ANJANA GOSAIN vs EMAAR MGF LAND LTD

l=Co.pl"",r no.6145 ,f 2022 | {g:lC1jqSrl Member CORAM: Shri Vijay Kumar Goyal ORDER ffiHARERA #- aTRUGRAI/ BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision : 07.o3.2024 1.

This order shall dispose of both the complaints titled as above filed before this authority in foim CRA under section 31 of the Real Estate (Regulation and Developmen!

Act,2016 (hereinafter referred as "the Acf'] read with rule 28 of the Haryana Real Estate (Regulation and Development) Rulesi 201Y {hereinafter referred as "the rules"] for violation of section 11[ J[a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se betlveen parties.

2.

The core issues emanating from them are similar in nature and the complainant(sJ in the above referred matters are allottees of the project, namely, "Imperial Garden" being developed by the same respondent/prom oter i.e., M/s Emaar lndia Ltd, NAME OF THE BUILDER M/S EMAAR MGF LAND LIMITED PROIECT NAME .IMPERIAL GARDEN" S.

No.

Case No, Case title APPEARANCE 7. cR/6745/2022 Anjana Cosain v/s M/s Emaar MGF Land Limited Shri Karan Chahar Advocate and Shri Dhruv Rohatgi Advocate 2. cR/ 4087 /2027 v/s Anjafla Gosain Shri Harshit Batra Advocate and Shri Karan Chahar Advocate p Page 1of28 ffiHARERA #,GURuGIAI/ 3.

4.

Proiect and unit related details Both the cases relate to one allotted unit.

One among these is filed by the allottee and the other one is filed by the builder, so far deciding both the cases, the facts oF first case are being taken.

But before that the particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Complaint no. plaint no.

6145 of 2022 and 4081of2021 The aforesaid complaints were counter filed by the parties against each other on account of violation of the buyer's agreement executed between the parties in respect of said unit.

The facts of both the complaints filed by the complainants are similar.

Out of the above-mentioned case, the particulars of lead case CR/6745/2022 Anjana Gosain V/S Emaar NIGF Land Limited are being taken into consideration for determining the rights of the parties.

A.

Sr.

Particulars Details 1.

Name of the project Imperial Garden, Sector 102, Gurugram, Haryana 2.

Total area of the project 12 acres 3.

Nature ofthe project Group housing colony +.

DTCP Iicense no.

107 0f 2072 date,l 10.10.2012 Validity oflicense 09.L0.2020 Licensee Kamdhenu Proiects Pvt.

Ltd.

Area for which license was granted 12 acres 5, Registered/not registered Registered in two phases i.

208 cf2017 dated 15.09.2017 [valid up to 31.12.2018 for 49537 sq. mtrs. and extension granted vide Page Z of 28 ra HAR no.3/2019 dated 02.08.2019 which is up to 31.12.20191 ii.

14 of 2 019 dated 03,2019(Phase ll) up to 17.10.2018 for 4.57 affesl .2014 C4, page 29 ofcomplaintl -0204, 2nd floor, building no.09 C6, page 49 ofcomplaintl C5, page 31of of handing to terms of this any of the formolities, as presuibed by the ny proposes to of the Unit with over the conditions, complied in default of this with all ny, the over the 42 (FortJt to timely of the AR URU etc,, nce of the 3of28 Complaint no.

6145 of 2022 and 4081 of2021 ffi aJRuGRAM 6.

Occupation granted on allotment I28.02.2013 10.

Date of execution tripartite agreement of I 0s.03.201s | [annexure C36, page 82 ofcomplaint) Date of execution buyer's agreement of 07.06.201,3 [annexure C6, page 45 of comPlaint] l} int by the Allottee.

The Allottee and understands thot the shall be entitled to a grace supplied) C6,page 64 of d 18. of start of 13+3 i.e., 11.1 periodl r calcula 13.O9. ula 13.O9.?0 sheet [as 1) submitted complaint C9, page 178 HARERA Complaint no.

6145 of 2022 and 4081 of 2021 17.71.2073 14.

Due date ofPossession \ 7108.2077 15. payment plan annexed ] with the buYer's I agreement at Page 80 ofl complaint I fotnt "rrount paid by the I Rs 1,40,30,373/- 17.

Offer ofpossession 31.10.2018 18, Legal notice sent by the | 09.07.2019 Page 4 of 28 o B.

6.

HARERA GURUGRAM Complaint no.

6145 of 2022 and 4081of 2027 complainant seeking refund ofthe amount Paid by the respondent/builder on Facts ofthe complaint The complainant/allottee has made the following submissions in the complaint: i.

That the complainant has b-ooked a flat in the respondent's proiect named "lmperial Gardens" in sector 102, Village Kherki, Majra Dhankot, Gurugram, November '2072 by Paying a ll.

I II. clause 14 (aj of the buyerls agreement the time of handing over of possession by the builder to the complainant is 42 months (3 5 years) i.e.

07.12.2016.

The respondent has failed to fulfil its obligations as per the buyer's agreement and thus causing huge financial crisis and mental torture to the complainant iv.

