COL PRAMOD MISHRA vs VATIKA LTD.

HARERA .*@*GURUGRAN/ BEFORE THE HARYANA REAI ESTATE REGULATORY AUTHORITY, GURUGRAM 02 Complaint No.

4089 ol 2 rs ;iioTal -l 19-10-2027 23.O4.2024 1.

Col Pramod Kumar Mishra 2.

Mrs.

Saroj Singh Both R/o: H No.

596-C Sector 5, Vikas Nagar Versus Road, Gurugram, Complainants Respondent M/s Vatika Limited Address: Vatika Triangle, 4th FIoor, Sushant Loh Phase-1, BIock A, M.G.

Haryana-122002. --t CORAM: Shri Arun Kumar Shri Vijay Kumar Goyal Shri Ashok Sangwan Chairman Member Memher APPEARANCE: Shri Dev Ashish (Advocatel Complainants Shri Dhruv Dutt Sharma (Advocate) Respondent ORDER 1..

The present complaint has been filed by the complainants/allottees under section 31 ofthe Real Estate [Regulation and Development) Act,2016 [in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017 (in short, the Rules) for violation of section 11(4)[a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions Page 1 of 20 lQqmplaint no.

Date offiling of colnl)laint Date ofdecision ffiHARERA ffieunuenntrl Complaint No.

4089 of 202 I under the provisions of the Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale executed inter se.

A.

Unit and proiect related details 2.

The particulars ofthe prorect, the details ofsale consideration, the amount paid by the complainants, date of proposed handing over the possession and delay period, if any, have been detailed in the following tabular form: S.

No.

Particulars Details 1.

Name and location of the project "Xpressions" in Vatika Ilxprcss C 1 at Sector 88B Gur-uglarr, Ilaryi 2.

Nature ofthe project Residential plotted colony 3, DTCP license no. o94 0f 2073 dated 31.10.2013 acres Valid up to- 30.10.2019 r 11 of 2015 dated 01.10.2015 acres Valid up to- 30.09.2020 4.

HRERA registered/not registered Registered as "Vatika Iixprer bearing no.

271 o1 2017 09.1,0.

17 09.1,0.2017 Valid up to- 08.10.2 022 5.

Date of allotment letter 20.05.2016 [page 14 of complaint] 6.

Unit no.

27 , H-30 , level 2 IPage 14 of complaint] 7.

Unit measuring 1700 sq. ft.

B.

Builder buyer agreement executed on 11.08.2016 [page 18 of complaint] 9.

Possession clause 3, SCHEDULE FOR POS.'E.'.'IO SAID RESI DENTI AI, FLOOR ; City Phase ryana for 94.2 [or 32.24 ss City" 7 dated N OF THFI' Page 2 of 20 HARTRA GURUGRAIV] F",rrptr'", fio8%r'ro{ ,f :l l -l :'ll The Developer based on its present plans and estimqtes and subject to all just exceptions, contemplates to complete construction of the said Residentiql Floor within a period of 48 (Forty Eight) months from the date of execution ofthis Agreement unless there shall be delay or there shall be foilure due to reqsons mentioned in other Clauses herein or due to failure of Allottee(s) to pqy in time the price of the sqld Residentiol Floor along with all other chorges and dues in qccordance with the Schedule ol' Payments given ln Annexure- I or as per the demands raised by the Developer from time to time or ony foilure on the pqrt of the Allottee(s) to abide by any of the terms or conditions ofthis Agreement. (Emphdsis supplied) [Page 29 of complaint ] 10, Due date ofpossession 11".02.202r [Due date of possession calculated fiom the date of BBA i.e., 11.08.2016 and including 6 months grace period on account of Covid-191 11.

Total sale consideration Rs.1,0439097 /- [As per builder buyer agreemcnt at pagc 2l of complaintl 12.

Amount paid by the complainants Rs.21, ,L9 ,126 I - [As per SOA dated L2J0.2021, on page 99 of replyl t3 Occupation certificate Not obtained 14.

