DEEPAK GUPTA vs JASMINE BUILDMART PVT. LTD.

MHARERA ffieuRuennu COMMr Ashok Sangwan ORDER 1.

This order shall dispose of the 2 complaints titled above filed before this authority under section 31 of the Real Estate (Regulation and Developmentl Act,2016 (hereinafter referred as ,,the Act,,) read with rule 28 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017 (hereinafter referred as "the rules,,J for violation of section 11(4J (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 between parties.

BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision: O6.03.20?4 complaint No.

7560 of2022 and others NAME OF THE BUILDER JASMINE BUILDMART PVT.

LTD.

PROIECT NAME PROVENCE IjSTATI S.

No.

Case No.

Case title Appearance 7 cR/7560/2022 Deepak Gupta V/s M/s lasmine Buildmart Pvt.

Sambit Nanda (Complainant) Shivam Rajpal (Respondentl 2 cR/7 582 /2022 Sanjay Cupta and Ekta Gupta V/s Jasmine Buildmart Pvt.

Sambit Nanda (ComplainantsJ Shivam Rajpal (Respondent) Member Page 1of29 *HARERA ffi eunuennvr Complaint No.

7560 0f2022 and others 2.

The core issues emanating from them are similar in nature and the complainant(s) in the above referred matters are allottees of the project, namely, Provence Estate situated at Sector Z, Gurugram being developed by the respondent/promoter i.e., fasmine Buildmart l)vt.

The terms and conditions of the buyer,s agreements fulcrum of the issue involved in all these cases pertains to failure on the part of the promoter to deliver timely possession of the units in question.

The complainant(s) have previously filed the complaints seeking possession and delay possession charges at prescribed rate ofinterest. finterest.

However, the respondent has already created third party rights on the unit in question during pendency of complaints before this Authority, despite filing of an application under section 36 of the Act by the complainant(s), which was bad in law.

The counsel for the complainant[s) during proceedings dated LO.O7.2OZ4 stated that in case it is not possible to restore the unit which was initially allotted to the complainant(s), then the respondent may be directed to refund thc amount deposited alongwith interest to which the counsel for the respondent had no objection and the matter was reserved for orders with liberty to the parties to file written submissions.

Accordingly, the complainant(s) has filed written submissions dated ZS.OL.2OZ4 after supplying a copy of the same to the respondent, vide which he has made a request before this Authority that the relief of thc complainant(s) may be amended from delay possession charges to refund of the entire paid-up amount alongwith prescribed rate of interest, to which no reply/objection has been filed by the respondent till date.

Therefore, after considering the facts and circumstances of the Page 2 of 29 ffiHARERA S* eunuennvr 3.

Complaint No.

7560 of2022 and others cases mentioned above, the request for amendment of relief is hereby allowed.

The details of the complaints, reply status, unit no., date of agreement, possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given in the table below: "Provence Estate" at Sector-2, Gurgaon, Haryana 72.32 acres 105 of2008 dated 15.05.2008 valid upto 14.05.2020 lasmine Buildmart pvt.

282 of 2077 dated, Og.rO.ZOrZ vatid up to :O.Ot.ZOiS Possession Clause: 3.1 Possession: " Subject to Clouse 10 herein or any other circumstonces not anticipoted and beyon(l the reasonable control ofthe Seller qnd any resffaints/ restrictio ni fro m any courtsT outhorities and subject to the purchasers) hoving complied with all the tL all the tLrms ond conditions ofthis Agreement ond not being in defoult under ony of the provisk)ns ol this Agreement ond hqving con plied with all provisions, formolitiis, doiumentotion, etc. os prescribed by the Seller, whether under this Agreement or otherwise, from time to time, the Seller proposes to hond over the possession ofthe Aportment to the Purchasers) within a period of 36 (thirE) six) months fron the dqte of commencement of construction or executton of this Agree neni. whtchevet is later, subject to Force Majeure.

The Purchasers) agrees ond understonds that the Seller shall be entitled to a grace period of1B0 (one hundred eighty) business days, olier the expiry of 36 (thirty six nonths, for opplying and obtaining the ociupotion certiJicate in respect ofthe project from the Authority.,, Occupation Certific atet 29.7 O.2O 79 Sr.

No Unit No.

Complain t No., Case Title, and Date of filing of complaint cR/7s60/ 2022 28.09.20L 2 IPage 53 of A-802, 8th floor, Tower .A 28.09.207 5 5800 sq. ft. lpage 68 of comp (Calculate das36 months Consideration: Rs.3,24,80,000 I oeepak I cupta V/s I Jasmine | (Pase 101 of lcomplaintl Proiect Name and Location Project area DTCP License No.

Name of Licensee RERA Registration Date of apartmen t buyer agreemen t, Date of surrender Due date of Possessio n la int from date PaBe 3 of29 Unit adm easu ring Basic Consid n Total A paid b S"l,e- Consideratio Iotal Amount by the complainaq! l T R.tt.f I sousrrt Buildmart PvL Ltd.

DOF: L2.12.202 2 Reply Status: 09.08.202 3 Date of surrender: 08.08.201 9 (pa$e 127 of complaint) [page 68 of compl aintl of execution of BBA as the same is later) Grace period is not allowed as applicatio n for 0C was filed only on 13.05.201 9 Amount Paidi - Rs.3,10,44,968 (PaEe 277 of complaint) 2. cR/7s82/ 2022 Sanjay Gupta and Ekta Gupta lasmine Buildmart Pvt.

