GURPREET SINGH KALSI vs AGRANTE DEVELOPERS PRIVATE LTD

tr HARERI\ # eunuennvt Complaint No.

3748 of 202 L BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.: 3748 of2OZl First date ofhearing: 22,Ll.2OZl Date ofdecision: 06.03.2024 Curpreet Singh Kalsi R/o: " H-092, DLF New Town Heights, DLF Garden City, Sector-9l, Gurugram, Haryana-1-2250 Complainant Versus 1.

M/s Agrante Developers Private Limted.

Office address:- 704, DLF Tower-B, lasola, New Delhi- 1 10 04 2.

Arvinder Singh Address:- House No.

253, Janakpuri, Bareli (U.P.) 3.

Yuvraj Singh Address:- House No.

253, lanakpuri, Bareli (U.P.J 4.

Narendra Kumar Gupta Address:- 146-R, ModelTown, Karnal, Haryana.

5. lndiabulls Housing Finance Limited Address:- M-62 & 63, F'irst Floor, Connaught Place, New Delhi- 110001 Respondents CORAM: Shri Ashok Sangwan Member APPEARANCEI Shri Kuljeet Singh Proxy (Advocate) Complainant None for the respondent no.

1 to 4 Ms.

Simran Proxy counsel on behalfofthe India Bulls Respondents R-5 ORDIR Page I of 24 ffHARERA #- eunuenru ComDIaint No.

3748 of 2021 1.

The present complaint has been filed by the complainant/allottees under section 31 of the Real Estate (Regulation and Development) Acl 2015 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 201.7 (in short, the Rules) for violation of section 11(41(aJ of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions as provided under the provision of the Act or the Rules and regulations made there under or to the allottees as per the agreement for sale executed lnrer se.

A, Proiect and unit related details 2.

The particulars of the project, the details of sale consideration, the amount paid by the complainant(s), date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: s.

N.

Particulars Details 1.

Name ofthe project "Beethoven's 8", Sector- 107, Gurgaon 2.

Gurgaon 2.

Nature ofproiect Group housing complex 3.

RERA registered/not registered Not Registered 4.

DTPC License no.

23 of 2012 dated 23.03.20L2 Validity status Not available on record Name oflicensee Narendra Kumar Gupta & others Licensed area 18.0625 acres 6.

Unit no.

Harmony-l K/E/1803 [As on page 36 ofcomplaint) Unit area admeasuring 2267 sq. (As on page 36 of complaintJ Page2 of24 / ff HARER^ SeunuenaHl ComDlaint No.

3748 of2021 7.

Allotment letter 1.8.03.2076 [As on page 32 ofcomplaint) B.

Date of execution of buyer's agreement 18.0 3.2 016 [As on page 34 ofcomplaint) 9.

Possession clause Clause 78(a) Subject to other terms of tiis Agreement/Agreement, including but not limited to timely payment of the Totol Price, stamp duty and other charges by the Vendee(s), the Company shall endeavor to complete the construction of the Said Apartment within 42 (Forty-two) months from the date of Allotment, which is not the same as dote of this Agreement The Compony will offer possession of the Said Apartment to the Vendee(s) as and when the Company receives the occupation certificate from the competent authoriuqes).

Any delqy by the Vendee(s) in taking possession of the Said Aportment from the date of offer of possession, would attract holding charges @ Rs.05/- (Five) per sq. ft per month for qny delay offull one month or ony pqrt thereof. (Emphasis supplied) 10.

Due date of possession 18.09.2019 (Calculated 42 months from date of allotment) 11.

Total sales consideration Rs,1,68,9 3,513/- (As on page 33 of complaint) 1,2.

Amount paid by the complainant Rs.72,18,179 /- [As per ledger account on page 19 of replyJ 13.

Quadra-partite Agreement 18.03.2016 PaEe3 of 24 r' ffi HARERA #-eunuenntrl B, Complaint No.

3748 of 2021 14.

Loan sanction letter 25.03.201,6 (As per page 72 ofcomplaintl 15.

Details of subvention scheme Subvention period from 01.04,2016 to 31.03. to 31.03.201,9 (Page 71 of the complaintJ Date of commencement o[ borrower liability to pay Pre-EMI interest on balance term of loan from 01.04.201.9 16.

Offer ofpossession Not offered 1,7 .

Occupation certificate Not received 18.