Offer ofpossession Not offered 15.

Legal notice by the complainants seeking refund of the entire amount paid along with 73.0+.2027 [Page 65 ofcomplaint] Page 3 of 20 HARERA ffiGURUGRAM B.

3.

Complaint No.

4089 of2021 Facts of the complaint: 'fhe complainants have made the following submissions in the corrplaint: a. plaint: a.

That, in the year 2012, the complainants with the dcsirc to owrr il house in Gurugram, Iearnt about the project of the Ilespondcnt titlcd "XPRESSIONS" which was situated at Dwarka fJxpressway, Scctor 88B, Gurugram, Haryana-122018.

After due inquiry and being impressed with the amenities and benefits attached to the projcct, complainants made an application for booking an apartmcnt unit and entered into an allotment agreement rvith the rcspondcnt on 06.11.2015 upon receiving the booking confirination. l'hc total consideration amount for the unit was agreed upon to bc Rs.1,04,39,097.50/- fRupees one crorc four lac thirty ninc thousand ninety seven and fifty paise onlyJ as per allotment agreement datcd 06.11.2015, out of which an amount of Rs.Z1,19,126.00/- (twcnty one Iakh nineteen thousand one hundred and twenty six rupccs only) was paid through Cheques/RTGS.

That, complainants were allotted unit no.

HSG-028, Plot No.

27, Level 2, measuring 1700 sq. ft. at the proiect of the respondent.

Complainants made bonafide payments as requested by the respondent towards said unit in Xpressions by Vatika, Dwarka Expressway, Sector 88 B, Gurugram, Haryana-122078.

That, at the time of the builder buyer agreement for the unit, the respondent assured the complainants about the completion of thc b. iflterest as per section 18(1) of the Act and in alternative Possession of the alternative unit along with interest c.

Page 4 ol20 ffiI]AREIA ffi eunuenRvr d. e. project within 4 years of the execution of thc buyer's agreentent along with all essential and ancillary amenities and thc grant ol' possession by 11.08.2020 with an extension period of60 days from such date.

The complainants, even after making due payments, wcre shocked to Iearn that the construction on the project has not made any headway, which clearly reveals deceit and unprofessional bchaviour on thc part of the respondent.

Respondent seemed to havc no intcntion ol handing over the possession on time. n on time.

Due to such inordinatc dclay in the completion of the prolect, the respondent is in blatant violatron of the agreement.

After complainants made repeated requests and reminders, along with granting sufficient time to the respondent for the complction of the said project, he was then constrained to servc a lcga) noticc through his counsel dated 13.04.2021 which was duly served on the address of the managing director.

The respondent is in blatant violation of statutory compliances and other promises, and thc inordinate delay in construction of the projcct has made it highly unlikely for the respondent to hand over possession to complainants in the near future.

It is to be clarified that the conrplainaltts arc not interested to seek delivery of any alternative unil. 'fhe conrplain:rnl.s are seeking the possession of the allotted unit along with thc dclay penalty.

However, in the alternative, the complainants are seelflng refund of the complete amount paid along with intercst at thc statutory rate of possession of the allotted unit along with the delay penalty.

4089 of2021 Page 5 of20 HARERA GURUGRAII Complaint No.

4089 of 2021 C.

Relief sought by the complainants: 4.

The pursuant to the oral request made by the counsel of complainants during proceedings on 23.04.2024 for amendment of relief followed by the written application of even date, the following relief were sought by the complainant: i.

Direct the respondent to refund the entire amount paid by the complainants along with interest at the prcscribcd ratc o{' interest in the Act calculated from the date oI respective deposit till the date of actual realization. ii.

Direct the respondent to pay compensation to thc complainants for subjecting him to long period of mental harassmcnt and agony and litigation charges. iii.

Any other reliefthat the Hon'ble Authority deems fit in thc facts and circumstances of the case.

D.

Reply by respondent: 5. ondent: 5.

The respondent made the following submissions in its rcply: a.

