RAJNI CHHARA KAMLESH MALHOTRA NAVNEET CHHABRA vs MARTIAL BUILDCON PVT. LTD.

*HARERA db- eunuennll 1.

2.

Complaint no.

1526 of2024 and 1 other BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGMM Order pronounced on: 23,04,2025 Name ofthe Promoter M/s Martial Buildcon Pvt.

Ltd. and M3M India Pvt.

Ltd.

Proiect Name M3M Urbana Premium S.no.

Complaint title Attendance 7. cR/152612024 Rajni Chhabra & Anr.

V/s M/s Martial Buildcon Pvt.

Ltd. and M3M lndia Pvt.

Akhil Aggarwal (Complainants) Shriya Takkar and Smriti Srivastave fResDondent) 2. cR/7597 /2024 Gaurav Jain & Anr.

Akhil Aggarwal (Complainants) Shriya Takkar and Smriti Srivastava IResDondentl a CORAM: Ashok Sangwan Member ORDER This order shall dispose ofboth the complaints titled as above filed before this authority in form CRA under section 31 ofthe Real Estate (Regulation and Development) Ac!

2016 (hereinafter referred as "the Act") read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 (hereinafter referred as "the rules") for violation ofsection 11(a)(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

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 Urbana Premium' being developed by the same respondents/promoter i.e., M/s Martial Buildcon Pvt.

Ltd. and M3M India Page I of 25 1 3. *HARERA db, elnuenml Complaint no.

1525 of2024 and 1 other Pw.

The terms and conditions of the builder buyer's agreements fulcrum ofthe issue involved in all these cases pertains to failure on the part ofthe promoter to deliver timely possession ofthe units in question, seeking award ofpossession and delayed possession charges etc.

The details of the complaints, reply status, unit no. , unit no., date of agreement, possession clause, due date of possession, offer of possession, total sale consideration, amount paid up, and reliefs sought are given in the table below: Proiecti M3M Urbana Premium, Sector-67, curugram Possession clause: Clause 16.1 The compony, based upon its present plans qnd estimqtes, and subject to all exceptions, proposes to handover possxsion of the unlt withln o period of Fifty Four (54) months from the date ol commencement of constructlon which shall mean laying of lirst plain cement concretc/mud-mot slab of the block/building in which the unit is located or the date of execution of this agrcement, whichever is later (Commitment Period).

Dote oI commence-e"t "f pW Due date of handing over ol possession- 18.08.2022 (Calculated from the date of execution of agreement due to non-availability of any document w.r.t to commencement of construction + 6 months as per HAREM notification no.9 /3-2020 dated 26.05.2020 for the projects having completion date on or after 25.03.2020).

4.

Occupation certifrcate- 24.02.2021 5.

DTCP License no, 89 of 2070 dated 28.70.2070- Martial Buildcon P!t.

Ltd. is the licensee for the project as mentioned in land schedule of the project.

6.

REF"A registration - 348 of 2017 dated 09.11.2017 valid upto 28.08.2024.

Page 2 of 25 ,r' 4.

5.

HARERA EP* GUI?UGRAI/ Complaint no.

1526 of2024 and 1 other The aforesaid complaints were filed by the complainants against the promoter on account ofviolation ofthe builder buyer's agreement executed between the parties inter se in respect of said unit for seeking award of possession and delayed possession charges.

It has been decided to treat the said complaints as an application for non- compliance of statutory obligations on the part of the Sr.

No Complaint no./title/ date of complaint Reply status Unit No. s Unit No. and area admeasuri! (Carpet area) Date of execution of apartment buyefs aSfeement Due date of Dossession & offer possession Total sale consideradon and amount paid by the Complainant (s) Relief iought 1. :R/ 1526/2024 Rajni Chhabra & Martial Buildcon Pvt Ltd. and M3M lndia A/L Ltd.

DOF.

26.04.2024 Reply received on 2A.O8.ZO 24 MUP/R/Foo d Co'url/zL/0 05,2 Floor (page 60 of complaint) ta.oa.2017 (Page 55 of complaint) 18.08.2022 offerof 25.02.202r TSCr Rs.1,12.36.123. s0/- (Page 115 of the complaint) AP: Rs.1,34,46,998/- [as per payment receipts at page 126-139 of complaint) DPC and Possessio n 2. :R/1597 /2024 Gaurav rain & Martial Buildcon P\t Ltd. and M3M India Pvt Ltd.

26.04.2024 Reply received on za.oo.?o 24 MUP/R/Foo d Cottti/2L10 06 2"d Floor (PaEe 47 of complaint) 29.O9.2018 (page 42 of complaint) 29.09.2023 (irudverten tlv mentioned 18.08.2022 vide proceedings dated 19.02.2025) OEerof 25.02.2021 TSC: Rs.l,4Z.4?.103- s0/- (Page 102 of the complaint) Rs.1,52,10,490. s2/ - (as per Annexure C-3 at page 113 of complaint) )PC and I Not€: ln the table referred above certain abbreviadons have been used.

