1.      Heard Dr. Arun Mohan, Sr. Advocate, assisted by Mr. Arvind Bhatt, Advocate, for the complainant and Mr. Jatin Sehgal, Advocate, for the opposite party. 

2.      Smt. Meenakshi Gupta has filed above complaint for directing the opposite party to (i) refund Rs.32536845/- with interest @24% per annum, from the date of respective deposit till the date of refund; (ii) pay litigation costs; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that M3M India Limited (the OP) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The OP launched a luxury group housing project in the name of “M3M Golf Estate”, at village Maidawas, Golf Course Extension Road, Sector-65, Gurgaon, in the year, 2010 and made wide publicity of its amenities and facilities. The complainant and her husband visited the office of the OP and inquired with its Executives and Mr. Deep Gupta, the proprietor of M/s. Rainbow Estate, its channel partner, in April, 2011, who informed that residential apartment would be Golf Course facing, spread over sprawling 75 acres of land and star attraction would be that the luxury apartments be built overlooking a nine holes reversible golf course and possession would be given within 36 months. Believing upon the representations of the OP, the complainant booked Unit No.MGE-2 TW-01/10a, admeasuring 3655 sq.ft., Fairway East, and two car parking spaces and deposited Rs.3691550/- on 13.04.2011. The complainant deposited Rs.26308450/- on 26.04.2011, under “Down Payment Plan” and balance Rs.8200000/- was payable at the time of offer of possession, as informed by the OP, vide emails dated 06.08.2011 and 19.08.2011. The OP issued Provisional Allotment Letter dated 11.05.2011 and demanded Rs.677443/- towards service tax, which was deposited on 12.07.2011. The OP executed Apartment Buyer’s Agreement (ABA) on 01.09.2011, in which total price of Rs.38202472/- was mentioned. Clause-14.1 of the ABA provides 36 months period from the date of commencement of construction for handing over possession. The OP, through letter dated 01.11.2012, informed that the area of the Unit had been increased to 3799 sq.ft. and demanded Rs.1388560/- towards increased area and Rs.470842/- as service tax, which was paid on 27.11.2012. After expiry of 36 months period, the complainant used to inquire about possession from the office of the OP but no satisfactory reply was given. The complainant gave a notice dated 14.06.2016 to the OP, to cancel her allotment and refund her money with interest. In spite of service of the notice, the OP did not reply. The complainant wrote a reminder dated 02.08.2016, to the OP. Then the OP gave a reply dated 07.10.2016, stating that 36 months period has to be counted from the date of commencement of the construction, i.e. 03.11.2012; the construction of brick works and internal plaster had been complete and work was going on with full swing; and if the complainant ask for cancellation, then forfeiture of earnest money, deduction of brokerage and interest on delayed payment, would be attracted and balance amount was payable without any interest. The complainant stated that the OP had revised the building plan, twice, without any information to her, due to which, area of golf course was considerably reduced and its major portion was reserved for further construction. Star attraction was that the luxury apartments be built overlooking a nine holes reversible golf course. Due to revision of the map, the price was also increased. Three years period, from the date of booking expired in April, 2014. After realization of more than Rs.3/- crores, period of delivery of possession was unilaterally shifted in the ABA, from the date of commencement of the construction, which period has also expired in October, 2015. The OP has committed breach of contract and not entitled for any deduction. On these allegations, this complaint was filed on 23.01.2017.        

4.      The opposite party filed its written reply on 26.04.2017, in which, booking of the flat, allotment of the flat and deposits made by the complainant, have not been disputed. The OP stated that M/s. Rainbow Estate was a real estate broker of the choice of the complainant and not a channel partner of the OP. The OP is not bound by any representation made by M/s. Rainbow Estate to the complainant. The OP denied that its Executive had made any representation contrary to the terms of the ABA or did anything to entrap the buyers. Clause 14.1 of the ABA provides 36 months period from the date of commencement of the construction for handing over possession with grace period of six months. The construction commenced on 03.11.2012 and said period of 42 months expired in May, 2016. Interest of the complainant is protected under clause-14.7 of the ABA by providing delay compensation as such only on account of delay, she is not entitled to terminate the ABA. The OP has completed construction of first phase of the project and obtained “occupation certificate” on 12.04.2017. The construction of remaining phase was completed and application for issue of “occupation certificate” was moved on 23.12.2016. The complainant opted for “down payment plan” due to huge discount in this plan. In Allotment Letter dated 11.05.2011, payment schedule was disclosed as (i) Rs.3561432/- on booking, (ii) Rs.32212074/-, within 60 days of booking and (iii) Rs.2428966/- on intimation of possession. On the request of the complainant, she was permitted to deposit balance Rs.82/- lacs on intimation of possession. All the terms of conditions of the ABA were shown to the complainant, prior to the booking and not one sided.  The complainant seeks to challenge the terms of ABA, which is not permitted after four year of its signing. In clause-e of Representation of Allottee of the ABA, the complainant acknowledged that any sale plan, sale brochure, advertisement and representation, prior to the ABA are irrelevant. Clause-1.3 of the ABA provides that ‘super area’ may increase as such 144 sq.ft. increase of ‘super area’, cannot be challenged at this stage. Revision of layout plan and increase of ‘super area’ was intimated to the complainant vide letter dated 01.11.2012. The project “Golf Course Estate” was designed by the world famous architect, Graham Cooke and is being developed in 63 acres land. The OP is developing 9 holes reversible PAR 3 golf course at the project site. It has been denied that golf course has been shrunk or its area has been reduced. All the amenities and features as mentioned in the approved plan are being developed. It is denied that any change in site plan was either deliberate or for any profit motive. Under clause-31 of the ABA, it was agreed that the allottee would not raise any objection in raising additional construction. The legal notice given by the complainant was duly replied. In order to wriggle out from the ABA, various false allegations have been made in the complaint. The complainant has claimed 24% interest, which shows that she was an investor in real estate with speculative motive and not a consumer. The complaint is liable to be dismissed.