That at the outset, the respondent humbly submits thal cach and every averment and contention, as made/raised in the conplaints, unless specifically admitted, be taken to have bcen catcgorically denied by the Respondent and may be read as travcsty of facts, b.

That the unit in question was booked by Mr.

Pramod Kumar Mishra and Mrs.

Saroj Singh.

It is, however, submitted that the present complaint has been filed by the complainant only Mr.

Pramod Kumar Mishra, thus on such ground alone the complaint is liable to be dismissed on account of non-joinder of the necessary party.

Hence, the complainant is estopped from raising the plea, as raised Page 6 of 20 ffi HARERA s-eunuennHrr Complaint No.

4089 of 2021 in respect thereol besides the said pleas are being illegal, misconceived and erroneous, and is untenable in the eyes of law. c.

That apparently, the complaint filed by the complainant is abuse of process of law and the reliefs claimed as sought for, are liable to be dismissed and not maintainable.

No relief much less any interim relief, as sought for, is liable to be granted to the complainant. d. 'Ihat the complainant has miserably and willfully tailed to make payments in time or in accordance with the ternls of the buildcr buyer's agreement.

It is submitted that thc complainant has frustrated the terms and conditions of the builder buyer's agreement, which were the essence of the arrangetnent bctwccn the parties and therefore, now the complainant cannot invokc a particular clause, and therefore, the complaint is not maintainablc and should be rejected at the threshold.

That the complainant has also misdirected in claiming refund on account of alleged dclaycd offer for possession. e.

It has been categorically agreed betlveen the parties that subject to the complainants having complied with all the terms and conditions ofthe builder buyer agreement and not being in default under any of the prov f the provisions of the said buildcr buyer agreemcnt and having complied with all provisiolts, fornralities, documentation etc., the developer contemplates to complete the construction of the said residential floor within a period of 48 months from the date of execution of the builder buyer agrccmcnt unless there shall be delay due to force majeure evcnts and [ailurc of allottee(sl to pay in time the price of the said residential floor.

Page 7 of 20 ffiHABERA ffi, eunuenRvr Complaint No.

4089 of 2021 Reference may be made to clause 13 of the builder buyer agreement. "13.

Schedule for Possession ofthe said Residentiol Floor Thot the Developer bosed on its present plons and estimates and subject to qll just exceptions, contemplotes to complete construction ofthe said Residentiol Floor within o period of48 (Forty Eight) months from the date ofexecution ofthis tsuilder Buyer Agreement unless there shall be delay or there sholl be failure due to reasons mentioned in other clouses herein or due to foilure of Allottee(s) to pay in time the price of the said Residential Floor along with all other charges ond dues in accordance with the Schedule ofpayments given in Annexure-l or as per the demonds rais<t! by the Developerlrom trme to ttme or any failure on the poi oI the Allouee(s) Lo abide by ony of the terms or conditioil ifi$iggijreement." f.

That Further, it had been also agreed and accepted that in case the delay is due to the reasons beyond the control ol the Developcr then the Developer shall be automatically entitled to thc cxtcnsion of time for delivery of possession.

Further the Developer may also suspend the Project for such period as it may consider expedicnt. g.

That, In the present case, there has been a delay due to vanous reasons which were beyond the control of the respondent and the same are enumerated below:- i.

Unexpected introduction ofa new national highway being NH 352 W (herein "NH 352 W") proposed to run through the projcct of lhe respondent. espondent.

Initially HUDA has to develop thc major scctor roads for the connectivity of the projects on the liccnscd land.

Ilut no development for the connectivity and movement across the sectors, for ingress or egress was done by HtIDA for long timc.

Later on, due to the change in the master plan for the developr'ncnt of Gurugram, the Haryana Government has decided to make an alternate highway passing through between sector 87 and sector 88 and further Haryana government had transferred the land Page B of 20 HARERA ffiGURUGRAM Complaint No.

4089 of2021 falling in sector 87, 8B and others sectors to GMDA for constructing new highway 352 W.

