SYED MASRAT GILLANI AND PEERZADA MUSHTAQ AHMAD SHAH vs CHIRAG BUILDTEC PRIVATE LIMITED

HARERA ffi,GURUGRAI/ BEFORE THE HARYANA REAL AUTHORITY, GU Complai Order p 1.

Mrs.

Syed Masrat Gilani 2.

Mr.

Mushtaq Ahmad Shah Both RR/O: House No.3, Shahdab A Colony, Hyderpora, Srinagar, J&K- 190014 Versus M/s Chirag Builtech Private Limited Registered office at: - M-18, 3rd Flo Kailash- II, (MarketJ, New Delhi- 110084.

Also at: - Building No.80, 1st Floor, Gurugram - 122003 CORAM: Shri Vijay Kumar Goyal APPEARANCE: Shri Hasnain Khawja [Advocate) Shri Garvit Gupta (Advocate] ORDER 1.

The present complaint has been filed under Section 31 ofthe Real Estate ( 2016 (in short, the Act) read with rule (Regulation and Development) Rules, violation of section 11(4J[a) of the prescribed that the promoter shall be responsibilities and functions under th rules and regulations made there unde agreement for sale executed inter se.

Complaint No.

6195 of 2022 STAI'E REGULATORY UGRAM t no.: 6195 of 2O22 nounced on: 2A.03.2024 e Gulberg Complainants r, Greater clor- 44, Respondcnt Member Complainants Respondent y the com plainant/allotlecs tion and Development) Act, 9 of the Haryana Real Estate 017 [in short, the Rules) for ct wherein it is inter alia ponsible for all obligations, pro'/ision of the Act or the or to the allottees as per the Page 1oi25 ld.

A.

2. & HARERA *e"anuennH,r Complaint No.

6195 of 202 2 Unit and proiect related details The particulars of the project, the de ils of sale consideration, the amount paid by the complainants, date f proposed handing over the possession and delay period, if any, ha tabular form: been detailed in the following gh r vita, 7 21 ofthe reply) floor, fower- D edul{!s of payment at page complaintl Sy'o lhuthar Singh, Singh, Smt.

Bimla {abita, Pooja Ds/o Rajesh Wd/o Satbir 9 54 ofthe complaintJ sion ofthe said unit: n 3-rnonths from the date of of Occupancy Certificate, the shall offer the possession of the to the Allotee. e Allotee.

Subject to Force circumstances, receipt of Name ofthe project da" Sector- 95 Gurugram Group Housing Complex Nature ofproject Affordab RERA Registered/ not registered !84 of 2 Valid up 17 dated 14.09.2017 13.09.2021 17 of 20 dated 25.10.2016 Validity status Licensed area Name of licensee S/o lhu Satbir, and oth 07 .12.20 Date of approval of buildings plan Date of approval of environment clearance 09.10.2 0 (Page no 83 ofthe conplaint) Allotment Ietter 30.03.20 IPage no Unit no.

D-708, 59 ofthe Area admeasuring Date of agreement for sale 22.03.20 (Page no 7.

Posse 7.1 Wi issuance Promote Said Fl Majeure Possession clause PaEe 2 of 25 S.no Particulars Details I 5.04 acreb 5.

6.

9.

644.t2 s\. ft.

10.

11. li MHARERA S-eunuenaHr Occupanc timely cc formalitir prescribe this Agre under an Iimited installme stamp du Promoter Said Flat of 4 yeat building clearanc ("Commil y Certificate and Allotee having mplied with all its obligations, s or documentation, as I by the Promoter in terms of rment and not being in default r' part hereof including but not to the timely payment of rts as per the Payment PIan, [y and registration charges, the shall offer possession of the to the Allottee within a period s from the date of approval of plans or grant of environment ;, whichever is later ment Period").

72.

Due date of possession 09.04.20: lNoter - ( of enviro 0 9.10.2 0 comes or as per Hl dated 26 completir 2 alculated from date of approval rment blearaoce being later i.e., 7 as ppr policy, of 2013, which t to b6 18.05.2021 + 6 months ,RERA fotification no.9 /3-2020 05.2020 fot the projects having rn date on or after 25.03.2020.] 13.