DOF: L2.t2.202 2 Reply Status: 09.08.202 3 28.09.20t 2 [Page 62 of complaintl Date of surrender: 08.08. er: 08.08.201 9 fpage 119 of complaint) 7702, l2th floor, Tower Ipag" 68 of compl aintl 5B00 sq. ft. lpage 69 of comp laintl 28.09.20t 5 (Calculate das36 months from date of execution of BBA as the same is later) Grace period is not allowed as applicatio n for OC was filed only on 13.0 5.2 01 9 Basic Sale Consideration: Rs.3,39,30,000 (Page 92 of complaint) Amount Paid: - Rs.3,22,77,A54 (Page 267 of complaint) Refund ffiHARERA S- eunuennvr Complaint No.

7560 of2022 and others The aforesaid complaints were filed by the complainants against thc promoter on account of violation of the builder buyer,s agreement executed between the parties in respect of said units for not handing over the possession by the due date, seeking refund ofthe total paid up amount.

4.

Page 4 of 29 i HARERA GURUGRAM and others 5.

It has been decided to treat the said complaints as an application for non-compliance of statutory obligations on the part of the promoter /respondent in terms of section 34(fJ of the Act which mandates the authority to ensure compliance of the obligations cast upon the promoters, the allottee(s) and the real estate agents under the Act, the rules and the regulations made thereunder.

The facts of all the complaints filed by the complainant(s) /allottee(sJ are similar.

Out of the above-mentioned case, the particulars of lead case CR/7560/2022 Deepak Gupta V/s Josmine Buildmart Pvt.

Ltd. are being taken into consideration for determining the rights of the allottee(s).

Proiect and unit related details The particulars of the project, the details of 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: CR/7560/2022 Deepak Gupta V/s Jasmine Buildmart Pvt.

Details "Provence Estate [PH-1, Tower A & Sector 2, Gurugram 1232 acres GrouD housins Droiect 105 of 2008 dated 15.0 5.2 008 Valid upto L4.05.2020 6.

A, 7. asmine Buildmart Pvt.

Pvt.

282 of 2077 dated 09.10.2017 valid uD to 30.03.2019 A-802, 8th floor, Tower- A Particulars Name and location of the Proiect area Nature of the Droiect DTCP license no. and validitv status 5.

I Name of licensee RERA registered/ not resistered Unit no. e 68 of complaintl PaSe S of29 Complaint No.

7560 of 202 2 Unit area admeasuring (Super area) Allotment Letter Date of buyer's agreement Possession Clause Date of start of construction ffiHARERA ffi eunuennvr Complaint No.

7560 of 2022 and others 5800 sq. ft. [page 68 of complaint] 07 .07 .201.1, [pg.

96 of complaint] 28.09.2012 e 63 of complaint [Page 63 of complaint'l ] 3.1.

Subject to Clause 10 herein or any other circumstances not anticipated and ) beyond the reasonable control of the Seller and any restraints/restrictions from any courts/duthorities and subject to the Purchqser(s) having complied with all the terms and conditions of this Agreement and not being in default under any of the provisions of this Agreement and having complied with oll provisions, formalities, documentotion, etc. as prescribed by the Seller, whether under this Agreement or otherwise, from time to time, the Seller proposes to hand over the possession of the Aportment to the Purchaser(s) within a period of 36 (thiq six) months from the date of commencement of a construction or execution of this Agreement, whichever is later, subject to Force Majeure.

The Purchaser(s) agrees oncl understands that the Seller shall be entitled to a grace period of 180 (one hundred eighty) business days, after the expiry of 36 (thiry-six) months, fo, applying and obtaining the occupation certiJicate in respect of the P r oj e ct from th e Au th o ri ty. .

73 of complaint 0 6.08.2 01 1 Page 6 of29 Pase 102 of com lai nt ffiHARERA ffieunueRRtrr t.

A.

3.

7560 of 2022 and others Il.

Facts ofthe complaint The complainant has made the following submissions: - That the complainant was allotted an apartment bearing no. earing no.

A-802, 4 BHK, admeasuring 5800 sq. ft., in Tower A, 8th Floor in the project of the respondent named "Provence Estate", Gwal Pahari Village, Gurugram vide allotment letter dated 07.07 .2011, fot a basic sale prrce of Rs.3,24,80.000/-.

Thereafter, an apartment buyer's agreement was executed betvveen the parties in respect of the said uni t on 28.09.2012.

That as per clause 3.L ofthe agreement, the respondent was obligated to handover the possession of the said apartment to the complainant within a period of 36 months from the date of commencement of construction or execution of the agreement, whichever is later. 'lhc respondent further shall be entitled to a grace period of 180 business days for applying and obtaining the occupation certificate in respect of the project from the competent authority.

Further, as per clause 3.3, of the agreement, the respondent shall be liable to pay compensation 13.

Due date of possession 28.09.2015 (Calculated as 36 months from date of execution of BBA as the same is later] Grace period is not allowed as application for OC was filed only on 03.07.20t9 74.

Basic Sale Consideration Rs.3,24,80,000/- fPaee 101 of comnlaint 15.

Amount paid Rs.3 ,L0 ,44 ,968 / - fPaee 217 of comnlaint 16.

Occupation certificate 29,70.201.9 L7.

Offer of possession 77.17.20L9 (Page 135 of complaint) PaEe 7 of 29 *HARERA ffieunuennu Complaint No.

