AJAY YADAV THROUGH POWER OF ATTORNEY SHRI ASHOK KUMAR vs MTHREEM INDIA PVT LTD

HARERA ffi-GURUGRAI,/ BEFORE THE HARYANA REAL ESTATE REGUTATORY AUTHORITY, GURUGRAM Complaint No.

5643 of 2022 I ,) ,4 nt -!

Member APPEARANCE: Advocate for the complainant Advocate for the respondent 1.

TIre present complaint dated 29.08.2022 has been filed by the complainant/allottee under section 31 ofthe Real Estate IRegulation and Development) Act,2016 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules,2017 (in short, the Rulesl for violation of section 11(4) (a) of the Acr wherein it is inter qlia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act Page 1 of 12 Complaint no.

5654 of 2O2 Date ofdecision 29.03.202 Ajay Yadav through POA Shri Ashok Kumar R/o: C-119, Ground Floor, Rosewood City, Sector 49, Gurugram - 1220L8, Haryana Complaina Versus M/s M3M India Pvt.

Ltd.

Office at: - Paras twin towers, Tower B,6th floor, Golf Course road, Sector 54, Gurugram - 122002 Responde Shri Sanieev Kumar Arora Sh.

Ashok Kumar father of complainant in erson Ms.

Smriti Srivastava ORDER l * HARERA ffi AnucnAM Complaint No.

5643 of 2022 or the Rules and regulations made there under or to the allottee as per the agreement for sale executed inter se.

A.

Unit and proiect related details 2.

The particulars ofunit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: S.No.

Heads Information 1.

Project name and location M3M Woodshire, Dwarka Expressway Sector 707, Gurugram 2.

Project area 18.88125 acres 3.

Nature ofthe project Group housing colony 4.

DTCP license no. and validity status 33 0f 201-2 dated 12.04.20L2 valid upto 11..04.2018 Name of licensee Cogent Realtors Pvt.

6.

HRERA registered/ not registered Not Registered 7.

Occupation certincate granted on 24/07 /201.

4/07 /201.7 at page no 52 of reply B, Provisional allotment letter dated 02.02.2018 (Page no.

64 of reply) 9.

Unit no.

MM TW-802/1002 L0th floor, tower-B2 10.

Unit measuring 1365 sq. ft.

11.

Date of execution of buyer's aSreement BBA not executed PaEe 2 ol lZ *HARERA #GURUGRAM B.

Facts ofthe complaint Complaint No.

5643 of 2022 Page 3 of 12 L2 | possession clause Clause 46:- Within 36 months from the date ofstart of construction.

13 Due date ofpossession N/A 14.

Total sale consideration Rs.72,93,7s7 /- (page 66 ofreply) 15.

Total amount the paid by Rs.7 ,22,13s / - (As per page no.

11 of complaint and as p et pa8le 7 6 of reply) 16.

Not offered 77.

Demand cum pre cancellation dated 02.07.2018 (Page 70 of reply) 18 Demand letter dated 27.72.2018 (Page 71 of repty) 19 20 Pre cancellation notice 79.02.2019 (Page 74 ot rcplyJ Last and final opportuniry letter dated 1,5.03.2079 (Page 75 of repty) 21 Cancellation letter dated 08.04.2019 (Page 76 ofreply) -l I Date of offer of possession 3.

4. ffiHARERA #,eunuennr'rr 5.

7.

9.

Complaint No.

5643 of2022 The complainant has made the following submissions in the complaint: - Pursuant to the elaborate advertisements, assurances, representations and promises made by respondent about their premium group housing project called THE WOODSHIRE at Sector 107, Gurugram with impeccable facilities and believing the same to be correct and true, he considered booking a flat and paid an advance amount of Rs.

1,00,000 on 16.01.2018 vide receipt dated 22.01.Z}tg.

Subsequently, he made another payment of Rs.

6,22,,135 /- vide cheque no.012754 drawn on AXIS Bank dated 22.01..2079.Til November 2018, he had paid a total of Rs.7,?2,735 /-.

He on various representations and assurances by the respondent booked a residential apartment through allotment letter in the project on the date 02-02-201.9.