Total sale consideration Rs.26,26, [As per s 59 of the t8o /- :hedules of payment at page no. complaintJ 14.

Amount paid by the complainant Rs.28,01, (As per r replyl 720 /- ,nnexure R-23at page no.94 ot 15.

Occupation certificate 22.02.20 (Downlor tcpharya t2 rded from the wcbsitc of the ra.gov.inJ 16.

Offer of possession 23.02. ion 23.02.20 (As per i reply) nnexure R-22 at page no.92 of 2 t7.

Legal notice for possession t+.06.20 (As per r 1121o I 2 nnexute p-24 & 25 at page no.

7 ofcoEnplaint) p" Page 3 of 25 B.

3. ffi HARERA ffi aJRuGRAM 18.

Cancellation letter 70.10.201 (As per a reply) 2 rnexure R-24 at page no.96 of 19.

Termination letter cum full and final SOA 78.0r.20i (As per a reply) 3 uexure R-25 at page no.98 of Facts ofthe complaint: The complainants made the following sul l.

That in May 2018, allured by the pror personal meetings with property complainants booked flat in the sa under the Affordable Housing Sch mention here that the complainants I amounts by liquidating complaini purpose of booking the flat. l.

That the complainants applied to th€ the allotment of apartment on 11.0 booking the apartment made a pay respondent/promoter.

I.

That in order to acquire allotment in as possible, promoter's agent insist advance payment of Rs.5,67,320 /- The payment was acknowledged b settled that this payment will be adj flat. f.

That on 22.03.2019 the apartment I for an apartment bearing no.

D-708, sq. ft. and balcony area of 100 sq. ft.

I and for allotment of two-wheeler p ) /4- rmissions in the complaint. lotions & advertisements and agenl; of respondent, the d project of the respondent gme. [t is also necessary to ave arranged the huge sum of nts fi:{ed deposits for the project of the respondent for ;.2018, the complainants for nent of Rs.1,31,200/- to the uyer's agreement was signed having carpet area of 644.1.2 :catedl on 7th floor in Tower D rrking space of one.

That the Page 4 of 25 wor Qf complainants as soon d cofnplainants to make an ) the respondent/promoter. the fespondent and it was sted in the total price of the Complajnt No.

6195 of 202 2 IV V.

Thi fro the cot of un {4.

HAR .1ARERA )URUGRAM lst of the said apartment was 644.1 er sq. ft., amounting lo Rs.25,7 6,4 rheeler parking site and balcony an .s.500 per sq. ft., amounting to Rs.I rice of the said flat to Rs. lat to Rs.26,26,4 greement agreed between the partl ) deliver the possession of flat by M :re payments accordingly.

However, ossession of the flat by March 2021 f the flat by 1 year and 5 montl upposed to complete the constru vithin 4 years from the date of app rant of environmental cleaianct t9.10.20L7 , which means that the ( t9.10.2021but till date the responc omplete possession ofthe said apar 'hat the complainants paid the whr rom the date of allotment and that he payment schedule from wh :omplainants made the payment wel )f this Authority the complainant: rnder:- I Complaint No.6195 of2022 I I sq. ft. @ BSP rate Rs.4,000/- )0/- together with one two- a of 100 sq. ft. @ BSP rate of 0,000/- resulting in the total l0/-.

Further, as per mutual es, respondent had promised rrch 2021 and they had made the respondent failed to give thus, delaying the possession s.

That the respondent was ltion of the said apartment 'oval plans i.e., 07.L2.2016 or for the said project i.e., xpected completion date was ent has not been able to give ment. rle amount within 31 months the same is also evident from )re it is evident that the withih time, for the reference are preparing the chart as lnstallment Name Installment Due Date In itallment made on Installment amount Paid At the time submission application allotment of of for 11.05.2018 11.05.2018 7,37,200 / - Within 15 [fifteen) days from the date of issuance of 74.04.2079 06.10.?018 Rs.S,67,320/- 0nstallmentl Page 5 of25 GUI cost per wher Rs.5l pric( agre to dr the I poss of tl supl with gran 09.1 0 9.1. com VI.