7560 of2022 and others equivalent to the amount calculated on the basis of 100/0 per annum of the entire sum timely and promptly paid by the complainant to the respondent for the delayed period of offer to handover possession of the apartment. lll.

That as on 24.L2.2073, in terms of the construction linked plan, the complainant had paid a sum of Rs.3,10,4 4,968 /- ovt of the total basc selling price of Rs.3,?4,80,000 /- in respect of the said apartment to thc respondent as and when demanded by it. ded by it.

Notably, the balance payment was to be made on the commencement and completion of internal flooring, and on possession.

IV.

That all the demands raised by the respondent throughout the construction period, though paid by the complainant, were absolutely unlawful as the construction was nowhere close to completion.

Iiven till the date of filing the present complaint, the internal finishing and flooring is incomplete.

That on 15.11.2017, the respondent issued a letter raising a further demand ofa sum ofRs.

31,23,685.62/-.

However, the said demand was again erroneous as the said work had not even begun.

Therefore, since the demand was itself erroneous and contrary to the terms of the agreement, the complainant was under no obligation to make any further payment.

That on 15.11.2018, the respondent sent a reminder notice, reiteratinB its demand raised on 15.11.2018.

The very fact that the respondcnt waited for over 1 year to reiterate its demand buttresses the fact that the demand raised in 15.11.2017 was without any basis and illegal.

VI.

Page B of29 MHARERA S* eunuenRur Complaint No.

7550 of 2022 and others VIl.

That on 79.07 .2079, the respondent again raised another demand of Rs.36,37 ,7 60 /- and alleged that the apartment would be ready for fit out and fixtures by 19.08.2019.

This was again a false statement being made by the respondent to coerce the complainant into making any further payment.

Pertinently, the respondent was liable to pay interest at the rate of 10%o per annum on all the sums paid by complainant from the date of possession.

Therefore, the interest liability of the respondent was in any event far more than the remaining dues of thc complainant towards the respondent.

VIll.

That on 08.08.2019, the complainant sent a reply to the Demand Notice dated 19.07. ted 19.07.20L9 stating that the demand raised by the respondent was frivolous, and due to the inordinate delay in the completion of the proiect by the respondent, which was still not even close to completion, the complainant was not willing to wait any longcr and instead was willing to take a refund of the amount paid by him with interest.

IX.

That on 28.09.2019, the respondent sent an offer of possession, claiming that it had applied for an occupancy certificate, but sincc it had not received any refusal from the DTCP, Haryana, it had deemed that the occupancy certificate had been granted.

The respondent further called upon the complainant to take possession after clearing all his dues. l'his was again a frivolous assertion, inasmuch as the proiect was not completed, and the building constructed was not in a habitable condition.

In fact, construction was still going on in the project at the said time, and even the lifts had not been installed as yet.

PaEe 9 ol 29 v MHARERA ffi eunuenRnt Complaint No.

7560 of2022 and others The said offer of possession was therefore not a valid offer of possession.

X.

That on 05.11.2019, the complainant sent a response to the alleged letter of possession, where it was reiterated that the respondent had miserably failed to comply with the terms of the agreement, and since the project was not even completed, the respondent should issue a refund to the complainant.

XI.

That on 11.11.2019, the respondent sent another letter of possession, claiming that it had received an occupancy certificate on 29.10.2019, and called upon the complainant to take possession after making payment of a sum of Rs.1,26,41,82U - which was allegedly due.

XII.

That due to the inordinate delay by the respondent, the complainant was constrained to filed proceedings before the FIon'ble National Company Law Tribunal, Delhi under Section 7 of the Insolvency and Bankruptcy Code, 2016, registered as Deepak Gupta & Ors.

V. lasmine Buildmart Pvt Ltd. t Pvt Ltd., I B-3366(N D)/2019 seeking initiation of insolvency proceedings and claiming a sum of Rs.5,40,93,077 /- as being due from the respondents.

Further, around December 2018, certain other homebuyers in the respondent's project had filed a petition undcr Section 7 of the Insolvency and Bankruptcy Code, 2016 due to thc delay in completion of the project against the respondent.

On 28.1,7.2019, the National Company Law Tribunal, Delhi admitted thc petition under Section 7 ofthe IBC and appointed Mr.lugraj Singh Bedi as the Interim Resolution Professional.

XIII.

That on 22.06.2020, the IRP sent a notice to the respondent, claiming that the entire project was completed and was ready for occupation v Page 10 of29 HA GUR RERA UGRAIM Complaint No.

7560 of2022 and others and called upon the complainant to take possession after clearing all the dues.

XIV.

That on L2.07.2020, in terms of the order of the Hon'ble NCLT, the complainant filed its claims before the IRP, seeking a sum of Rs.5,40,84,359/-, being the sums paid by the complainant along with interest. ln order to veri0/ the claim of the IIIP in its notice dated 22.06.2020, the complainant, on 16.07.2020, went to inspect to the project and was shocked to find that even the unit booked by the complainant was not ready for occupation.

The common areas and facilities were in a shambolic state and construction was going on in most areas.

On 17 .07 .2020, the complainant sent a detailed response to the IRP of the respondent, setting out the several deficiencies in the project which was nowhere close to completion.

XV.

That the respondent filed an appeal before the National Company Law Appellate Tribunal against the order of the NCLT dated 28.17.2019, which was dismissed by the Hon'ble NCLAT on 09.11.2020.

Thereafter, the respondent filed an appeal before the Hon'ble Supreme Court against the order of the NCLAT dated 09.11.2020, being civil Appeal No.

3778 of 2020, titled as Amit Katyal v.