That a tripartite agreement was executed between complainant, respondent and the State Bank of India the on booking amount of Rs.10,00,000/- vide 2 cheques of Rs.5,00,000/- each bearing cheque no.

085271 and 646741. ,- _-^.,:r^r L.,,1...

That the provisional allotment letter was provided by the respondent to the complainant on 28.03,2013.

She was allotted a unit bearing no. lG-09-0204 admeasuring 2000 sq. ft in the said Page 5 of 2B /a HARERA GURUGRAM Complaint no.

6145 of 2022 and 4081of2021 05.03.2015 to avail a loan of Rs.40,00,000/- for the said unit in the project.

Further, on 10.03.2015, a letter was issued by the respondent giving permission to mortgage for said unit to the complainant.

As per the letter issued, it clearly states that the complainant had paid a total sum of Rs.1,09,34,904/- till March 2015 itself. v. itself. v.

That the complainant after waiting for 6 years since the buyer's agreement and after sent a legal notice d refund of the amount with compensation towards mental agony and legal failure to fulfill its obligation as per the buyer's agreement " exploiting the complainant.

That the respondent blatantly ignored to repl)' to the legal notrce and filed a false complaint in the Authority to further exploit and harass the complainant. vl.

That the complainant since 15.11.2012 till 19 12 2015 has paid a has miserably failgd to fulfill its obligation as per the buyer's agreement of offering tiire('' fossessiiln of the unit i e by 07 .12.20L6. vii.

That the respondent after receiving full payment for the unit failed to give timely possession to the complainant' Thus, as per Section 18(1) of the Act 2016, the complainant is entitled to get refund of the total amount paid to the respondent along with prescribed interest.

From mere perusal of the section, it becomes clear that as making full payment towards the said unit Ited 09'07.2019 to the respondent seeking Page 6 of 28 /N ffiHARERA #, arnuenaH,r Relief sought by the complainant: The complainant in compliant reliefs: i.

Direct the respondent reliefs: 9.

On the date of hearing, the authority respondents/promoter about the contravention been committed in relation to section 11[a] (al guilty or not to Plead guilty.

D.

Reply by the respondent 10.

The respondent has contested the complaint on the following grounds' i.

That the complainant has got no locus standi or cause of action to file the present complaint.

The present complaint is based on an erroneous interpretation of the provisions of the Act as well as an incorrect understanding of the terms and conditions of the Rs.1,49,34,904/- along !

Act from the date of date of actual realization. ii.

To pay Iitigation cost o nr no.

408L /2021 has sought following Ilottee to pay ouistanding dues Rs. g dues Rs.30,5 3,947l- along with in explained to the as allegod to have of the Act to plead Complaint no.

6145 of 2022 and 4081 of 2021 per section 18(11(b), if a promoter fails or is unable to give possession as per the buyer's agreement, as is the case in the present complaint, then, he shall on demand by the complainant be liable to refund the amount to the allottees along with interest' C.

7. no.

6L45 /2O22 has sought following of the 8.

Direct the of per the the rules and to take possession of the sub,ecr unit & execute conveyance deed.

Page 7 of 2B p acquiescence, laches,' omissions etc. trom tillng tne present :' complaint.

Without admittinpi or acknowledging in any manner the truth or Iegality of the false and friYolous complaint preferred by the complainant and without prejudice to the submissions of the respondent that there has been no delay in offering possession in accordance with the buyi-'r's agreement' iii.

That the instant complaint is barred by limitation The complainant has alleged that the respondent was obligated to offer possession ofthe unit in question by |une 2016 and by way question.

It is submitted that'cause of action, if any, for seeking interest accrued in favour of the complainant in 2016 and consequently the instant complaint is barred by Iimitation' iv.

That the complainant has not come before this Authority with clean hands and has suppressed vital and material facts from this Authority.

It is further relevant to submit that the complainant has concealed the fact of a pending complaint bearing no.

4087 of 2027, titled Emaar India Vs Anidno HARERA GURUGRAN/ buyer's agreement dated 07.06.2013, as shall be evident from the submissions made in the following paras of the present reply.

The respondent craves leave of this Authority to refer and rely upon the terms and conditions set out in the buyer's agreement in detail at the time of hearing of the present complaint, so as to bring out mutual obligations and responsibilities ofthe resp ofthe respondent as well as the complainant lI.

That the complainant is ed by her own acts, conduct, ns etc. from filing the Present Complaint no.

6145 of 2022 and 4081 of 2021 Page B of 2B rA ffiHARERA ffieunuennu Complaint no.

6145 of 2022 and 4081 of 2021 Gosain, pending with the present Authority, which complaint has been filed by the respondent herein, prior in time' seeking the directions against the complainant herein for payment of outstanding dues against the unit allotted to her' The present complaint is nothing but an afterthought to the complaint filed by the respondent herein.

The correct facts are set out in the succeeding paras ofthe present reply. v.

That the complainant is not an "allottee" but an Investor who has booked the apartmen as a speculative investment in profit from its resale.

The apartment in question has been booked by the complainant as a sstment and not for the purpose of self-use as her upcoming residential project..:lmperial Gardens" situated in r1 Sector 102, VitDfl{hgfidGB)r1ankot, Tehsil & District Gurugpam, rydJu.flrfff,GfiryJ1inaqt prior to apqroach i ng ,r," L,p"n$,f r0.