Legal notice sent by the complainant to the respondent for refund on 13.07 .2020 Facts ofthe complaint The complainant has made the following submissions in the complaint: - L That the Complainant is a citizen of India and is constrained to file the present complaint for the acts and omissions of the Respondents which amounts to deficiency in service, breach of terms, and conditions of the contract, unfair trade practice and the residential project in question was to be developed by the respondent no.

1 and 2.

Respondent no.3 and 4 will be referred to as the 'Owner'.

Respondent no.

1 is controlled and managed by the respondent no.

2 to 4.

5 is a finance company working in collusion and hand in gloves with the owner and respondent no.

1-4/developer.

IL The respondent no.

1 to 4/Developer had widely advertised sale of ultra-modern residential Flats Beethoven's 8, situated at Sector-107, Gurgaon in Haryana.

The advertisement was also circulated by the Respondent no.

1-4/Developer through their accredited agents.

The Page 4 of 24 r Complaint No, 3748 of 2021 III.

IV.

HARERA GURUGRANI Respondent no.

1-4/Developer claimed himself to be a reputed builder engaged in the business of real estate and was developing a project under the name and style of Beethoven's 8 in Sector-107, Gurgaon.

That the Complainant was attracted by the advertisement issued by the Respondent no.

The Respondent no.

1- 4/Developer gave an assurance to the Complainant that the Flat would be under Subvention Plan and amount of the Flat would be paid by the Complainant only after the delivery of possession of the flat.

Such an advertisement and assurance were actually misleading and amounts to unfair trade practice. practice.

That on false assurance given by the Respondent no.

1-4/Developer in collusion with the respondent no.

5, the Complainant agreed to purchase Apartment in Beethoven's 8 project for a total sale consideration of Rs.

1,67,66,9851-.

That as per the terms and conditions of the Agreement dated 18.03.2016 the Respondent no.

1-4 had to complete the project within stipulated period of 42 months.

1-4 had to hand over exclusive vacant possession within 42 months and on failure the Respondent no.

1-4 had agreed to tender a refund of the amount collected along with interest and compensation.

1-4 had to handover possession by September 2019 which he has failed to.

V.

That the Respondent no.

1-4 as preplanned vide letter dated \8.03.201.6 granted permission to mortgage the subject flat to the respondent no.

5, the Indiabulls Housing Finance Ltd.

1-4 gave NOC to the respondent no.

5 for mortgaging PageS of24 / * HARERT. #-eunuennnr VI.

Complaint No.

3748 of 2021 the Flat allotted to Complainant by way of security for repayment of the loan.

On 18.03.2016 the Respondent no.

1-4-raised a demand of Rs.

51,57,406/- as per payment plan.

That pursuant thereto a Quadripartite Agreement dated 18.03.2016 was executed inter se the Respondent no.

1-4, Developers/Owners of the land and confirming party to the project, Mr.

Yuvraj Singh and Mr.

Narendra Kumar Gupta, the respondent no.

5 and Complainant.

The Quadripartite Agreement which was signed on 18.03.2016 was blank and it was filled up later on by the Respondent no.

1-4, the Developers/owners and Respondent no.

S without the knowledge of Complainant.

As per the terms and conditions of the said Quadripartite Agreement dated 18.03.2016 the Owners, i.e Mr.

Narendra Kumar Gupta and Developers, Respondent no.

1-4, assumed the liability of payments of pre-EMI interest during the agreed subvention period (i.e. riod (i.e. till the date of handing over possession) and on failure they agreed to indemnily the Respondent no.5 to recover its losses.

Under the Subvention Scheme till the construction is complete or intimation letter is issued to the Complainant to take possession of the flat, the Respondent no.

1- 4/Developers and Owners would pay the Pre-EMI interest to Respondent no.5.

VII.

That all the respondents, i.e., the Respondent no.

1-4/Developers and Owners and the respondent no.

5, the financial institution, in connivance with each other bound Complainant who was going to book the flat under the above said project to borrow the loan from respondent no.

5. lt is apparent from the fact that the respondent no.

Page 6 of 24 IX.

3748 of 2021 5 first made Quadripartite Agreement dated 18.03.2016 then subsequently sanctioned the loan on 25.03.2076 and executed the Loan Agreement also dated 25.03.2016.

Quadripartite agreement is also vague with blanks which were filled up later on.

5 has advanced disbursement facility to the Respondent no.

