HRIDEY VIKRAM BHATIA vs RAMPRASTHA ESTATES PVT. LTD.

HARERA GURUGI?AI/ CORAM; Ashok Sangwan BEFORE THE HARYANA REAL ESTATE REGUTATORYAUTHORITY, GURUGRAM Date of decisionr 06.03.2024 Complaint No.

3284 of 2023 and l other Member 'l/' Page 7 of 22 ORDI]R 1.

This order shall dispose ofall the Z complaints titled as above filed before the authority under section 31 of the Real Estate (Regulation and Development) Act, 2016 fhereinafter referred as ,,the Act,,) read with rule 28 ofthe Haryana Real Estate (Regulation and Development) Rules,2017 (hereinafter referred as "the rules") lbr violation of section 11(4) (a) of rhe Act wherein it is inter alia presr:ribed 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.

NAME OF THE BUILDER M/s Ramprastha Estates Private Limited PROJECT NAME "Ramprasthra City" s.

No.

Case No.

Case title l APPEARANCE 1. cR/3284/2023 Hridey Vikrarn Bhatia M/s Ramprastha Estates Private Lilnited Shriya Takkar Advocate (ComplainantJ R.

Gayatri and Navneet Kumar Advocates (RespondentJ 2. cR/3287 /2023 Hridey Vikrarn Bhatia Y/s M/s Ramprastha Estates Private Lirnited Shriya Takkar Advocate (Complainantl R.

Gayatri and Navneet Kumar Advocates (Respondent) HARERA ffiGURUGRANI The core issues emanating from them are similar in nature and the complainant(sJ in the above referred matters are allottees of the prolect, namely, "Ramprastha CtA" (Residerrtial plotted colony) being developed by the same respondent/promoter i.e., M/s Ramprastha Estates Private Limited.

The terms and conditions of the agreement to sell and allotment letter against the allotment of plot in the upcoming project of the respondent/builder and fulcrum of the issues involved in all these cases pertains to failure on the part ofthe llromoter to deliver timely possession ofthe plots in question, possession along with delayed possession charges along with interest and other. and other.

The details of the complaints, reply to status, plot no., date of agreement, possession clause, due date of possession, total sale consideration, total paid amount, and reliefsought are grven in the table below: "Ramprastha City", Sectors 92, 93 & 95, Gurugram, Haryana.

1.23.5687 ages 44 of 2010 o.ated 09.06.2010 valid upro 08.06.2016 2.

Complaint No.

3284 of 2023 aod l other Ram rastha Housing Pvt.

Ltd. and others stered vide no.

1.3 of 2020 dated 05.06.2020 3.

Possession Clause: Not Provided n/' PaEe 2 of 22 Proiect Name and Location Proiect area DTCP License No.

Name of Licensee RERA ReEistration Sr.

No Complaint No,, Case Title, and Date offiling ofcomplaint Reply status Plot No.

Da exe( of bul agrel t. cR/3284/2023 Hridey Vikram Bhatia v /s M/s Ramprastha Estates Private Limited Date of Filing of complaint- t3.07.2023 Reply receiye don 28.77.2 023 E-23 (page 50 of compl aint) I eXer Prov allol lel 1,9.0, (pag, coml 2. cR/3287 /2023 Hridey Vikram Bhatia v /s M/s Ramprastha Estates Private Limited Reply receive don 28.1r.2 023 E-24 (page 50 of compl aint) exe Prov allo le 19.0, Ipag com HARERA GURUGRAM Complaint No.

3284 of 2023 and l other lrer' r_1m( le of ution plot ter's -'ment Due date of possessi on Total Consider ation / Total Amount paid by the complain ants (ln Rs.) Relief sought lot :uted isional :menl ter: t.2019 r50of ,aint) 79,04.202 2 ICalculate d as per Fortune Infrastru cture qnd Ors, vs.