H&d&*[" "na independent enquiries rFrySil{-f\e PgT} audf it, was onlY ffter the complainanVas{ilytt}dtM ,iti', .l'gaia to all asPtts of the proie4! including but not limited to the capacitf' of the respondent to undertake development of the same' that the complainant took an independent and informed dJcision to purchase the uni! un-influenced in any manne{ by the respomdenL order to earn ren vl. eSlr 'ha res Th in Therefore, no equity lies in favour of the complainant' :mplainant had approached the respondent sometime rr 2013 for purchase of an independent unit in its ce.

I eco veal ncr he )y CI tI re id, rt th Page 9 of28 tr ffi HARERA #- arnuennH,r vl11.

Complaint no.

6145 of 2022 and 4081 of 2021 vii.

2021 vii.

That thereafter the complainant vide an application form applied to the respondent for provisional allotment of a unit in the project and the complainant was duly welcomed by the respondent through the welcome letter dated 28 02 2013 The complainant, in pursuance of the aforesaid application form and welcome letter, was allotted an independent unit bearing no IG' O9-O2O+, in the project vide provisional allotment Ietter dated 2B.O2.ZOL3.

The complainant consciously and willfully undertook to remit the sale consideration for the unit in question in accordance with the payment plall incorporated in the buyer's agreement.

The respondent had no reason to suspect bona fide of the complainant.

She further undel-took to be bound by the terms and conditions of the application form' That the rights and obligations of complainant as well as respondent are completely and entirely determined by the covenants incorporated in the buyer's agreement dated 07.06.2073, which continues to be binding upon the parties thereto with full force and effect.

The complainant out of her own free will and volition, without any itrducement' force' misrepresentation or coercion of the respondent purchased the said unit with open eyes and hence, cannot :laim refund from the respondent at this point of time The said position was duly accepted and acknowledged by her' Th0 complainant is conscious and aware of the fact that she is llot entitled to any right or claim against it.

She has intentionally distorted the real and true facts and has filed the present complaint in order to harass the respondent and mount undue pressure upon it' Page 10 oF 28 fd" ffi HARERA ffi arRuGRAt/ Complaint no.

6145 of 2022 and 4081 of 2021 ix.

That the complainant consciously and maliciously chose to ignore the payment request letters, notices and reminders issued by the respondent and flouted in making timely payments of the instalments which was an essential, crucial and an indispensable requirement under t nt under the buyer's agreement' Furthermore, when the proposed allottees default in their payments as per schedule agreed upon, the failure has a cascading effect on th€ .op€rations and the cost for proper execution of the proiect iri'credses exponenttally and further causes enormous b ses to the respondent.

The complainant chose to ignore all these aspocts and wilfully ,^^^^-r^-r.l-.^ira defaulted in making timely payments.

The respondent despite defaults of several allottees earnestly fulfilled its obligations under the buyer's agreement and completed the project as expeditiously as possible in the facts and cirt umstances of the case.

Therefore, there is no equity in favour of the complainant' That, without admitting or acknowledging the :ruth or Iegality of the allegations advanced by the complainant and without prejudice to the contentiqqs of the respondent, that the provisions of the Act are not retrospective in nature The provisions of the Act cannot undo or modifv the terms of an agreement duly executed prior to coming into effect of the Act' Merely because the Act applies to ongoing projects which are registered with the authority, the Act cannot be said to be operating retrospectively.

The provisions of the Act relied upon by the complainant for seeking refund and cotnpensation cannot be called in to aid in derogation and ignorance of the provisions Page 11 of 28 F HARERA ffiGURUGRAM of the buyer's agreement.

The interest is compensatory in nature and cannot be granted in derogation and ignorance of the provisions of the buyer's agreement That the interest for the alleged delay or compensation demanded by the complainant is beyond the scope of the buyer's agreement and the same cannot be demanded by the complainant being beyond the terms and conditions incorporated in the buyer's agreement' xi. ement' xi.

That the rights and obligatioqs of the complainant as well as the respondent are completely and entirely determined by the covenants incorporated in the buyer's agreement which continues to be binding upon the parties thereto with full force and effect.

As per clause 14 of the buyer'r; agreement the possession of the unit in question was liablt' to be delivered within 42 months from the date of start of construction with a grace period of 3 months or such time as may be extended by the competent authority subject to the allottee[ri) having strictly complied with all terms and conditions of the buyer's agreement.

The grace period of 3 months cannot be excluded and is liable to be included in terms of the ludgment of the Hon'ble Appellate Tribunal in Fantasy BuiIdweII Pvt' Ltd' Vs Gaurav lvlanohar Negi, bearing Appeal No' 299 of 2022' decided on 09.72'2022.It has also been provided therein that the date for delivery of possession of the unit would stand extended in the event of occurrence of the force maieure circumstances.

The complainant have comple':ely misconstrued' misinterpreted and miscalculated the time peliod as determined in the buyer's agreement. lt is further provided in the buyer's Complaint no.

6145 of 2022 and 4081 of2021 Page 12 of 28 A HARERA GURUGRAM aomplaint no.