They are elaborated as follows: Abbreviations Full form DOF- Date offiling complaint TSC- Total Sale Consideration AP- Amount paid by theallottee(s) Page 3 of25 HARERA P*GURUGRAII Complaint no.1526 of2024 and l other promoters/respondent in terms of section 34[0 ofthe Act which mandates the authority to ensure compliance of the obligations cast upon the promoter, 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 complainantfs)/allottee(sJare also similar.

Out of the above-mentioned case, the particulars of lead case CR/7526/2024 titled as Rajni Chhabra & Anr.

V/s M/s Mortlal Buildcon PtrL Ltd. and M3M India PvL f,td. are being taken into consideration for determining the rights of the allottee(s) qua possession and delayed possession charges.

W A. rges.

W A.

Proiect and unit related details 7.

The particulars of the project, the details of sale consideration, the amount paid by the complainant(sJ, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: CR/1526/2024 titled as Rajni Chhabra & Anr.

V/s M/s lqartial Buildcon PvL Ltd. and MsM India PvL Ltd Sr.No.

Particulars Details 1.

Name ofthe Droiect M3M Urbana Premium, Sector-67 2.

Proiect area 11.13 acres 3.

DTCP licenser no. and validiw status 89 0f 2010 dated 28.10.2010 Yalid \pto 27 .L0.2022 4.

RERA Registered/ not registered 348 of2017 dated 09.11.2017 valid upto 28.08.2024 5.

Unit no.

MUP/R/Food Court / 2L / OO5, 2"a Floor fpase 60 of complaint) 6.

Unit area 1123.5 sq. ft. fsuper areal 7.

Date ofbuilder buyer agreement 18.08.2017 fpase 55 ofcomplaint) 8.

Possession clause 16,l "The company, based upon is present plans and estimates, and subject to all exceptions, proposes to handover possession of the unit within a Deriod of Fiftv Four (54) Page 4 of 25 ,1/ SHARERA d[^ eunuennl,t Complaint no.1526 of2024 and l other months from the date of commencement of construction which shall mean laying of lirst plain cement concrete,lmud-mat slab of the block/building in which the unit is located or the date of execution of this agreement whichever is later (Commitment Period"), [Dase 89 of comDlaint) 9.

Due date of possession t4.04.2022 [Calculated from the date of _execution of agreement due to non- availability of any document w.r.t to ,commencement of construction + 6 months as per HAREM notification no.9 /3-?020 dated 25.05.2020 for rhe prorects having completion date on or after 25.03.2020'1 10.

Total sale consideration Rs.L,l?,36,L23.50 /- fDase 115 ofthe comDlaint) 11.

Amount paid by the complainant Rs.1,34,46,998/- (as per payment receipts at page 1.26-139 of complaintl 72.

Occupation certificate 24.02.2021 (Paee 106 ofthe replvl 13.

Notice of offer of possession 25.02. ion 25.02.202L lDase 140 of comDlaintl B.

Facts ofthe complaint 8.

The complainants have made the following submissions: - I.

That the complainant was allotted a commercial unit bearing no.

MUP/R/Food Courl./2L/005 on 2"d Floor of the Retail Block admeasuring 1123.50 sq. ft. super area in the project ofthe respondents named "M3M Urbana Premium" llocated at Sector-67, Gurugram vide allotment letter dated 07.09.2016 issued by the respondent no.2, for a total sale consideration of Rs.1,12,36,123.50/- under construction-link payment plan.

Page 5 of25 HARERA GURUGRAM Complaint no.

1526 of2024 and 1 other II.

That the respondent no.2 illegally and with malafide intension took Rs,7 5,84,17 4 /- i.e. more than 7070 ofthe total sale consideration from the complainant even before signing and executing the builder buyer agreement.

The respondent no.z issued fresh welcome letter and allotment later on 24.05.2017 and surprisingly the schedule of payments was changed unilaterally by respondent no.z in the said letter.

The respondent no.Z issued illegal reminder letters to collect excessive payments under the threat ofcharging excessive interest. lll.

That it was only on 18.08.2017-.the BBA was finally signed and executed between the complainants and the respondent no.2.

The BBA contains several one-sided, arbitrary and discriminatory clauses and when the complainants became aware ofthe totally one sided and biased BBA, the complainant having already paid huge sum of money was left with no option but to sign on the dotted lines.

That the complainants paid more than the total sale consideration even before the payments as per the payment plan which has been annexed as Annexure-A with thLe BBA.

It is to be noted that as per above mentioned payment receipts, the complainants have already paid the majority amount and in excess as stipulated in BBA by 2017 even before execution of BBA and subsequently issuance of Illegal offer of possession letter.

That as per clause 16. clause 16.1 of the BBA, the time for complete construction was stipulated to be 54 months from the date of execution of BBA or date of start of construction, whichever is later.

However, the respondent no.2 has monumentally failed to complete the give possession of the unit to the complainants as per the BBA even after the lapse of more than tlvo years.

That the complainants were shocked to have received the offer of possession letter d.fied 25.O2.2021 from the respondent no.2 vide which tr IV.

VI.