Trevor D'Lima and Orc. (72.03.20 78 - SC); MANU/SC /02s3/20 181 TSC: - Rs.17,50, o0o /. + EDC/IDC and other charges payable to governme nt AP: - Rs,17,50, 000/. (as per receipt dated 23.10.20t 0 on page 43 of complaint ) l.Execut e a plot buyer's agreeme nt with respect to the provisio nally allotted plot.

2.Posses sion along with delayed possessi on charges.

3.Execut ion of conveya nce deed.

4.Litigat ion ex nse Iot :uted isional :ment ter: 1.2079 :50 of rlaint) 79.04.202 2 ICalculate d as per Fortune Infrastru cture ond Ors. e ond Ors. vs, Trevor TSC: - Rs,17,50, 000/- EDC/rDC and other charges payable to l,Execut e a plot buyer's agreeme nt with respect to the provisio nally Page 3 of 22 HARERA Complaint No.

3284 of 2023 and l other ffi,GURUGRAM allotted plor.

4.Litigat ion expense I -r -- | I I S. !,"j:: li-1h," *lt:.eferred above certain abbr*irtirrs fi;bd. ,r*d.

They are elaborated as follows: Abbreviation Full form TSC- Total Sale consideration AP- Amount paid by the allottee 5.

The aforesaid complaints were filed against the promoter on account of violation ofthe agreement to sell agaillst allotment of plots in the upcoml ng project ofthe respondent/builder an(l for not handing over the possession by the due date, seeking award of possession along with delayed possession charges and other.

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 the 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.

4.

Page 4 of 22 Date ofFiling of complaint- 73.07.2023 D'Lima and Ors, (12.03.20 78 .

SC); MANU/SC /02s3/20 181 governme nt AP: - Rs.17,50, 000/. fas per receipt dated 23.10.207 0 on page 44 of complaint ) 1/' ffiURERA ffi euRuennnt 6.

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

Out of the above-mentioned case, the particulars of Iead case CR/3284/2023 titled as Hridey Vikram Bhotia V/s M/s Ramprostho Estates Privote Limited are bering taken into consideration for determining the rights of the allott€,e(s] qua delayed possession charges along with interest and others. nd others.

Proiect and unit related details The particulars of the project, the details of sale consideration, the amount paid by the complainant(s), date ofproposed handing over the possession, delay period, ifany, have been detail3d in the following tabular form: CR/3284/2023 titled as Hridey Vikram Bhatia V/s M/s Ramprastha Estotes A, 7.

Private Limited s.

N.

Particulars Del:ails 1.

Name of the project "Ra mprastha City", Sectors 9 Gurugram, Haryana 2.

Project area 12[].594 acres Nature of the prolect Res.idential colonv 4.

DTCP license no. and validity status 44 0f 20t0 dated 09.06.2 uDto 08.06.2016 5.

Name of licensee Rarnprastha Housing Pvt others 6.

Date of environment clearances 10. ) 5.2 019 [As per information ob planning branch'l 7.

RERA Registered/ not registered Re5gistered vide no.

13 of 2 05.1)6.2O2O 8.

RERA reqistration valid uD to 31 12.2024 9.

Plot no.

E-23 fpage 50 of complaint] 10.

Unit area admeasuring 50i) sq. yds. (as per payment receipt on conlDlaintl ng branchl 2,93 8!95, 010 valid Ltd and tained by 020 dated page 43 of Page 5 of z{ Complaint No.

3284 of 2023 and l other plaint) B.

8.

3284 of 2023 and l other Facts ofthe complaint The complainant has made the follovr'ing submissions in the complaint: - That believing and relying upon thie false assurances of the respondent, the complainant paid an amount ot[ Rs.3 5,00,000/- towards allotment of a plot admeasuring 1000 sq. yards in the residential plotted colony of the respondent named "Ramprastha City" at Sector 92, 93 & 95, Gurugram.

That the complainant after three years of making the entire payment of total cost of the plot received a letter dated 15.11,2009 from the respondent stating that it had already started the construction work of the said proiect and requested the complainant to update his records by furnishing complete details and d0cuments.

II.

I.

Page 6 o( 22 11.

Provisional Allotment letter 79.04.2019 (page 50 of complaint) 13. laint) 13.