6145 of 2022 and 4081 of 2021 agreement that time period for delivery of possession shall stand extended on the occurrence of delay for reasons beyond the control of the respondent.

Furthermore, it is categorically expressed in clause 1a[b)[vi) that in the event of any default or delay in payment of instalments as per the schedule of payments incorporated in the buyer's agreement, the time for delivery of possession shall also stand extended.

She has defaulted in timely remittance of the instalments and hence the date of delivery option is not liable to ddte;mirG.the matter sought to be done by ' f' ''' her. xii. her. xii.

That the project of the rdspondent has been registered under the Act, 2016 aqd thq Ru1e5,.2017.

R6gishation certificate granted by the Haryana feal Estate Regulatory Authoriry vide memo no' HRERA- 140/2017l 1083 dated'15.09'2017.

The respondent had applied for exteirsion of the registration and the Authority has already extendee the validity of registration vide memo bearing no.

RC/REP/HARERA/GGMIZOLT /208 dated 02.082019 rhe registration hap been extended till 31.12 2019 and the respondent ha{ alrgady offered possession of the unit in question to the complainant vide letter dated 31 10 2018 but the complainant failed to take the physical possession of the said unit in question.

It is noteworthy to mention that many reminders were being sent to the complainant to come up to take the possession of the unit but to no avail, the complainant failed to take possession of the said unit for the reasons best known to her.

Therefore, there is no delay in delivery of possession of the unit in question as alleged by the complainant' Page 13 of 28 p ffi HARERA #-eunuonnll The complaint is devoid of any cause of action The instant complaint is liable to be dismissed at the threshold' xiii.

That as per clause 16 of the buyer's agreement further provides that no compensation for any delay in delivery of possession caused on account of delay or non-receipt of the occupation certificate, completion certificate or any other permission /sanction from the competent authority shall be provided to the allottees.

The responde.nt hqd submitted an application dated of occupation certificate is submitted before the concerned competent authority the respondent ceases to have any control over the same.

The grant of occupation (:ertificate is the prerogative of the concerned statutory alLthority and the respondent does not exercise any control over the matter' Therefore, the time period utilized by the concerned statutory authority for granting the occupation certificate needs to be eds to be necessarily excluded from the computation of the time period utilized in the implementation of the project in terms of the buyer's agreement.

As far as respondent is concerned, it has diligently and sincerely pursued the development and completion of the proiect in question. xiv.

That the complainant was offered possessir)n of the unit in question through letter of offer of possession dated 31 10 2018 Further, the respondent issued several reminders to the Complaint no.

6145 of 2022 and 4081 of 2027 Page 14 of 28 lt, ffiHARERA S* GLI?TJGRAM complainant to take possession of the unit, but to no avail She was called upon to remit balance payment including delayed payment charges and to complete the necessary formalities /documentation necessary for handover of the unit in question to her.

However, the complainant approached the respondent with request for payment of compensation for the alleged delay in utter disregard of the terms and conditions of the buyer's agreement.

The respondent gxplained to the complainant that the validity of registiationr{r3.s already been extended by the statutory authority and:thelOlore she was/is not entitled to any compensation in terms of the buyer's agreement However, thc complainant threatened the respondent wilh institution of unwarranted litigation.

Further, an amount of RsJ'2,774/-as benefit of anti-profiting was credited in account of the complainant.

The instant complaint has been preferred by the complainant.

The instant complalnt nas oeen preletleu uy LrtL complainant in order to obtain wrongful gain and cause order to wrongful toss to the resPondent. xv.

That in additio{l thereto it is submitted that the complainant with malafide ] inte4tion iiid to extort money from the respondent, opted to serve the respondent with the legal notice dated 09.07.2019.

9.07.2019.

She was offered the possession on 31 10 2018 and thereafter, in order to harass the respondent and to avoid payment of all outstanding dues, the complainant on 09 07 '2079 served a frivolous, baseless legal notice to the respondent' seeking refund of the payments.

It is pertinent to note that the complainant sought refund on two grounds, i e for the delay so occasioned in completion of the proiect and further on the Complaint no.

6145 of 2022 and, 4087 of 2021' Page 15 of28 u" HARERA ffi,GURUGRAM Complaint no.

6145 of2022 and 4081 of 2021 pretext that the value of the property allegedly had depreciated' It is noteworthy to mention that as per the terms and conditions of the buyer' agreement, on issuance of the letter of offer of possession, the complainant had to come forward to take the physical possession of the unit but in the present case the complainant neither took the physical possession of the unit rather served the respondent with a legal notice which is totally arbitrary, unjustified in the eyes of law.

It is submitted that the allottee cannot be alloweilto g.ancel its booking on speculative market conditions, which are always flucttrating The said submission is without prejudice to the fact thzt the speculation of the complainant regarding the market prico is misconceived and unsubstantiated.

That the complainant cannot act as per her whims and fancies.

The complainant is consci:us and aware of r i- ^rn6r t., this fact and have preferred the instant complaint in order to obtain wrongful to ln: cal wrongful loss to the respondent.

The complainant thereafter issued another legal th use and notice dated 04.12.20 respondent vide its reply dated 31.12.2019' xvi.