HARERA GURUGRAIU allotment letter Within 6 (Six) months from the date of issuance of allotment letter 30.09.2019 21.05.2019 Rs.3,28,310/- (lnstallment) Within 12 [Twelve] months from the date of issuance of allotment letter 30.03.2020 21-.09 .21)L9 Rs.3,28,310/- 0nstallment) Within 18 IEighteenJ months from the date of issuance of allotment letter 30.09.2020 06.11.2019 Rs.

1.2019 Rs.3,28,310/- 0nstallmentl Within 24 (Twenty Four) months from the date of issuance of allotment letter 30.03.2021 05.03.2120 Rs.3,28,310/- flnstallmentl Within 30 [Thirty) months from the date of issuance of allotment letter 30.09.2021 20.0r.2027 Rs.3,28,310/- 0nstallmentJ Within 36 [Thirty Six) months from the date of issuance of allotment letter 30.03.2022 t9.os.2027 Rs.z,54,160 / - 0nstallmentl Total Rs.25,94,230 GST 31 10.2021- Rs.2,07 ,490 / - Grand Total Rs.zA,0l,7 20 / - That the complainants made all the I time as stated in the payment plar every payment including GST paym per the payment plan the time perio( That despite the complainants makil issued demand letters showing installments.

On 11.06.2019, resp( against the complainants demandin ayme{ts within the stipulated .

That the complainants paid rnt by 31.10.2021, though, as was till 30.03.2022. rg timqly payment respondent inteiest amount due on ,ndent issued demand Ietter I to clear outstanding dues.

It Page 6 of25 Complaint No.

6195 of 202 2 VII.

A, Complaint No.

6195 of 2022 l dates on the demand letter Ltes of payment made.

The :ed the due dates for payment I apartment buyer agreement lhe payments are to be made rat the period of payment for he allotment letter is issued. : notice of the respondent the rd inquired about the interest rly after sending some emails a response.

However, the ess complainants queries.

The rs for flemand of outstanding nts.

0n 07.07.2019, over a he parties, it was mutually resporldent will hand over the )21 and the complainants will espectlve of the payment plan eement. ndent bent a mail stating they unt due till the installment he complainants clear all the ,ective of the dates mentioned rd for interest amount due on onstrued and vague. :eep their commitment, made le without any delay.

That PaEe 7 of 25 X. ffi HARERA .*--a- aiRuGRA[/ is pertinent to mention here that th did not match with the actual respondents have wrongfully calcul of installments from 11.05. rom 11.05.2018.

Th explicitly declares in clause 1.4 that according to the payment plan and t installments will start from the date VIII, That the complainants brought to th error in dates in the demand letter a amount due on installments.

That o consistently the respondent gave response was vague and did not respondent could not provide reaso interest amount due on installm telephonic conversation between decided between the parties that the unit to the complainants by March 2 clear all payments by March 2021 Iaid down in the apartment buyer IX.

Then later in that evening, the re would waive off the interest am "within 18 months of allotment" if dues by the date of possession i in the payment plan.

That the dema installments was itself baseless, mis That the complainants in order to the payments as soon as possi /e ffi HARERA *e-aiRuGRAr'/ consequently, complainants by 20 payment of Rs.23,40,07 0 /-.

That on project, respondent conveyed that d delay of construction due to which possession of the flat by March 20 remaining payment at ease.

H complainants completed the entire including GST within the time period That accordingly after completion o complainants on various occasio respondent through emails and calls of possession certificate.

However, address, reply or answer the queri completing the entire payment by 01.06.2022 issued a new demand I wherein an amount of Rs.3,84,6 Rs.3,2?,370/- was demanded to be p respondent.

XII.

That therefore as the respondent certificate, deliver and is not giving accordance with the terms of the ap such a case the complainant i.e., the shall handover the said flat to condition.

Relief sought by the complainants: The complainants have filed the p following reliefs: XI.

C.

4.

6195 of 2022 01.2021 had made a total quiring about update on the to Covid-19 there was some ey will not be able to provide 1.