Thereafter in a process of developing thc said highway 352 W, the land was uplifted by 4 to 5 mtrs.

It is pertincnt to note that the respondent has already laid down its facilities before such upliftnient.

As a result, the respondent is constrained to uplift the project land and re-align the facilities. 'l'hercalicr GMDA handed over the possession of the land properties/land falling in NH 352 W to NHAI for construction and development of NH 352 W.

All this process has caused considcrable amount of delay and thus hampered the pro,ect in question which are bcyond the control and ambit of developer. ii.

Further, initially, when HUDA had acquired the sector roacl and started its construction, an area by 4'to 5 mtrs was changed from its approved dimension.

Before start of the acquisition and construction process, the respondent had already laid down thc services according to the earlier sector road levels, howcver dLtc ttr upliftment caused by the HUDA in NH 352 W the company has been constrained to raise and uplift the same within the proiect, which not only result in deferment of construction of proicct but also attract costing to the respondent. iii.

Re-routing ofhigh-tension lines passing through the lands resulting in inevitable change in the lay out plans and cause unnecessary delay in development. iv. pment. iv.

The Hon'ble National Green Tribunal ING't) /Environment Pollu Lior Control Authority (EPCA) issued directives and mcasurcs to counter deterioration in air quality in the I)elhi-NCR rr:gion, especially during winter months.

Among these mcasures wcrc bans I']age 9 ol20 ffiHARERA S- eunubnnrr,r Complaint No.

4089 of2021 imposed on construction activities for a total period of 70 days between November, 20L6 to December,2019. v.

Due to the implementation of MNREGA Schemcs by thc Central Government, the construction industry as a whole has been facitll3 shortage of labour supply, due to labourers rcgularly travelling away from Delhi-NCR to avail benefits of the schenre. .t'his has directly caused a detrimental impact to the respondent, as it has been difficult to retain labourers for longer and stable periods of time and complete construction in a smooth flow. vi.

Disruptions caused in the supply of stone and sand aggregatc, duc to orders passed by the Hon'ble Supreme Court and the IIon'bic High Court of Punjab and Haryana prohibiring mining by contractors in and around Haryana, disruptions caused by unusually heavy rains in Gurgaon every year and disruptions and delays caused in the supply ofcement and steel due to various large- scale agitations organized in Haryana and various other restrictions imposed from time to time causing delay in construction. o The imposition of several total and partial restrictions on construction activities and suppliers as weli as ntanufacturcrs ol necessary material required, has rendered thc rcspondcnt with no option but to incur delay in completing constructjon of its projects.

This has furthermore led to significant loss of productivity and continuity in construction as thc rcsltondcnt rvas continuously stopped from dedicatedly completing the projcct. e projcct.

The several restrictions have also resulted in regular demobilization of labour, as the respondent $/ould havc to disband the groups of workers from time to timc, which creatcd Page 10 of 20 HARERA h. difficulty in being able to resume construction activities with required momentum and added many additional weeks to thc stipulated time of construction.

The Government of India imposed lockdown in India in March 2020 to curb the spread of the Covid-19 pandemic. 'l'his scvercly impacted the respondent as the respondent was constraincd to shut down all construction activities for the sal<c of workcrs' safety.

Further, it had been also agreed and accepted that in casc thc delay is due to force, majeure then the developer shall not be hcld responsible for delay in delivery of possession.

Refercnce may bc made to Clause 37 of the builder buyer's agreemcnt.

That the unit ofthe complainants is situated in the projcct Valika Xpressions which is a part of the "Vatika Exprcss City" Phasc- I and has been registered with the Ld.

HARERA vide registratiorr no 271, of 201,7 on09/10/2017.That due to the variotls rcasons and not limited to delay on the part of thc allottees, NGI' notifications, Covid-19 pandemic, etc. the proiect has bcen majorly impacted.

That the complainants has failed to make payments in time in accordance with the terms and conditions as well as payment plan annexed with the builder buyer's agreement and as such thc complaint is liable to be rejected. lt is submitted that out oI thc total sale consideration of Rs.1,12,96,253.50/-, thc amount actually paid by the complainants is Rs.21,19,126/- i.c. around 19% of the total sale consideration of the unit.