That on 06.03. on 06.03.2018 a loan sanction letter was signed between complainant and the India Bulls Housing Finance Limited as a financier for home loan for an amount of Rs.

55,00,000.

The loan agreement was approved on behalfof the complainant but there was some discrepancies on the part of the builder That the respondent deliberately and with a mischievous intent tricked him through false promises and forced into paying up huge amounts to the respondent.

The respondent was negligent from the starting of the allotment due to which even loan could not be sanctioned and he requested to canccl the, booking and refund the money.

That the respondent on.19.02.2019 issued a pre cancellation notice without any legitimate ground.

He through email dated 05.03.2019 responded to the pre cancellation letter Page 4 of 12 ffiHARERA S"eunuerw complaint No.

5643 of 2022 by stating that the loan was sanctioned on his part but the loan was not disbursed due to certain formalities pending at respondent end.

10.

That the respondent on 08.04.2019 through post send an intimation of termination letter stating the cancellation of allotted unit and forfeiting the earnest money.

Hence, he is no longer wishes to continue in the pro,ect as there is no certainty about the delivery of possession and do not want the money invested in the project to be wasted.

72.

Emmar MGF Land Ltd. & Ors. vs.

Amit Puri, II (2015) CPI 568 NC' wherein it was laid down that after the promised date of delivery, it is thc discretion of the complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, it is held that it is well within the complainant's right to seek for refund of the principal amount with interest and compensation as construction is still not complete.

That the complainant cannot be made to wait indefinitely for the delivery of possession when he has already paid the entire consideration.

C.

Relief sought by the complainant: 13. inant: 13.

The complainant has sought following relief(s) Direct the respondent to refund the total amount paid to then] amounting to Rs.

7,22,7351- along with interest calculated at the MCLR rate of SBI plus 2% from the date of first payment.

Direct the respondent not to cancel the allotment of the unit.

Direct the respondent not to create any third-party rights against the said unit of the complainant Page 5 of 12 I.

II.

II I. && HARERA GURUGRAM Complaint No.

5643 of 2022 14.0n the date of hearing the authority explained to the respondent /promoter on the contravention as alleged to have been committed in relation to section 11(4) (a) of the Act to plead guilty or not to plead guilty.

D, Reply by the respondent 15.

The respondent contested the complaint on the following grounds.

The submission made therein, in brief is as under: _ 16.That the respondent no.1 company without preiudice to its rights, to bring closure to the matter refunded an amount of Rs.

7 ,22,135 /- to rhe complainant vide RTGS (RTGS: ICICR52023 1 1 14003 65Z 7 7 /UTIBO00Z4S6 / Ajay yadav) on,ti.t 1,.ZOZ3 as full and final settlement of all the dues of the complainant.

Thus, the complainant is not entitled to any relief whatsoever and the present complaint merits dismissal.

Copy of the image of the bank account statement evidencing the said transaction is marked and annexed.

17.

At the very outset, the respondent wants to bring to the kind knowledge of this Hon'ble Regulatory Authority that the complainant has not approached this Hon'ble Regulatory Authority with clean hands and is guilty ofsuppression of materiar facts which are absorutely rerevant for .iust and proper adjudication of this complaint.

The occupation certificates for the proiect M3M Woodshire, group housing colony jn Sector 107 Gurugram developed in a planned and phased manner were granted by the Competent Authorities on 20.04.2017 and 24.07.2017 . .07.2017 .

That after making independent enquiries and only after being fully satisfied with the status of the project, the complainant applied for the allotment of a 'complete and ready to move in residential apartment, through his broker Hari Om Real Estate in the pro,ect M3M Page 6 oi12 ffi HARERA ffieunuenal,r Complaint No.

5643 of 202 2 Woodshire, Sector 107 Gurugram, a group housing colony being developed in a planned and phased manner by the respondent.

18.That vide demand letter dated 17.02.2078, rhe respondent raised the second demand for an amount of Rs.

52,88,385/- due within 45 days booking.

The said demand was payable on or before 8'h March 2018.

In furtherance of the allotment, the respondent herein dispatched copies of buyer's agreement to the complainant vide cover lette r dated 22.02.?Oi8 for due execution at his end, which was duly received by the complainant on 24.02.2078.

The complainant for reasons best known to him did not come forward to execute the buyer's agreement.