Thereafter, they made the ever, even at ease the yment of Rs.2A,0l,719.60 /- ipulated in payment plan. payment on 31. ent on 31.10.2021., the attempted to contact the to inquire about the issuance ondent did not attempt to of cqmplainants.

Even after them, to the respondent on :er against the complainants .99/- including interest of as failpd to issue possession pr.r"{.io, of the said flat in d by the complainants to the rtment buyer's agreement in llottee wants the respondent complainants in habitable t compliant for seeking Page B of25 lt HARERA ffiGUI?UGRAM Direct the respondent be directe Rs.28,01,719.60 /- along with inte the amount. [An application for seeking refund of the entire paid instead of possession along with del prescribed rate of interest).

5.

On the date of hearing, the a respondent/promoter about the contrav committed in relation to section L1(4)[ Ltt4 not to plead guilty.

Reply by respondent: The respondent has contested the p grounds: i.

That the complaint is neither liable to be out-rightly dismissed. the present complaint on account admissions, delays, laches and acqu That the complaint is not maintai agreement contains a dispute res the mechanism to be adopted by dispute i.e., clause 38 ofthe buyer's lll.

That the complainants have not a clean hands and have intentionally material facts in the present com has been filed by them maliciouslY is nothing but a sheer abuse of th correct facts are as follows: D, 6. n.

6195 of 2022 to refund an amount of of 15% till the realization of endment of relief sought amount along with interest ed possession charges at the thority explained to the tion as alleged to have been of the Act to plead guilty or t complaint on the following tainable nor tenable and is ey are estopped from filing f their ow:r acts, omissions, escence. able for th,: reason that the which refers to the event of any Iution clause :le parties ir greement. proached this authority with uppressed and concealed the laint.

The present complaint with an ulterior motive and it process of law. ss of law.

The true and Page 9 of 25 /r HARERA GU]?UGRAII > That the respondent is a repu immense goodwill, comprised of persons and has always beli customers.

The respondent h prestigious projects and in m numbers of families have alre possession.

That the complainants are booked the unit in question with short span of time.

However, it have gone wrong on account of market and the complainants n extract benefits from the respon the complainants cannot be all That the respondent is the sole, the land parcel situated in the Sector 95, Tehsil and Distri respondent had obtained the a project known as 'ROF Ananda' Country Planning, Haryana, Ch Iicense no.

77 of 2016 dated 2 Development and Regulation of Haryana Development and Re 1976 read with the Affordable issued by the Government of Country Planning Department amended from time to time.

That the respondent had obtaine plans from DTCP vide I 1133/SD(BSl/2016/26738 da environment clearance bearing 09.1,0.201,7 from the State En Haryana for the proiect in que in compliance of all laws includi the project in question with thi after scrutiny of all the relevant Complaint No.

6195 of 202 2 real estate company having aw abiding and peace-loving ed in satisfaction of its developed and delivered st of these projects large y shifted after having taken estate investors who had view to earn quick profit in a pears that their calculations ere slump in the real estate want to somehow illegally ent.

Such malafide tactics of to succeed. bsolute and lawful owner of nue estate ofVillage Dhorka, Gurhgram, Haryana.

The roval,/sanction to develop a from the Director Town and digarli vide approval bearing .|O.2OL6 under the Haryana rban Areas Act, 1975 and the lation of Urban Areas Rules, Group Housing Policy, 2013 aryaria vide the Town and ification dared 19.08.2013 as the approval on the building bearing Memo no.

ZP- d A7 .12.2016 and the .

SEIAA/HR/2017 /659 dated nment Assessment Authority, on. ority, on.

Moreover, the respondent g the Act, 2016 has registered authority and this authority ocuments and completing its Page 10 of25 tL HARERA ffi" GURUGRAM own due diligence has issued no.784 of 20U.

That the complainants, after ch project had applied for allotme booking application form on 1 agreed to be bound by the te application form.

They were a accepted vide the said booking the way of said application form under the Affordable Group Ho by the respondent under the u ndersl"ood all the limitations provided with all the inform complainants were aware tha towards the total sale considera the respondent strictly as per being completely satisfied abo booking with the respondent.

