AKHILESH KUMAR NAITHANI Vs. M3M INDIA PRIVATE LIMITED

JUDGEMENT

(1.) Heard Mr. Aditya Parolia, Advocate, for the complainants and Mr. A.R. Takkar, Advocate, for the opposite party, through video conferencing.

(2.) Akhilesh Kumar Naithani and Smt. Kusum Naithani (the complainants) have filed this complaint for directing M3M India Private Limited (opposite-party), (hereinafter referred to as the builder) (i) to give physical possession of Unit-1 to the complainants, complete in all respects and in conformity with agreement-1 and execute all necessary and required documents in respect of Unit-1, in favour of the complainants; (ii) to waive off delayed penalty charges imposed on the complainants by the opposite party, at interest rate of 24% per annum with respect to Unit No. 1; (iii) to hand over possession of Unit-2 and Unit-3 to the complainants, complete in all respects and in conformity with agreement-2 and agreement-3 respectively and execute all necessary and required documents in respect of said Unit-2 and Unit-3, in favour of the complainants within a period of 6 months, from the date of filing of this complaint; (iv) to pay interest @ 12% per annum, on the amount deposited by the complainants with the opposite party towards consideration of Unit-2 and Unit-3, with effect from the date of delivery of possession, promised in Agreement-2 and Agreement-3 respectively, till the date of actual possession as per clause (c) of above agreements; (v) to pay compensation of Rs. 10,00,000/- to the complainants, for mental agony and harassment, discomfort and undue hardship caused to the complainants as a result of acts and omission on the part of the opposite party (vi) to pay Rs.1,00,000/- to the complainants as the cost of litigation and (vii) any other relief which the Commission deems fit and proper, in the fact and circumstances of the case, be passed.

(3.) The facts as stated in the complaint are that the builder was a company, engaged in the business of development and construction of multi-story residential and commercial buildings and selling its unit to the prospective buyers. The builder advertised for construction of commercial complex over the revenue estate of villages Maidawas and Badshahpur, Sector-67, District Gurugram, Haryana, in the name of "M3M Urbana" in 2015. Complainant-2 is an interior designer and was working from home. She was in need to set up her own office for her business venture, for the purposes of earning their livelihood by way of self-employment. Therefore, the complainants booked three units in the project "M3M Urbana" on 30.09.2015 and opted for "Possession Linked Payment Plan", under which 30% of sale consideration has to be paid within 30 days of booking and 70% within 30 days of the notice of possession. Provisional Allotment letters dated 30.09.2015 were issued to them, the details of which are:- (i) Unit-1- Unit No. SB/R/GL/06/21, Block-6, super area 900.65 sq. ft., total consideration of Rs.1,93,00,168/-, Buyer's Agreement dated 24.11.2015 (Agreement-1). Promised date of possession-12 months with grace period of 6 months, from the date of agreement. Amount paid was Rs.59,85,622/-; (ii) Unit-2- Unit No. SB/R/GL/07/11, Block-7, super area 905 sq. ft., total consideration of Rs.1,95,26,720/-, Buyer's Agreement dated 20.01.2016 (Agreement-2). Promised date of possession-24 months with grace period of 6 months, from the date of agreement. Amount paid was Rs.71,45,491/-; and Unit-3- Unit No. SB/R/GL/07/10, Block-7, super area 904.65 sq. ft., total consideration of Rs.1,76,97,696/-, Buyer's Agreement dated 20.01.2016 (Agreement-3). Promised date of possession-24 months with grace period of 6 months, from the date of agreement. Amount paid was Rs.55,48,293/-. As at the time of booking of the Units, 30% of the sale consideration were paid as such at the time of execution of Buyer's Agreement, the complainants were not in position of negotiation as it would have resulted in cancellation of allotment and forfeiture of booking amount i.e. 30% of sale consideration. The builder issued notice of possession dated 23.03.2017, for Unit-1, raising final demand of Rs.1,58,26,473/-. The complainants then visited the site and found that the construction work was still in progress in the area around Unit-1 and there were barriers close to Unit-1, restricting entry and exit to Unit-1. The complainants informed the builder about this situation through email dated 08.04.2017, requesting to grant time till August, 2017, to make payments towards final demand. The builder through email dated 17.07.2017 refused to accede to the said request. Thereafter, the complainants visited the office of the builder on several occasions, to deposit remaining amount and taking possession however, the builder began to demand 24% per annum interest for delayed period. The builder issued pre-cancellation notice dated 04.10.2017, showing total dues of Rs.1,62,55,919/- and asked to deposit this amount within 15 days from issue of this letter. The complainants visited the builder and requested to waive the amount of penal interest which was charged at the rate of 24% per annum. However, the builder issued letter dated 18.01.2018 cancelling the allotment. The complainants, vide email dated 31.03.2018, requested to adjust the money deposited by them for booking of Unit-2 and Unit-3, for payment of Unit-1 or permit them to sell Unit-1 and to pay its dues but no reply was given. Thereafter, the complainants sent reminder emails on 27.04.2018, 03.05.2018, 31.05.2018 and 27.09.2018. Then, the builder, through email dated 30.11.2018 informed that they were working upon the request of the complainants. The builder, vide email dated 06.03.2019, informed that the committee has acceded to the request and transferred the amounts of Unit-2 and Unit-3 to Unit-1, to reduce the liability of the interest. The complainants in the meeting on 07.03.2019 and vide emails dated 07.03.2019 and 12.03.2019 informed that almost 10 months had been taken to respond their request to adjust the amount of Unit-2 and Unit-3, for payment of Unit-1, in the meantime, they had arranged the fund and willing to retain all the three Units as such a fresh demand notice be issued, waiving payment of delayed interest. The builder then shared the account of the complainants on 16.03.2019 and informed that their request would be put up before the Committee. The complainants visited the office of the builder on 11.04.2019 and sent email on 12.04.2019, again requesting for issue of fresh demand notice of Unit-1. The builder through email dated 20.04.2019 informed that the allotment of the complainants had already been cancelled on 18.01.2018. It has been submitted that charging 24% per annum interest after March, 2017 although construction was not completed by that time and the cancellation of allotment of Unit-1 was arbitrary, illegal and unjustified. The construction of Unit-2 and Unit-3 was neither completed nor was possession offered within promised period. The builder issued possession letters dated 21.12.2019 for Unit-2 and Unit-3 and asked the complainants to deposit balance amount without obtaining Occupancy Certificate. These letters were not served upon the complainants as they were out of country at that time. Then reminders dated 06.01.2020 were issued. The complainants through email dated 18.01.2020 protested the possession notice on the ground that without obtaining Occupation Certificate, demand for balance amount was made. The builder vide email dated 27.02.2020 admitted that Occupation Certificate has not been issued but stated that the construction had been completed and they had applied for Occupation Certificate on 12.05.2017. On these allegations, this complaint was filed on 03.07.2020.