Date of execution of plot buyer's agreement Not executed 74.

Due date of possession 19.04.2022 [Calculated as per Fortune lnfrastructure and Ors, vs.

Trevor D'Lima and Ors. (72.03.2078 - SC); MANU/SC/0253/20781 15.

Total sale consideration Rs.17,50,000/- + EDC/IDC and other charges payable to government. (as per allotment letter dated 19.')4.?912) Rs.:t7,50,000/- [as per payment receipt on page 43 of complaintl 16.

Amount paid by the complainant L7.

Occupation certificate /Completion certificate Not received 18.

Offer of possession Not offered ffi HARERA # eunuennrv III. ffiHARERA #*eunuennll Complaint No.

3284 of 2023 and l other That in response to the letter dated 15.11.2009, the complainant vide letter dated 24.71..2009 submitted all the details and documenrs as required by the respondent for the records and needful doing of thc respondent.

It is pertinent to mention herein that the complainant was assured at the time of payment in 2006 that the possession of the plot would be handed over by the respondent within a period of three years and on the basis of said assurance the complainant paid a huge sum of money to the respondent, however the respondent even failed to allot any plot to the complainant despite a lapse of almost 3 years.

That after more than 3 years from the receipt of Rs.35,00,000/- as full payment towards the plot from the complainant, the respondent obtained a license bearing no.

44 of Z0lO dated 09.09.2010 from thc DTCP, Haryana in favour of the respondent for development of a residential plotted colony in the name and style of,Ramprastha City,, spread over 128.594 acres in S ector 92,93 & 95 Gurgaon.

That the complainant herein had made payment of Rs.35,00,000/_ for allotment of a single plot admeasuring 1000 sq. yards.

However, after a Iapse of more than 4 years from the date of payment, the respondent informed him that it did not have a single plot admeasuring 1000 sq. g 1000 sq. yards and could instead allot tlvo separate plots admeasuring 500 sq. yards each.

That the complainant having no other option acceded to rhc request of the respondent.

In view of the above, the payment of Rs.35,00,000/- made by the complainant towards allotment of one plot was transferred by the respondent to two individual plots admeasuring 500 sq. yards each and two separate receipts dated 23.10.2010 bearing receipt no.

1892 and 1890 for Rs.:t7,50,000/- each were issued by the respondent.

IV.

Page 7 of 22 /,- ffilARElA ffi,eunueRRnl VII.

VIII.

That despite a lapse of more than 6 years from the date of payment and several requests being made on behalf of the complainant, the respondent company failed to allot any plots to him.

Therefore, the complainant visited the office of the respondent time and again requesting them to initiate the process of allotment, but to no avail.

Thereafter, the complainant issued letters dated 08.10 .ZO1,Z,27 .OS.ZO14 & 23.07.2016 to the respondent requesting to allot plot numbers and execute plot buyers' agreement for the same but the respondent failed to do so.

That after constant follow ups, multiple requests, reminders and several meetings and only after a lapse of more than 13 years, the respondent issued an allotment letter dated 1.9.04.2019, provisionally allofting plot bearing no.

E-23 in the plotted colony 'Ramprastha City'.

Further, the respondent also informed the complainant that the above stated plot i.e.

E-23 will be finally allotted to him only after the receipt of IltiRA registration.

That the respondent received the RERA registration for its project 'Ramprastha City' on 05.06.2020 vide registration no.

13 of 2020.

Further, it is one of the condition of the RERA registration that the respondent shall enter into an agreement for sale with the allottees as prescribed in the Haryana Real Estate (Regulation and Development) Rules,2017. ules,2017.

That since the RERA registration had been granted to the respondent, the complainant herein on multiple occasions requested the respondent to finally allot the plot and also requested it to execute the agreement for sale.

Page I of 22 Complaint No, 3284 of 2023 aod l other VI. tx. ffiHARERA S- oTuennHr Complaint No.

3284 of 2023 and l other X.

That the allotment letter dated j.9.04.2019 was final and binding upon the parties.