M also perused and signed Ann which contained the payment p stage of payments.

That the payment plan ofthe uni clause i.e., 5 (iiD &) of the Affo 2013.

The complainants at the ti application form had made the the total cost of the unit as per draw was conducted on 23.08.20 the complainants via intimation the left over units and as per cla That the respondent vide the sai equivalent to an allotment lette next 25o/o payment demand 1.2.50/o the total cost of the flat and clause 5[iii) (k) ofthe said po That the respondent strictly as and policy, on 16.07.2018 se ta Page 11 ol25 Complaint No.

6195 of 2022 stration certificate bearing king the veracity of the said t of an apartment vide their .05.2018.

The complainants s and conditions of booking are and had admitted and pplication form that they by ad applied in the said proiect ing Colony being developed able Scherne Policy and had and obligations after being tion and clarifications.

The all the payment demands ion were to be demanded by e said policy and only after t the same, had made the reover, the complainants had A of the Application form whiqh specifically stated the applied for was strictly as per able Group Housing Policy, e of :;ubmitting the booking ent towards 5%o amount of e Policy, 2013. icy, 2013.

That the first 7 and the urlit was allotted to etter dated 11.05.2018 from e 5(iii) (kl ofthe policy. intirnation letter which was being issued demanded the an additional demand of ictly as per clause S(iiiJ (bl lcy. r the terms of the allotment demand letter to the {il ffiIAREIA ffi-eunuenRHr complainants wherein a net pa were to be paid by the comp complainants accordingly deposi of Rs.S,67,320 /- on 18.09.2018 accumulated as arrears.

Further dated 21.01.2019, the responde the net outstanding amount o complainants in continuation of the said demand.

That on the basis of the applicati the respondent to the com agreement only after being fully obligations and after being comp and conditions of the said agree sale was executed between Subsequently, an allotment le complainants, against the intima said issuance of another letter complied with as the essence o number and size had alrea complainants vide the Intimati issuance of the said allotment I were being demanded and pai respondent as per the policy i whatsoever were raised by them.

That on account of non-pa 21-.01.2019, the respondent w demand letters on 30.03.2019 complainants had failed to interest was accumulated and 11.04.20L9 became Rs.12,00,659 to the complainants by the res Lt.04.2019.

That the respondent vide paym demanded net payable amount o demand letter, they were inform Page 12 of25 Complaint No.

6195 of 2022 ble amount of Rs.12,87,770 /- ainants till 23.08.2 018.

The a cheque of part-payment d the remaining payment was vide payment demand Ietter t had sent demand letter for Rs.10,74,668/-However, the their defaults failed to remit n, an agreement was sent by lainants.

They signed the of all the limitations and etely satisfied with the terms ent.

Thus, the agreement For e parties on 22.03.2079. er was issued in favor of ion ledter on 30.03.2019.

0.03.2019.

The a formality which had to be the allotment being the unit y befn intimated to the n letter, That prior to the er, all the payment demands by the complainants to the queslion and no objection ent of the demand dated conslrained to re-send the and 02.04.2019.

Since, the it the amount on time, the the total due amount till - and the same was informed ondent vide its letter dated t demand dated 19.01.2 021 Rs,7,89,959./-.

As per the said that the due date to make l^, HARERA W.

GURUGRAM the payment was 23.02.2021.

H again only made part-payment a adlusted in the next installm respondent issued receipts date against the part-payment made.

That vide demand dated 07 .07 .2 Rs.5,17,a94 /-.

However, despi t"he complainants have made pa and the remaining amount is respondent completed the cons the unit allotted to the complai the possession to the responden 23.02.2022.

They were requi possession to make complete pa as well as to complete the docum That the complainants failed to the possession of the unit and constrained to issue a demand I complainants demanding the d The complainants were aware booking application form and agreement, timely payment of essence of the allotment. [t was the booking application form an per clause 5[iii)[i] ofthe Policy, make the payment towards th respondent would be entitled issuing the cancellation le committed by the complainants, no other choice but to te complainants by issuing th f0.L0.2022 and finally terminat 18.01.2023 with the full and fi against the unit no.

D-708, with Rs.z1,91,039 /-.