That the purchasers in the prdject in question have defaulted in Umely remittance of the installments' lt is submitted that when the proposed allottees defaulted in their payments as per schedule agreed upon, the failure has a cascading effect on the operations and the cost for proper execut per execution of the project increases exponentially and further causes enormous business losses to the respondent.

The respondent despite defaults of p PaEe 16 of 28 ffiHARERA ffi GTIRUGnAM E.

11.

6145 of 2022 and 4081of2021 several allottees earnestly fulfilled its obligations under the buyer's agreement and completed the project as expeditiously as possible in the facts and circumstances of the case The defaults committed by various allottees has delayed the contemplated implementation of the project.

The respondent cannot be penalized for indiscipline of the allottees.

It is relevant to submit that as on date there is an outstanding of Rs.11,04,541/' against the principal dues, Rs.8,53,527/- 8,53,527 /- as delayed pa)ment charges for Rs.6,7 4,250 / - towards stamP default in payment dury, Rs.64,500/- tration and administrative xvii.

Without prejudice to the aforesaid preliminaly obiections and the contention of the respondent, it is submitted that in case any relief is granted to the complainant, the sam€ is subject to the necessary deductions towards the earnest monies, delay in payment of installments, credits advanced to the complainant' maintenance dues etc., as may be applicable under the terms of the agreement and as Per law. lurisdiction 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. t Territorial iurisdiction 12.

As per notification no. l/92/20L7-ITCP dated L4.12'2017 issued by Town and Country Planning Department, Haryana the jurfsdiction of Real Estate Regulatory Authority, Gurugram shall be entirq Gurugram Page 17 of28 /\ ffiHARERA #- eunuennvt Complaint no.

6145 of 2022 and 4081of2021 District for all purpose with offices situated in Gurugram ln the present case, the project in question is situated within the planning area of Gurugram District.

District.

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

II Subiect-matter iurisdiction 13.

Section 11(4)[a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale Section l'1(4)(a) is reproduced as hereunder: 14.

F. mse mov be:l S I .'11 I ;;; ;,;;l;r[,*{"[|{,,il,1*,}#*" buitder fuver's asreement, H$r} a41", ll, W ,* *o}"wl " Accordin4tv' the o r o m ote r i s r\7tt\ fi* t CVo r h t t &b t i * ti il s I & I s i b i t i ti e s o n d fu + c t i o n s i,.r,ar,s poyffiA$U{, all*ffgffig!/aed in Buitder fuler's Aoreement \'4t!-'\""'--a rvrl' r *airr34'rrnaioffi$EW i s4n of the Et *ov&s il *filo)p}l'd{pI the obligotiolts cost ,pi, ,n" p,,,,ltil tiet E^.,EthtA $nf osen* unde' lnis *t ondtherutesqpd<qry1ysnoffVr("r", , I So, in view of the pr{visions ofthe Act quoted above, the aufhority has complete iurisdiction to decide the complaint reBarfing non- compliance of obligafions by the promoter leaving aside cofPensation which is to be decifled by the adjudicating officer if pursfed by the complainant at a later stage.

I Findings on the obieqtions raised by the respondent: F,i obiectlon regarding enduement of DPc on Found of complalnanq being investor.

Page 18 of 28 lA HARERA ffi.GURUGRAM The respondent submitted that the complainant is investor and not consumer/allottee, thus, the complainant is not entitled to the protection of the Act and thus, the present complaint is not maintainable.

The authority observes that the Act is enacted to prc'|tect the interest of consumers of the real estate sector.

It is seatled principle of interpretation that preamble is an introduction of a statute and states main aims and obiects of enacting a statute but at the same time preamble cannot be used to defeat the enacting provisions of the Act' Furthermore, it is pertinent to note that under section 31 of the Act' any aggrieved person can file a iomplaint against the promoter if the er if the promoter contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions of the buyer's agreement, it is levealed that the complainants are an allottees/buyers and tlLey have paid a considerable price to the promoter towards purchase of the subject units in the project of the promoter' At this stage, it is important to stress upon the definition of term allottee under the Act and the same is reproduced below for ready reference: Complaint no.

6145 of 2022 and 4081 of 2021 15. "2(d) "otlottee" in relation to a real estqte project meorc th-e person to whom a ploT:apa'tmgnt oi building, os the case nny be' hos been qtlotted,"ioli iwhetier os freehotd or leasehokl) or otha'wise transferred by the promoter, ond includes tlle person who subsiquently ocquires the soid ollotment through sale' transfer or otherwise but does not include o person to whom such plot' apartment or building, as the case may be, is given on renti' 17. ln view of above-mentioned definition of "allottee" as well as all the terms and conditions of the buyer's agreement executd between respondent and complainants, it is crystal clear that the cornplainants are allottee as the subject units were allotted to them by the promoter' t6.

Page 19 of28 p HARERA ffiGURUGI?AM The concept of investor is not defined or referred in the Act As per the definition given under section 2 of the Act, there will be "promoter" and "allottee" and there cannot be a party having a status of "investor"' Thus, the contention of promoter that the complainants-allottees being investors are not entitled to protection ofthis Act stands rejected' Findings on the relief sought: The foremost question that arises before the authority is as to whether after clearing the outstanding diieS along with interest' 19. erest' 19.