1- 4/Developer on fake project at the cost of Complainant.

That vide letter dated 07.04.2076 respondent no.

5 informed Complainant about disbursal of an amount of Rs.

13,87,261/- in its favour which is not understandable and another amount of Rs.

37,70,145/- in favour of the Respondent no.

1-4/Developer which is duly acknowledged by the Respondent no.

1, the Builder/Developer in its statement of account.

5 has disbursed the amount in mechanical manner in collusion with respondents without veriffing the facts and monitoring the project.

That Complainant booked the subject flat in Beethoven's 8 proiect *HARERA *$- eunuennHl VII I, floated by the Respondent no. l-4/Developer on assurance given by the Respondent no.

1-4/Developer and Owners that Complainant would get 85% of financial assistance from the respondent no. ondent no.

5, the lndiabulls Housing Finance Limited and Complainant would not have to pay any instalments or interest prior to the possession of the flat.

Complainant attracted by the assurances given by the Respondent no.

1-4 in collusion with the respondent no.

5 and deposited a sum of Rs.

20,00,000/- of his hard earned money at the beginning of his career.

X.

That on the basis of composite proposal as given by the Respondent no.

1-4, i.e.

Flat was covered under Subvention Scheme Payment Plan and Home loan was available from the respondent no, 5 and no EMI's PaEe 7 of 24 HARER: ffi.

GURUGRAM XII. to be paid by Complainant till the date of handing over possession, Complainant was allured by unfair trade practice adopted by the respondents with false assurances and vide application dated 1-3.02.2016 applied for allotment of an apartment in the proposed unit no.

Harmony- 1, K/E/7803.

That Complainant came to know about connivance amongst all the respondents when on 09.08.2017 he received a mail from the respondent no.

5 for submission of mandate as a repayment towards Complainant Ioan account from bank account of Complainant.

Complainant immediately vide email dated 10.08.2017 apprised respondent no.5 that the subvention scheme is valid till date of possession, therefore, Complainant need not have to initiate an ECS registration.

A copy of the mail was sent to the Respondent no.

1-4 also.

It was also informed that the subvention period can be extended if the Respondent no.

1-4 would fail to hand over the possession by March 2 019.

That respondent no.5 informed Complainant vide email dated 27.02.201.9 that the subvention period was getting over and EMI would be debited from Complainant's account.

Complainant on receipt of said mail sent a mail to the respondent no.

5 that according to the then interaction of Complainant with the Respondent no.

1-4, Complainant was informed by the Respondent no. ondent no.

1-4 that request for extension of subvention period has been forwarded to respondent no.

5, therefore, in view of that the respondent no.

5 was apprised/notified that account of Complainant should not be get debited from May'2019 onwards.

But the respondent no.

5 iointly and Complaint No.

3748 of 2021 XI.

Page I of 24 NARERA GUl?UGRAM Complaint No.

3748 of 2021 severally in connivance and collusion with the Respondent no.

1-4 started auto debiting from account of Complainant the amount towards EMI from 10.05.2019 till date and as well as overdue charges for the default committed by the Respondent no.

1-4.

XIIL That the Respondent no.

1-4 in connivance with the Respondent no.5, took advance money from Complainant in account of Flat but also received the loan amount under Advance Disbursal Facility and thereafter even not started the project and there is no sign of its completion also.

In terms of the Agreement to Sale dated 1g.03.2016 the Respondent no.

L-4 has also not refunded the amount deposited by Complainant on breach of the terms and conditions of the Agreement.

1-4 Developer along with Owners of the property Mr.

3 & 4 not paid any amount to the Respondent no.

5 which amounts to improper business practice.

XIV.

That initially vide Statement of Account/Ledger Account of the Respondent no.

1-4, it has taken an amount of Rs.

51,57,406/- on 29.04.20L6 in collusion with the Respondent no.

5 from the loan account of the Complainant, per force opened by them by giving allurement that till the date of handing over possession the Complainant does not have to pay a single penny.

1- 4/Developer and Owners in collusion with the Respondent no.5 have taken substantial amount as mentioned above against total sale consideration of Rs.1,61,66,985/-. ,66,985/-.

The respondents are illegally enjoying the benefits arising out of the amount paid by the Complainant as well as advance amount taken by the Respondent no.

Page I of 24 ffiHARERA #-eunuennnr XV.

XVI.

