ANURADHA CHOUDHRY vs OASIS LANDMARKS LLP

HARERA ffiGURUGRAM CORAM: Ashok Sangwan BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision: O6,O3,2O24 NAME OF THE BUILDER M/s Oasis Landmark LLp GODREI OASrS PROJECT NAME S.

No.

Case No.

Appearance 7 cR/6246 /2022 Anuradha Choudhry V/s M/s Oasis Landmark LLP and Godrej propertics Limited Meenal (Complainant) Saurabh Gaba (Respondent) 2 cR/6247 /2022 Meenal (Complainants) Saurabh Gaba (Respondent) Complaint No.

6246 of 2022 and others Member ORDER 1, This order shall dispose of the Z complaints titled above filed before this authority under section 31 of the Real Estate (Regulation and Development) Acr,2076 (hereinafter referred as,,the Act,,) read with rule 28 ofthe Haryana Real Estate (Regulation and Development) Rules,2017 (hereinafter referred as "the rules,,) for violation of section 11(4) (aJ 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. l' PaEe I of 17 Case title Siddhant Choudhry and Anuradha Chaudhry V/s M/s Oasis Landmark LLP and Godrej Properties Limited ffiHA&ERA ffi ouRuenRHl 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, Godrej Oasis situated at Sector-88-A and 89-A, Gurugram being developed by the respondent/promoter i.e., M/s Oasis Landmark LLp. 'l'he terms and conditions of the buyer's agreements fulcrum of thc issuc involved in all these cases pertains to failure on the part oF the promoter to deliver timely possession of the units in question, seeking refund of the unit along with interest.

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: "GODREJ OASIS" at Sector-88-A and B9-A, curgaon, curgaon, Haryana 2.

Complaint No.

6246 of 202 2 and others 13.76 acres 85 of 2013 dated 10.10.2013 valid upto 09.10.2024 Oasis Buildhome Pvt.

Lro.

3.

Project area DTCP License No.

Name ofl,icensee RERA Registration 53 of 20L7 dated,77.08.2017 valid up to 30.09.2019 Possession Clause:4.2 "The developer sholl endeovor to complete the construction ofthe opartment within 4B months from the dote of issuance of allotment letter, olong with o grace period of 12 months over and above this 4g-month peiod ("tentative completion time")_ upon the aportment being ready for possession and occupotion the developer sholl issue the possession notice to the buyer ofthe apqrtment." Occupation Certifi cate:.

29.03.20 19 rlief ught nd Proiect Name and Location Sr.

No Complaint No., Case Title, and Date of filing of complaint Date of apartment buyer agreement , Date of surrender Unit No.

Unit adm easu ring Due date of Possessio n Totat s'.t.

TR"li" Consideration Sougl Total Amount paid by the complainant 1. cR/6246/ 2022 Anuradha Choudhrv 10.03.2015 (pg.

41 of complaint) D0802, 8th floor, Tower D 7616 sq. ft. (supe r built- 22.09.2079 (calculated as 48 months Relu Total Sale Consideration: Rs.7 ,22 ,7 9 ,400 Page 2 of 17 HARERA ffi, GURUGRAM Compiaint No.

5246 of2022 and others 4. __l The aforesaid complaints were filed by the complainants against the 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 of the total paid up amount.

Y/sM/s 0asis Landmark LLP and Godrej Properties Limited DOF: 75.09.2022 Reply Status: 3t.05.2023 Date of surrender: 30.10.2018 (page 135 ofreply) IPage 95 of compla int) up area) Ias per BBA on pg.

43A of compl aintl from the date of issuance of allotment letter i.e.

22.09.20t4 +72 months grace period allowed being unqualified ) (as per BBA on page 64 of complaint) Amount Paid: - Rs.27,99,706/- (as per SOA dated 28.03. ted 28.03.20L6 ar pg.

90 of complaint) 2. cR/6247 / 2022 Siddhanr Choudhry and Anuradha Chaudhry V/sM/s Oasis Landmark LLP and Godrej Properties Limited DOF: 75.09.2022 Reply Statusr 74.10.2023 10.03.2015 Lpg.42 of complaintl Date of surrender: 19.08.2015 (page 160 of complaint) D.

0902, 9th floor, tower- D [as per BBA on pg.

47 of compla intl 761,6 sq. ft. (supe r built- up area) Ias per BBA on pg.