In the present matter the promoter has proposed to hand over the possession of the apartment according to clause 14(a) of the BBA within a period of 42 months from date of start of construction i e ' LL.11.2Ol3.

The due date of possession comes oul: to be 1105'2017 Since in the present matter the BBA incorporatel; conditional grace period/extended period of 3 months in the posisession clause for applying and obtaining the completion cel tificate/o ccu pation certificate in respect of the unit and/or the proj':ct The said grace period is allowed in terms oforder dated 0805 21023 passed by the Hon'ble Appellate Tribunal in Apped I No' 433 of 2(t22 tilted as Emaar MGF Lamd Limited Vs Babio Tiwari and Yogesh fiwari wherein it has been held that ifthe allottee wishes to continue with the project' he accepts the term of the agreement regarding grace period of three months for applying and obtaining the occupation certificate 'Ihe relevant portion of the order dated 0805 2023, is reproduced as u nder:- G, 18. the allottees are entitled for r interest or they be directed to aomplaint no.

6145 of 2022 and 4081 of2021 rnd of the amount Paid along with e possession of the allotted unit Page 20 oi 28 re HARERA Complaint no.

6145 of2022 and 4081of2021 *E* GURUGRAI/ including grace "As per oforesoid clouse of the ogreement, possession of the unit wos to be deliierei within 24 months from the dote ol execution of the ogreamenL i.e. by 07.03.2014.

As per the obove soid clause 11(a) of the agreemen, a groie period of 3 months for obtaining )ccupation Cert$cate- e,t:^\!s^ "been provided.

The perusol of the Occupotion Certifrcqte dated 11'17 2.020 oloced ot pose no.

317 of th" poper book reveqls thot the oppellont' 'promoter ioi applied Ior gront of Occupotion Certificote.on 21.07'2020 'which wos ultimately granted on 11.11.2020 |tisalsowell known that it takes time to apply a;d obtain Occupation Certificate from the concerned authori?t. authori?t.

As per section 18 of thb Act, if the project of the promoter is detoyed and if the allottee wishes to withdrow then he lws the option to witidraw from the project ond seek reJund of the amount or if the allottee does not iitend to witidraw from tle project and wishes to continue with the project, the ollottee E to be.bAld interest by the promoter.for eac.h .oirn'if ,i, aAoy h our opinion ifLhe altoftee wishes.Io continue wtth. i7 view of the aboie iaid circumstances, the appellant'promoter is entitled io avail the grace period sa provided in tht ogreement for qpplying and obtaining the Occupation Certificate' Thus' with iiitisioi o7 groce p"riod of 3 months os per the provisiot s in clause 11 (a) of the ogriinent,'the total completion period becomes,2-7 ma,nths 'l hus' tie due-date ofdelivery ofpossession comes out to 07 06 2a14'" 20.

Therefore, in view of the above judgement and considering the . provisions of the Act, the authority is of the view that, the promoter is entitled to avail the grace period so provided in the agreement for applying and obtaining the occupation certificate Therefore' the due date of handing er of possession comes out to be 11.08 2017 d ofthree months. gov perio 21.

The promoter filed. a complaint be.f,ore the authority bearing no' CRIAOBL /2021 on 1LJ'0.2027 and thereafter the allottee also filed a complaint bearing no.

CRl6145 /2022 ' Both these complaints were clubbed together in order to avoid conflicting orders Now' the matter before the authority is as to whether the allottee has right to seek refund or not, when the promoter is unable to give posses$ion of unit in accordance with the terms of agreement for sale The allottee was allotted unit no.

IG-09-2004, znd floor, building no' 9' on 2a 02'2013 PaEe 2l of 28 p HARERA GURUGRAM Complaint no.

6145 of 2022 and 4081o[2021 having an area of 2000 sq. ft.

00 sq. ft. as per clause 14(a) of the BBA' the subiect unit was to be handed on or before 7l'08'20L7 The respondent started raising demands as per the schedule of payment' but the complainant started defaulting in making payments' The respondent was compelled to issue various payment request letters' demand notices etc. to pay the demanded amount' As per calculation sheet submitted by the promoter in complaint bearing no 408L/2021 rhe complainant has not paid the. sale consideration as per buyer's agreement.

Despite issuaiice ;O.llyalious reminder letters and after giving reasonable time to *rel'iiiiiptalnant for making payment of outstanding dues of Rs.30,5319471. ,'':'...].

22.

Further, it is pertinedt to meqtioir'irire'ttrat the promoter has received the occupation certifiFate on 17 10.2018 and thereafter, the possession was offered to the allottee on 31'.i0.2018.

The complainant/allottee through send a legal notice with regard to refund the entire paid-up amount on Og.O7.2OIg and the respondent/promoter has replied the same.

The responddnt/prbmoter has failed to return the paid up proiect and seek refund of the paid'up amount along with interest due to failure of responilent/promoter to provide timely possession of the subject unit in accordance with the terms ofbuyer's agreement' 23.

