SHASHI SADH vs M THREE M INDIA LIMITED

HARERA GURUGRAIV BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaintno.

I l7+9 of ZO1A Order r€served otr: O9.l2.2!zz Date of ProDounccmeot 10.03 2023 oforder: ORDER 1.

The p.esent complaint dated 20.11.2018 has been iiled by the complainant under section 31 of the Real Estate lRegulatron and Developmeno Act,2016 (in shoft, the Aco read with Rule 28 of the Haryana Real Estate lRegulation and Development) Rules, 2017 0n short, the Rulesl for violation of sectron 11(41[a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions unde. the provision of the Act or the rules and regulations made thereunder or to the allottee as per the agreement ior sale executed inter se.

A.

Pro,ectand unit r€lat€d d€tails comph,nt no.

1749 of 2018 complainant Shashi Sadh Address:- 52l12, Pocket 52 CR Pa* NewDehr110019 CORAMI ShriAshok Sangwan Shfl Sanjeev Kumar Arora APPEARANC[: Ms.

Shriya Takkar R€spondenL Memb€r Advocate fo. the complainant Advocate fo. the respondeni *HARERA $- cLrnuennrr,,l 2. comph,nr no.

1749 of2018 The partlculars of the proiect, the details of sale conslderanon, the amount paid by the complainant, date of proposed handinB ov€r the possession, delay period, if any, have been detailed in the following 5.

NaDe and location of the "M3M colf Estate-Polo suites", wdlf acres as per ocl l,icehsc No. & valdiry status 75i-a zooz aut"t ro.roz007 valid upto 15.10.247?

52 ot 2009 dated 28 08 209 vahd upto 27.0A.2024 35 ot 2010 dated 06.05 2010 valid upto 0s.05.2020 Manglam l',lultiPlex Pvt.

Ltd.

1 MGETW.09/32C,level l2 8.

3888sq.ft 10.12.2012 10 11 Const.uction linked PaYment Plan Total sales consrderation Rs 4,56,40,9?8 /' tAs per payment planl t).

Rs.1,40,33,788/_ [As per additional docmen t! subm ined by the respondentat P.8e 8'15) Due date of delivery of as per Clause 161 36 mnnths from the date of 10.12.2015 of layins 6rst mud is laterl *HARERA -db- eunueneN B. unueneN B.

Factsofthe co 3 The complainant o,' That in 2010, complainant booked a residentialfla which were to b€ located at Apartment No.

MC l.o.ated on Level 32 in Golf Estate Tower 9 in (M Farewaywest), having areaof3888 sq. ft. fora to ofRs.4,56,40,928/-.

Thdt Ihe aparrment buyer agreement was execu promoter and allottee on 1012.2012.

That the c paid total amount of rs.

1,84,65,543/.

Thal due applicanr r.e, Late Urnesh Prakash sadh who commencement of construction o. from ihe date ot execLrtion of agreement whrchever is later, plus 180 days Srace mplaint: 'tw-09/32c, M Golf Estate mplainant has 749012014 Date of offer ofpossession 25.07.2077 lpage 135 ofthe comP 06.t22014 .omplainant. the complainant rs facing financial t4.

15 16 7) 0908.2015 18 19 I r4.o6 rol7 *s HARERA GURUGRAN/ comphLnino.

1749 of 2018 iii.

That as per clause 16.1 of the aloresaid agreernent, the promoter stared that the poss€sslon of the atoremenrioned flat shall be delivered to the complainant by 10.06 2016 year from the date ol the ex€cution olthe agreement. iv.

That the expected delivery ofpossession ofthe flatwas in the month of lune 2016.

But till date the Promoter has not given possess'on.

That th€ complainan! repeatedly t.ied to contact the Promoter time and again but there was no response On the contrary, the promoter has threatened the complainant.

That rn any case the complainant has not been grven possession of the tlat booked so The complainant is seeking the followhg relief: The complainant has sought rollowing relief(s): 0) Di.ect the promoter/respondeDt Io provide immedrate 'efund or the paid amouDt ofRs 1,8a,65,543/- alonB witb delav penahv' Reply filed by the resPondent The .espondent had contested the complaint on the following grounds: i.