Meera Ahuja. era Ahuja.

The proceedings were settled between the parties before the Hon'ble Supreme Court, and, in the Judgment dated 03.03.2022 the court recorded the undertaking of the respondent that it shall complete the entire project within a period of l year and offer possession to thc respective homebuyers.

As per the undertaking, the apartment alonB with common areas and amenities had to be completed by the respondent by 03.03.2023.

Page 17 of 29 MHARERA ffi eunuenRvr Complaint No.

7560 0f2022 and others XVL That on 09.11,.2022, the respondent sent a further demand notice, claiming that the unit has been ready for possession since October 2079, and called upon the complainant to clear unpaid dues of Rs.1,00,08,595/- and threatened to cancel the allotment of thc complainant in case the same was not paid.

XVll.

That on 77.lL.2022, the complainant responded to the said letter, stating that the demand letter has failed to account for the interest on delayed possession which the respondent is liable to pay thc complainant.

XVIII.

That on 07.12.2022, to the shock of the complainant, instead o[ agreeing to hold a meeting to discuss the settlement of account, the respondent proceeded to arbitrarily cancel the allotment letter.

This cancellation was absurd, inasmuch as there had never been any default on the part of the complainant, who had paid almost 900/o of the sale consideration as far back as in 2013.

It is the respondent who misappropriated the money paid by the innocent buyers and caused an inordinate delay in the offering possession.

Further, it is evident from the proceedings before the Hon'ble NCLT and the Hon'ble Supreme Court, that the units were not even ready for possession till March 2022, and, therefore, the offers of possession in 2019 were malicious and were made with the sole motive of extracting further money from the complainant and other buyers. er buyers.

Therefore, the complainant is entitled to penal interest for the entire period of delay on the part of the respondent @240/o per annum i.e. at the rate of interest which has been applied by the respondent against the Page 12 of 29 B.

4. mHAREIA S,eunuenRlr 5. l. lt.

C.

6.

7560 of 2022 and others complainant in the cases of delay in payment on the part of rhe complainant.

Relief sought by the complainant: The complainant has sought following reliefs: a.

Direct the respondent to refund the paid-up amount alongwith prescribed rate of interest.

On the date of hearing, the authority explained to the respondent/promoter about the contravention as alleged to have been committed in relation to section 11(al (a) of the Act to plead guilry or not to plead guilty.

Reply by the respondent, The respondent has contested the complaint on the following grounds: That after conducting his own independent due diligence and being fully satisfied with the particulars ofthe said project, the complainant voluntarily approached and applied to the respondent and expresscd his interest in purchasing an apartment in the said project being developed by the respondent.

As per his request, the respondent agreed to allot an apartment the bearing no.802, Tower-A,8th Floor admeasuring 5800 sq. ft.to the complainant in its project named "Krrish Provence Estate", Gwal Pahari, Sector-2, Gurugram for a basic sale price of Rs.3,78,06,414 /- against which the complainant has only paid Rs.3,10,44,968/- to the respondent.

That the complainant was extremely irregular as far as the payment of installments in terms of the apartment buyer's agreement, Ilvcn though the respondent was under no obligation to grant time or to allow the unjustified and inexcusable demands of the complainant.

However, to the utter shock and dismay to the respondent, the Paee 13 of29 r *HARERA ffieunuennnr a"*1",r*,"r550 "f ,rr-l lv. lll. l lv. lll. complainant outrightly refused to make any payment in furtherance of the agreed terms of the apartment buyer's agreement, thereby willfully and fragrantly violating the agreed terms of the apartment buyer's agreement.

That due to the persistent defaults of the complainant, the respondent was compelled to issue demand notices, reminders etc., calling upon the complainant to make payment of outstanding amounts payable by him under the payment plan/instalment plan opted by thc complainant.

That the respondent has already completed the construction of the tower in which the unit of the complainant is situated.

The Town & Country Planning Department, Haryana has issued occupation certificate dated 29.70.2079 to the respondent for Tower A and EWS occupation certificate of the said project of the respondent and has offered possession ofthe unit to the complainant after payment of thc dues towards the said unit and execute the conveyance deed in his favour vide notice of possession dated 71.77.2079.

In the said notice of possession, the respondent had also informed the complainant that in case he fails to pay the amount and complete all the requisite formalities, necessary documentation and submission of relevant details, information, documents, certifications and attestation etc. by 11.L2.2019, then the respondent shall be eligible to charge interest @10.50lo per annum from the date of default till the time such paymcnt is received by the respondent That as there was an inordinate delay on part of government department/authorities in providing relevant permissions, licenses Page 14 of 29 |.

HARERA Sq GURUGI?AM approvals and sanctions for project which resulted in inadvertent delay in the proiect which constitute a force majeure condition as anticipated in clause 11 of the apartment buyers agreement, as delay caused in these permissions cannot be attributed to respondent, for very reason that respondent had been very prompt in making applications and replying to plying to objections, if any raised for obtaining such permissions.

That thereafter the complainant filed a proceeding before the Hon'ble National Company Law Tribunal, Delhi under Section 7 of the Insolvency and Bankruptcy Code,2016, titled as Deepak Gupta & 0rs.

Versus. lasmine Buildmart Pvt.

Ltd., IB-3366(ND)/ 2019 seeking initiation of insolvency proceedings against the respondent.

That thc NCLT vide Order dated ?.A.11.2019 admitted the petition under Section 7 ofthe IBC and appointed Mr.lugraj Singh Bedi as the Interim Resolution Professional. vii.