The right under section 1B(1) and 19(4) accrues to the allottee on failure of the promoter to complete or unable to give possession of the unit in accordance with the terms of the agreement for sale or duly completed by the date specified therein. tf allottee has not exercised the right to withdraw from the proiect after the due date of possession Page 22 of 28 A HARERA complaint no.

6145 of2022 and 4081 of 2021 @ Al lDl ICDAI\iI is over till the offer of possession was made to him, it impliedly means that the allottee tacitly wished to continue with the proiect The promoter has already invested in the proiect to complete it and offered possession of the allotted unit. tted unit.

Although, for delay in handing over the unit by due date in accordance with the terms of the agreement for sale, the consequences provided in proviso to section 18(1) will come in force as the promoter has to pay interest at the prescribed rate of every month of delay till the h4lding.over of possession and allottees interest for the money thoy ha'|()', paid to the promoter is protected accordinglY. .i: '-r, l 24.

The Iegislature in its wisdoll:ii !.-i-.9., subordinate legislation under the rule 15 of the rules hds'detelminei the'prescribed rate of interest The rate of interest so dqtermined by the legislature, is reasonable and if the said rule is followed to award t}le interes! it will ensure uniform practice in all the cases' 25.

Consequently, as pbr website of the State Bank of India ie' https://sbi.co.in, the'marfinal cosr.of lelding rate ['in short' MCLR) as on date i.e., 07.8.2q24 i;8.85%'Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2% i er', 10'850u6' 26.

However, if it is pertinent to mention here that offer of possession with respect to unit in question has been made by the respondent on 09.07.2019, i.e., after receiving occupation certificate on 17 102018' Thereafter, the complainant has been send Iegal notice to respondent as well as filing the complaint the present complaint on 09'07 2019 and 09.09.2022 respectively for seeking relief of refund' Since the complainant has approached the Authority after occupation certificate has been received and offer of possession has been made by PaEe 23 of 28 lA &HARERA #-GuRucRAM compl;int no.

6145 of 2022 and 4081 of2021 respondent promoter, therefore, regulation 11(5J of 2018 framed by the Haryana Real Estate Regulatory Authority' Gurugram providing deduction of 10% of total sale consideration as earnest money and sending the remaining amount to the allottee immediately becomes applicable here. able here.

The Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builder) Regulations' 11(5J of 2018, states that: "5.

AMOUNT OF EARNEST MONEY i"rori ,rw to the Real Eiutdt{Regulotions and Development) Act' ii'i i{ aipr*, FrauAi wAre qqried out without anv feor o.s there *i, no ti* 1o, tn" tame buqiot'y,Ji,iiew of the abo.ve facts and^caking into consideration the fuage;'leftii6l Uon'ple Notionql Consumer Disputes 'i"ir""iitii-itti"i o"na ifie- tign'bli supreme court of tndio' the -iiriirti ,i "f th, iiew thoithe foqei,ture omount of the eornes"t.monev tiiiii rii i*"i"a ^o* thqi took'oithe c.bnsideration.amount of the real -iitiit" i.". opr*^iri fplot /buildiig 'os the cose moy.be.tn ol.l cqses where iii ,onr"ttqtion of q'"- Itot/unit/pl;t is mode by the buil(1er in a unilateral ^i"rii-"i ,i" i,,!"i inwnai io iithdraw from th-e proiect and anv ooreement containlng any clouse controry to the aforesoid regulotions sialt be void ond not binding on the buyer' 27. lt it ;;;;;;;Jiy it," "rtt o.itv that the allottee invest in the proiect for obtaining the allotted unit and on delay in compl()tion of the proiect and when the unit is readY for possession, such withdrawal on considerations otherl than delay such ds reduction in the market value of the properry ,nd lnr".t*"nt purely on speculatlve basis will not be in the spirit of the sqction 18 whichrprotects the right of the allottee in case of failure of promoter to give possession by due date either by way of refund if opted by the allottee or by way of delay possession charges at prescribed rate of interest for every month of delay' 28.

This view is supported by the judgement of Hon'ble Supreme Court of India in case of lreo Grace Reattech WL Ltd' v/s Abhishek Khanna and Ors. (Civil appeal no.

5785 of ZO1-g)' wher(:in the Hon'ble Apex courttookaViewthatthoseallotteesobligatedtotakethepossession Pagez4 of28 p HARERA GURUGRAIVI tomplaint no. plaint no.

6145 of 2022 and 4081 of 2021 of the apartments since the construction was completed and possession was offered after issuance of occupation certificate lt was specifically held that in cases where the respondent/builder is already in receipt of occupancy certificate pursuant to which the respondent/builder has even offered possession of unit to an allotee that too before institution of the case, the allottees in such cases are bound to take possession of their unit with delay possession charges' if any, and no order of refundjs'ryaflanted in such cases Relevant para "aa' of aforesaid ludgement is as "27,7 The issue which novt aiises i5 whether the Apartment Buyers ore b)ound to (lccept the olfer of possession made by the Developer where- tii orrupotio, certiiiat" iris been issued, along with tl1e payment of Deloy Compensation, or are entitled to terminote the Agr?ement tl ADarLmenL Buvers whose allotmenl fatt in Phose I ol lhe ProBt io.irisea in Toiers 46 to A10.