ComDlaint No.

3748 of 2021 1-4/Developer and Owners from the loan of an amount of Rs.

L,25,01,069 / - taken in the name of Complainant from the Respondent no.5 under Quadripartite Agreement, without discharging legal obligation.

Now as per the Agreement dated 19.03.2016 and Quadripartite Agreement dated 18.03.2016, the Respondent no.

1- 4/Developer and the Owners are iointly and severally liable to return the entire principal amount and loan amount disbursed in their favour from the Ioan account maintained by the Respondent no.

S in the name of Complainant, with interest and compensation.

That Complainant has suffered to its detriment by paying a huge sum of Rs.

20,00,000/- from his own hard-earned savings with no returns and an amount of Rs.37,70,745/- and an amount of Rs.73,97,267/- from the loan account of Complainant with the Respondent no.

5 on false assurances and undertakings given by the respondents.

Now, during this pandemic the respondent no.

5 is deducting EMI from the reduced salary of the complainant which has brought him to severe hardship to make both ends meet along with his advanced age parents with medical ailments.

That the complainant has served a Iegal notice dated 13th fuly 2020 on the respondents for refund of entire amount paid by the Complainant and disbursed from the loan account of the Complainant with interest.

The Respondent no.5 is also notified not to recover any loan amount from Complainant's Bank Account Which Respondent no.

5 is liable to recover from the Respondent no.

1-4/Developer and owners who are the principal debtors and beneficiaries of the advance disbursed by respondent no.

5 from the Home Loan Account Page 10 of24 v *HARERA # eunuennt,,r It.

I.

5.

3748 of 2021 no.

HH LG RG0026 6773.

0026 6773. 'the Respondent no.

5 is also notified to take all steps to remove the name of Complainant from the defaulters list of CIBIL.

5 is also notified to refund the EMIs and paid overdue charges of an amount ofRs.

74,33,942.40/- taken from Complainant's account for EMIs @ Rs.45,558/- for the month of May 2019 and June 2019 and Rs.51,838/- from fuly 2019 to August 2021 (March 2021 @ Rs.

45,691.40/-) together with reasonable interest and the Respondent no.

1-4/Developer and the Owners are notified to return the advance amount availed by them from the Respondent no.

Relief sought by the complainant: - C.

4.

The complainant has sought following relief(s) Direct the respondent no.

1 to 4/Builder and Owners to pay principal amount of 85,91,248.40 /- with interest @ 240/o p.a. from various date of payment till the date of filing of the complaint.

Direct the respondents to pay interest on the principal amount as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) (GenerallRules, 2016 as framed under Section 84 of the Real Estate (Regulation and Development) Act,2016 from the date of filing of the complaint and further till the date of its payment.

Direct the respondents to pay an amount of Rs.

25 lakhs towards damages for the loss of opportunity to acquire suitable alternative site as well as for harassment.

Reply filed by the respondent The respondent had contested the complaint on the following grounds: III.

D.

PaEe 17 of24 1 HARERA MGURUGRANI I.

3748 of 2021 II, That as per the pleadings of the Complainant it seems that the cause of action first arose in favor of the Complainant when he alleges that possession was not offered on the due date i.e., Decembe r, Z0l7 .

The Complainant has filed the present complaint after a lapse of more than 3 years now at the time when the possession is about to be offered with all necessary adjustments. justments.

The Complainant herein has admittedly pleaded that the complainant had applied for home loan of INR.

68,50,000/- out of which Rs.55,00,000/- was disbursed by Housing Development Finance Corporation as housing loan that was sanctioned to the Complainant however the Complainant has sought the repayment of EMI to bank against all the due and overdue bank instalments without filing any documentary proof that the complainant has repaid the said amount along with interest to Housing Development Finance Corporation.

That the Respondent, as per the mutual understanding with the complainant, has been duly complying and paying the interest/pre Emi to India Bulls Housing Finance on behalf of the Complainant however some of the payments are pending owing the C0VID- pandemic.

The Respondent agrees have the dues cleared if the Complainant withdraws the complaint and opts for transfer of his unit to Tower-H.

It is submitted that Tower-H of the proiect is ready and the construction of the building structure comprising fourteen floors is completed.

The necessary electrical wiring and works pertaining to plumbing and sanitation are also ready.

It is submitted that the Promoter would be in a position in all probability to offer possession III.