PaSe 6 of2s ./ HARERA EP* GURUGRAN/ Complaint no.1526 of2024 and l other under the garb of offering possession, the respondent no.z has not just imposed an uniustified, extra-contractual and illegal demand of excess money under various heads but also offered the possession without even completing the unit as per the terms of the BBA.

VII.

That the respondent no.2 has failed to provide the complainants a copy of the occupancy certificate even till date and therefore, the said offer of possession in itself remains defective due to failure of completing the statutory compliance.

Additionally, the complainants deny the offer of possession wholly and very clearly since the demands raised by the respondent no.z in the offer of possession letter is illegal and extra- contractual and further, the possession was offered by the respondent no.2 pre-maturely.

Further, the complainants cannot be liable to pay any loss/damage/compensation/charges for not paying such an illegal demand raised by the respondent no.Z and also for not accepting the illegal offer of possession.

Further, the said demands by the respondent no.2 are conditional on the fact that complainants sign and execute an "lndemnity Deed-cum-Undertaking" which is prima-facie illegal and is an attempt by respondent no.z to strip the complainants of their statutory rights which evidently proves malicious intentions and fraudulent practices of the respondent no.2.

VIII. o.2.

VIII.

That there are various illegalities in the offer ofpossession such as non- disclosure of carpet area, demand of development charges without any break-up, demand of GST, Labour Cess, Service Tax, Swachh Bharat Cess & Krishi Kalyan Cess without any iustification, pre-mature offer of possession.

IX.

That respondent no.2 has abundantly failed to offer the possession in terms of the BBA and the purpose of a food court shop remains defeated since even the paper possession was offered, the said unit cannot be Page 7 of25 *HARERA S*eunuennnt Complaint no.

1525 of 2024 and 1 other brought into use by the complainants in any manner for breach multiple contractual obligations by the respondent no.2.

The same outrightly illegal for the following reasons: .

As per the definition clause of "food court" and "food court specific common area", the same includes common sitting and dining area.

However, the same has not been completed/ finished till date.

Specifications in Annexure-D ofBBA specifically provide for building envelope aluminum glazingfor air-conditioning in order to make the food court area usable.

How€vlrt the same has not been provided till date. .

That specifications in Annexure-D of BBA also provide for suitable furniture for the dining hall and the same is also non-existent till date. .

That unit just does not mean the four-wall enclosure, as per the BBA and various ad!'ertisements by the respondent no.z, a unit in food court is incomplete till the time amenities attached to the same are also provided b'7 the respondent as without the same complainants cannot bring th€: said units in use for the purpose the said units were sold by the respondent. .

That a mere currsory look at clauses 4.8, 4.13 and 4.16 of the BBA would absolutely and without any doubt establish that the total consideration of the unit already included the specification and attached amenities. respondent no. ondent no.2 cannot force the possession by merely obtaining occupation certificate on the complainants and respondent no.il is equally bound by the specifications as promised by it under BBA. .

Furthermore, the said food court is also intrinsically linked to the multiplex, retail and office spaces above and without the same there of is Page 8 of25 *HARERA # euRuenml Complaint no.1526 of2024 and l other will be no foot-fall.

That the entire decision-making process of buying a food court unit was linked to revenue associated with people coming to the multiple& retail and office spaces.

However, till date the said multiplex, retail and office spaces is not ready and the respondent no.2 failed to fulfill its assurances and the same results into incomplete offer of possession as under no circumstance food court can be de-linked from the food court.

It is an established norm in the real estate sector that the food courts are run parallel to the multiplexes as otherwise t e the revenue model of the food court does not make any co Failure on part of the respondent no.2 to finish and lease the multiplex clearly shows that the respondent no.2 could not have offered possession to the complainants with the same.

Additionally, the respondent no.2 had marketed the project to be high end having architectural edge and aimed at premium international brands.

That the respondent no.2 in its various advertisements and assurance to the complainants had represented that multiplexes shali be leased to the PVR Gold.

However, complainants have learnt that the respondent has leased the multiplexes to v,rave cinemas which is positioned significantly lower than PVR Gold.

The same shall have severe impact on the resale value of the unil as well as leasing bargaining power for the unit as no top food brarrd will lease the food court linked with a downgraded range of cinema.

Furthermore, it is an admitted fact by the respondent no. ondent no.2 in various emails exchangr:d between the parties that leasehold rights of the food court to:r common food court operator for all the shops remained with the respondent no.2.

Respondent no.z was, Page 9 of25 ffiHARERA S-eunuennH,t Complaint no.

1526 of2024 and 1 other admittedly, obligated to lease the food court to a food court operator at the time of possession.

However, much less leasing the same, the respondent no.2 has not even completed the food court till date. .

It is also submitted that the respondent no.2 has illegally obtained floor wise 0C for the project and the same is against the very essence of statutory provisions.

The proiect cannot be handed over to the allottees when the construction work is still ongoing on the higher floors.

Since it is one single building, Iack offire and safety approvals on the higher floors has direct bearing on the unit of the complainants which form part of the same building and cannot be safely handed over or given possession of.