Therefore, the no right, title or lien in the unit k Page 13 of25 Complaint No.

6195 of 2022 wever, the complainants yet d the remaining amount was t demand as arrears.

The 20.01..202 1 and 26.05.2021 21, the respondent dpmanded reminder dated 07,07 .202L, -payment of Rs.2,07 ,489.60 /- t to be paid by them. d by them.

The ction of the tower in which ants was located and offered vide offer of possession dated d as per the said offer of ent towards the due amount tation formalities. )mit the due amount and take e resdondent was once again 1.13 Qf the agreement and as 013, t+at if the allottee fails to demanded amount, then the er dated 16.08.2022, to the amount, t aq per clause 1.3 of the es 1.4 and 2.2 and 5.1 of the installment amount was the derstood vide clauses 1 1.7 of terminate the allotment by - On account of defaults the respondent was left with inate the allotment of the cancellation letter dated d via termination letter dated I setllement of the account copy of cheque amounting to mplainants are now left with er the said cancellation.

The ffiHARERA S- eunuenRvr said cancellation has been done per the agreement and the said the eyes of law.

That at time of t an outstanding of Rs.3,30,196/- ) That although, moreover, the res strictly as per the terms of the all and the directions issued by the 7.

Copies of all the relevant documents record.

Their authenticify is not in be decided on the basis of these submission made by the parties.

8.

During proceeding dated 1.1..01.2024, th requested that they want refund of th wish to file an application for amen delayed possession charges to refund The said request of the complainants vide order dated 11.01.2024.

Therea an application dated 11.01.2024 with amount along with interest to which submitted that he has no objection in th same, the application ior amendme possession charges to refundl was "t9.o1 .2024.

E.

Written submission made by the compl The complainant and respondent have on 29.01.2024 and 30.01.2024 respecti The additional facts apart from the c stated by the parties in written submissi E.I Written submission of the com inant Page 14 of 25 Complaint No.

6195 of 2022 by the respondent strictly as olicy and the same is valid in rminating the unit there was ith other ancillary charges. y charges. ondent has throughout acted tment, rules, regulations, law ncerned authorities. ve been filed and placed on te.

Hence, the complaint undisputed documents counsel for the complainants entire paid up amount and ment of relief sought from f the entire paid up amount. allowed by this , the compl,linants regarcl to :'efund counsel for the respondent regard.

Hence, in view of the of felief sought Idelayed allowed vide order dated nant ars well as respondent Ied the written submissions ly wh ch are taken on record. mplaint or reply have been ns are mentioned below. can and authorify have filed the entire p ffiHARERA ffi eunuennHl 10.

The complainant has filed the written s made the following submissions.

11. .

That initially respondent issued dated 11.04.2019 & 11.06.2019 to respondent had been directed to cl account of "lnterest Due" and a letters, the complainants took up th letter dated L4.06.201,9 and 04.07.2 .

That after the receipt of the above I respondent addressed an e-mail d respondent waived-off interest complainant till the instalment "wi is stated as detailed above, rest of before the due dates, and hence th any interest on delayed payment. .

The demand letter issued by the re not specify the reason for cha complainants.

Clear the things out offices of the respondent and try to the respondent, however the resp queries of the complainant and also from where the interest is being levi .

Order dated 25.05.2023 this Auth cost of Rs.5,000/- on the responden the reply of the complaint.

That the only when the said cost was to However, the said cost has not been neither the respondent has filed application before this authority.

E.II Written submission of the respo The respondent has filed the written s made the following submissions: - .

That the said information as attach necessary and important for adiudi The necessity to file the information stand taken by the complainants in Page 15 of 25 Complaint No.

6195 of 202 2 bmission on 29. ion on 29.01-2024, and frivolous demand letters e complainants whereby the certain amount accrued on receiving the said demand matter with respondent vide 9. rs of the complainants, the 07.07.2019, whereby the mponent levied upon the n 18 months of allotment".