47 of compl aintl 22.09.2079 (calculated as 48 months from the date of issuance of aliotment letter i.e., 22.09.2074 +72 months grace period allowed being unqualified ) 'fotalSale Consideration: Rs.\,22,7 9 ,400 (as per BBA on page BB of complaintl Amount Paid: - Rs.27,57 ,690 /- (as per S0A dated 23.09.2014 at pg.

111 of complaint) Refu nd Page 3 of 17 ffi HARERA ffi alnuenntrl 5.

6246 of 2022 and others 6.

It has been decided to treat the said complaints as an application for non- compliance of statutory obligations on the part of the promotcr /respondent in terms of section 34(0 of the Act which mandates thc authority to ensure compliance ofthe 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(s)are similar.

Out of the above-mentioned case, the particulars of lead case CR/6246/2022 Anuradha Choudhty V/s M/s Oosis Landmark LLp and Godrej Properties Limited are being taken into consideration for determining the rights of the allottee[s).

Proiect and unit related details The particulars ofthe project, the details ofsale 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 fornt: CR/6246/2022 Anuradha Choudhry V/s M/s Oasis Landmork LLp and Godrej P roperties Limited 9A, up A, 7.

S.

Heads Details 1.

Project name and location Godrej Oasis, Sector 88A and 8 Gurugram tJ. rugram tJ.zo acres _- Group Housing colony 2.

Proiect area 3.

Nature of project +.

RERA registered/not registered 53 of 2017 dated 17.08.2017 valid to 30.09.2019 5.

DTPC license no. & validity status 85 of2013 dated 10.10.2013 vatid upto 09.10.2024 6.

Name of licensee Oasis Buildhome Pvt.

Ltd 7.

Allotment letter dated 22.09.20L4 IPage 95 of complaint B.

Date of execution of buyer's agreement 1.0.03.20 L 5 (page 41 of comDlaint PaEe 4 of 17 HARERA ffiGURUGI?AI/ ComplaintNo.

6246 of 2022 and others D0802, 8th floor, Tower D Page 95 of complaint 1-742 s9. ft. (carpet area) Page 95 of comolaint 4.2. "The developer shall endeavor to complete the construction of the apartment within 48 months from the date of issuance of allotment letter, along with a grace period of 12 months over and above this 4?-month period ("tentative completion time"). upon the apartment being ready for possession and occupation the developer shall issue the possession notice to the buyer of the apartment." (Emphasis supplied) allotment i.e.,22.09.2014 + 12 months grace period is allowed being unqualified Rs.L,22,7 9,400 / - Rs.21.,99,7 06 / - 0 5.11.2 016 e 139 of com laint L8.04.2076 e 140 of com 29.03.201.9 Unit no. as per the buyer's Unit measuring Possession clause Due date of possession Total consideration as per BBA on page 64 of complaint Total amount paid by th complainant as admitted by respondent on page 8 of reply Pre-termination letter Termination letter Occupation certificate Pase 114 of re laint Page 5 of 17w L6.

49 of 22.09.2079 HARERA P-GURUGRANI Complaint No.

6246 of 202 2 and others B, 8.

I.

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

D0g02 on Bth Floor, Tower No.

D having tentatively super area of 1616 sq. ft. in the project of the respondents named "Godrej Oasis" at Sector-gg A & g9 A, Gurugram vide allotment letter dated ZZ.O9.ZOl4.

Z.O9.ZOl4.

Thereafter, an apartment buyer agreement was executed between the parties regarding the said allotment on 10.03.2015.

That the basic sale price of flat was Rs.7,22,79,400.00/- out of that Rs.21,99,706.00 /- was paid by the complainant to the respondents in advance and rest of the amount was supposed to be paid in accordance with Schedule VII (Schedule ofPayments) ofthe agreement.

That despite having paid about 77 ,50/o of the basic sale price at the very outset, the complainant started receiving demand notices from the respondents.

That the complainant and her husband have booked two units with the builder at the same time.

But due to some personal reason and the complainant's inability to meet the expenses of the both the units and the repetitive demands of the builder, they were opined to surrender one of the tvvo units, and ultimately had decided to surrender the other unit i.e., DO902, which was dully conveyed to the respondents through mails.