Bl to 84 dnd C3 rc :7' where th" Developer has been gronLed oLcupoLion cerlilicate ond olJer oI possession hos been mode are enlisted in Chorl A; ). chort A ollotees li1 w" ,r" of the view th.at ottotees * si N::l ::!^',1: :!::.'",:^::: 'of,tigiL"a to tor." possession of the op.arl\'-'!t: ]'!,'^' '!" '?"::!':':: was completed, and Porsession o- on 28.06.2019 after the issuance ol Occuootion Cettificate on 3l052A19 The devcloper i' how?ver oittiootrd to pov o"fov Compensolion lor the period of deloy which ha' orrirr"a rc'r2zl1.20fi till rh" dot" o1 olfer of possession wos maJe to the a\\otees.....,...,...,.. " rr," lr"iJl-irag.rnuni it very. well applicable to the facts and circumstances of the instant case Herein, the respondent llas already obtained occupancy certificate for the proiect on 17 10 2018 itself pursuant to which complainant has also been offered with possession ofhis unit on 09.07.2019 itseli 29.

In the present case, said unit was allotted !o complainant on 28.02.2013.

8.02.2013.

There is a delay in handing over the possession as due date of possession was 11.08.2017 whereas, the offer of possession Page 25 of 28 & HARERA ffiGURUGRAM was made on 31.10.2018 and thus, becomes a case to grant delay possession charges.

The allottee is obligated to take possession of the unit since the construction is completed and possession has been offered after obtaining an occupation certificate from the competent authority.

However, the developer is obligated to pay delay charges for the period of delay occurred from the due date till the date of offer of possession was made to the allottees plus two months @ 10 850/o p a' The respondent shall issue a revised account statement within 15 days of this order after adlustmeqi oidetayed possession charges atthe rate of 10.85% on the paid-up aniount by the complainant from due date of handing over possession, i.e., 11.dg 20.17 till offer of possession plus two months which c0m6s out to 6€ 3i 12'2018 The holding charges being demanded at the time of offer'of poisession are also not Ieviable and to be excluded,from the payable amount while issuing above revised statemeIftTaqqoln$. i: lt I l', t I rhat as per ,.aii,\$il{.d rqtz{9rk6'aca every allott{e shall be - \'i'-i-E{dpir'"s per agreemefrt for sale responsiblE to make\Q$S i:T,,HlT::$$&w,HH:;11ilffi:;f"::::,1 section 19[10) gf dlg 4fl1 vifsof$Cfa$9, complainalt/auottees shall make the req./tU []*c"\dt:t]d pldsCriuea rate of lnterest i e ' 10.85% anrd take po$session of the subiect unit as per the PJovisions of sections 19(6), (7), and (10J of the Act of 2016' I Thereafter, if the cqmplainant fails to pay outstanding amfunt as per revised statement of accounts as detailed above within ntxt 30 davs along with interest at equitable rate, i e'' 1o'85Y0 n't' on such outstanding amounf, the respondent/promoter shall refu{d the Oaid- Cornpliint no.

6145 of 2022 and 4081 of 2021 30.

31.

Page 26 of 28 fL HARERA ffi"GURUGRAM up amount of Rs. unt of Rs.1,40,30,373/- after deducting the earnest money which shall not exceed the 10% of the sale consideration and amount already paid against credit memo (credit on account of - Anti profitingJ.

Also, the interest at the prescribed rate i.e, 10 850/o is allowed on the balance amount from the date of issuing a legal notice, i.e., 09.07.2019 till the actual realization of the amount within the timelines provided in rule 16 of the rules, 2017.

Directions of the authority Hence, the authority hereby passei:this order and issue the following directions under section 3l of"ithe Act to ensure compliance of i.

The respondents are directed to issue fresh stal:ement of accounts within 15 days of this order after adiuslrnent of delayed possession charges at the rate of 70.750/o on the paid-up amount by the complainant from due date of handing ouer possession' i e ' L3.02.2017 till offer of possession plus two months which comes out to be 23.09.2078.

The holding charges being demanded at the time of offer of possession are also not leviable and to be excluded from the payable amount while issuing above rrlvised statement of accounts. ii.

The complainant may take the possession witlLin next 30 days on payment of outstanding amount, if any remains, failing which respondent shall refund the paid-up amount of Rs 1,40,30'373/- after deducting the earnest money which shall not exceed the 10% of the sale consideration and amount already paid against credit memo (credit on account of - Anti profiting) 'Also, the interest at Complaint no.

6145 of 2022 and 4081 of 2021 H.

32. obligations cast upon the promoter.as per the function entrusted to the authority under section 34(0: Pavez1 of 28 lA .l J.

34.

HARE Com File be Complaint no.

6 and 4081c bed date i.e., 1.0.85% is issuing legal on such am0unt for seeking I.e., 19 till e actual of the amount in rule 16 ofthe les,20L7. of 90 is given to the given i this order and which legal llow.

ARE URUGRA GURUGRAM Dated; 07 .03. d; 07 .03.2024 \ u't-4 (Viiay Kuffar GoYal) Member Haryana Real Estate Regulatory AuthoritY, Gurugram PaEezB of zB