X.

That the respondent no.z is threatening the complainants to impose the holding charges, maintenance charges and admin charges after the alleged illegal offer of possession.

Since the entire offer of possession is outrightly illegal, it is most humbly requested from rhe Authority that no such charges be allowed to be imposed on the complainants till the valid offer of possession lis given by the respondent no.2 to the complainant as per provisions of the RERA.

XI.

That after the afore-mentioned illegal offer ofpossession was received by the complainants, the complainants issued various emails to the respondent no.2 obiecting to the same, however, the respondent no.z is completely failed to address the queries raised by them and has not provided even a single justification for such an illegal offer of possession.

C, Relief sought by the complainants: 9.

The complainants ha!e sought following relief(s]: i.

Direct the respondent no. ondent no.z to handover possession of the unit in question along-with prescribed rate of interest.

Page 10 of 25 ffiHARERA g$- eunuennH,t Complaint no.

1526 0f2024 and l other ii.

Direct the respondent no.2 to withdraw illegal offer ofpossession dated 25.02.2021and order the excessive and un.justified GST & other taxes, interest and excessive development charges demanded by respondent no.2 in offer ofpossession dated 25.02.2021 as illegal.

Direct the respondent no.2 to lease the food court to food operator.

Direct the respondent no.2 to not charge any maintenance charges including IFMS and holding charges till actual possession.

Direct the respondent to form a RWA of allottees and to transfer the common area and its maintenance to the RWA.

Direct the respondent to pay damages of Rs.5,00,000/- due to downgrading of multiple& Rs.s0,000/- p.m alongwith interest towards rental loss and Rs.1,00,000/- towards legal expenses.

10.

On the date of hearing, the authority explained to the respondents/ promoter about the contraventions as alleged to have been committed in relation to section 11(aJ [aJ ofthe act to plead guilry or not to plead guilty.

D.

Reply by the respondents: 11.

The respondents vide reply and written submissions dated 15.04.2025 have contested the complaint on the following grounds. i.

That the complainants have sought reliefagainst the maintenance agency i.e.

M/s M Worth Facility Services Private Limited howeve; have failed to make the maintenance agenry a party to the present lis.

Thus, the complaint is clearly' defective in nature and is liable to be dismissed on the ground of non-joinder of necessary parry ii.

That the complainants were allotted a food court unit bearing no.

MUP/R/FOOD COURT/Z1l005 in the project of the respondents named "M3M Urbana PremLium" vide allotment letter dated 07 .09.2076. iii.

That the complainant no.1 and 3 had earlier paid an amount of Rs.4,50,000/-towards booking of a unit in one of the projects of M3M India Plt Ltd. a Plt Ltd. urrder the name of V K.

Education Society.

The Complainants had requested vide joint letter dated 31.01.2017 along with an indemnity bond to the respondent to transfer the amount of ,r' Page 11of25 * HARERA tS, eunuennu Complaint no.

1525 of2024 and 1 other Rs.4,50,000/- towards the unit in question.

Thereafter, the complainanr approached the respondent to waive of the delayed interest of an amount of Rs.1,36,182/- and requested the respondent to change their payment plan.

The respondent being a customer-oriented company acceded to the request of the cornplainants and changed the payment plan of the complainants which they chose on their own free will and volition.

Accordingly, the revised allotment letter d ated 2+.05.2017 was issued to the complainants by the respondent and the amount paid towards the earlier allotment of the same unit being Rs.40,36,455/- was also transferred towards the present booking without any deductions.

Accordingly, receipt dated 76.05.2017 for an amount of Rs.40,36,455/- was issued by the respondent and the same is already annexed at page no.

132 ofthe complaint filed by the complainants.

The cost ofthe unit was Rs.1,12,36,123.50/- plus other taxes and charges.

Thereaftef belatedly the buyer's agreement was executed between the parties on 18.08.2017.

It is submitted that as per clause 16.1 of the buyer's agreement, the possession as to be offered within 54 months from the date of commencement of construction which shall mean the date of laying the first mud slab ofthe block/building in which the unit is locared or date of execution of the truyer's agreement whichever is later.

Further, the respondent no.Z is entitled to an extension of 6 months as grace period.

It is submitted that the buyer's agreement was executed between the parties on 18.08.2017.

Thus, the due date ofpossession is to be reckoned from the date of execution of execution of buyer's agreement being the later date. ater date.

Thus, thr-' due date of possession comes out to be 18.08.2022 (54 months + 6 months from 18.08.2017). iv.

That the respondent no.z informed the complainants about the revision in layout plans and accordingly, sought objections to the proposed Page 12 of25 *HARERA #,eunuennu Complaint no.

1525 of2024 and 1 other revision of layout plan vide letter dated 25.09.20t7. [t is submitted rhat no objection was ever raised by the complainants to the revision of building plans.

The building plans were revised after following due process of law. v.

That the respondents as agreed completed the construction and development ofthe complex well within time and the respondent applied to the competent authority for the grant of occupation certificate after complying with all the requisite formalities.