That the complainant has been constantly requesting the respondents to consider their requests ofeither offering them easier payment plans as has been done to the new/prospective customers or consider cancelling out one of the two units and ad,usting that amount in the preferred unit or consider offering the complainant the revised rates at which the new flats are being offered to the prospective customers.

II, III.

IV.

Page 6 of 17 ry.

HARERA Complaint No.

6246 of 2022 and others GURUGRAII VI.

That the complainant has also received pre-termination and termination notices from the respondent, thereby threatening the complainant of forfeiture of earnest money submitted by her in the event of non-payment of the monies by the complainant along with the interest @ 150/o p.a.

Vll.

That as per the clause 4.2 of BBA, the respondent was supposed to hand over the physical offer of possession of the apartmentby 22.09.2019, bur the respondent has failed to do so till today.

Vlll. day.

Vlll.

That the complainant is aggrieved by the inaction and deficiency in service on part of the respondents.

The respondents have time and again sought payments from the complainant while seeking to enforce the agreement entered into between them.

However, the respondents have failed to provide basic facilities Iike that of proper roads and proper access to thc flats, thereby leading to deficiency in service on the part of the respondents.

IX.

That the delayed payment charges, according to clause 2.10 of BBA, imposed on the complainants should be treated as unjust, as it has been 7 years since the complainant was served with the allotment letter, but the construction is still incomplete.

Therefore, the demands and interest raised by the developer for the delay in payment is an act ofsheer double dealing.

X.

That the clauses governing earnest money i.e. clause 2.5 of the apartment buyer agreement are further ambiguous and ought to be interpreted against the interest ofthe person who insisted that the clause be included, or who drafted the clause as per the doctrine of contra preferentem.

Relief sought by the complainant: - c.

9.

4// Page 7 ol 77 The complainant has sought following relief(s): ffi HARERA ffiounuennr,rr Complaint No.

6246 of 2022 and others I.

Direct the respondent to refund the entire paid-up amount along with prescribed rate of interest.

10.

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

D.

Reply by the respondent 11.

The respondent no.z put in appearance through its Advocate and marked attendance on 05.01.2023, 31.05.2023, tB.1.O.Z0Z3 and 10.01.2024 respectively.

Despite specific directions vide order dated 05.01.2023 and 31.05.2023, the respondent no.2 has failed to file a reply in the matter.

It shows that the respondent no. ondent no.2 is intentionally delaying the procedure of the court by avoiding filing of the written reply.

Therefore, in view of the above, the defence ofthe respondent no.2 is hereby struck-off for not filing of reply.

The complaint is being decided as per documents available on record and submission made by the complainant as well as respondent no.1.

12.

The respondent no.1 has contested the complaint on the following grounds: - i.

That due to continuous default on the part ofthe complainant to make the timely payment, the apartment booked by the complainant was terminated by the respondent in terms of the agreement vide termination letter dated 1,8.04.201,6 and the instant complaint has been filed by the complainant only in the year 2022 which is after the expiry of 3 years from the date of cause of action.

Therefore, the instant complaint deserves to be dismissed as the said complaint is barred by the period of limitation.

Pageg of V HARERA ffiGURUGRAM Complaint No, 6246 of 2022 and others ii.

That the complainant unequivocally agreed to make timely payments as per the payment plan provided in the application form and the builder buyer agreement.

It was made clear to the complainant that timely payment will be the essence ofthe transaction.

It is further submitted that the complainant made the booking after carefully going through the terms and conditions as mentioned in the application form. iii, That clause 15 of the application from and clause 2.5 of the apartment buyer agreement clearly stipulated that zook of the sale consideration/cost of the property was to be considered/treated as earnest money which was meant to ensure performance, compliance, and fulfillment of obligations and responsibilities of the buyer. iv.

That clause 2.10 ofthe apartment buyer agreement clearly stipulated that in the event ofnon-payment ofany installment by the complainant as per the schedule of payments set out in Schedule VII of the agreement, the respondent is within its right its right to reiect the booking and treat the amou nts paid towards part earnest money in view of the defaults committed by the complainant.

Further, clause B of the apartment buyer agreement clearly stipulatcd that in case the complainant fails to comply with the terms and conditions of the application form, the respondent shall have the riBht to terminate/cancel the allotment letter and/or unit agreement.

That the complainant has paid a total sum of Rs.z1,99,706/- to the respondent and has defaulted on several occasions and failed to pay timely construction linked installment post the execution of the agreement. vl.