Page 12 of 24 L. ffi HARER,,,. ffieunuennu IV.

3748 of 2021 of the flats in Tower-H in 6-7 months from the date of filing of the present reply.

The promoter has incurred and utilized his own funds and loans towards construction of the project and if the complaints pertaining to refunds are entertained at this stage it would jeopardize the fate of the proiect which would consequently hamper the valuable rights of the other allottees of the project.

The promoter is in the process of applying for occupation Certificate for Tower- H.

Tower- H.

The promoter is willing to ad,ust for the interest components as computed for delay in offering possession towards the balance sale consideration of the Complainant as the promoter will offer possession in Tower-H to the Complainant.

That the statement of objects, reasons and preamble of the Act makes it manifestly clear that it is not only the interest of the consumers of the real estate sector which the Act seeks to protect and safeguard but also the promotion of the real estate with a view to ensure sale of plot, apartment etc.

The Authority is empowered not only to monitor the projects but also to ensure their timely completion where projects are held up or stopped and to take steps so the same are completed in time and in the interest of the allottees who are awaiting possessions of the units in the project.

It is not out of place to mention here that due to pending registration of the proiect with the Authority the Promoter since the implementation of the Act was unable to raise funds from its existing customers nor it could raise finance by selling unsold inventory.

The shortage of funds to enable rapid construction had been a determining factor for the delay as it slowed down the pace of V PaEe 13 of 24 tr HARERA #- eunuennvr Authority to balance the interest of the consumers and the promoters harmoniously to achieve the maximum good and benefits.

That lastly it is submitted that the crisis of COVID-19 pandemic has also given a blow to smooth working of the promoter.

It is pertinent to mention here that during the lockdown imposed by the Central Government, the workforce at the project site left for their homes and there was a complete halt in the work which added to further delay.

It was after sincere efforts of the promoter that the workforce could be again mobilized and presently the works are being carried out at the site. the site.

That without prejudice to the above it is submitted that the contents of reply filed by the Respondent to the Complaint may kindly read as part and parcel to this reply and the same are not repeated herein for the sake of brevity.

6.

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

E.

I Territorial iurisdiction construction undertaking demanding complaint No.

3748 of 2021 considerably.

It is reiterated that the promoter is costs of constructions from its own pockets and is not anything from the allottees, an act which is unprecedented by any other real estate company and it is now for this E.

7.

PaEe 14 of 24 ffiHARER" ffieunuennll Complaint No.

3748 of 2021 8.

As per notification no.

7/92/2017-tTCp dated L4.7Z.2OLZ issued by Town 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 authority has complete territorial jurisdiction to deal with the present complaint.

II Subiect matter iurisdiction 9.

Section 11[4)(a) of the Act, 20i.6 provides that the promorer shall be responsible to the allottee as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section 77 iQ fhe promoter shatl- (o) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules ond regulations mode thereunder or to the allottees as per the agreement for sole, or to the ossociotion of qllottees, os the cose moy be, e moy be, till the conveyance of all the opartments, plots or buildings, os the cqse may be, to the ollottees, or the common areos to the association oJ allottees or the competent authority, as the case may be; Section 34-Functions of the Authority: i4A of the Act provides to ensure compliance of the obligations cost upon the promoters, the ollottees and the reol estate ogents under this Act and the rules and regulotions mode thereunder.

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 leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a later stage.

Further, the authority has no hitch in proceeding with the complaint and 10. to grant a relief of refund in the present matter in view of the judgement Page lS oflz+ I L1.. ffi HARER: S- eunuennu passed by the Hon'ble Apex Court in Newtech promoters and reiterated in case of M/s Sana Realtors privote Limited & other Vs Union of India & others SLp (Civil) No.

75005 of Z0Z0 decided on 72,05,202Zwherein it has been laid down as under: "86.

From the scheme of the Act ofwhich q detailed reference hos been made qnd taking note of power of odjudication delineated with the regulatory outhority and odjudicating off;cer, what fino y culls out is that although the Act indicotes the distinct expressions like,refund,, 'interest', 'penolty' ond 'compensotion', a conjoint reading of Sections 1B ond 19 clearly manifests thqt when it cones to refund of the omount, oncl interest on the refund amount, or directing payment of interest fot clelayed delivery of possession, or penolty ond interest thereon, it is the regulqtory outhority which has the power to exomine ond determine the outcome of o complaint. complaint.