However, the respondent till date has failed to allot the reserved plot admeasuring 500 sq. yards despite categoric assurances in the allotment letter dated 19.04.2019.

XI.

That since the respondent failed to finally allot the plot bearing no.

E-23 to the complainant and also failed to execute an agreement for sale with respect to the same, the complainant herein issued a letter dated 1.2.03.2022 to the respondent requesting it to execute the plot buyer agreement/agreement for sale in respect of the said plot within 7 days from the receipt of the letter and further also requested the respondent to handover the physical possession of the said plot to the complainant at the earliest.

However, the same has not been handed over to the complainant till date. lt is submitted that the respondent despite accepting the entire sale consideration 17 years ago is yet to execute plot buyer's agreement and give possession of the plot to the complainant.

XII.

That by collecting the entire sales consideration from the complainant without entering to an agreement for sale/plot buyer's agreement, the respondent is in complete violation of Section 13[1J of the RERA Acr, 201.6.

C.

Reliefsought by the complainant: - 9.

The complainant has sought following relief(s) i.

Direct the respondent to execute and get registered the plot buyer,s agreement with the complainant with respect to the plot no.

E-23 (S00 sq. yards) in the plotted colony "Ramprastha City". ii.

City". ii.

Direct the respondent to handover physical possession of the plot and to execute and get registered the conveyance deed with thc complainant.

Page9 of22 4,' HARERA Complaint No.

3284 of 2023 and l other S*GURUGRAI/ iii.

Direct the respondent to pay the delay possession charges on the paid- up amount till actual handing over of the possession. iv.

Direct the respondent to pay litigation expenses.

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(al (al of the Act to plead guilty or not to plead guilty.

D.

Reply by the respondent.

11.

The respondent has contested the cdmplaint on the following grounds: - i.

That the project of the respondenI was delayed due to revision of zoning plans by the state authorities, incorrect depiction of village boundary Iines, deviation in the road, passing of HT lines over the project, delay on part of government authorities in granting necessary approvals etc. anci the respondent has no control over the same. ii.

That the complainant is not an allotee and hence the proceedings are merely in the nature of recovery which is not maintainable before this Authority.

That even if it is assumed that such a claim in the nature of money is maintainable, the claim is hopelessly barred by limitation filed after the expiry of 3 years from the date of payment. iii.

That the objective of the RERA Act is not only to safeguard the interests ofthe allottees but also to ensure the healthy promotion of the real estatc sector and to protect the interests of the several stake holders involved in such sector.

Therefore, in the abovesaid the present complaint is not maintainable in its present form and ought to be dismissed with exemplary costs upon the complainant.

12.

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

Their authenticity is not in dispute. n dispute.

Hence, the complaint can be Page 70 of22 v ffiHARERA ffi eunuonnvr decided based on these undisputed documents and submission made by the parties.

E.

Jurisdiction ofthe authority 13.

The respondent raised a preliminary submlssion/objection that the authority has no jurisdiction to entertain the present complaint. 'Ihe obiection of the respondent regarding reiection of complaint on ground of jurisdiction stands rejected.

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

I Territorial jurisdiction 14.

As per notification no.l /92 /2017-1TCp dated 1,4.12.2017 issued by'Iown 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. ln 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.

II Subiect matter iurisdiction 15.

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

Section 11(a)[a) is reproduced as hereunder: Section 11(4)(a) Be responsible for oll obligotions, responsibilities ond functions under the provisions ofthis Act or the rules and regulations made thereunder or to the ollottees as per the agreement for sole, or to the associotion of allottees, os the case may be, till the conveyance of oll the aportments, plots or buildings, as the case may be, to the ollottees, or the common oreos to the association of allottees or the competent quthority, as the case may be; Page 7l of 22 v Complaint No.

3284 of 2023 and l other HARERA W.

GURUGRAM 1-6.

1"7.

3284 of2023 aod l other F. l other F.

Section 34 -Functions of the Authority: 344 ofthe Act provides to ensure complionce ofthe obligotions cost upon the promoters, the allottees and the reolestote qgents under th is Act and the rules and regulotions mode thereunder.