PaEe I o( 77 Complaint No.

6246 of 2022 and others vii.

13.

E.

74.

15.

16. ffi HARERA #- ounuennl,r That the respondent had duly completed the construction of the Tower and has duly obtained the occupation certificate from the competent authority on 2 9.03.2019.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis ofthese undisputed documents and submission made by the parties.

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

E.l Territorialiurisdiction As per notification no.

7/92/2017-7TCP dated 14.72.2012 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, the project in question is situated within the planning area of Gurugram District.

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

E.ll Subiect matter iurisdiction Section 11(41(a) of the Act, 20L6 provides that the promoter shall be responsible to the allottee as per agreement for sale. for sale.

Section 11(a)(a) is reproduced as hereunder: Section 77 il1 The promoter shalt- (a) be responsible Ior oll obligations, responsibilities and functions under the provisions of this Act or the rules and regulotions mode thereunder or to the allottees os per the agreement for sale, or to the PaEe lO o'i 9 ffiHARERA ffieunuennlrr ossociotion ofqllottees, as the cose may be, till the conveyance ofoll the apartments, plots or buildings, osthe cose may be, to the allottees, or the common oreos to the association ofallotteesor the competent quthority, as the cose may be; Section 34-Functions oI the Authority: 344 of the Act provides to ensure complionce of the obligations cost upon the promoters, the allottees and the real estote ogents under this Act and the rules and regulotions mode thereunder.

17.

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

18.

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.

2021-2022 (1) RCR (Civil), 357 and reiteroted in case of M/s Sana Realtors privote Limited & other Vs Union of India & others SLP (Civil) No.

13005 of Z0Z0 decided on 72,05,2022 wherein it has been laid down as under: "86.

From the scheme of the Act ofwhich o detoiled rekrence hos been made ond toking note of plwer of adjudicotion delineated with the regulatory outlloriEl and adjidicgting g.lficer,whotfinally culls out is that although the Act indicates the distinct expressions like'refund,, ,interest', 'penolty' and 'compensation', a conjoint reoding of Sections 1g and 19 cleorly manifests thot when ii comes to r comes to refund of the amount ond interest on the refund omount, or directing poyment of interest for delayed delivery ofpossession, or penolty and interest thereon, it is the regulatory authority which has the power to exomine and determine the outcome of a complainL At the same time, when it comes to a question ofseeking the reliefofadjudging compensotion ond interest thereon under Sections 12, 14, 18 qnd 19, the odjudicqting offrcer exclusively hos the power to determine, keeping in view the collective reading ofsection 71 reod with Section 72 ofthe AcL ifthe odjudicqtion under Sections 12, 14, 1B ond 19 other thqn compensation as envisaged, if extended to the odjudicoting ofJicer as prayed thqt, in our view, may intend to expond the ombit ond a*rr,-r-;l Page 17 of 17 v Complaint No.

6246 of 2022 and others 19.

F.

20.

HARERA P*GURUGRAI/ scope ofthe powers and functions ofthe odjudicoting officer under Section 71 and thatwould be agoinst the mandote ofthe Act 2016,,' Hence, in view ofthe authoritative pronouncement ofthe 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.

Findings on the obiections raised by the respondent no.1, F.l Obiection regarding complaint being barred by limitation.

The respondent has contended that the present complaint is not maintainable and barred by the law of limitation as the alleged causc of action arose in April,2016, when the termination letter was issued to the complainant and any grievance w.r.t. the said termination should have been filed within 3 years from the date of cause of action.

After going through the documents available on record as well as submissions made by the parties, it is determined that after cancellation of unit on 1,8.04.2016, the respondent had subsequently raised a demand from the complainant amounting to Rs.93,85,319/- vide pre-termination letter dated 05.11. ted 05.11.2016 giving last and final opportunity to the complainant to pay the outstanding amount within 10 days from the date of receipt of that letter, which makes the cancellation letter dated 1A.04.201,6 null and void.

Further after issuance of pre-termination letter dated 0S.11.2016, the respondent has neither issued any proper cancellation letter to the complainant, nor has refunded the paid-up amount to the complainant so far, which clearly shows a subsisting liability.

Moreover, the law of limitation is, as such, not applicable to the proceedings under the Act and has to be seen case to case.