That the respondent filed an appeal before the National Company Appellate Tribunal against the order of the NCLT dated 2A.71.2079, which was dismissed by the NCLAT vide order dated 09.11.2020.

Thereafter, the promoter of the respondent filed an appeal before thc Hon'ble Supreme Court against the order of the NCLAT datcd 09.11.2020, being Civil Appeal No.

3778 of 2020, titled as Amit Katyal Versus.

Meera Ahuja.

That the Hon'ble Supreme Court vide Judgment dated 03.03.2022 directed the respondent to complete the entire project within one year from 01.03.2022 and offer the possession to the respective home buyers.

7560 of 2022 and others vl.

Page 15 ot29 MHARERA S-eunuenan,l viii.

That in terms of the judgment of the Hon'ble Supreme Court the respondent vide letter dated 09.71.2022 issued final reminder cum cancellation notice to the complainant for taking possession ofthe said unit and also to deposit the payable dues and complete formalities for timely execution and registration of the conveyance deed of the said unit.

That the complainant failed to pay the outstanding dues towards the unit in question, thereby failing to take over possession of the apartment, hence the respondent vide letter dated 01.12.2022 was constrained to cancel the said unit allotted to the complainant. 'lhc respondent had also requested the complainant to collect the amount due to them in terms of the apartment buyer's agreement. agreement. 'l'herefore, there is no default on the part of the respondent.

That the respondent vide letter dated 08.02.2023 issued three chequcs bearing no.

079454 dated 07 .02.2023,07945 5 dated 07 .02.2023 and 079457 dated,28.02.2023 drawn on Union Bank of India for an amount of Rs.50,00,000/-, Rs.

50,00,000/- and Rs.1,34,54,095/- to the complainant as full and final eligible amount as per the apartment buyer's agreement dated 28.09.2072, thereby refunding thc permissible amount to the complainant.

That as per clause 3.1 ofthe agreement, the respondent was supposed to complete the construction ofthe said project within 36 months fronl the date of signing of the agreement i.e.

28.03.2016 unless there was delay due to a force majeure condition or due to other reasons mentioned in clause 3.1.

Despite exercising diligence and continuous pursuance ofproject to be completed, pro,ect ofrespondent could not Complaint No.

7560 of2022 and others lx, xl.

PaEe 16 of 29 HARERA M.GURUGRAN/ Complaint No.

7560 o12022 and others be completed due to orders passed by the NGT staying the construction, restriction on use ofunderground water by the orders oI Hon'ble High Court of Punjab and Haryana, delay on part of government agencies in providing relevant permissions, licenses approvals and sanctions for project, unavailability of construction workers in NCR region, increase in cost of construction, implementation of social schemes like NREGA, reduction in availability ofbricks and sand due to restrictions imposed by Ministry of Environment and Forest and the Ministry of Mines, demonetization, introduction of GST etc.

Therefore, it is most respectfully submitted that in view of the aforementioned facts and circumstances, the present complaint is liable to be dismissed with an exemplary cost.

7.

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

Their authenticity is not in dispute. n dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submissiotl made by the parties. ,urisdiction of the authority The authority observed that it has territorial as well as subject mattcr jurisdiction to adjudicate the present complaint for the reasons given below.

E.I.

Territorial iurisdiction As per notification no. l/92/20L7-1TCP dated 14.12.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, thc project in question is situated within the planning area of Gurugram D.

8.

9.

Page 17 of 29 ffiHARERA S-eunuennnt Complaint No.

7560 of2022 and others District, therefore this authority has complete territorial jurisdiction to deal with the present complaint.

E.U.

Subiect matter iurisdiction 10.

Section 11(41(a) of the Act,2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section 71 (4) The promoter shqll- (a) be responsible for allobligations, responsibilities ond functions under the provisions of this Act or the rules and regulations mode thereunder or to the qllottees os per the agreementfor sole, or to the ossociation of dllottees, as the case moy be, till the conveyance of all the apartments, plots or buildings, as the case may be, to the ollottees, or the common areas to the association ofallottees or the competent outhoriy, as the cose moy be; Section 3 4 -Functions of the Authority: 344 ofthe Act provides to ensure complionce of the obligations cost upon the promoters, the ollottees ond the reol estote ogents under this Act and the rules ond regulations made thereunder.

11. under.

11.

So, in view of the provisions of the Act quoted above, the authority has complete iurisdiction to decide the complaint regarding non- compliance of obligations by the promoter leaving aside compensation which is to be decided by the adiudicating officer if pursued by the complainant at a later stage.

12.

Further, the authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the Hon'ble Apex Court in Newtech Promoters and Developers Private Limited Vs State of U.P. and Ors.

2027-2022 (7) RCR (Civil), 357 and reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLP (Civil) No.

13005 of 202 0 decided on 1?.05.2022 wherein it has been laid down as under: Page 18 ol29 ffiHARERA S-eunuennHl Complaint No.

7560 of2022 and others "86.

From the scheme of the Act of which o detailed reference has been nade and toking note of power of adjudication delineated with the regulatory authoriq, and qdjudicating officer, whot finally cults out is thot although the Act indicotes the distinct expressions like 'refund', ,interest', 'penalry' ond 'compensotion', o conjoint reoding of Sections 18 and 19 cleorly monifests that when it comes to ret'und ofthe omount, ond interest on the refund onount, or directing payment of interestfor deloyed delivery of possession, or penolq, and interest thereon, it is the reg ulotory authority which has the power to examine and determine the outcome o|o complaint.