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

Findings on the obiections raised by the respondent F.l.

Obiectionregardingmaintaiilabilityofcomplaint.

The counsel for the respondent has raised an objection that the complaint is barred by limitation as the complainant has made the payment back in 2010.

The objections to the same were to be raised in a time bound manner.

Hence, the complaint is not maintainable on the above-mentioned ground.

On consideration of the documents available on record and submissions made by the party, the authority observes that the project in question is an ongoing project, and the respondent/promoter has failed to apply and obtaining the Cc/part CC till date.

As per proviso to section 3 of Act of 2016, ongoing projects on the date of this Act i.e., 28.07.201,7 for which completion certificate has not been issued, the promoter shall make an application to the authority for registration of the said project within a period ofthree months from the date ofcommencement ofthis Act and the relevant part of the Act is reproduced hereunder: - Provided that projects that are ongoing on the dote of commencement of this Act and for which the completion cerdrtcatu has not been issued, the promoter shall make an opplication to the Authority Ior registrqtion 18.

PaEc 12 o122y'. ffi HARERA ffiounuonnM Complaint No. plaint No.

3284 of 2023 and l other of the said project within a period of three months from the date oj commencement of this Act; The legislation is very clear in this aspect that a project shall be regarded as an "ongoing proiect" until receipt of completion certificate.

Since no completion certificate has yet been obtained by the promoter-builder with regards to the concerned proiect.

Moreover, it is observed that vide letter dated 14.O9.ZOtz and Zg.O9.2012, the respondent/promoter has informed the complainant that it has initiated the allotment process for the residential plots located in "Ramprastha Ciry", Sector 92,93 &:gS, Gurgaon and will allot rhe same after following due procedure, whereas the same was provisionally allotted to the complainant only on i9.O+.Z0te.

Further, vide Ietter dated 1,9.04.201.9, the respondent stated that it will allot the plot bearing no.

E-23 in favour of the complainant only after receipt of REI{A registration by the company.

However, despite receipt of full consideration amount against the booked plot back in 2010 except stamp duty and other charges payable to the government and even after receipt of RERA registration back in 2020, the respondent-promoier has failed to execute an agreement for sale with respect to the same andhas failed to get the plot registered in name of the complainant till date.

As the respondent has failed to handover the possession of the allotted plot to the complainant and thus, the cause of action is continuing till date and recurring in nature.

The authority relied upon the section 22 ofthe Limitation Act, 1963, Continuing breachcs and torts and the relevant portion are reproduced as under for ready reference: - 22, Continuing breqches qnd torts- In the case of o continuing breoch ofcontroct or in the case ofa continuinlJ tort, o fresh period of limitotion begins to run qt every moment ofthe tinte during which the breach or the tort, qs the case may be, continues.

19.

20.

Page 13 of 22 21.

22.

22 21.

HARERA GURUGRAM Keeping in view the aforesaid facts and legal position, the objection with regard to the complaint barred by limitation is hereby rejected.

F.llI Obiections regarding the circumstances being'force maieure,.

The respondent contended that the project was delayed because of the 'force majeure' situations like delay on part of government authorities in granting approvals, passing of an HT line over the layout, road deviations and depiction ofvillages etc. which were beyond the control ofrespondent.

However, no document in support of its claim has been placed on record by the respondent.

Hence, all the pleas advanced in this regard are devoid of merits.

Moreover, time taken ini governmental clearances cannot be attributed as reason for delay in profect.

Therefore, the respondent cannot take benefit of its own wrong and the objection of the respondent that the project was delayed due to circumstances being force maieure stands rejected.

Findings on the relief sought by the complainant.

G.

I Direct the respondent to execute and get registered the plot buyer's agreement with the complainant with respect to the plot no.

E-23 (500 sq. yards) in the plotted colony "Ramprastha City".

It Direct the respondent to handover physical possession of the plot and to execute and get registered the conveyance deed with the complainant.

All the above-mentioned reliefs are interrelated to each other.