The complainants after defaulting in complying with the terms and conditions of Lhe Comolaint No.

4089 of 2021 I 'I Page 11 of 20 ffiHARERA ffieunuennnr Complaint No. plaint No.

4089 of 202 1 builder buyer agreement now wants to shift the burden on the part of the respondent whereas the respondent has suffcrcd a lot financially dr.re to such defaulters lil(e the present complairants.

That the contents of brief facts of the complaint arc wrong and denied except which are matter of record. lt is denicd that thc complainant desired to own a house in Gurugranr.

It is submitted that the complainant is a real estate investor rvho has nrade thc booking with the respondent only with an intention to nral<c speculative gains and huge profit in a short span of timc.

Ilowcvcr-, it appears that his calculations and planning have gonc tvrollg otl account of severe slump in the real estilte marl(ct and thc complainant is now raising several untenable pleas on highly flimsy and baseless grounds.

It is deniecl that the salc consideration amount for the Unit was Rs.1,04,39,097.50/-.

It is submitted that the total sale consideration ar.nount was Rs.1,12,96,253.50/-.

It is further submitted thar thc rorai salc consideration amount is exclusive of the rcgistration cha|gcs, stamp duty charges, service tax and other chargcs which rvcrc to be paid by the complainants at the applicable stage. k.

It is further submitted that the timeline to complete thc projcct was only tentative and not final.

It is Further submitted that Lhc covenants incorporated in the Builder Buyer Agreement arc to be cumulatively considered in their entirety and selectcd clauses of the same cannot be considered and read in isolation. 'l'ho complainants have completely misinterpreted and misconstrued the covenants incorporated in the agreenlent.

The pcriod specified in the buyer's agreement was proposecl and thc samc Page 12 of 20 THARERA P*GURUGRAII Complaint No.

4089 of 2021 was subject to occurrence of various eventualities and also to other circumstances mentioned therein which have not been reproduced for the sake of brevity. l. revity. l.

It is denied that the complainants made repcated rcquest an(l reminders to the respondent as alleged.'Ihe complainants arc trying to mislead this ld. authoriry by concocting basclcss and false pleas in order to unnecessarily harass and prcssul'izc the respondent to submit to his unreasonable demands. m.

All the reliefs as claimed by the complainants are baseless, false so hence denied, as the complainants are not entitled for any of suclr reliefs. n.

It is, therefore, prayed that the complaint may kindly be dismissed with exemplary costs.

6.

Copies of all the relevant documents have been filed and placed on record.

Their authenticity is not in dispute.

Hence, thc comp]aint can bc decided on the basis of these undisputed documents and subntission made by the parties.

E. lurisdiction ofthe authority: 7.

The authority observes that it has territorial as well as subject ntattcr jurisdiction to adjudicate the present complaint for the reasons grvcn below.

E.

I Territorial iurisdiction 8.

As per notification no.

1192 /2017-1.TCP dated 14.12.2017 issLtcd by town and country planning department, the jurisdiction of rcal cstatc regulatory authority, Gurugram shall be entire Gurugram district for all purpose with offices situated in Gurugram.

In the present casc, thc project in question is situated within the planning arca of Gurugranr Page 13 ol20 W HARERA S-eunuennH,r district.

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

E. ll Subiect matter iurisdiction 9.

Section 11(4)(al ofthe Act,201,6 provides that the promotcr shall bc responsible to the allottees as per agreement for sale.

Scction 11(4)[a) is reproduced as hereunder: Section 11(4)(a) Be responsible for qll obligqtions, responsibilities ond funcLians under the provisions of this Act or the rules ond regulcttions mdde thereunder or to the qllottees os per the ogreenent fi)r sule, or ta the qssociotion olallottees, os the case may be, till the conveyonce conveyonce ofall the apqrtments, plots or buildings, os the cose mqy be, to the ollottees, or the common arees to the association oI ollottees or the competent outhority, as the cose moy be; Section 34-Functions of the Authority: 344 of the Act provides to ensure compliance of the ohligdlions cast upon the promoters, the allottees and the real estate agents under this Actond the rules ond regulations made thereunder.