It e pa).ments have been paid e is no question of imposing ndent are ambiguous and do ng any interest from the complainant had visited the micably settle the issue with ndent failed to answer the iled to satisfy as to how and upon the complainants. ty was pleased to impose a /builder for failing to furnish rply was to be taken on record e paiq to the complainants. paid td the complainants and y condonation of the delay ent bmission on 07.12.2023, and her{lwith is very relevant, ion of the present complaint. as arisien bercause of the false complaint filed by them and h F. lurisd HARERA GURUGRAM to expose their illegal acts.

The said Authority to decide the controversy manner and the same are necessary of the case.

It is the intention an documents should be allowed information is relevant and substa: facts and circumstances. information would er in a much better and for a just and proper I spirit of law that :o be produced.

1 rtiate and support tl able this effective decision all such he said Le actual s.

No.

Stage of demands Demand Date Due Date Demand Amount in Rs.

Payment Made Payment received date L.

At the time of aDDlication 11.05.2018 1,37,200 /- 11.05.18 2.

At the time of allotment 22.05.201a/ 13.06.2018/ 16.0?.2018 9,32,532/ - 9,4s,s61/- 12,47,tt0- 5,6?,320/- (Bounce) 28.09.18 3.

Within 6 months of allotment 22.05.201.4 / 73.06.2074 / t6.07.2018 11.05.2018 9,32,532 /- 9,45,567 /- 72,87,11-0- s,67,320 /- 06.10.18 4.

Within 12 months of allotment 76.07.201A 23.0a.207a 12,47 ,7:t0 / - 3,28,31.0 /- 21.05.19 5.

Within 1B months of allotment 21.07.2019 / 02.04.2019 / 30.03.2019 23.02.2079 10,7 4,664/- 1.0,7 4,664 / - 10.74.61t8/- 3,28,31.0 / - 21.09.19 6.

Within 24 months of allotment 79.07.2027 23.08.

027 23.08.201_9 7,89,9s9 /- ?t,28,310 / 07 .7L.L9 7.

Within 30 months of allotment 19.o7.2027 23.02.2020 7,89,959 / - 3,28,310 /- 22.02.20 8.

Within 36 months of allotment 79 .01..2021/ 07.07.2021_ 23.02.2027 7 ,A9,95 s,77,89 e/.

4/- 3,28,370 /- 12.03.20 4,,24,370 / - 20.01.21 it.,54,160/- 26.05.21 2,07 ,490 / - 31.10.21 Offer of possession 23.02.2022 Demand letter towards unpaid amount 16.04.2022 3,86,555/- Not paid Not paid iction of the authority: Page 16 of25 complaint No.

6195 of 2022 /+ HARERA GURUGRAI/ The authority jurisdiction to below.

12. observes that it has terri adjudicate the present [.

I Territorial iurisdiction As per notification no.

1./92/20L7-LTC Town and Country Planning Depa Estate Regulatory Authority, Guru District for all purpose with offices present case, the proiect in question i area of Gurugram district.

Therefore, territorial jurisdiction to deal with the p E. ll Subiect matter iurisdiction Section 11(4J(a) of the Act 20L6 pro responsible to the allottees as per agre is reproduced as hereunder: Section 77(4)(a) Be responsible for oll obligstions, responsi provisions of this Act or the rules ond reg the allottee as per the agreement lor allottee, as the case may be, till the con plots or buildings, as the cqse may be, areas to the associotion of ollottee or th case may be; Section 34-Functions of the Authority: 34A of the Act provides to ensure co upon the promoter, the allottee and the and the rules ond regulations made the 13.

So, in view of the provisions of the Act complete jurisdiction to decide th compliance of obligations by the promo which is to be decided by the adjudi complainants at a later stage.

6195 of 2022 rial as well as sub.ieqt matter the reasqns given plaint for dated 1.4.L2.20L7 ipsued by nt, the iurisdiction of Real shall be entire Qurugram tuated in Gurugrarfl.

In the situated within the planning this authority has complete nt complaint. es tha[ the promoter shall be 11(a)(al t fc,r sale. fc,r sale.

Section ilities and functions under the tions made thereunder or to le, or to the associotion of nce cf oll t:he aportments, the ol+ottee, or the common compdtent outhority, os the iance qf the obligotion| cast I estatP ogents under this Act der. oted above, the authority has complaint regarding non- r leaving aside compensation ting ofTicer if pursued by the Page \7 of 25 id.