Accordingly, the same are being taken up together for adjudication.

The complainant has booked a plot admeasuring 500 sq. yards in the project of respondent named "Ramprastha City" located in Sector 92, 93 and Sector 95, Gurugram by making a payment of Rs.17,50,000/- vidc receipt dated 23.70.201.0.

The respondent after receipt of full consideration except EDC/lDC, development and other charges payablc to the government back in 2010, provisionally allotted a plot bearing no.

23.

24.

Complaint No. plaint No.

3284 of 2023 and l other Page 14 of 22, ffi HARERA ffi, GratlGRAr,/ E-23 in favour of the complainant vide letter dated 19.04.2019.

Further, vide letter dated 19.04.2019, the respondent stated that it will allot the said plot in favour of the complainant only after receipt of RERA registration by the company.

However, despite receipt of full consideration amount against the booked plot back in 2010 except stamp duty and other charges payable to the government and even after receipt of RERA registration back in 2020, the respondent-promoter has failed to enter into a written agreement for sale with respect to the same and has failed to get the plot registered in nime of the complainant till date.

Thus, in view of the agreed terms of the letter dated 19.04.2019 read with Section 11(41(a) and Section 13 df the Act of 201,6, the respondent- promoter is directed to enter into a registered agreement for sale with the complainant w.r.t. the plot in question within a period of one month and handover possession ofthe allotted plot admeasuring 500 sq. yards to him in the said project after obtaining Cc/part CC from the comperenr authority.

25.

Section 17 (l) of the Act deals with duties of promoter to get the conveyance deed executed and the same is reproduced below: "77.

Transler of title.- (1).

The promoter sholl execute a registered conveyance deed in fqvour of the allottee along with the undivided proportionote title in the common areas to the ossociotion of the ollottees or the competent outhority, os the case may be, ond hand over the physical possession ofthe plot, opartment of building, qs the case moy be, to the allottees ond the common areos to the ossociotion ofthe ollottees or the competent outhoriq), as the cose mqy be, in a reql estate project, and the other title documents pertoining thereto within speciJied period os per sqnctioned plans os provicled under the locol lows: Provided that, in the obsence ofqny local law, conveyqnce deed in fovout of th vout of the ollottee or the ossociation ofthe ollottees or the competent authority, qs the cose may be, under this section shall be corried out by the promoter within Lhree months from dote ofissue ofoccupancy certifcate." PaEe 75 of 22 ,.'-' Complaint No.3284 of2023 and I ffilARzu ffi ounuenmr Complaint No.

3284 of 2023 and l other 27.

Further, no CC/part CC has been granted to the proiect.

Hence, this project is to be treated as on-going project and the provisions of the Act shall be applicable equally to the builder as well as allottees. 'fhe respondent/promoter is under an obligation as per section 17 ofAct to get the conveyance deed executed in favour of the complainant.

Thus, thc respondent is directed to execute the conveyance deed in favour o( complainant within three months from the date of issuance oI completion certificate/part completion certificdte upon payment of the outstanding dues and requisite stamp duty by the complainant as per norms ofthe state government as per section 17 ofthe Act failing which the complainant may approach the adjudicating officer for execution of order.

III Direct the respondent to pay interest on the amount paid as per Act.

In the present complaint, the complainant intends to continue with the project and is seeking delay possession charges as provided under thc proviso to section 18(1) of the Act.

Sec.

18(1) proviso reads as under. "Section 78: - Return of amount and compensdtion 1B(1). lf the promoter fails to complete or is unable to give possession of an aportment, plot, or building, - Provided that where on allottee does not intend to withdrow from the project, he shall be paid, by the promoter, interest for every month ol deloy, till the handing over of the possession, at such rote os may be prescribed." 28.

Due date of possession: As per the documents available on record, no BBA has been executed between the parties and the due date ofpossession cannot be ascertained. certained.

A considerate view has already been taken by the Hon'ble Supreme Court in the cases where due date of possession cannot be ascertained then a reasonable time period of 3 years has to be taken into consideration.

It was held in matter Fortune lnfrastructure v.