19.

That since the respondent did not come forward to execute the buyer's agreement nor cleared his dues as a result of which the respondent issued demand cum pre-cancellation notice dated 02.07.2018, requesting the complainant to pay an amount of Rs.

3,61,273/- towards the third instalment due within 6 months of booking and also requested him to clear his previous dues of Rs.

52,88,385/-.

The said demand was payable on or before 21,.07.2018.

20.

The complainant despite constant reminders and notices did not clear the outstanding dues and did not come forward to execute the buyer's agreement, thus the respondent was constrained to issue pre- cancellation notice dated 19.02.2019 requesting payment of outstanding dues.

21.

Even after the issuance of the reminder and the p re-ca ncellatio n notice, the complainant failed to make the payment due and therefore the respondent company was constrained to issue the last and final opportunity letter dated 16.03.2019 to the complainant. mplainant.

Despite sending constant reminders and notices, the complainant did not clear the Page 7 of 72 HARERA ffi"GURUGRAM outstanding dues and nor did he not come forward to execute the buyer's agreement, thus the respondent was constrained to issue cancellation notice dated 08.04.2019 and forfeit the amount paid by the complainant in terms of the application form/allotment, It is submitted that the complainant had paid an amount being less than 100/o of sales consideration against total dues of Rs,72,93,757 /- plus other charges.

It is submitted that the cancellation has been done as per the agreed terms and is valid and binding.

22.

Despite incurring various losses/damages to the tune of Rs.

21.,86,4461- , the respondent, as a goodwill gesture, has refunded the entire amount paid by the complainant i.e.

Rs.7,22,135/-, without any deductions, vide cheque dated 2L.06.2023 which has been duly sent on 26.06.2023 through registered post.

23.

The present case is squarely covered by order dated 23.02.2024 passed vs.

Aawam Residency PvL Ltd. fComplaint No.

61 46 of 2022 ) wherein the Hon'ble Authority was pleased to hold as follows : 40.

The total sale consideration of the unit wos Rs.96,37,268/- and the complainqnt on the booking has paid qn amount oI k.9,47,977/-.

Moreover on amount oI Rs.3,00,000/- poid by the complainant towards the another project of M/s M3M lndio Private Limikd earlier booked by the complainant was adjusted in the said unit.

Thereafter the respondent raised the second instdlment i.e.

30ok of TCV within 30 days of booking ond subsequently sent builder buyer agreement for signing on 07.02.2022 which the complainant has foiled to execute and not paid the 300k ofthe amount as per pqyment plon.

The Page 8 of 12 Complaint No.

5643 of 2022 by this Hon'ble Authority in the matter titled as : .totish Kumor Prabhokor ffi HARERA ffi aTRuGRAN/ Complaint No.

5643 of 2022 respondent issued reminder letters doted 08.02.2022, 15.03.

22, 15.03.2022 and pre-cancellotion letter dated 22.03.2022 butthe complainont falled to comply with his contractual obligations and therefore the allotment of the complainqnt wos finally terminated bide letter dated 26.03.2022.

Therefore, the cancellation ofthe unit is valid.

41.

Keeping in view the obove-mentioned facts the promoter was to return the paid up amount on the date of cancellation itself ond in the present matter the respondent has already refunded the totol paid up amount Rs.72,47,977/-.

Hence, no case for refund of qny amount is made out.

IIL Complaint stands disposed of. lV.

File be consigned to registry.

24.

Even otherwise, the complainant is not entitled to get any reliefs as sought from this Hon'ble Authority as failure on the part of the complainant to perform his contractual obligations disentitles him from any reliel It is submitted that the amount paid (being less than 10%o of the total consideration amount) ought to have been forfeited in accordance with the terms of application form and RERA Regulation dated 05.12.2018, but the respondent, has refunded the entire amount paid by the complainant i.e.

Rs.7,22,1,35/-, without any deductions, vide cheque dated 21,.06.2023 which has been duly sent on 26.06.2023.

25.

That the complainant was a constant defaulter in payments since 20lg much before the due date of possession.

The complainant failed to clear dues despite sending repeated reminders/notices, as a result of which the allotment ofthe complainant was terminated vide cancellation dated PaEe 9 of 72 HARERA GURUGRA[/ Complaint No.