10.

So, in view ofthe provisions ofthe Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non- compliance of obligations by the promoter leaving aside compensatio r') which is to be decided by the adjudicating officer if pursued by thc complainants at a later stage.

11.

So, in view of the provisions ofthe Act quoted abovc, the authority has complete jurisdiction to decide the complaint regardirrg non- compliance of obligations by the promoter leaving aside compensatiorl which is to be decided by the adjudicating officer if pursued by thc complainants at a later stage.

F.

F.I Findings on the reliefsought by the complainants: Refund of the entire amount paid by the complainants along with interest from the date of respective deposit till the date of actual realisation.

Pagc 14 ol20 HARERA P-GURUGRAN/ Complaint No.

4089 of 202 1 12.

The complainants are seeking refund of entire amount depositcd against the allotment of the subject unit for an area ol' 1700 sq. ft, with respect to which agreement dated 11.08.2016 was executed betwcen the parties for total sale consideration of Rs.

Rs.1,12,96,253.50/-. 'l'hc complainants states that even after making due paymcnts, thc construction on the project has not made any hcadway, which clearly reveals deceit and unprofessional behaviour on the part of thc respondent.

Respondent seemed to have no intention of handing ovcr the possession.

13.

The counsel for the respondent submitted that the present conlpl:tint has been filed by only one allottee i.e., Mr. i.e., Mr.

Pramod Kumar Mishra, thus on such ground alone the complaint is liable to be disntissed on account of non-joinder of the necessary party.

However, on 13.02.2024 complainant moved an application for impleading the co allottec as complainant no.2 in array ofparties which was allowcd by thc authority vide order dated 05.03.2024.

The complainants booked a unit bearing no.

27, lcvel 2, measuring 1700 sq. ft. in Xpressions by Vatika, Drvarka exprcssrvay, sector BB B, Gurgaon vide allotment agreement dated 06.11 .20I 5 for a total consideration of Rs.1,04,39,097 l- out of which an antount ol Rs.21,19.126/- has been paid by the complainants to respondent. l'hc counsel for the complainants clarifies that alter paymcnt ol initial booking amoun! the next payment was made on 21.12.2015 as per thc payment plan annexed with the BBA which was executed on 1 1 .0U.201 6. llowever, there is no physical progress at site as even the construction of the unit has not commenced and barren land photographs arc bcing placed on record.

One opportunity to offer alternate unit was afforded 74.

Pag. .l 5 oi 20 HARERA ffi"GURUGRAI/ Complaint No.

4089 of 2021 to the respondent but no specific offer of any unit has been made by the respondent till date and the counsel for the respondent clarifics that thc unit allotted to the complainants allottee js not availablc due to revision in the plan.

The due as per agreement was 11.0U.2020 and 6 months additional Covid period may be allowed.

15.

The counsel for the complainants has orally made a request followcd by an application for amendment ofprayer, seeking refund of the deposited amount alongwith interest alongwith compensation and litigation chargesand the counsel for the respondent has no obiectioD to thc request of the refund.

16.

The complainants through the present complaint is seeking rcfund of the paid-up amount besides interest from the respondent. espondent.

Section 1 U( 1 ) of the Act is reproduced below for ready reference: "Section 18: - Return of amount and compensation 1B(1). lf the promoter foils to complete or is unable to 0ive possession of on opartment, p[ot, or building.- (o) in occordance with the terms ofthe agreementfor sale oL cts the cose moy be, duly completed by the date specifed therein; or (b)due to discontinuonce of his business qs (1 developer on qccount oJ' suspension or revocotion ofthe registration under this Act or for ony other reason, he shall be liqble on demand to the qllottees, in cose Lhe ollottee wishes to withdraw from the project, without prejudice Lo ony othet remedy avoilable, to return the omount received by him in respect ofthat apartment, plot, building, as the case mqy be, with interest at such rote as may be prescribed in this beholf including compensation in the manner as provided under this Act: Provided thqt where on qllottee does not intend to withdro\,r lrom the project, he shqll be paid, by the promoter, interest for every lnonlh of delqy, till the handing over of the possession, ot such rote os mc]y be prescribed." (Emphosis supplietl) 17.