5.      The complainant filed Rejoinder Reply, Affidavit of Evidence of Meenakshi Gupta and documentary evidence. The opposite party filed Affidavit of Evidence of Sunil Wali and documentary evidence. Along with Affidavit of Evidence, the opposite party filed “occupation certificate” dated 25.07.2017 and letter of offer of possession dated 03.01.2018, issued to the complainant. The complaint has filed written synopsis.

6.      The complainant filed IA/19791/2017, seeking answer of the opposite party of the questions, namely (i) Which was the sanctioned/ approved plan of the project, existed on 13.04.2011? (ii) What was the precise distance of open area between the flat in question and tower in front to which the windows and balconies were facing? Was it 180 meters and if less than 180 meters, then how much less? and (iii) Total size (depth in meters) of golf course per the sanctioned/approved plan on 13.04.2011, 03.12.2012 and 14.06.2016. Vide order dated 19.12.2017, the OP was directed to file brochure of the project and if no such brochure, then file an affidavit in this respect. The OP filed Affidavit of Sunil Wali, stating that the OP had no record relating to the brochure or CD relating to the project. The complainant filed the copy of the brochure as allegedly published by the OP, at the time of launch of the project and advertisement published in the newspapers along with Rejoinder Reply and IA/2848/2018. The OP filed Affidavits of Vivek Ranjan and Basant Bansal (the directors) disowning the brochure and the advertisement made in newspapers by them. It has also been stated that sometimes the brokers of the real estate themselves used to publish brochure without knowledge of the developer. Then the complainant filed IA/1193/2019, under Section 340 Cr.P.C., for prosecuting above persons for filing false affidavits. The OP filed reply in this IA.     

7.      We have considered the arguments of the parties and examined the record. The OP filed copy of the Licence No.234 of 2007 as revised on 09.11.2009, showing that licence for development of an area of 61.556 acre land situated at village Maidawas and Licence No.52 of 2009 dated 28.08.2009, showing that licence for development of an area of 3.10 acre land situated at village Maidawas were granted by Town and Country Planning, Haryana. In Layout plan, sanctioned on 08.07.2010, total area 61.958 acres. In the revised plan as revised on 01.10.2012 total area 62.993 acres was mentioned. In the ABA dated 01.09.2011, area of the project land was mentioned as approximately 63 acres. In the revised plan as revised on 20.12.2014 total area 66.512 acres was mentioned. In the brochure as filed by the complainant, area of the project was mentioned as 75 acres. The OP filed Affidavits of Vivek Ranjan and Basant Bansal (the directors) disowning the brochure and the advertisement made in newspapers by them. The OP stated that sometimes brokers of the real estate themselves used to publish brochure without knowledge of the developer. But at the same time, the OP withheld its brochure as such adverse presumption has to be raised under Section 114 of the Evidence Act, 1872. The OP did not summon M/s. Rainbow Estate, through whom the complainant booked the unit in this project to prove that M/s. Rainbow Estate had published the brochure or gave publications in the newspapers. Straight way denying the brochure and publication in newspapers and not producing any other brochure and not summoning M/s. Rainbow Estate to prove that they had published brochure and given publications in newspapers, shows that denial of the OP is not liable to be believed.  

8.      In the brochure 75 acres area of the project land and 110% green area has been represented. Total area of the project land as mentioned in the layout plan as revised on 20.12.2014 comes to approximately 269165 sq. metres. In the layout as sanctioned on 08.07.2010, total green area 81798.37 sq. metres was shown. In the plan as revised on 01.10.2012 total green area 49249.20 sq. metres was mentioned. In the plan as revised on 20.12.2014 total green area 40378.72 sq. metres was mentioned. 110% green area, which was initial commitment or total green area 81798.37 sq. metres as mentioned in the layout as sanctioned on 08.07.2010 has been reduced to 15%.

9.      So far as delay in possession is concerned, due date of possession was 30.04.2016 (including grace period of six months) and possession was offered on 03.01.2018. Although there was one year eight months delay in offer of possession but no delay compensation was credited. Although, the OP, vide emails dated 06.08.2011 and 19.08.2011, permitted the complainant to deposit balance amount of Rs.82/- lacs on intimation of possession but in final statement of account, the OP has charged Rs.9226867/- towards interest. Thus offer of possession, even after delay, was illegal. The opposite party committed material breach of commitment, as such, the complainant is entitled to claim for refund. The complainant has claimed 24% interest but Supreme Court in Experion Developers (private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that in case of refund, 9% interest is just compensation, which amounts to restitutory and compensatory both.

10.    So far as IA/1193/2019, under Section 340 Cr.P.C., for filing criminal complaint against the OP, for making false allegation in the affidavits are concerned, the complainant also did not summon M/s. Rainbow Estate to prove that the brochure was supplied by the OP. Smt. Meenakshi Gupta, in her Affidavit of Evidence has admitted that she and her husband approached the OP for booking through M/s. Rainbow Estate. She has not given the name, who had supplied the brochure to her. There is no sufficient material for lodging criminal complaint.       

ORDER

In view of aforesaid discussions, the complaint is partly allowed with cost of Rs.one lac. The opposite party is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment. IA/1193/2019 is rejected.