At the same time, when it comes to a question of seeking the relieJ of odjudging compensation and interest thereon under Sections 12, 14, 1B ond 19, the odjudicoting officer exclusively has the power to determine, keeptng in view the collective reading ofSection 71 read with Section 72 of the Act. f the Act. if the adjudicotion uncler Sections 12, 14, 18 and 19 other than compensation as envisaged, if extended to the adjudicoting officer os prayed thot, in our view, may intend to expand the ombit ond scope ol the powers ond functions ofthe adjudicoting oJJicer under Section 71 and that would be agoinstthe mandate oftheAct 2016." 13.

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.

E.

Findings on the obiections raised bythe respondent.

F.l.

Obiection regarding force maieure conditions.

14.

The respondent-promoter has raised the contention that the construction of the tower in which the unit of the complainant is situated, has been delayed due to force majeure circumstances such as orders/restrictions of the NGT as well as competent authorities, High Court and Supreme Court orders, demonetization, delay on part of govt. authorities in granting approvals and other formalities, shortage of labour force in the NCR region, ban on the use of underground water for construction purposes, healy shortage of supply of construction material etc.

However, all the pleas advanced in this regard are devoid of merit.

First of all, the possession of the unit in question was to be offered by 28.09.2075.

Hence, events alleged by the respondent do nor PaEe 19 ol 29 ffiHARERA S- eunuennvr Complaint No.7560 of 2022! and others have any impact on the prolect being developed by the respondent.

Moreover, some ofthe events mentioned above are of routine in nature happening annually and the promoter is required to take the same into consideration while launching the project.

Further, time taken in governmental clearances cannot be attributed as reason for delay in project. n project.

Furthermore, as far as entitlement ofgrace period according to the clause mentioned in the BBA is concerned the clause requires grace period of 180 (one hundred eighty) business days after the expiry of 36 (thirty-six] months for applying and obtaining the occupation certificatc in respect of the project from the authority.

Since in the present matter the respondent applied for grant of occupation certificate in the competent authority only on 03.07.2079 i.e., much later than the lapse of 36 months from the date ofBBA.

Accordingly, authority holds thar the respondent is not entitled to invoke grace period clause for delay.

Thus, the promoter respondent cannot be given any leniency on based o[ aforesaid reasons and it is a well settled principle that a person cannot take benefit of his own wrong.

F.

Findings on the reliefsought by the complainant.

G.l, Direct the respondent to refund the entire paid-up amount along with prescribed rate ofinterest.

15.

In the present complaint, the complainant intends to withdraw from the project and is seeking return of the amount paid by him in respect of subiect unit along with interest as per section 18(1) of the Act and the same is reproduced below for ready reference: "Section 7B: - Return ofamount and compensation 1B(1).

U the promoter fails to complete or is unable to qive possession ofan opartment, plot, or building.- (o)in occordance with the terms of the ogreement for sole or, as the case may be, duly completed by the date specilied therein; or PaEe 20 ol29 MHARERA #- eunuenRvr Complaint No.

7560 of 202 2 and others (b)due to discontinuance of his business as o developer on occount of suspension or revocotion of the registrqtion under this Act or for any other reason, he shall be lioble on demqnd to the ollottees, in cqse the olloLtee wishes to withdrow from the project, without prejudice to any other remedy ovoilable, to return the amount received by him in respect of that aportment, plot, building, os the cose the cose may be, with interest at such rate qs may be prescribed in this behalf including compensation in the manner os provided under this Act: Provided thot where an allottee does not intend to withdrow from the project, he shall be poid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rote os may be prescribed." (Emphosis supplied) 16.

Clause 3.1 ofthe buyer's agreementdated 28.09.2012 provides the time period of handing over possession and the same is reproduced below: 3.

1 Possessionr "Subject to Clquse 10 herein or any other circumstonces not anticipated and beyond the reosonable control ofthe Seller qnd any restroints/restrictions from any courts/authorities ond subject to the Purchoser(s) hoving complied with oll the terms ond conditions ofthis Agreement ond not being in defoult under any of the provisions of this Agreement and having complied with oll provisions, formolities, documentation, etc. as prescribecl by the Seller, whether under this Agreement or otherwise,from time totime,the Seller proposes to hond over the possessio, of the Apqrtment to the Purchaser(s) within q period of 36 (thirty six) months Jrom the date of commencement of a construction or execution of this Agreement, whichever is later, subject to Force Mqjeure. 'l'he Purchoser(s) agrees and understands thot the Seller shall be entitled to a grdce period of 180 (one hundred eighty) business dqys, ofter the expiry of 36 (thirty-six) months, for opplying and obtaining the occupotton certificate tn respect of the Projectfrom the Authority." 17.

The complainant was allotted an apartment bearing no.

4-802,4 BHK, admeasuring 5800 sq. ft., in Tower A, 8th Floor in the proiect of the respondent named "Provence Estate", Gwal Pahari Village, Gurugram vide allotment letter dated 07.07.2071, for a basic sale price of Rs.3,24,80.000/-.

Thereafter, an apartment buyer's agreement was Page 27 of 29 ffiHARERA ffi eunuennvr Complaint No. plaint No.

7560 of2022 and others executed between the parties in respect of the said unit on 28.09.2012.

