, pre-handover amount to the tune of Rs.1,41,459 /-, and further sum of Rs.49,l7Z/- was the interest payable by the complainants for the delayed payments and GST on interest is Rs.5,901/-.

It is submitted that the complainants are raising these frivolous issues as an afterthought in order to unjustly enrich themselves. c.

The complainants have failed to make out a case under Section 12 ofthe Act of 2016: I.

The respondent never publsfied any false advertisement/brochure to the complainants which violates Section 12 oF the Act of 2016.

Though the scheme was do;t'ed by the respondent however, the unlt in question was never booked under any such scheme.

That post receipt of the allotment letter and the demand letter, the complainants had accepted the said payment plan and made the payment of Rs.1,50,000/-, Rs.3,58,118/-, Rs.3,40,000/- and Rs.8,078/- on 09.08.2020, 24.08.2020, 26.08.2020 and 27.09.2020 respectively in furtheiance of the same.

The complainants were bound by the terms and conditions contained in the allotment letter and the payment plan cleaily emphasised the fact that rimely payment is the essence.

IL Thereafter the complainants being very well aware about the fact that the construction stands completed and Occupation Certificate stands applied for, raised frivolous issues regarding the unit in question being booked under the 3D scheme in Septe e in September, 20Zl for the very first time.

The complainants have raised the said issue after more than one year of booking with the sole motive to get rid of their contractual obligations.

The complainants have miserably Page 75 of24 /a- HARERA Complaint No.

5325 of 2022 & 2 others ffi GURUGRAI\/ failed to bring to the notice of the Hon'ble Authority any document to substantiate their alleged claim that the unit was booked under the 3D scheme. d.

The complainants are not genuine consumers: i.

That the complainants are not consumers and end users since they had booked the following two units in the project M3M Broadway: i) Unit no.

R4 106 iD Unit no.

R4 107.

It is further submitted that the complainants relatives one Jai Prakash Mehta and Krishna Kumari have also booked unit no.

R4 105 as a speculative investors and to make profits and gains.

Thus, it is clear that the complainants had invested in the units in question for commercial gains, i.e., to earn income by way of rent and/or re- ll. sale of the property at an appreciated value and to earn premium thereon.

Since the investment has been made for the aforesaid purpose, it is for commercial purpose and as such the complainants are not coniumers/end user.

The complaint is liable to be dismissed on this ground alone.

Under these circumstances, it is all the more necessary for the complainarits, on whom the burden lies, to show how the complainants are consumers.

The complainants have not disclosed their financial position and the statement of income and assets for the last 5 (five) years prior to the date of booking of the above unit.

It is necessary for the complainants to file copies of its income tax returns for the 5 (fivel years prior to the date ofbooking.

Details of the total assets both moveable and immovable together with the value of each asset in the name of the complainants should I Il.

Page 76 of24 /L ffi HARERA ffieunuenall Complaint No. plaint No.

5325 of 2022 & 2 others also be disclosed, which would indicate whether the aforesaid booking was done, like other properties, for investment purposes. e.

The complainants are in default of their contractual obligations and are raising frivolous issues in order to escape their liability cast upon them by the virtue of the terms of agreement and unjustly trying to enrich themselves.

Therefore, the complainants are not entitled to any relief whatsoever.

11.

Copies of all the relevant documents have been filed and placed on record.

Their authenticity is not in dispute,l Hence, the complaint can be decided on the basis of these undisputed documents and submissions made by the parties.

12.

During the proceedings dated 18.01..2024, the counsel for the respondent no.

2 stated that no niaterial evidence has been placed on record w.r.t real estate agent and requested for the deletion of its name fiom the complaint.

No useful purpose would.be served by keeping it as respondent no.2.

Therefore, its name is required to be deleted from the list ol respondent's.

E. lurisdiction ofthe authority: 13.The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.l Territorialiurisdiction As per notification no.

I /92 /2017 _1TCp dated 14.12,2017 issued by 1,own and Country Planning Department, the ,urisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram district.

Page 17 of 24 HARERA Complaint No.

5325 of 2022 & 2 others ffi GURUGRAN/ Therefore, this authority has complete territorial jurisdiction to deal with the present complaint.