At the same time, when it comes to o question of seeking the relief of odjudging compensation and interest thereon under Sections 12, 14, 18 ond 19, the odjudicoting officer exclusively has the power to determine, keeping in view the collective reading of Section 71 reod with Section z2 of the Act. ifthe qdjudication under Sections 12, 14, 1B and 19 other than compensotion qs envisaged, ifextended to the odjudicqting officer as prayed thot, in our view, moy intend to expand the ombit ond scope of the powers ond functions of the odjudicatina olficer under Section 71 ond thqt would be ogqinst the mandote of the Act 2016." 12.

Hence, in view of the authoritative pronouncement of the Hon,ble Supreme Court in the cases mentioned above, the authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

F.

Findings on the obiection raised by the respondent: F.l Obiection regarding delay in completion of construction of proiect due to outbreak of Covid-19.

3748 of 2021 Developers Private Limited Vs State of U,p. and Ors, (Supra) and 13.

The Hon'ble Delhi High Court in case titled as M/s Halliburton Offshore Services Inc.

V/S Vedanta Ltd. & Anr. bearing no.

O.M.p (1) (Comm.) PaBe 16 of 24 I ff HARER^ S* euRuennu 1,4.

3748 of 2021 no. aa/202o and LAS 3696_3697 /2020 dated 29.05.2020 has observed as under: 69.

The past non-performance of the Contractor cannot be condoned due to the COVID-19 lockdown in March 2020 in lndia.

The Contractor was in breach since September 2019.

Opportunities were given to the Contractor to cure the same repeatedly.

Despite the same, the Contractor could not complete the project.

The outbreak of a pandemic cannot be used as an excuse for non-performance of a contract for which the deadlines were much before the outbreak itself. ak itself." ln the present case also, the respondents were liable to complete the construction of the project and handover the possession of the said unit by '1,8.09.2019.

It is claiming benefit of lockdown which came into effect on 23.03.2020 whereas the due date of handing over of possession was much prior to the event of outbreak of Covid-19 pandemic.

Therefore, the authority is of the view that outbreak of a pandemic cannot be used as an excuse for non-performance of a contract for which the deadlines were much before the outbreak itself and for the said reason, the said time period cannot be excluded while calculating the delay in handing over possession.

Findings on the reliefsought by the complainant G.l Direct the respondent no.

1 to 4/Builder and owners to pay principal amountof 85,91,248.40/- with interest @ 240/o p.a. from various date of payment till the date of filing of the complaint.

15.

In the present complaint, the complainant intends to withdraw from the proiect and is seeking return of the amount paid by him in respect of G.

PaEe 17 of 24 * HARER^ #* eunuennvr ComDlaint No.

3748 of 2021 subiect unit along with interest at the prescribed rate as provided under section 18[1) of the Act.

Sec.

18(1J of the Act is reproduced below for ready reference. "Section 78: - Return ofqmount snd compensation 1B(1). lfthe promoter fails to complete or is unable to give possession of an qpartment, plot, or building. - (a) in accordance with the terms of the agreement for sale or, os the case moy be, duly completed by the date specified therein: or (b) due to discontinuance of his business os a developer on qccount of suspension or revocotion of the registrotion under this Act or for any other reoson, he shctll be liable on demond to the allottees, in case the ollottee wishes to withdraw from the project, without prejudice to dny other remedy available, to return the amount received by him in respect of thot ap. f thot ap.rrtment, plot" building, as the cqse may be, with interest at such rate as may be prescribed in this behalf including compensation in the monner as provided under this Act: Provided thot where on qllottee does not intend to withdrow from the project, he sholl be pqid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be presc ribed." ( Emphasis supplied) 16.

Clause 1B(aJ of the agreement provides for handing over of possession and is reproduced below: "18(a).

Subject to other terms of this Agreement/Agreement, including but not limited to timely payment of the Total price, stamp duty and other chorges by the Vendee(s), the Compony shall endeavour to complete the construction of the Said Apartment within 42 (Forty-two) months from the date of Allotment, which is not the same as dqte of this Agreement.

The Company will offer possession of the Said Apartment to the Vendee(s) as and when the Company receives the occupation certificate from the competent quthority(ies).

Ary deloy by the Vendee(s) in taking possession of the Sqid Apartment from the date of offer of possesslon, would attroct holding charges @ Rs.05/- (Five) per sq. ft. per month for any delay of full one month or any pqrt thereof.