The occupation certificate was granted by the competent authorities on 24.02.2021, after due verification and inspection that the building has been constructed accordance with the approved layout plans.

Thereafter the respondent no.2 vide letter dated ?5!2.2021 offered possession of the food court unit to the complainants and requested them to remit the outstanding amount towards the remaining sale price, service tax, cess, stamp duty charges etc.

Thus, the respondents had fulfilled their promise and constructed the sairl food court unit of the complainants way before the agreed the timeline i.e.

18.08.2022.

Thus, there was no delay in offering possession of the runit to the complainants.

It is submitted that post receipt of occupation certificate due to increase in area, the price of the unit was increased, howeveq, the respondent has provided the benefit of the GST to the complainant for an amount of Rs.2,96,436/-, due to which the cost of unit comes out to be Rs.1,09,08,589/- plus taxes and other charges as stated in the offer of possession.

The increase in area of the unit is in accordance with clause 13.3 of the buyer's agreement and the same is within the 10%o parameter. parameter.

Since the complainants defaulted in making the payment of the outstanding dues raised vide the offer of possession, the r€,spondent vide reminder letter dated 30.03.2021 Page 13 of25 ffiHARERA Seunuennl,l Complaint no.

1526 of2024 and 1 other requested the complainants to remit the outstanding dues within a period ofnext 15 days from the date ofthe issuance ofthis reminder. vi.

That the complainants despite the leverage and time give, failed to come forward to take the possession of the unit.

The respondent on various occasions vide emails dated 04.06.2022, 75.07.2022, 23.08.2022, 09.03.2023, t0.04.2023, 2A.04.2023, 08.06.2023, 06.07.2023, 02.08.2023, 08.08.2023, 05.09.2023, 24.09.2023, 04.L0.2023, 06.Lt.2023, 22.1t.2023, ?4.77.2023, 07.72.2023, 05.02.2024, 20.O2.2024 and 02.O4.2024 requested the complainants to come forward and take the possession of the unit as per agreed terms, but to avail.

The default of the complainants in'not,coming forward to take possession of the unit and compllling with other obligations is duly covered under the buyer's agreement. lt is submitted that the respondent is incurring various losses/damages which maintaining the said unit and the complainant is liable to pay holding charges and maintenance charges.

It is submitted that the complainants till date have deposited an amount of Rs.1,19,45,539/- towards the unit in question and taxes.

The complainants are still liable to pay amounts towards IFMS and maintenance charges to the maintenance agency. vii.

That the complainants approached the respondent no.

2 and expressed their intent to lease out the unit in question as agreed between the parties at the time of booking.

The said fact is absolutely clear from the emails dated 30.06.2021 and 08.08.2023 which is marked and annexed at page nos.

167 and 182 r:f the complaint.

The complainants had themselves given their consent to lease of the unit in question. question.

Thus, it is absolutely clear that the unit in question was to be leased out to the prospective lessee.

Accordingly; the respondent no.z started reached out to the marquee brands for Ieasing of the unit.

Thus, it is evident that the said Page 14 of25 HARERA EP* GURUGRAM Complaint no.

1526 of2024 and 1 other unit in question was not for self-occupation but meant for the purpose of leasing to third parties and the complainants are only entitled to constructive possession of the unit. viii.

That the complainants approached the respondent no.Z and expressed their intent to lease out the unit in question as ageed between the parties at the time of booking and opted to lease out the unit to a suitable lessee either individually or combined along with other units.

It is submitted that the interior work which is being carried out in the unit is vendor specific and it is as per the venqqls specifications. lt is important to poinr out here that the food couit units are vendor specific and each lessee/operator depending upon the brand, has its own specifications as to the placement of kitchen equipment/hobs and chimneys/water inlet and outlets/gas pipeline/tiliiiiiial fitttngslrefrigeration equipment placement etc.

The construction of walls of the individual units and internal fit outs are thus carried out after the vendor/brand has been identified and as per its specifications, Thus, apart from the internal fit outs, the entire food court was ready well in time.

After an operator is identified and specifications are received, the remaining internal works would be done as per requirement of the lessee.

Thus, it is evident that the said unit in question was not for self-occupation but meant for the purpose of leasing to third parties.

The complainants have themselves prayed for leasing of the unit in question to a lessee which itself is self- explanatory that thr-' complainants were well aware ab initio that the unit is for leasing purpose. g purpose.

That the complainants are not genuine consumers and end users since they had booked the said unit in question purely for commercial purpose as a speculative investor and to make profits and gains.

Further, the complainants have invested in many proiects of different companies Page 15 of25 { PHARERA dS- eunuonnl,r Complaint no.

1526 of2024 and 1 other which prove that they are not consumers but only an investor.

Thus, it is clear that the complainants have invested in the units in question for commercial gains, i.e. to earn income by way of rent and/or re-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 consumers/end users.

That the complainants cannot be treated as a consumer and hence the captioned complaint is liable to be dismissed at threshold. x.

That the subject matter cannoUlb edjudicated withoutgoing into the facts of the case which requires elsrage,evidence to be led and which cannot be ad,udicated upon under thq suErmaryiurisdiction of this Authority. xi.