5643 of 2022 08.04.2019.

Thus, no case is made out under Section 1g of the RERA Act, 2016.

Thus, the present complaint merits dismissal.

26.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submissions made by the parties.

E. furisdiction ofthe authority 27.

The ob.

The ob.iection of the respondent regarding reiection of complaint on ground of.jurisdiction stands rejected.

The authority observes that it has territorial as well as subject matter iurisdiction to adjudicate the present complaint for the reasons given below: - E.l Territorialiurisdiction 28.

As per notification no.l /92 /201.7-1TCp dated 14.72.201.7 issued by The Town and Country Planning Department, Haryana the jurisdiction 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.

Therefore this authority has complete territorial jurisdiction to deal with the present complaint.

E.II Subiect matter iurisdiction 29.Theauthority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter as per provisions of section 11(a)(a) of the Act leaving aside compensation which is to be decided by the adiudicating officer if pursued by the complainants at a later stage.

F.

Findings on the reliefsought by the complainant.

Page 10 ol 12 HARERA ffiGURUGRAM Complaint No.

5643 of 2022 l.

Direct the respondent to refund the total amount paid to them amounting to Rs.

7 ,22,1351- alor,gwith interest calculated at the MCLR rate ofSBI plus 2olo from the date offirst payment.

30. ln the present complaint the complainant is seeking relief w.r.t refund of the said amount.

The complainant was allotted a unit bearing no MM TW-BO2/1.OOZ 1Oth floor, tower-82 in the proiect named "M3M Woodshire" at Sector-107 Gurugram vide allotment letter dated 02.02.2018.

The total sale consideration of unit was Rs.72,93,757 /- and the complainant has paid a sum of Rs.7,22,735/- towards the said unit.

31.

As per the payment plan, which is annexed at page 41 of complaint, he has to make second instalment i.e. lment i.e., within 45 days of booking The respondent started raising payments from the complainant however, the complainant defaulted in making payments and the respondent was to issue reminder letters dated 02.07.2018, 27.12.2078, 79.02 2019 and 16.03.2019.

However, despite repeated follow ups and communications and even after the issuance ofthe pre-cancellation letter the complainant failed to act further and comply with their contractual obligations and therefore the allotment of the complainant was finally terminated vide Ietter dated 08.04.2019.

Now the question before the authority is whether the cancellation issued vide letter dated 08.04.2019 is valid or not.

32.

The authority observes that as per the payment plan the complainant has to pay the first instalment within 10 days of booking and thereafter the complainant has to pay the second instalment within 45 days of booking The total sale consideration of the unit was Rs.

72,93,757/- and the complainant on the booking has paid an amount of Rs.7,22'1351-' Thereafter the respondent raised second instalment within 45 days ot booking and subsequently sent builder buyer agreement for signing Page 11o112 HARERA GUI?UGRA[/ Complaint No.

5643 of2022 which the complainant has failed to execute and not paid the 72.5o/o of the amount as per payment plan.

The respondent issued reminder letters dated 02.07.2018, 27.72.201,8, 19.02.2079 and 16.03.2019 and pre cancellation letter dated 19.02.2019 but the complainant failed ro comply with his contractual obligations and therefore the allotment of the complainant was finally terminated vide letter dated 0g.04.2019.

Therefore, the cancellation of the unit is valid.

Direct the respondent not to cancel the allotment of the unit, IIL Direct the respondent not to create any third-party rights against the said unit ofthe complainant 33. ainant 33.

The above said reliefs become redundant as cancellation is valid and also he on the one side is seeking refund of the paid-up amount and on the other side seeking above mentioned reliefs which are contrary in nature.

So the same become redundant.

34.

Keeping in view the above-mentioned facts the promoter was to rcturn the paid-up amount on the date of cancellation itself and in the present matter the respondent has already refunded the total paid up amounr Rs.7,22,135/- and complainant had accepted the same.

Ilencc, no casc for any further refund is made out.

35.

Complaint stands disposed of.

36.

Haryana Real Estate Regulatory Authority, Gurugram Datedi 29 .03 .2024 PaBe 72 of 12 ev Kumar Arora) Member (sa 4>--