E.lI Subiect matter iurisdiction Section 11(4)[a) of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale. for sale.

Section 11(a)(a) is reproduced as hereunder: Section 77(4)(o) Be responsible for all obligations, responsibilities ond functions under the provisions of this Act or the rules onl regulations mode thereunder or to the allottee qs per the ogreement for sal[, or to the ossocrotion of ollottee, os the cose may be, till the conveyonce iif ollithe apartments, plots or buildings, qs the case may be, to the allottee, or the'cotiwpn.ioreas to the association ofollottee or the competent authority, os the case may be; Section 34-Functions of the Auth6iitfu: 34A of the Act provides to ensure complionce of the obligations cost upon the promoter, the allottee and the real estate agents uider this Act qnd the rules and reg u I a tions made thireunder.

14.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainant at a later stage.

15.

Further, the authority has no hitch,in proceeding with the complaint arrd to grant a relief of refund in tthe present matter in view of the .iudgement passed by the Hon'ble Apex Courtin Newtech promoters and Developers Privatc Limited Vs State of U,P, and Ors," SCC Online SC 7044 decided on 77,77,2027 and Iollowed in M/s Sana Realtors private Limited & others V/s Union of Indid & others SLP (Civil) No.

13005 of 2020 decided on 72.05.2022 wherein it has been laid down as under: "86.

From the scheme ofthe Actofwhich a detailed reference has been made and taking note of power of adjudication delineated with the regulotory outhority ond adjudicating ofJicer, whotfrnolly culls out is that olthough the Act indicates the distinct expressions like 'refund', 'interest', 'penalty' and 'compensation', o Page 18 of24 /^- HARERA GUl?UGRAM conjoint reading of Sections 18 and 19 clearly manifests that when it comes to refund ofthe amo ofthe amount, and interest on the refund omount, or directing payment of interes.tfor delayed delivery of possession, or penolty ond interest therein, it is the regulatory authoriy which has the power to eiomine and determine the outcome of a complaint At the same time, when it comes to a question ofseeking the relief of adjudging compensotion ond interest thereon unier Sections 12, 14, 18 and 79, the adjudicating officer exclusively has the power to determine, keeping in view the collective reoding of Section Z1 read with Section Z2 of the Act. if the adjudicqtion under Sections 12, 14, 1B and 19 other than compensation as envlsaged, if extended to the odjudicating oJficer as prctyed that in our view, mqy intend to expand the ambit and scopi olthe powers and functions of the adjudicating olficer under Section 71 and ihat would be aooinst the mandote of the Act 2016.', 16.Hence, in view of the authoritative pronouncement of the Hon,ble Supreme Court in the matter of M/q ,lve wtech promoters and Developers Private Limited Vs State of U.p, anh Orc, and lvl/s Sana Realtors private Limited & others V/s tlnion of India & others (supra), theauthority has the .iurisdiction to entertain a complaint seeking refund of the amount and interest on the amount paid by tbem, F.

Findings on objeetions raise{ by the respondent: F.I Obiection regarding the.compliinants being lnvestors.

17.

The respondent has taken a stand tFat the complainants are the investors and not consumers.

Therefore, they are not entitled to the protection of the Act and are not entitled to file the complaint under section 31 of the Act.

The respondent also submitted that the preamble of the Act states that the Act is enacted to protect the interest of consumers of the real estate sector.

The authority observes that the respondent is correct in stating that the Act is enacted to protect the interest of consumers of the real estate sector. te sector.

It is settled principle of interpretation that the preamble is an introduction ofa statute and states main aims & objects ofenactjng a statute but at the same time the preamble cannot be used to defeat the enacting provisions ofthe AcL Furthermore, it is pertinent to note that any aggrieved person can file a complaint against the promoter if the Complaint No.5 2022 &2 others Page 79 of 24 HARERA ffi" GURUGRAM promoter contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions of the documents placed on record, it is revealed that the complainants are buyers and paid a price of Rs'12,06,196/- to the promoter towards purchase of a unit in its project.