That the respondent compa'ny 'as a goodt+ill gesture has been providing assistance to the complainant to lease out hls unit to a brand and is only playing the role ofa f;acilitator.

The leasing ofthe unit is dependent on the market conditions.

The respondent has made efforts in the past and got leasing proposals from different brands howeve4 the deals did not materialise as the aflole€.illd oot "g."j to th" proposed leasing terms.

The complainant is free to lerise but'the unit to the brand/operator of his choice and start operations fuIn his'f+d court unit.

It is relevant to mention here that the respondent is under no obligation to lease out the unit. xii.

That all demands have been raised as per the terms of the buyer's agreement and the same were deposited by the complainant without any protest or demur. or demur.

Furtheq, it is submitted that no such assurances or promises were made to the complainants by the respondents qua multiplex.

It is submitted that there is an operational multiplex in the project which regularly runs screening of movies.

Moreovet the RWA has been formed under the provisions of Haryana Apartment Ownership Act, Page 16 of25 HARERA gP* GURUGRAII Complaint no.

1526 of2024 and 1 other 1983 and registered in accordance with the provisions of Regulation of Societies Act, 2012.

12.

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 submission made by the parties.

E.

Jurisdiction ofthe authority 13.

The respondent has raised a preliminary submission/objection that the authority has no jurisdiction to entertain the present complaint.

The obiection of the respondent regarding rejection of complaint on ground of jurisdiction stands rejected.

The authority observes that it has territorial as well as subject matter iurisdiction to adiudicate the present complaint for the reasons given below.

I Territorial iurisdiction 14.

As per notification no.

L /92 /2077 -ITCP dated 14.12.2017 issued byTown and Country Planning Department, the iurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the proiect in question is situated within the planning area of Gurugram District.

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

II Subiect matter iurisdiction 15.

Section 11(aJ(a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale. for sale.

Section 11(4)[aJ is reproduced as hereunder: Section 71 il1 rne pronoter shatt- (a) be responsible for oll obligations, responsibilities and functions utder the provisions of this Act or the rules ond Page 77 of ZS 4 ffiHARERA dh eunuennvr Complaint no.

1526 of2024 and 1 other regulotions mqde thereunder or to the dllottees as per the agreement for sale, or to the association of ollottees, os the case may be, till the conveyonce oI oll the aportments, plots or buildings, qs the case moy be, to the allottees, or the common areas to the associotion oJ ollottees or the competent outhority, as the cose moy be; Section 34-Functions of the Authorlv: 344 of the Act provides to ensure compliance of the obligotions cast upon the promotery the allottees ond the real estqte qgents under this Act and the rules and reg ulations made thereunde r.

16.

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. ,t .. r, F.

Findings on the objections raliild by the respondent: F.I Obiection regarding the complainants being investor.

17.

The respondents have taken a stand that the complainants are investor and not a consumer.

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

The Authority observes that any aggrieved person can file a complaint against the promoter if the promoter conffavenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditionr; of the buyer's agreement dated 18.08.2017, it is revealed that the complainants are buyers, and have paid substantial amount to the promoter towards purchase of a unit in its proiect. s proiect.

At this stage, it is important to stress upon the definition ofterm allottee under the Act, the same is reproduced below for ready reference: '2(d) "qllottee" in relotion to o reol estote pqect means the person to whom a plot, aportment or building, os the cose may be, has been ollotted, sold (whether as fteehold or leosehold) or otherwise transferred by the promotca and includes the person who subsequently acquires the sqid ollotment through sole, transkr or otherwise but does not include a person to whom such plot, apartment or building, qs the cose mqy be, is given on renti' PaBe 18 of25 ffi HARERA dt eunuenml Complaint no.

1526 of2024 and 1 other 18. ln view of above-mentioned definition of "allottee" as well as all the terms and conditions ofthe agreement, it is crystal clear that the complainants are allottees as the subject unit was allotted to them by the promoter.

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

Moreover, the Maharashtra Real Estate Appellate Tribunal in its order dated 29.01.2019 in appeal no.

0006000000010557 titled as M/s Srzsrl ti Sangam Developers PvL Ltd.

Vs, Sarvapriya Leasing (P) Lts.

And anr. has also held that the concept ofinvestor is not defined or referred in the Act.

In view ofthe above, the contention ofpromoter that thi]€llottees being investor are not entitled to protection of this Act stands rglected.

G.

Findings on the reliefsought b, the complainants: G.

I Direct the respondent no.z to handoyer possession of the unit in question along-with presclibed rate ofinteresL G.II Direct the respondent no.2 to withdraw itlegal offer of possession dated 25.O2.2O2L and order the excessive and unlustified GST & other taxes, interest and excessive development charges demanded by respondent no.z in offer of possession dated 25,02,2021 as illegal.

G.III Direct the respondent no.z to lease the food court to food operator.

G.Mirect the respondent no. ondent no.z to not charge any maintenance charges including IFMS and holding charges till actual possession.