Page 18 of 24 ffi HARERA s* eunuennu 77.

3748 of 2021 At the outset, it is relevant to comment on the preset possession clause of the agreement wherein the possession has been subjected to all kinds of terms and conditions of this agreement and application, and the complainants not being in default under any provisions of these agreements and compliance with all provisions, formalities and documentation as prescribed by the promoter.

The drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promoter and against the allottee that even a single default by the allottee in fulfilling formalities and documentations etc. tions etc. as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottees and the commitment date for handing over possession loses its meaning.

The incorporation of such clause in the buyer's agreement by the promoter is ,ust to evade the liability towards timely delivery of subject unit and to deprive the allottee of his right accruing after delay in possession.

This is iust to comment as to how the builder has misused his dominant position and drafted such mischievous clause in the agreement and the allottee is left with no option but to sign on the dotted lines.

Admissibility of refund along with prescribed rate of interest: The complainant is seeking refund the amount paid by him at the prescribed rate of interest.

However, the allottee intend to withdraw from the project and is seeking refund of the amount paid by him in respect of the sub.iect unit with interest at prescribed rate as provided under rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 75.

Prescribed rqte of interest- [proviso to section 12, section 1B qnd sub-section (4) dnd subsection (7) ofsection 7gl [1) For the purpose of proviso to section 12; section 78; qnd sub- sections (4) qnd (7) of section 19, the "interest qt the rate u Page 19 of 24 18, 19. * HARERA S- eunuennvr 21. prescribed" sholl be the Stote Bank of tndio highest morginal cost oI lending rate +20/o.: Provided that in cose the State Bonk of India marginol cost of l.ending rote (MCLR) is not in use, it sho be repliced by such benchmark lending rotes which the Stote Bonk of tndia may Jix from time to time lor lending to the general public.

The legislature in its wisdom in the subordinate legislation under the provision of rile 15 of the rules, has determined the prescribed rate of interest.

The rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases. the cases.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate [in short, MCLR) as on date i.e., 06.03.2024 is 8.85yo.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +Zo/o i.e., l},gSo/o.

The definition of term 'interest' as defined under section 2(zal of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: "(za) "interest" meons the rates of interest poyoble by the promoter or the allottee, as the cqse may be.

Explonation. -For the purpose of this clause- (i) the rote of inurest chargeable from the allottee by the promoter, in case of defqult, shall be equol to the rate of interest which the promoter shall be liable to poy the allottee, in case ofdefaul, (ii) the interest payoble b! the promoter to the a ottee sholl be from the date the promoter received the amount ot ony part thereof till the dote the emount or part thereof and interest thereon $ refunded, and the interest payable by the ollottee to the promoter shall be from the dote the allottee defqults in payment to the promoter till the date it is paid;,' On consideration of the documents available on record and submissions made by both the parties regarding contravention of provisions of the Complaint No.

3748 of 2021 20.

22.

Page 20 of24 t/ ffi HARER^, s- eunuennvr Complaint No.

3748 of 2021 Act, the authority is satisfied that the respondent is in contravention of the section 11(41(aJ ofthe Act by not handing over possession by the due date as per the agreement.

By virtue of clause 1B(a) of the agreement dated 18.03.2016, the possession of the subject apartment was to be delivered within a period of 42 months from the date of allotment which is not the same as date of this agreement. agreement.

The due date is calculated 42 months from date ofallotment i.e., 18.03.2016.

Accordingly, the due date of possession comes out to be 18.09.2019.

It is pertinent to mention over here that even after a passage of more than 8 years (i.e., from the date of BBA/allotment till datel neither the construction is complete nor the offer of possession of the allotted unit has been made to the allottee by the respondent /promoter.

The authority is of the view that the allottee cannot be expected to wait endlessly for taking possession of the unit which is allotted to him and for which he has paid a considerable amount of money towards the sale consideration.

It is also to mention that complainant has paid almost 42o/o of total consideration till today.

Further, the authority observes that there is no document placed on record from which it can be ascertained that whether the respondent has applied for occupation certificate/part occupation certificate or what is the status of construction of the project.

In view of the above-mentioned facts, the allottee intends to withdraw from the project and are well within the right to do the same in view of section 18(11 of the Aa, 2016.

23.