At this stage, it is important to stress upon the definition of term allottee under the Act, the same is reproduced below for ready reference. "2(d) "ollottee" in relation to o reol estatq proiect meons the person to whom a ptot, opartment or building, as the chsl. lnay be' has been allotted, sold '(whether as t'reehold or leaiehold) or ot!ie;11,/ise transferred by the promoter' and includei the person who subsequentb/ acquires the soid ollotment through sale, transfer or otherwise but does notinclude a person to whom such plot' aportment or building, as the case may be, is given on renti' 18. ln view of above-mentioned definition of "allottee" as well as all the terms and conditions of the apartment application for allotment, it is crystal clear that the complainants are allottees as the sublect unit was allotted to them by the promoter.

The concept of investor is not defined or referred in the Act.

As per the definition given under section 2 of the Act' there will be "promoter" and "allottee" and there cannot be a party having a status of "investor". investor".

The concept of investor is not defined or referred in the Act' Thus, the contention of promoter that the allottees being investors is not entitled to protection of this Act also stands rejected' A.

Findings on relief sought by the complainants: G.l Direct to the respondent to refund the entire amount of Rsj-2,O6lg6/'paid by the complainants along with interest at the p."r.iib"d rate on ttre paid amount from the date of payment till actualisation.

19.

The complainants were allotted a unit in the project of respondent "M3M Broadway", in Sector Tl,Gurugram vide allotment letter dated 07 08 2020 for a total sum of Rs.1,20,61p67 /-.

Thottgh no buyer's agreement was executed between the parties, but in furtherance of the allotment Ietter' Complaint No.

5325 of 2022 & 2 others PaEe 20 of Z+ lL HARERA MGURUGRAI/ the complainants started paying the amount due against the allotted unit and paid a total sumof Rs.L2,06,196/.

20.

The respondent vide letter dated 22.L0.202L raised a demand which was due on application of occupation certificate as per the payment plan.

After various reminders for payment of outstanding dues, the respondent issued a pre-cancellation letter on 71.i.i..202L and finally terminated the allotment of the unit on 30.11.2021 on failure of payment of outstanding instalments.

21.The counsel for the complainapts during the proceedings dated 78.01,.2024 brought to the notice of the Authority that the unit was booked on payment of 10% considepation under a 10:90 plan under which the remaining 900/0 amount was required to be paid on offer of possession after obtaining OC..

However, while issuing the allotment letter on 07.08.2020, the payment plan was,unilaterally altered on 10:80;10 plan and was protested by writing threeie-mails dated 03.09.2021,21.09.2021 and 30.09.2021.

And the respondent vide email dated 08.10. ted 08.10.2021 assured that the remaining amount will be{demanded at the time of possession and no interest shall be charged on such deferred payment.

The counsel for the respondent stated that as per the allotment letter placed on record the unit was allotted on i0:80:10 plan only and a part payment was made by the complainants after issuance of allotment letter and the payment plan cannot be disputed at this stage.

He further mentioned that no change in payment plan was accepted vide email dated 08.10.2021 rarher cancellation was made on request of the complainants and they were seeking the pre-hand over amount and not change in payment plan vide email dated 02.09.2021 and as per clause 14 of the allotment letter, the respondent is entitled to forfeit 1Oyo earnest money.

Relevant portion of clause L4 is reproduced below: Complaint No.5325 of I 2022&2others I PaBe 2l of 24.

HARERA MGURUGRAM "ln the event of hrcqch or defqult on the port oI the allottee or his lailure to clmply with any of his obligotions under the application form/allotment letter, including without limitation, obtigqtion to make ptayments as per 'Annexure I' hereto in timely mqnner or where the allottee seeks to withdrow or concel the allotment/agreement for sale in tespect of the unit, the allottee shdll be deemed to be in defautt and the compdny shall be entitled to lorkit the eqrnest money(being 7|o/o of the total sale co nside r ati on),,,..,,,..,,.,.,., " 22.

The issue with regard to deduction of earnest money on cancellation of a contract arose in cases of Maula Bux VS, Ilnion of India, (1970) 1 SCR 928 and Sirdar KB Ram Chandro Raj Urs.

VS, Sdrah C, Urs., (2075) 4 SCC 736, and wherein it was held that forfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of section 74 of lndian Contract Act, :rg7 Z are attached and the party so forfeiting must prove actual damages. l damages.

After cancellation of allotment, the flat remains with the builder as such there is hardly any actual damage.