That the respondent ie.

M3M India Private Ltmited (formerlv known as "M3M lndia Ltd.") is engaged in the business of constructioD aDd development orreal estate proiects ii. oiects ii.

That it is pertinent to mention here that Section 18 ofthe RERA Act categorically provides that"if the prcmotet foik to complerc or is unabte ta sive Passession olan aparrment, plot ot builtling (o) L1 C, 4.

T), noJ be, dult completed by the dotE specilied therein- That agreementto sale as referred under Section 18 has to be construed *HARERA S- crrRuGRA[/ Compla,ntno.

1749 of 2018 in terms of the deffnitlon provided under Sectlon 2 (c) of the RERA Ac! which clearlymeans that the agre.ment to sal€ rPferred under Section 18 is categorically for the project registercd under the RERAActorupon any projectwhich falls und€r the definition ofan ongoirgproject.

That the occupancy certificat€ was granted by the comp€tent authorlty on 12.04.2017, however the poss€ssion l€lter could not have offered to the complainant because ofihependlngdues otthe com plainant towards the r€sponden!

That clause 8.1 of the apartmentbuyeis agr€ement clearly states that rh€ alloBeewas und€r the obliEation to make EimelyPayment of every instalmenL That the respondent rarsed various demands as per the agreed payment plan and construction mil€stones achieved.

However, the complainant failed to make timely payments and was a serial and chronic defaulter' lt is submitted that various reminders leBers dated 1611.2011, 16-72-2011, 01.02.2072, 14.02.2012, 05.03.2072, 06.12.2072, 24 12 2072 10.0r.2013, 28.01.2013 06.04.2013, 03.05.2013, 1006.2013, 15.07.2013, 09.09.2013, 12.12.2073, 20.02.2074, 06.12 2074' 28.01.2015, 09.08.2015, 0309.2015 were issued to clear her outstanding dues.

That th€ respoDdent has already spent enormous arnount otmoney towards the due constructlon and development of the various blocks / segments / constituents / parts / phases of the group housing colony of which occupatron certifi€ar€(s) have b€en granted and more Particularly 'M3m Colf estate_ Fairway Wett' Codplaintno t749of 2018 and including the tower iD which the apartment ofthe complainant is situated and thesam and thesame being ready for occupation. vi.

Theref,ore, it is the respondent, who after having spent enormous sums of noney (including funds borrowed from banks and fiDancial institutions and other entities) has been unable to realize the proceeds of the aparlment lrom the complainant and thus the legitimate dues of the respondent have been wirhheld by the vii.

Therespondentwas iaced with certain other fo.ce ma)eure events, including but not limited to the non_availabilitv of raw material due to various orde.s otthe Hon'ble Puniab & Haryana Hrgh Court aDd the National Green Tribunal thereby regulatrng the m'nrn8 achvities, brick kilns, regulation of the construction and development activities by the iLtdicial authontres in NCR on account of the environmentalconditions, restrictions on usage of water, etc. lt is Pertrnent to state that the National Green Tribunal in several cases related to Puniab and Haryana had staved min'ng operations including in OA No.

171l2013, wherein vide order dated 2.11.2015 mining activities by the newly allotted mining cont.acts by the state ofHaryana was staved on the Yamuna River bed These orders in fact int€r_alia continued till the year 2018' Similar orders staying the minlng operations were also passed bv the Hon'ble High Court and the NationalG.een T'ibunal iD Punjab and Uttar Pradesh as well. viii That lhe constructioD of the complex and more parncularly the tower /phase in which the apa.tment is situated has alreadv been completed The competent aurhority has al'eady granted complrnr no 1749 ofZ018 occupancy certifi cate(s) for the various dev€loprnenrs undertaken in the complex.

As per the apartment buyer agreenEnt (executed berween parties on 10.12 2012), possession ofthe +artmenrwas agreed to behanded overwithin a period ofthirtvsix (36) months plus one hundred eighty (180) days grace penod, from th€ date of commencement ofconstructron which mean the date oflaying ot the firsiplain cement concrere/ mud'mat slab ofthe tower or th ower or the date ofex€cution of the apartment buy€r's agreemcnt, whichever is later.