Trevor 26.

Page 76 of 22 HARERA GURUGI?AI/ d'lima (2078) 5 SCC 442: Pioneer Urban land & Infrastructure Ltd.

V, Govindan Roghovan (2019) sc 72s -: "Moreover, o person connot be mode to wqit indefinitely for the possession of the fiots ollotted to them ond they are entitled to seek the rcfund of the amount poid by them, olong with compensotion.

Although we ore aware of the fact thot when there wos no delivery period stipulated in the ogreement a reasonable time hos to be token into consideration. ln the facts oncl circumstonces of this case, a time period of 3 yeqrs would have been reosonable for completion of the controct i.e., the possessrcn wos required to be given by lost quarter of2014.

Further there is no dispute ds to the Iact that until now there is no redevelopment ofthe property_ Hence, in view ofthe obove discussion, which drow us to an irresistible conclusion that there is defciency of service on the port of the appellonts ond accordingly the issue is onswered," 29.

In the instant case, the promoter has provlsionally allotted a plot in its proiect vide provisional allotment Ietter dated 19,04.2019.In view of thc above-mentioned reasoning, the date of allotment ought to be taken as thc date for calculating the due date of possession.

Therefore, the due date of handing over of the possession of the plot comes out t o be 79.04.2022, 30.

Payment of delay possession charges at prescribed rate of interest: The complainant is seeking delay possession charges at the prescribed rate of interest.

Proviso to section 18 provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promotcr, interest for every month ofdelay, till the handing over ofpossession, a session, at such rate as may be prescribed and it has been prescribed under rule 15 of thc rules.

Rule 15 has been reproduced as under: Rule 75.

Prescribed rate of interest [Proviso to section 72, section 7A ond sub-section (4) ond subsection (7) of section 791 (1) For the purpose ofproviso to section 12; section 18; and sub-sections (4) and (7) of section 19, the "interest ot the rate prescribed" shall be the Stote Bank of lndia highest morginal cost of lending rote +2a/0.: \t/' Page 17 of 22 Complaint No.

3284 of 2023 and 1 other l (2018) 3 SCC (civ) 1 and then was reiterated in ffi HARERA ffieunuennHr Complaint No.

3284 of2023 aod l other Provided that in case the State Bqnk of tndia mqrginol cost oflending rate (MCLR) is not in use, it sholt be reploced by such benchmark lending rates which the State Bonk of tndia may fix from time to time for lending to the general public, 31.

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

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

32.

Consequently, as per website ofthe State Bank oflndia i.e., https://sbi,eo.in, the marginal cost oflending rate (in short, MCLR) as on date i.e., 06.03.2024 is 8,857o.

Accordingly, the prescribed rate of interest will be marginal cost oflending rate + 2 o/o i.e., lO.85o/o.

33.

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

The relevant section is reproduced below: "(zo) "interest" meons the rotes of iiterest payabte by the promoter or the allo ee, os the cose may be.

Explanqtion. planqtion. -For the purpose ofthis clause- O the rate of interest chargeoble from the qllottee by the promoter, in case ofdefault, sholl be equal to the rote ofinterestwhich the promoter sholl be liable to pay the allottee, in case ofdefault; (ii) the interest pqyoble by the promoter to the allottee sholl be from the dote the promoter received the amount or qny port thereof till the date the amount or port thereof ond interest thereon is refunded, ond the interest payable by the ollottee to the promoter sholl be from the dote the allottee defaults in payment to the promoter till the date it is poidi, 34.

Therefore, interest on the detay payments from the complainant shall bc charged at the prescribed rate i.e., 10.8S%o by the respondent/promoter PaCe 18 of 22 /,. ffiHA ffi, eunUGRAM RERA which is the same as is being granted to him in case of delayed possession charges.

35.

On consideration of the 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) ofthe Act by not handing over possession by the due datc.

The possession of the subject plot was to be delivered by 1,9.04..2022.