National Consumer disputes Redressal Commissions in CC/435 /201,9 Ramesh Malhotra VS, Emaar MGF Land Limited (decided on 29.06.2020) lnd Mr.

Saurav Sonyal VS.

M/s LREO Private Limited (decided on L2.04.?0ZZ) and followed in CC/2766/2012 in case titled as Jayant Singhal aiid Anr, VS, M3M India private Limited decided on 26.07.2022, held that 100/o of basic sale price is a reasonable amount to be forfeited in the name of "earnest money".

Keeping in view the principles laid down in the first two cases, a regulation known as the Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builderl Regulations, 11(5) of 2018, was framed providing as under- "5, Amount Of Earnest Money Scenario prior to the Real Estote (Regulotions ond Development) Act,2016 was differenL Frauds were carried out without ony feqr as there wqs no low for the some but now, in view of the above facts and toking into consideration the judgements of Hon'ble Nationol Consumer Disputes Redressal Commission ond the Hon'ble Supreme Court of lndio, the outhority is of the view that the forJeiture amount of the eornest money shall not exceed more than 10o/o oI Complaint No.

5325 of 2022 &.2 others Page 22 of 24 HARERA P*GURUGRAI/ Complainr No.5325 of 2022 &2 others the consideration qmount of the real estate i.e. apartment /plot/building as the cose may be in all coses where the cqncellation of the ftatfunitfplot is made by the builder in a unilqteral manner or the buyer iniendi to withiiaw from the project ond any ogreement containing ony clouse con ary to the oloresaid regulotions sholl be void ond not binding on lhe buyer.,' 23.

Keeping in view the aforesaid factual and legal provisions, the respondent can retain the amount paid by the complainant against the allotted unit as it is both the earnest money and 100/0 of the consideration amount. on amount.

So, the same was liable to be forfeited as per clause 14 of allotment letter and Haryana Real Estate Regulatory Authority Regulation 11(5J.

However, the amount paid by the complainants i.e.,Rs.Lz,06,7g6/- constitutes only 10% of sale consideration of Rs.1,20,61,!60/- while amount up to 10% can be forfeited.

Thus, no direction tt this gffect.

G.tlDirectthe respondentto pay litigation costs to the complainants 24.

The complainants are seeking reliei w.r.t compensation in the aforesaid reliet, Hon'ble Supreme Court of India in civil appeal titled as M/s Newtech Promoters and Developqrs pvt, Ltd.

V/s State of llp & Ors.

Supra held that an allottee is entitled to claim compensation under sections 12, 14, 18 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.

The adiudicating officer has exclusive iurisdiction to deal with the complaints in respect of compensation.

G.III Impose a penalty of at least Rs.25,00,000/- under section 63 of the Act of 2016 on account of misleading advertisement on respondent no.

1 and contravening the provisions ofsection 11(2) ofthe Act of 2016.

25.

Though the 3D scheme was floated by the respondent as admitted by the respondent in its reply but the subject unit was not booked in the 3D scheme as per the documents placed on record.

As per the allotment letter, the payment plan under which the unit was booked is 10:g0;10 plan Page 23 of 24 lN ffiHARERA #-ounuennnr Complaint No.5325 of 2022 &2 otherc and the payment in furtherance of same has been made by the complainants which means the palment plan mentioned in the allotment letter is accepted by the complainants.

Thus, no issue of misleading advertisement arises, and therefore no direction to this effect.

G.Mo cancel the REM registration of the respondent no.

2 on account of misleading advertisement 26. sement 26.

No material evidence has been placed on record w.r.t real estate agent.

And the same has been confirmed by the counsel for the respondent nc.

2 during the proceedings of the day dated 1,8.O7.ZOZ4.

Thus, no direction to this effect. r!a H.

Directions ofthe authority: 27 .

Hence, in view of the findings recorded by the authority on the aforesaid issues, no case of refund oF the paid-up amount with interest is made out.

Hence, the complaint is liable to be dismissed and as such is rejected.

28.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order.

29.

The complaints stand disposed of.

True certified copies of this order be placed on the case file ofeach mattef.

30.

Files be consigned to the registry. ruiY/*#ffi-r"r Member Haryana Real Estate Regulatory Authority, Gurugram Datedt 07 .03.2024 Page 24 of 24