As per clause 3.1 of the buyer's agreement, the possession of the unit was to be handed over within 36 months from the date of commencement of a construction i.e., 06,08.2011 or execution of that agreement i.e.,28.09.2012, whichever is later alongwith a grace period ofperiod of 180 (one hundred eighty) business days after the expiry of 36 (thirty-six) months for applying and obtaining the occupation certificate in respect of the proiect from the authority.

Since in thc present matter the respondent applied for grant of occupation certificate in the competent authority only on 03.07.2019 i,e., much later than the lapse of36 months from the date ofBBA.

Accordingly, authority holds that the respondent is not entitled to invoke grace period clause for delay.

Thus, the due date for handing over of possession comes out to be 28.09.2015.

18.

The complainant has submitted that as on 24.12.2073, in terms of the construction linked plan, the complainant had paid a sum of Rs.3,10,44,968/- out of the total base selling price of Rs.3,24,80,000/- in respect of the said apartment to the respondent as and when demanded by it and the balance payment was to be made on the commencement and completion of internal flooring, and on possession.

However, the respondent erroneously and contrary to the terms of the agreement kept on demanding several demands from the complainant.

Thereforc, due to the inordinate delay in the completion of the proiect by thc respondent, the complainant vide letter dated 08.08.2019, surrcndcrcd the unit and made a request for refund of the paid-up amount alongwith interest.

Thereafter, on 11.11.2019, the respondent offered possession Page ZZ of 29 ffiHARERA ffi.eunuennll Complaint No.

7560 of2022 and others of the unit to the complainant alongwith several illegal demands.

Further, on 09. er, on 09.fL2022, the respondent sent a further demand noticc, claiming thatthe unit has been ready for possession since October 2019, and called upon the complainant to clear unpaid dues of Rs.1,00,08,696/- and threatened to cancel the allotment of the complainant in case the same was not paid.

The complainant responded to the said letter vide reply dated 17 .11.2022, stating that the demand letter has failed to account for the interest on delayed possession which the respondent is liable to pay the complainant and shows hjs willingness to pay outstanding dues if any, after adjustment of the said amount.

Consequently, instead of agreeing to hold a meeting to discuss the settlement of account, the respondent proceeded to arbitrarily cancel the allotment vide cancellation letter dated 01.12.2022 despite receipt of almost 900/o of the sale consideration far back in 2013 from the complainant.

The respondent has contended that it has already completed thc construction of the tower in which the unit of the complainant is situated and has obtained occupation certificate from the competcnt authorities on 29.70.2019.

Thereafter, the respondent offered possession of the unit to the complainant vide letter dated 11.1 1.2019 subject to payment of the outstanding dues towards the said unit, However, the complainant failed to pay the outstanding dues towards the unit in questlon, hence the respondent vide letter d ated 01.1,2.?022 was constrained to cancel the said unit allotted to the complainant.

As per record, the due date of possession was 28.09.2015. 'l'he occupation certificate was granted by the component authority on 1-9.

20.

PaEe 23 ol29 ffiHARERA (ls- eunuenrurr complaint No.

7560 of2022 and othen 29.10.2079 and thereafter possession of the unit was offered to the complainant on 11.11.2 019, whereas it is observed that the complainant has surrendered the unit in question due to inordinate delay on part of the respondent vide letter dated 08.08.2019 i,e. .2019 i,e., prior to obtaining occupation certificate.

Due to default on part of the respondent in refunding the paid-up amount, the complainant and some other allottees of the project filed their claim before the Hon,ble NCLT, New Delhi.

Accordingly, on 28.11.2019, the National Company Law Tribunal, Delhi admitted the petition under Section 7 of the IBC and appointed Mr.Jugraj Singh Bedi as the Interim Resolution professional.

The respondent filed an appeal before the National Company Appellatc Tribunal against the order of the NCLT dared 28.11.2019, which was dismissed by the NCLAT vide order dared 09.11.2020.

After this, rhc respondent filed an appeal before the Hon'ble Supreme Court against the order of the NCLAT dated 09.11.2020, being Civit Appeal No.

Meera Ahuja and the Hon'ble Supreme Court vide judgment dated 03.03.2022 directed the respondent to complete the entire project within one year from 01.03.2022 and offer the possession to the respective home buyers.

Thereafter on 09.1,1.2022, the respondent issued a final reminder for possession cum cancellation letter to the complainant threatening to cancel the allotment in case the allottee fails to pay the outstanding dues.

The complainant responded to the said letter vide reply dated 1,7.11.2022, stating that he is willing to pay the outstanding dues only after adjustment of the compensation payable by the respondent on account of delay in possession.

However, the respondent completely Page24ol29 t ffiHARERA S-eunuenntrl Complaint No.

7560 of 202 2 and others ignored the request of the complainant and ultimately cancelled the allotment vide letter dated 01..12.2022, which shows the unfair trade practise of the respondent.

Further, even after filing of the complaint and during pendency ofcomplaint before the Authority, the respondent has created third party rights over the unit in question, which also shows the conduct of the respondent. espondent.

Therefore, after considering the factual and legal circumstances of the case as wer as surrender retter dated 08.08.2019, the Authority is of view that the cancellation lettcr dated 01,.12.2022, cannot be held valid in the eyes of law.

21.

The respondent has contended that vide letter dated 0g.02.2023, it has issued three cheques bearing no.079454 dated 07.O2.ZO}3, 079455 dated 07.02.2023 and O7g4S7 dared Z}.OZ.2O23 drawn on union Bank of India for an amount of Rs.50,00,000/-, Rs.