The firstplain cem€nt concrete was latd on 20 08 2011and the apartment buyer's agreement was execured on 1012 2012' accordingly the date ol possessio n is to be calculated from thedate olexecution of the apa rtmen t buy€r's agreement' ThaL within the said prescribed time, the construction has be€n undertaken and th€ construction of tt|e towerwas completed' and the respondent applied for the grant of occupancy certrflcate on 12.09.2016- The competent aurhortty after due considerarion and examination ol every aspect, Sranted th€ occupancy certlficate on 12.04.2017.

This very fact substantiates and proves that the €onstruction of the complex and more particularly of ihe apartmeniwas undertaken and completed as p€r thE specrfi cai'ons menrioned in the sanctioned plan and th€ complo( is/was readv That th€ tlmeline for possession is a parr of apartment buyer's agreement executed between the parties and it is very clear from th€ terms therein that the hmeline for possession was notconcrete and was subieci to certain contingencies, and just and fair exceptions including timely payrnents by the complarnant' lt is comph'ntno 1749 of20l8 matter ofrecord that the complain ant has been a chronic defaulter in making payments and several rem'nde's have been sent to the xi.

Thatthe complainant is nota genuin€ buver, since she had booked the apa.tment in question purely lor commercial purPose as a speculative investor and to make profits and gains Furthermo'e' the complainant has invested in many projects of ditrerent companies whrch proves that the complainant is not a senurne buyer but only an investor' Thus, it is clear lhat the complainant hasinvested in theapartment inquestion for commercial gains' i'e' to earn income by way ofrentand/or re_sal€ of the propertv at an appr€ciat€d value and to earn premium thereon Since the investment has b€en made for the aforesaid purpose' it is ior commercial ommercial purpose and as such the complainant is not a genuine buyer / end user. xii That vide the instant complaint, the complainant has sought for retund of the consideration amount paid qua the sublect apartment rt is srated that th€ dispute and differences' if anv' between the parties involves various questions of facts and law' The issues raised bv the complainant cannot be addressed before the ld. adjudicating office' and tbe subject matter cannot be adiudicated without go ing into thefacB ofthecasewhich requires elabora te evi.lence to be led and wh'ch cannot be adiudicated upon underthe summary jurisdiction of the Ld' adiudicating officer The complaintis liable tobe d,smissed on rhis ground alone' E.

Jurisdiction otthe atrthority *s 6.

HARERA GURUGRAIVI The authoriry observed that lt jurisdiction to ad,udicate the E.l Territorial iurisdlction 7 As per notrficat,on no ll92l2o77 1TCP dated 1412 2017 rssued bv Town and Country Planning Department, Haryana the ju'isd'ction oi Real Estate Regulatory Authority, Gurugram shall be enrire Curugram District for all purpose with offlcesstuated in Gu'ugram ln the prcsent case, the project in question ls situated within the planning arca of Gurugram Dislrict, therefore this authorty has complete terrrtorial iurisdiction to dealwith the present complai n t' E.u sublect_matt€r iurlsdictlon 8.

Sectio.

11tal(a) of the Act provides that the p'omote' shall bc responsible to the allotlee as per agr€ement lor sale' Section 11(41[a) is .eproduced ashereunderl has terntorial as well as subject matter present complaint for the reasons given ::-" \;s-Yz (1) I:" P e' and tunc,bn' tot ood 'igutotiont nov be. to the ollot@a' ot iitr"n*- rt " -,peun*thontv o' the eof, not E s.cd@ 3l.rtncttm ol the Aurnodry n\lion@ ol the Obligrtlont @st ot stuLe dgenE undq th6 A'L .1" neeun*r compL ntno 1749 of2018 t.

10. compla,nt no. pla,nt no.

1749 ot2018 So, in view of the provisions ofthe Actquoted above, the authorityhas colnplete iurisdicrion to decide the complaint reSardlng non- compliance ofobligations by the promoter as per provisions ofsection 11(4)(a) of the Act leaving aside compensation which ir to be decided by the adjudicating offf cer if pursued by the complahant d a later stage.