The complainants intend to continue with the project and are seeking delay possession charges as provided under the proviso to section 18(1J of the Act.

Sec.

18[1) proviso reads as under. "Section 18: - Return of omount ond compensstion 18(1). lfthepromoter foils to complete or is unoble to give possession ofon opartment, plot, or building, - Provided thot where on ollottee does not intend to withdraw ftom the project he sho be paid, by the promotcr, interest for evety month of delqy, till the honding over of the possession, at such rote as may be prescribed." (Emphosis supplied) 19.

Page 19 of25 ffHARERA #-eunuennnl Complaint no.1526 of2024 and l other 20.

Clause 16.1 of the buyer's agreement dated tA.OB.2Ol7 [in short, agreementl provides for handing over of possession and is reproduced below: 76.7 Possession of the unit "The compony, based upon its present plans and estimotes, and subject to oll exceptions, proposes to handover possession of the unit within a period of Fifiy Four (54) months from the dqte oI commencement of construction which shall meon loying ol lirst plaln cement concrete/mud-mat slqb oJ the block/building in which the unit is locqted or the date ol execution oJ this agreement, whichever is ldter (Commitment Period).

Due date of handing over of, possession: The respondents/promoter proposed to hand over the possslaidn ofthe said unit within a period of 54 months from the date of conimencement of construction or the date of execution of the agreement, U&lphqve-r is fater.

Due to non-availability of any document pertaining to tbir corrprencement of construction, the due date is being calculated from the date of executton of the agreement.

Thus, the due date of hMing over possession comes out to be L8.02.2O22.

Further, an extension of 6 months is granted to tle respondents in view of notification no.9/3-2020 dated 26. dated 26.05,2020, on account of outbreak of Covid-19 pandemic.

Therefore, the due datb of possession comes out to be 74.04.2022.

The authority obseryes that as per the possession clause, the due date fior handing over of possession raras 18.08.2022.

The occupation certificate was granted by the competent authorities on 24.02.2021 and thereafter, possession of the unit/food court was offered to the complainants vide letter dated 25.02.2021with a request to remit the outstanding amount towards the remaining sale price, service tax, cess, stamp duty charges etc.

Thus, there was no delay on part of the respondents in offering possession of the unit to the complainants.

Accordingly, no case for delay possession charges is made out.

22.

PaEe20ofZS L/ *HARERA H[- eunGnmr Complaint no.

1526 of2024 and 1 other 23.

The complainants are seeking additional relief w.r.t handing over of possession and leasing the unit in question to a food operator as agreed between them.

The complainants have submitted that the respondent no.2 has abundantly failed to offer the possession in terms of the BBA and the purpose of a food court shop remains defeated since even the paper possession was offered, the said unit cannot be brought into use by the complainants in any manner for breach of multiple contractual obligations by the respondent no.z.

The, respondents have submitted that the complainants defaulted in mak[!:.the payment of the outstanding dues raised vide the offer of possesg!$i.alQ despite the leverage and time give, failed to come forward to take lhe possession of the unit.

Accordingly, the respondents on various otcdsioirs vide emails dated, 04.06.2022, 15.07.2022, 23.0A.2022, 09.03.2023, t0.04.2023, 28.04.2023, 08.06.2023, 06.07.2023, 02.08.2023, 08.08.2023, 05.09.2023, 28.09.2023, 04.70.2023, 06.rt.2023, 22.Lr.2023, 24.rr.2023, 07.12.2023, 05.02.2024, 20.02.2024 and 02.04. and 02.04.2024 requested the complainants to come forward and take the possession of the unit as per agreed term3, but to avail.

The respondents have further submitted the complainants approached the respondent no.2 and expressed their intent tg Pasg out Ere unit in question as agreed between the parties at the time ofbooking and opted to lease out the unit to a suitable lessee either individually or combined along with other units. lt is submitted that the interior work which is being carried out in the unit is vendor specific and it is as per the vendor's specifications and each lessee/operator depending upon the brand, has its own specifications as to the placement of kitchen equipment/hobs and chimneys/water inlet and outlets/gas pipeline/electrical fittings/refrigeration equipment placement etc.

The construction of walls ofthe individual units and internal fit outs are thus carried out after the vendor/brand has been identified and as per its Paee 21of 25 IARERA GURUGRAM & Complaint no.

1526 of2024 and l other specifications.

Thus, apart from the internal fit outs, the entire food court was ready well in time.

Thus, it is evident that the said unit in question was not for self- occupation but meant for the purpose of leasing to third parties.

The complainants have themselves prayed for leasing of the unit in question to a lessee which itselF is self-explanatory that the complainants were well aware ab initio that the unit is for leasing purpose.

24.

As per terms and conditions ofthe unit buyer,s agreement dated 1g .0g.2017 executed between the parties, the physical possession of the unit/food court was to be handed over to the complainants and is permitted to be used by the allottees for the purpose of carrying the business of food and beverages only.