50,00,000/_ and Rs.L,34,54,095 /-, thereby refunded the permissible amount ro rhe complainant as full and final eligible amount as per the apartmcnt buyer's agreement dated 2g.Og.ZO1,2.

However, as per record, the complainant vide reply dated 15.02.2023, has returned the above said cheques to the respondent as the same was not acceptable to him.

Therefore, in view of the above, the contention of the respondent w.r.t. the payment of refundable amount to the complainant stands rejected.

22.

Admissibility of refund along with prescribed rate of interest: .fhe complainant is seeking refund the amount paid by him along with interest prescribed rate of interest as provided under rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 75, prescribed rate oI interest- [proviso to section 72, section 78 and sub-section (4) and subsection (Z) of section 1gl PaBe25 of 29 ffiHARERA S-eunuennHr 24. (1)For the purpose of proviso to section 12; section 1g; ond sub-sections (4) ond (7) ofsection 19, the "interest ot the rqte presffibed,' sholl be the State Bank of lndia highest marginol cost oflending rate +20/a.: Provided that in case the State Bonk of tndio marginal cost of lending rote (MCLR) is not in use, it shall be reploced by such benchmark lending rotes which the Stqte Bonk oflndio may fix from time to time for lending to the generol public. ol public.

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

The rate of interest so determined by the legislature, ls reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all 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 8.850/o, Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2% i.e., 10.8S%.

25.

On consideration ofthe documents available on record and submissions made by both the parties regarding contravention of provisions of the Act, the authority is satisfied that the respondent is in contravention of the section 11[4)(a) of the Act by not handing over possession by thc due date as per the agreement.

By virtue of clause 3.1 of the agreemcnt executed between the parties on 1,7.06.201.6, the possession ol thc subject apartment was to be delivered by 28.09.2015.

26.

Further, the authority observes that the respondent has obtained thc occupation certificate on 29.70.201,9, whereas the offer of possession was made on 11.11.2019.

However, the complainant has already withdrawn from the project by sending letter dated 08.08.2019 and sought refund ofthe paid-up amount with interest i.e., prior to obtaining occupation certiFicate, due to inordinate delay on part of the Page26 ol 29 Complaint No.

7560 o12022 and others MHARERA ffi, eunuennu Complaint No.

7560 and others respondent.

In view of the above-mentioned facts, the allottee intends to withdraw from the project and is well within the right to do the same in view of section 18(1) of the Act, 2016.

27.

Moreover, the Hon'ble Supreme Court of India in the cases of Newtech Promoters and Developers private Limited Vs Stote of U.p, ond Ors. , ond Ors. (supra) reiterated in case of M/s Sana Realtors privote Limited & other Vs Union of tndia &others SLp (Civit) No.73005 of2020 decidcd on 72.05.2022. observed as under: - "25.

The unqualified right of the ollottee to seek refund referred lJnder Section 18(1)(0) and Section 19(4) of the Act is not dependent on ony contingencies or stipulotions thereof. lt appears thot the legislature has consciously provided this right of relund on demond as an unconditionol absolute right to the allottee, if the promoter fails to give possession of the apartment, plot or building within the time stipuloted under the terms of the ogreement regardless of unforeseen events or stay orders oJ the Court/Tribunol,which is in either way not qttributable to the allottee/home buyer, the promoter is under an obligstion to refund the amount on demand with interest ot the rate prescribed by the State Government including compensotion in the manner provided under the Act with the proviso that il the ollottee does not wish to withdrqw from the project, he shall be entitled for interest for the period of delay ti hqnding over possession at the rote prescribed." 28.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunder or to the allottees as per agreement for sale under section 11(4J(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 promoter is liable to the allottee, as he wishes to withdraw from the project, without prejudice to any other remedy PaEez1 of 29 .l/ ffiHARERA S- eunuennv available, to return the amount received by it in respect of the unit with interest at such rate as may be prescribed.

29. ribed.

29.

Accordingly, the non_compliance of the mandate contained in section 11(4)(aJ read with section 1g(1J ofthe Act on the part ofthe respondenr is established.

As such, the complainant is entitled to refund ofthe entire amount paid by him at the prescribed rate ofinterest i.e., @10.g5% p.a. (the State Bank of India highest marginal cost of lending rate (MCLII) applicable as on date +2o/o) as prescribed under rule 15 of the Haryana Real Estate (Regulation and DeveropmentJ Rules,2017 from the date of each payment till the actual date of refund of the amount within the timelines provided in rule 16 ofthe Haryana Rules 2017 ibid.

G.

Directions ofthe authority 30 Hence, the authority hereby passes this order and issues the fo owing 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(0: i.

The respondent/promoter is directed to refund the entire paid- up amount of Rs.3,10,44,968/_ received by it from the complainant(sJ along with interest at the rate of 10.g5% p.a. as prescribed under rule 15 ofthe Haryana Real Estate (Regulation and Development) Rules,2017 from the date ofeach payment till the actual realization of the amount. ii.

Out of total amount so assessed, the amount paid by the bank/payee be refunded in the account of bank and the balance amount along with interest if any, would be refunded to the complainant. co.pl"trt No. z560 J2oz-z-l and orhers I l Page 28 of 29 HARERA GURUGRAM Complainr No.

7560 of 202 2 and others iii.

A period of90 days is given to the respondent to comply wirh the directions given in this order and failing which legal consequences would follow.

31.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order.

32.

Complaint stands disposed of.

33.

File be consigned to registry. (Ashok M Haryana Real Estate Authority, Gurugr A GUII :.I!P' RER UGRA Page 29 of 29