Clause 13 of the builder buyer's agreement dated 11.08.2016 providcs for schedule for possession ofunit in question and is rcproduccd bclorv for the reference: Page 16 of 20 ffiHARERA "m*eunuenRHl Cr,,r,tpl"-, ^Io "08, " rOrf 13, SCEEDULE I:OR POSSESSION OF THE SAID RESIDEN'I'IAL I'LOOR The Developer bqsed on its present plqns ond estimotes ond subjecL Lo all just exceptions, contemplates to complete construction of the soid Residentiql Floor within a period of 48 (Forty Eight) months from the date ofexecution ofthis Agreement unless thete shctll be cleloy ,'t there sholl be foilure due to reasons mentioned in other Clouses het etn or due to Joilure of Allottee{s) to poy in titne the price of the said Residential Floor olong with all other charges and dues m occordonce with the Schedule of Payments given in Annexure- I at as p I at as per thc demands raised by the Developer from Lime Lo time or uny loilure on Lhe port ofthe Allottee{s) to obide by qny oJ the terms ot.otlditions o} this Agreement. (L:nphqsis supplied) 18.

Entitlement of the complainants for refund: l'he respondent has proposed to hand over the possession ofthe subject un jt within a pcriod of 48 months from date of execution of builder buyer's agreement. 'l lte builder buyer's agreement was executed inrer se parties on I I .0t1.2 01 6 therefore, the due date of possession comes out to be 11.02.2021 including six months of grace period o n accodnt of Covid- 1 9.

19.

It is observed that the respondent promoter has failed to handover thc subject unit to the complainants as per the committcd datc in terl]rs of the builder buyer agreement executed inter se partics.

Also, thc occupation certificate in respect ofthe project whcrc the subjcct unit is situated has not obtained by the respondent till date.

The authority is of the view that the allottee cannot be expected to wait endlessly foI taking possession ofthe allotted unit and for which he has paid a considerablc amount towards the sale consideration and as observed by Ilon'ble Supreme Court of India in lreo Grace Reoltech Pvt.

Ltd.

Vs.

Abhishek Khanna & Ors., civil appeal no.

57BS of 2079, decided on 1 1.01.2021 : ".....The occupotion certificqte is not availoble even as on dote, which clearly amounts to deficiency of service.

The ollottees cqnnot be mode to woit indefinitely for possession of the apartments ollotLed to them, nor can they be bound to take the aportments in Phase I of the project......." Page 17 ot20 ffi HAREIA #* eunuenRvr Complaint No.

4089 of 2021 20.

Further in the judgement ofthe Hon'ble Supreme Court of India in the cases of Neu/tech Promoters and Developers Private Limited Vs Stote of U.P. and Ors, (supra) reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLP (Civil) No.

21.

73005 of2020 decided on 12,05. on 12,05.2022, it was observed as under: "25.

The unqualified right ofthe allottee to seek refund referrecl Ilnder Section 1q(1)(ct) and Section 19[4) of the Act is noL dependenL on ony contingencies or stipulotions thereoJ: lt qppearc LhaL tlte legislature hos consciously provided this right of refund on dem0nd os an unconditional qbsolute right to the allottee, ifthe promoter foils to give possession of the apartment plot or building within the tine stipuloted under the terms of the ogreement regardless oI unforeseen events or stoy orders of the Court/Tribunql, which is in either woy noL attributable to the allottee/home buyer, the promoter ts un{ler qn obligation to refund the amount on demand with interest oL the rote prescribed by the State Government including compensation in Lhe manner provided under the Act with the proviso that iJ thc allattee does not wish to withdrow from the prcject, he sholl be entitled |or interest for the period of delay till honding over possession oL the taLe prescribed." The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act, or the rules and rcgulations made thereunder or to the allottee as per agrecmcnt for salc undcr section 11[4)(a].