Further, theauthorityhas no hitch in proceedingwith th€ complaintand to granta reliefofrefund in ihe presentmatter inviewofthetudgement RcR(Civil),3s7 ond rei M/s Sano Reoltors WL Ltd.

Ctv ) No.13oo' oJZ0z0 decided on 12.05 nd inrere! thercon, it E the )er La exaninc and determtne de tinc, when n Lante\ La a ng.onpensortoh ond inrcrc* Mdet Sqtions 12, 14 1A ond 19 othq bon conpensad@ ot envlsaged, iJdten led to the o.ljutlicating oli@t os proyed chdt in out vt*, no! inten.l to expond .h. anblt and scope of the pow on.l luncti@s oJ rhe ddjudi.atins ofret undet Section 71 ond thot would be ogoinst the ndndote ol the Act 2016." 11.

Hence, in view of the authoritative pronouncement of the Honble Supreme Court in the cases mentioned above the authority has ihe tunsdiction to entertain acomplaint seeking retund ofthe amount and interest on the retund amounL 1l 12.

The respondent submitted thar the complainant is invesior and not consuiner/allottee, thus, the complainant is not entitled to the protection otthe Act and thus, the present complaint is not maintainabl€.

Findings on ihe obiections raised by the respondent F.l Obiection regardinp co mDlaina n t is investors not .o nsu mer The author,ty observes that the Acr is enacted to protect the interest ol consume.s ol the real estate sector I t is settled p.inciple o t in terp ret.ttro n that preamble is an introduction of a statute and states main arms and objects ofenactinga statute but at the same time p.eamble cannot be used to deleat the enacting provisioos ofthe Act.

Furthe. t.

Furthe.more, it is pertinen! to note that under s€ction 31 of the Act, any aggrreved Person can iile .) complaint against the promoter il the p.omoter contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careiul perusal olall the terms and condkions ofthe buyer's agreement, rt is revealed that the complainant is an allottee/buye., and he has pard total price of Rs.

1,40,33,788/' to tle promoter towards purchase ol rhe s.rrd unit in the project olthe promot€r.

At this sta8e, it is importanl to stress upon rhe definitron ofrerm allottee under the A€t, the same is reproduccd below for ready.eference: "2(tt) 'olloxee" in .elotian to o redl ettore prciect neunt rhe Pc6on ta whon a plaa opa.tnent ot blilding, os the cose na! be, hos been .ttotted, tuld [whethet os teehold ot leosehold) ar atheNse tnnsferred br the p.amotet, and tnclude\ rhe pe$an ||ho sublequently ocquret .he taid ollotnenr thragh sole, nadsld ar oLheNEe but doet not include o pe^on to ||hah tu.h pla, oponnento. building, asthe cose no! be, B qiven an rent ln view ofabove-mentioned definition of 'allottee" as wdlas all $e ternN and conditions oi the buyer's agrcement exe.ured betlveen rcspondent and complainant, it js crystal clearthat the comthnanr rrF :llotr" as the 14 subject unit was alloned to them by the promoter.

The comcept oiinvestor is not defined or referred in the Act.

As per th€ definition given under s€ction 2 ot the Aci, there will be "promot€r" and "allottee" and there cannot be a party having a status ol "investor".

The Maharashtra Real Estate Appeltat€ Tribunal rn rts order dated 29012019 in appeal no 0006000000010557 titledas M/s Srushal Sangan Developers Ptt- Ltd. vs.

Sorvaprtya Leoslng {P) lcs,lrdanr. has also held that the concept of investor is not defined or refencd in the Act.

Thus, Lhe contention of promoter that the complainanQiihle. nanQiihle. being investors is not entitled to protec$on of rhis Act stands r€@d) rindings on lhe rellefsoughtby the comptainant/allottee Di.ect the promoter/respondent to provide immed,ate .efund ot the paid amount of Rs.

1,84,65,543/- alonC w,th delay penalty ln the present complalnt, the complainant inlends to w,thdraw from the protect and is seeklng rehrrn of the amount paid by rt rn respect of subjectuDitalongwithlnterestatthePrescribedrateas provided under section 18(1) of the Act.