Therefore, in view of the above, the objection Page 72 ol It/ HARERA GURUGRAM complaint No.

6246 of 2022 and others of the respondent w.r.t. the complaint being barred by limitation stands rejected.

G.

Findings on the reliefsought by the complainant I.

Direct the respondents to refund the entire paid_up amount along with prescribed rate ofinterest.

21.

In the present complaint, the complainant intends to withdraw from the project and is seeking return ofthe amount paid by her in respect of subject unit along with interest as per section 18(1) of the Act and the same is reproduced below for ready reference: "Section 78: - Return of amount ond compensation 1B(1). lfthe promoterfails to complete or is unoble to give possession ofon apartment, plot, or building,- (a) in accordance with the terns of the agreement Ior sale or, as the case moy be, duly completed by the dote specified therein; or (b)due to discontinuonce of his bu.riress os o developer on occount of suspension or revocation of the registration under this Act or for uny other reoson, he sholl be liqble on demand to the allottees, in case the allottee wishes to withdraw from the project, u)ithout prejudice to any other remedy availqble, to return the qmount received by him in respect of that apartment, plot, building, as the cqse may be, with interest at such rate as may be prescribed in this behalf including com luding compensation in the manner os provided under this Act: Provided that where on allottee does not intend to withdraw from the project, he sholl be paid, by the promoter, interestfor every month ofdelay, till the handing over of the possession, at such rate as moy be prescribed', (Emphasis supplied) Clause 4.2 of the buyer's agreement dated 10.03.2015 provides the time period of handing over possession and the same is reproduced below: 4.2. "The developer shall endeovor to complete the construction of the apqrtment within 4B months from the dqte of issuonce of allotment lelter, olong with o grace period oI t2 monrhs over ond above rhts 48. month period ("tentative completion time"). upon the opartment being reody for possession and occupotion the developer shall issue the possession notice to the buyer ofthe dpartment.', The complainant was allotted an apartment bearing no.

D0802 on gth Floor, Tower No.

D having tentatively super area of 1616 sq. ft. in the Page 13 o1 17 22.

23. ffi HARERA ffi ounuennr,rr project of the respondents named "Godrej Oasis', at Sector-gg A & 89 A, Gurugram vide allotment letter dated 22.09.2074.

As per clause 4.2 of the buyer,s agreement, the possession of the unit was to be handed over within 4 g months from the date of issuance of allotment letter along with a gracc period of 12 months over and above this 48-month period.

Since in the present matter the BBA incorporates unqualified reason for grace period/extended period in the possession clause.

Accordingly, the authority allows this grace period oflZ months to the promoter.

Thus, the due date for handing over of possession comes out to be 22.09.201,9.

The complainant has submitted that the complainant and her husband have booked two units with the builder at the same time. same time.

But due to some personal reason and the complainant's inabiliry to meet the expenses of the both the units and the repetitive demands of the builder, they werc opined to surrender one of the two units, and ultimately had decided to surrender the other unit i.e., DO902 vide letter dated 19,08.2015, and adjusting that amount in the preferred unit which was dully conveyed to the respondents through mails.

However, the respondent replied that the same was not possible vide email dated 04.08.2015 that there ls no provision to surrender the apartment and remit the proceeds to the other one.

It was further informed that in case the complainant wishes to cancel the allotment, the entire amount of earnest money (20%) would bc forfeited along with other dues.

The respondent has contended that the complainant has defaultecl on several occasions and failed to pay timely construction linked installment post the execution ofthe agreement.

Further, clause 2.10 ofthe apartment PaEe 74 of 17 Complaint No.

6246 of 2022 and others 24.

25. ffi HARERA *eb- dllnuGRAM Complaint No.

6246 of 2022 and others buyer agreement clearly stipulated that in the event ofnon-payment of any installment by the complainant as per the schedule of payments set out in Schedule VII of the agreement, the respondent is within its right to reject the booking and treat the amounts paid towards part earnest money in view ofthe defaults committed by the complainant.

Moreover, clause 15 of the application from and clause 2.5 of the apartment buyer agreement clearly stipulated that 200/0 of the sale consideration/cost of the property was to be considered/treated as earnest money which was meant to ensure performance, compliance, and fulfillment of obligations and responsibilities of the buyer.