However, despite receipt of full consideration amount against the booked plot back in 2010 except stamp duty and other charges payable to thc government, the respondent-promoter has failed to enter into a written agreement for sale with respect to.the same and has failed to handover possession of the subject plot to the complainant till date of this order.

Accordingly, it is the failure of the respondent/promoter to fulfil its obligations and responsibilities to hand over the possession within the stipulated period.

The authority is of the considered view that there is delay on the part of the respondent to offer of possession of the allotted plot to the complainant.

Further no Cc/part CC has been granted to the project. e project.

Hence, this project is to be treated as on-going project and the provisions of the Act shall be applicable equally to the builder as well as allortees.

36.

Section 19(10) of the Act obligates the allottee to take possession of rhc subiect unit within 2 months from the date of receipt of occupation certificate.

In the present complaint, the completion certificate is yet not obtained.

The respondent shall offer the possession of the plot in question to the complainant after obtaining completion certificate and so, it can be said that the complainant shall come to know about the completion certificate only upon the date of offer of possession.

Therefore, in thc interest of natural justice, the complainant should be given two months timc PaEe 19 ol 22 /,- Complaint No.

3284 of 2023 and l other HARERA Complaint No.

3284 of 2023 and l other GURUGRA[/ from the date of offer of possession.

It is further clarified that the delay possession charges shall be payable from the due date of possession i.c., 19.04.2022 till the expiry of 2 months from the date of offer of posscssion or actual handing over of possession and whichever is earlier.

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

As such, the complainant is entitled to delay possession charges at the prescribed rate of interest @10.85% p.a. w.e.f .

19.04.2022 till actual handing over of possession or offer of possession plus 2 months after obtaining completion certificate/part completion certificate from thc competent authority or, whichever is earlier, as per section 1g( 1 ) of thc Act of 2 016 read with rule 15 ofthe rules.

G.lV Litigationexpenses.

The complainant is seeking above mentioned relief w.r.t. compensation.

Hon'ble Supreme Court of India in civil appeal nos.6745-6749 of 2021 titled as M/s Newtech Promoters and Developers pvt. opers pvt.

Ltd, V/s State of Up & Ors, (supra), has held that an allottee is entitled to claim compensation and litigation charges under sections 12,14,1g and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation and Iitigation expense shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.

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

Therefore, the complainant is advised to approach the adjudicating officer for seeking the relief oi litigation expenses.

1'/ Page 20 of 22 38.

HARERA ffiGURUGRAM Complaint No.

3284 o f 2023 and l other H.

Directions ofthe authority 39.

Hence, the authority hereby passes this order and issues the folrowing directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authoritv under section 34(0: i.

The respondent/promoter is directed to enter into a registered agreement for sale with the complainant w.r.t. the plot in questjon within a period of one month. ii.

The respondent/promoter is directed to pay interest to the complainant against the paid-up amount at the prescribed rate of 10.85% p.a. for every month ofdelay from the due date ofpossession i .e.,79.O4.2022 till actual handing over of possession or offer of possession plus two months after obtaining completion certificate/part completiou certificate from the competent authority, whichever is earlier, as pcr section 1B(1J of the Act of 2016 read with rule 15 of the rules. iii.

The arrears of such interest accrued from lg.O4.ZOZZ till the date of order by the authority shall be paid by the respondent/promoter to the complainant within a period of 90 days from date of this order ancl interest for every month of delay shall be paid by the promoter to the allottees before 1Oth of the subsequent month as per rule 16(21 of thc rules, iv' The respo The respondent/promoter is directed to handover possession of thc plot in question and execute conveyance deed in favour of thc complainant on payment of stamp duty and registration charges within three months after obtaining completion/part completion certificate from the competent authority.

L' Page 21of 22 ffiHARERA #" eunuonnvr 40.

This decision shall mutatis mutandis apply this order.

41.

Complaints stand disposed of.

42.

File be consigned to registry.

3284 of 2023 and l other to cases mentioned in para 3 of (Ashok M€ Regulatory AuthoriO/, Gurugram Dated: 06.03.2024 11 GI t 1tr[ RUr Page 22 of 22 Haryana Rpal Estate