Sec.

18[1) ol the Act ,s rep.oduced below lor G.

G.t 15. "Se.tlon 1A: - neu oJ dnounr ond @dpenerton 13(1). tthepro ot* Ioib 6 Mplab ot ts unoblcto give possion ol on opattnent, plot, ot buildihg.- (o) in ocatddn@ with the telnt ol the osrcenent lot ete o. os .he coQ not be, duly conpleted bt the dote tpecfied the.etn; or (b) due ro disananuonce oJ his butnes os o devetoper on occount ol suspension at revocorion ol the resBvotioh undet thB Act ot lot he shalt be lioble on dendn l to the dllottes, tn cote tte ollohee tbhes to |9itt'dtdw lton the ptohcr, witllout preiudice to anv other rcnedJ oeailoble, to retum the omount received bt hiD in respect oI hor oportmenL Plot, buiLliag, os the.as. mot be' wirh inur$t ot su.h rote as noy be Pres.nbed in IhE beho[ inctudin! @hpenehon in the monnet os ptovided unde/ thit Act: Prcided thot where on ollo$@ does .ot inEnd tt withdrow lro the Foject, he sholl be poid, by the pmnotea lntqest fot dery nonth ol delor, ill Lhehandingotetolthe pos$ion,attuch ruteas ot be prestibed 16.

As per clause 16 of the Rat buyer agreement dated 10.12.2012 provides for handing over ofpossesslon and is reproduced below: 16.

POSSESION OF THI APARTMENT 16,1 The Campony, bosed upan tts p.esent plont ond etuhoret ond sub)e.r ta oll erceptions, proposes t hondavet Possession olthe Apottment within o Denod af Tht.tr Sx [36] nonth!

Ftoh the d.Le ol connencenent ol contt rctlo whith sholl ncon the date aJ laytns of the trrsr ptoih cenenL con. enenL con.tetz/ udmatstob alhe rawet whith shollbecon untLoted tDtheAloxee @ otthedote olthe exe.uuan ofthsAsrcenent whi.heve.is lotet( Connttnent Pe ott') shoutd the po$essian olthe Apoftdent not be given within the cont ttnent Penotl, the Alodee ogrees to on dtrnsion afone Hundrcd ohd EtghE (18a) dars ( 6ruce Petiod") ofte. expiry oJ the cannitnent Penat tn cov olfuilue ol the Attortee to noke tinet polnents lfony ofthe instalmenEds pet the Palnent Plon, alonqwtth a.het ihorges and dues os opplicoble o. orneN& paloble in occatuance wnh the Polnent PIon ar as pet the denonds ruked by fie Cohpon! lrcn tme to tihe in .his re\pe.t, despne o..eptonce oldeloyed poynenr olans wth inter$tot dnJ folluean rhe pattol the Allottee to ubtdt bt ah! ol the Et s oh.l.ondirions althis Aqrcenent, the tihe petnds nentDned n this clouse shol not be hn.llng upon the conpon! ||th respd brhe hdnding ove. olthe p$esion olthe Apartnen.

17.

At the outset, lt is relevanl to comm€nt on the present possession clause oithe agreement wherein the possession has been subjected to allkrnds ofterms and conditions oithis agreement, and the compla'n3nt not being in default under any provisions of thrs agreement and compliance with all provisions, formalities and docume.tatron as prescnbed by the promoter The dratting of rhis clause and incorporation olsuch cond,tions are not only vague and uncertain but so heavily loaded in favour ofthe promoter and against the allottee rhat even a sinele default by the allottee in fulfiUing lormalities and *HARERA $- clnltcnnu Complarntno.

1749ot2018 documentations etc. as prescribed by the p.omoter may mak. thc possession clause irrelevant fo. the purpose of allottee and the commitmenttime period for handing over possession loses its meaning.

The incorporation of such clause in the buyer's agre€ment by the promoter is just to evade the liability towards rimely delivery olsub)ect unit and to deprive the auottee of his right accruing aiter delay in possessron. ossessron.