Further, vide offer of possession letter dated ZS.O2. ted ZS.O2.ZOZI as well as email dated 23.08.2022, the respondents while referring to the timely payments and formalities for timely execution of conveyance deed have themselves admitted the fact that the physical and legal possession of the unit was to be handed over to the complainants.

In view of the above, the respondents/promoter is directed to handover possession of the unit to the complainants in terms of the buyer's agreement dated 19.0g.2017, on payment of outstandirrg dues, if any within a period of 60 days.

25.

The complainants are further seeking relief for directing the respondent no.2 to withdraw illegal offer ofpossession dated 25.02.2021 and order the excessive and uniustified GST & other taxes, interest and excessive development charges demanded by respondent no.2 in offer of possession dated 25.02-2027 as illegal.

The authority observes that vide clause 4.1, 4.3 and 4.5 of the buyer's; agreement, it was specifically agreed between the parties that the allottee shall pay the total sale consideration along with all other applicable taxes and charges.

Thus, the complainants are liable to pay Page22ofZS +/ 26. *HARERA d$,eunuennnr Complaint no.

1526of2024 and l other applicable taxes and charges that are payable to the concerned authorities.

However, the complainant would be entitled to proof of such payments to the concerned departments, before making payments under the aforesaid heads.

Further, Section 19(6) & 19(7) of the Act, 2016 provides that every allottee shall be responsible to make necessary payments as per agreement for sale along with prescribed interest on outstanding payments from the allottee.

Accordingly, in case of default, the respondents/promoter can charge interest on the delayed payments at the prescribed rate i.e., 11.10olo only.

G.Iv Direct the respondent n!1&1q ilit charge any maintenance charges including IFMS and holdlng charges till actual possession, The authority observes that the respondents/promoter are well within their r in their right to demapd maintery4co ebargas including IFMS ar the time of offer of possession However, the respondents/promoter is not entitled to claim holding charges from the complainants/allottee at any point of time even after being part of t}Ie builder buyer's agreement as per law settled by Hon'ble Supreme Court in Civil appeal no5.

3A64-3899 /ZOZO decided on t4.12.2020.

G.V Direct the respondent to brr-n a RWA,of allottees and to transfer the common area and;its maintenance to $e RWA.

The complainants are seeking rellef w.r.t formation of RWA of allottees and to transfer common area and its maintenince to the RWA.

The authority observes that as per Section 11(4)(el ofthe Act, 2016, it is an obligation on the promoter to enable formation of association of allottees under the laws applicable and as per Section 19[9] of the Act, the allottee is also duty bound to participate towards formations ofassociation ofallottees.

Further, as per Section 17(21 of the Act, after obtaining OC and handing over physical possession to the allottees in terms of sub section (1), it shall be the responsibility ofthe promoter to handover the necessary documents, plans, 27.

Page 23 of 25 *HARERA d$- eunuennnr Complaint no.

15 26 of 2024 and 7 other including common areas, to the association ofthe allottees or the competent authority, as the case may be, as per the local laws.

The respondents vide written submissions dated LS.}4.ZOZS have submitted that the RWA has already been formed under the provisions of Haryana Apartment 0wnership Act, 1983 and is also registered in accordance with the provisions of Regulation of Societies Act, 2012.

Accordingly, the said relief can only be sought by the RWA and not by the allottee in individual capacity.

G.VI Direct the respondent to pay damages of RS.S,OO,OOO/- due to downgrading of multiplel. .RS,S0,0OO/- p.m alongwith inter€st towards rental loss and RS.I;O0,0OO/- towards legal expenses.

28. enses.

28.

The complainants in the aSbresaid relief are seeking relief w.r.t compensation.

Hon'ble Supreme,log1 of India in civil appeal titled as M/s Newtech Promoterc and Develoftere PiL LtrL, V/s State ol Up & Ors.

202 7_ 2027(1) RCR (C),3i57, has hela Uat an allottee is entitled to claim compensation under sections lZ, L4/18 and section 19 which is to be decided by the adludicating ofiicer as per section 71 and the quantum of compensation shall be adiudged by the a'dludicating officer having due regard to the factors mentioned in section 72.

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

Therefore, the complainan6 are advised to approach the adjudicating omcer seeking the relief of compensation.

H.

Directions ofthe author-lty 29.

Hence, the authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(D: i.

No case for delay possession charges is made out. ii.

The respondents shall handover possession of the unit/food court to the complainants in terms of the buyer,s agreement Page24of25 ./ *HARERA S, eunuenml payments at the iv.

The respondents complainants wh Howevel the charges from even after law settled 3899 /2020 30.

This decision shall this order.

31.

52.

The complaints Files be consigned dated 1.8.08.2017, on payment of within a period of 60 days. iii.

The complainants are liable to pay app IU (Ashok Haryana Real Estate dues, if any taxes and charges that are payable to the concerned complainant would be entitled to thorities.

Howevel the ofsuch payments to the concerned departments, before maki payments under the aforesaid heads.

Further, in of default, the respondents/promoter can charge rest on the delayed 70o/o only. anything the buver's to claim holding of time as per 3864- mentioned in para 3 Authority, Gurugram 25 Page 25 of25 5 of25