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

Accordingly, thc promoter is liable to the allottee, as the allottee wishes to withdraw front the project, without prejudice to any other remedy availablc, to return the amount received by him in respect of the unit with intercst at such rate as may be prescribed.

Admissibility of refund along with prescribed rate of interest: Section 1B of the Act read with rule 15 of the rules provide that iu (i.t5r) the allottee intends to withdraw from the project, the respondent shall refund of the amount paid by the allottee in respect of the sub;ect unrt 22. t unrt 22.

Page 18 of 20 HARIRA Complaint No.

4089 of2021 with interest at prescribed rate as provided under rule 15 of the rules.

Rule 15 has been reproduced as under: "Rule 75, Prcscrtbed rate of interest- [Proviso to section 72, section 78 and sub-section (4) and subsection (7) olsection t9l (1) For the purpose of proviso to section 12; section 18; and sub- sections (4) and (7) of section 19, the "interest at the rate prescribed" shall be the State Bqnk of lndia highest morginol cost of lending rate +Z0/6,: Provided thqt in cose the State Bank of lndio morginal cost oflending rote (MCLR) is not in use, it shall be replaced by such benchmark lending rates which the Stote Bank of Indio may Jix from tine to time for lending to the general public." 23.

Consequently, as per website of the State llank of India i.c., https://sbi.co.in. the marginal cost of lending rare Iin short, MCI.lt) as on date i.e., ?9,03.2024 is 8.85%.

Accordingly, thc prcscribcd rarc of interestwill bemarginal costof lending rate +Zo/ct i.e.,70.850k.

24.

The authority hereby directs the promoter to return the amount received by him i.e., Rs.21,,19,1261- with interest at thc rate of 10.t]5% (the State Bank of India highest marginal cost of lending rate [M(]l,ltJ applicable as on date +20lo] as prescribed under rule 15 of thc Haryana Real Estate [Regulation and Development) Rules,2017 from the datc of each payment till the actual date of refund of the anrount within thc timelines provided in rule 16 ofthe rules ibid. [-.ll Litigation expenses & compensation 25.

The complainants are also seeking relief w.r.t. litigation expenses & compensation.

Hon'ble Supreme Court of India in civil appeal nos.

674 5- 67 49 of 2021 titled as M/s Newtech Promoters and Developers pvt.

Ltd, V/s Stqte of Up & Ors. [supra), has held that an allottee is er]tirlcd to claim compensation & litigation charges under sections 12,14,18 and section 19 which is to be decided by the adjudicating officer as per Page 19 of 20 ffi HA 20 ffi HARERA #-eunuenRnt G.

26.

4089 of 2021 section 71 and the quantum of compensation & litigation cxpense shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.

The adjudicating officer has exclusive jurisdiction to deal with the complaints in respect of compensation & legal expenses.

Directions of the Authorityr IIence, the Authority hereby passes this order and issuc the follorving directions under section 37 of the Act to ensure compliance of obligations cast upon the promoters as per the functions entrustcd to the Authority under Section 34(f) of the Act of 2016: The respondent/promoter is directed to refund the entire amount ol Rs.21,19,126/- paid by the complainants along with prescribed ratc of interest @ 10.85 % p.a. as prescribed under rule 15 of the rules fronr the date of each payment till the actual date of refund ol the anrount.

A period of 90 days is given to the respondent to conrply with thc ll. (Vijay KImar Goyall Member IU (Arun Kumarl Chairman Haryana Real Estate Regulatory Authority, Gurugram directions given in this order and failing which legal consequcncc.s would follow.

27.

Complaint stands disposed of.

28, File be consigned to the registry. [Ashbk San anJ Memb Dated: 23.04.2024 Page 20 of20