This is just to comment as to how the builder has mrsused his dominant position and drafted such mischievous clause in the agreement and the allottee is left wlth no optioD but to siSn on the 18.

As per clause I of the agreement, the allottee was ltable to pay the insralment as per payment plan opted by the complainant.

Clause 8 ol the agreement is.eproduced unde. for ready referencei Ctouse 3.1 The oblgonoh fi dake ri ely pay entaleverltntotnE oJthe totol cantidera.ion ih oc.ordance wtth the pornent pla olans wtth polnent oJ orhet choryes ch os oPpllcoble sanP dLt], rcgstotion lee, IFMS and other chorges depositr os srp,loted u nde r th i, o grcene n t or thot not o.heNke be payo b I e on or belo re the due dot. at as ahd ehen deftond by the canpony as .he .ose no! be, ond oka ta dirhorged dl other abtigotian haet th6 aqrccqent.\ott be' hP f .\dn P oI t ttL oa, ee4 lo The respondenr hrd rssu4?re_cancellation er '.".

0o.122014 thercafter, issudcancellatlon letter to the complainant on 14.06.2017.

The OC lor the project olthe allotted un,t was granted on 25.07 2017.

The respondent cancelled the unit ol the complainant with adequate notices Thus, the cancellation ofunit is valid.

20 Fu.ther, the Haryana Real Estate Regulatory Authonry Gurugram IForfeitureof earnestmoneybythebuilde.) Resulations, 11(5] of 2018, "5,AMOUNf OF EARNESf MONEY *& HARERA GURUGRAIV 22.

Hence, the authoriry hereby passes thls order drrections unde. section 37 oi the Act ro S@otio priot to theReolEstate lRpgutarionrand Devetopnent) A.t.

20 1 5 wos dllcrcnL Fruud5 wcrc < on?d out wthout ony lear os therc w6Ntawlotthe.one but now io view olthe obov? ic! ond &khs tnto fonsi.teration rhe iudgenehLs oj Hon.blc Nat@nol Coi\utu;r th Hon'ble Suptene court of ot e lorleiturc omount ol the re thon t0 o[the coniiderotbn onount ol thp rcal stote Le oportnen|plot/buitdng os the co<" qo! bp in all co. in all co.cs whetc the cotue drion ot he ltot/unn/pbt t\ node bt the bttldet h d unitotcrol noani ot thc buver hte"rts to nhdrcw frctu the pro]e<t aad oarogrechent contootng onyclous? controry to the oforesoid regutotions shd be void dnd n;tUndhgan the buter" obligauons cast upon rhe promolerasper rhe lunciion entrusGd ro rhe authorrry under section 1,40,33,744/- aftet ofRs 4,55,40,92A1.

21 Keeping in view, the aforesaid le8al provrsion, rhe res ponde nt/pro mo to r directed to reiund the paid-up amount after deducrrng 1096 otrhe baec sale consrderaoon and shall rehrrn rhe amount atong wjth rnterest at the.ate oi 10.70yo [the Srate Bank of rndia highest margina] cost ot lending rare [MCLR) applicable as on dare +Z%) as presffibed unde. rule 15 ofthe Haryana Real Estare (R€gularion and Developmentl Rulcs, 2017, f.on the date of cancellar,on i.e, 14_06.2017, till the actuat date of refund of rhe amount withih the timelines provided in rute 16 of rhe Haryana Rules 2017 ibid.

H.

Directlons ofthe authorlty and issues the following ensure compliance ot 3at0: directed to ref,und rhe paid-up amounr of Rs. deducting 100/o ofthe basic sale conside.ation with interest at the prescribed rate i.e..10 70% 23.

24. isallowed on the balance amount from the date of ca 14.06.2017 til the dare of aduat retund.

A period of 90 days js Slven to rhe respondent to €o directionsgiven in this order and failtngwhtch tegat Complaint srands djsposed of. sanj Dated:10,03.202 HARERA GURUGRAM irizHgJS\-t.od fil -J I I I h\r< ,PrYl lltl/d $*r-iJ{d (hr-.es$j 749 0t20ta cellation i,e., ply with rhe .GuruSra