Clause 2.5 of the buyer's agreement is reproduced as under for ready reference: 2. erence: 2.5 "lt hos been specifically agreed between the porties that 20a/o of the Bosic Sole Price, shall be considered ond teoted qs earnest money under this Agreement ("Earnest Money", to ensure the performonce, complionce ond fuU)llment of the obligations and responsibilities ofthe Buyer under this Agreement.

26.

The Authority after taking into consideration the scenario prior to the enactment of the Act, 2016 as well as the iudgements passed by Hon,ble National Consumer Disputes Redressal Commission and the Hon,ble Supreme Court of India, has already prescribed vide Regulations, 11(5J of 2018 that the forfeiture amount of the earnest money shall not exceed more than 10% of the consideration amount of the real estate i.e. apartment/plot/building as the case may be in all cases where the cancellation of the flat/unit/plot is made by the builder in a unilateral manner or the buyer intends to withdraw from the project and any agreement containing any clause contrary to the aforesaid regulations shall be void and not binding on the buyer.

Therefore, in view of the above, the contention of the respondent w.r.t. forfeiture of 20% of the salc Page 15 of 17 27.

6246 of 2022 and others GURUGRAN/ consideration/cost of the property to be considered/treated as earnest money stands rejected.

As per clause 4.2 of the apartment buyer's agreement executed betwecn the parties on 10.03.2015, the possession of the booked unir was to be delivered by 22.09.2019.

However, the complainant has already withdrawn from the project by sending letter dated 30.10.2018 and sought refund of the paid-up amount with interest before the due date of possession i.e., 22.09.2019.

So, in such a situation, the complainant withdrew from the project even prior to the due date, Thus, she is not entitled to refund ofthe complete amount but only after certain deductions as prescribed under the Haryana Real Estate Regulatory Authority Gurugram (Forfeiture ofearnest money by the builder) e builder) Regulations, 11(5J of 2018, which provides as under: - "5, AMOUNT OF EARNEST MONEY Scenqrio prlor to the Real Estote (Regulations and Development) Act, 2016 was different, Frauds were corried outwithout any feor os there was no law for the some but now, in view of the above facts ond toking into consideration the judgements of Hon'ble Nationol Consumer Disputes Redressql Commission and the Hon'ble Supreme Court of lndia, the outhority is of the view thot the forfeiture omount of the earnest money shall not exceed more thqn 70o/o of the considerdtion amount of the reol estate i,e. qportment /ptot /building os the case may be in oll coseswhere the concellation ofthe flat/unit/plot is mqde by the builder in o unilateral monner or the buyer intends to withdrow from the project and ony ogreement contoining any clause controry to the aforesaid regulotions sholl be void and not binding on the buyer." Keeping in view the aforesaid factual and legal provisions, the respondent is directed to refund the paid-up amount of Rs.21,99,706/- after dedufiing 10% of the sale consideration of Rs.1,,22,79,400/- being earnest money along with an interest @10.85% p.a. (the State Bank of India highesr marginal cost of lending rate (MCLR) applicable as on date +2o/o) as prescribed under rule 15 of the Haryana Real Estate (Regulation and page 76 of 77r'.

28.

6246 of 2022 and others M GUI?UGRAM Development) Rules,2017 on the refundable amount, from the date of surrender i.e., 30.10.2019 till actual refund of the amount within the tlmelines provided in rule 16 of the Haryana Rules 201-7 ibid.

H, Directions ofthe authority 29.

Hence, the authority hereby passes this order and issues the following directions under section 37 ofthe Act to ensure compliance ot obljgations cast upon the promoter as per the function entrusted to the authority under section 34(f): i.

The respondent/promoter is directed to refund to refund the paid- up amount of Rs. unt of Rs.2I,99,706/_ after deducting 10%o of the sale consideration of Rs.1,22,29,400/_ being earnest money along with an interest @10.8S70 p.a. (the State Bank oflndia highest marginal cost of lending rate (MCLR) applicable as on date +20/o) as prescribed under rule j.5 of the Haryana Real Estate (Reguiation and Development) Rules, 2 017 on the refundable amount, fiom the date ofsurrender i.e., 30.10.201g till its realization. ii.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences would follow.

30.

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

31.

The complaints stand disposed of.

32.

Files be consigned to the registry. (Ashok Sari Haryana Real Estate Regulatory Authority, Gurugram Dated: 06.03.2024 Memb PaEe 17 of 77