Moreover, the occupation certificate/completion certificate ofthe project where the unit is situated has still not been obtained by the respondent/promoter.

The authority is of the view that the allottees cannot be expected to wait endlessly for taking possession of the allotted Page 21of 24 SHARERA #eunuennHl Complaint No.

3748 0f 2021 unit and for which he has paid a considerable amount towards the sale consideration and as observed by Hon,ble Supreme Court of lndia in Ireo Grace RealtechPvt, Ltd.

Vs.

Abhishek Khanna &Ors., civil appeal no.

5785 of 2019, decided on 17.07.2027: "....

The occupotion certiJjcate is not avoiloble even os on dqte, which cleorly amounts to deficiency ofservice. ofservice.

The allottees cannot be made to wqit indeJinitely for possession of the aportments o otted to them, nor can they be bound to take the qpartments in phase 1 ofthe project.......,, 24.

Further, the Hon'ble Supreme Court of Indiain the cases o./ Newtech Promoters and Developers private Limited Vs State of I!.p. and Ors. (supra) reiterated in case of M/s Sana Realtors private Limited & other Vs Union oI India & others SLp (Civil) No.

73005 oI2020 decided on L2.05.2022. observed as under: - "25.

The unquqlified right of the allottee to seek refund referred l|nder Section 18(1)[q) qnd Section 19(4) of the Act is not dependent on any contingencies or stipulations thereof. lt appears that the legislature hos consciously provided this right ofrefund on demand as on unconditional obsolute right to the allottee, if the promoter foils to give possession of the opartment, plot or building within the time stipulated under the terms ofthe agreement regordless ofunforeseen events or stay orders of the Court/Tribunal, which is in either way not attibutable to the allottee/home buyer, the promoter is under an obligation to refund the qmount on demand with interest at the rate prescribed by the State Government including compensation in the mqnner provided under the Act with the proviso thot if the ollottee does not wish to withdrow from the project, he shall be entitled for interest for the period of deloy tilt handing over possession at the rate prescribed.', 25.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 201,6, or the rules and regulations made thereunder or to the allottees as per agreement for sale under section 1t(a)(a).

The promoter has failed to complete or unable to give possession of the unit in accordance with the terms of agreement for sale or duly completed by the date specified therein.

Accordingly, the Page 22 of 24 HARER/ G@ ct tDr rcDAt\/ Complaint No. plaint No.

3748 of 2021 promoter is liable to the allottee, as he wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of the unit with interest at such rate as may be prescribed.

26.

Accordingly, the non-compliance of the mandate contained in section 11(4)(a) read with section 18(1) ofthe Act on the part ofthe respondent is established.

As such, the complainants are entitled to refund of the entire amount paid by them at the prescribed rate of interest i'e, @ 10.85% p.a. (the State Bank of tndia highest marginal cost of lending rate (MCLR) applicable as on date +2%) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Rules,2017 from the date of deposit till its realization within the timelines provided in rule 16 of the Haryana Rules 2017 ibid.

Further, the respondent/promoter is directed to clear the loan amount first and then pay the remaining amount to the complainant.

The respondent was also liable to pay Pre- EMI to the bank in terms of quadra-partite agreement' D.

Directions of the authoritY 27.

Hence, the authority hereby passes this order and issues 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(f): i.

The respondents/promoters are directed to refund the entire paid- up amount i.e., Rs.72'18,1791- received by it from the complainant along with interest at the rate of 10.85% p a' as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) PaEe 23 of 24 HARERA P*GURUGRAM lv.

3748 of 2021 Rules, 2017 from the date of each payment till the actual realization ofthe amount. ii.

Out of total amount so assessed, the amount paid by the bank/financial institution shall be refunded first and the balance amount along with interest if any will be refunded to the complainant. mplainant.

Further the respondent no.1 /promoter is directed to provide the NOC (No due certificate) to the complainant after getting lll. to comply with the legal consequences would follow.

The respondent builder is directed not to create third party right against the unit before full realization of the amount paid by the complainant. [f any transfer is initiated with respect to the subject unit, the receivable from that property shall be first utilized for clearing dues of the complainant-allottee.

The complaint stands disposed oi File be consigned to registry.

Dated: 06.03.2024 it from the respondent no.s.

A period of 90 days is given to the respondent directions given in this order and failing which 28.

29. (Ashok Me Haryana lEstate an) r Regulatory Authority, Gurugram Page 24 o(24