HARERA ffi.

OURUGRAIV 14.

Further, the authority has no hitch in and to grant a relief of refund in the judgement passed by the Hon'ble Apex and Developers Private Limited Vs Sta (1) RCR (Civil), 357 and reiterated i Privote Limited & other Vs Union of 73005 of 2020 decided on 12.05.202 as under: "86.

From the scheme of the Act of w been made and taking note of power o the regulatory authori\) and adjudica out is that although the Act indicotes 'refund','interest','penalty' ond'com, Sections 78 and 79 clearly manifests the amoun' and interest on the refund of interest for delayed delivery ofposse thereon, it is the regulotory authori examine qnd determine the outcome time, when it comes to a question of compensation and interest thereon und the adjudicating olJicer exclusively keeping in view the collective reoding 72 of the Act. if the adjudicotion und olher lhun compensaLion as envi. acljudicating officer as proyed that, expond the ambit and scope of the odjudicating offrcer under Section 77 o nondate of the Act 2016." 15.

Hence, in view of the authoritative p Supreme Court in the cases mentione jurisdiction to entertain a complaint see interest on the refund amount.

F.

Findings on the obiections raised by the F.l Objectionregardingcomplainant non-invocation of arbitration.

Page 18 of25 complaint No.

6115 of 2022 ceeding with the complaint resent matter in view of the urt in Newtech Promoters of U.P. and Ors.

2021-2022 case of M/s Sona Realtors ia & others SLP (Civil) No.

Civil) No. herein it has been laid down ich o detailed reference hos dj uclicotio n delineated w ith ng oflicer, whot finally culls the distinct expressions like tion', a conioint reading of t when it comes to refund of mount, pr directing payment :sion, ol penally and interest whick hos the power to a conplainL At the sqme ng the relie.f of odjudging r Sectiqns 12, 14, 18 ond 19, s the power to determlne, Section 71 reod with Section Sections 12, 14, 18 and 19 if extended to the our View, may intend to owers qtnd functions of the d thatluould be ogainst the nouni:emerlt of the Hon'ble above, the authority has the ng refund of the amount and onclent in breach of agreement for lL ffi HARERA S eunLrennt'r 16.

The respondent submitted that the co the reason that the agreement contain refers to the dispute resolution me parties in the event of any dispute.

17.

The authority is of the opinion that th cannot be fettered by the existence o buyer's agreement as it may be noted t the jurisdiction of civil courts about an purview of this authority, or the Real the intention to render such disputes clear.

Also, section 88 of the Act says shall be in addition to and not in dero other law for the time being in force reliance on catena of judgments of particularly in National Seeds Cr Madhusudhon Reddy & Anr. (2072) 2 held that the remedies provided under are in addition to and not in derogati consequently the authority would not arbitration even if the agreement arbitration clause.

F.II Obiection regarding maintainabili complainant being investor.

18.

The respondent took a stand that the not consumers and therefore, they are n the Act and thereby not entitled to file of the Act.

However, it is pertinent to n can file a complaint against the promote Page 19 of 25 Complaint No.

6195 of 2022 laint is not maintainable for an arbitration clauFe which ism to be adopted by the jurisdiction of the authority an arbitration clause in the at section 79 of the Act bars matter which falls wi h falls within the te Appellate Tribunal.

Thus, non-arbitrable seems to be at the provisions of this Act tion of the provisions of any Furtler, the authority puts e Hon'ble Supreme Court, oration Limited v.

M.

506, wherein it has been e Consumer Protection Act of the other laws in force, e bound to refer parties to en the parties had an of complaint on account of plainants are investors and t entitled to the protection of e complaint under section 31 te that any aggrieved person if he contravenes or violates lL ffi HARERA #-eunucnAM any provisions of the Act or rules or Upon careful perusal of all the terms a letter, it is revealed that the complaina total price of Rs.28,01,,720 /- to the pro in its proiect.

At this stage, it is importa of term allottee under the Act, the same reference: "2(d) "allottee" in relation to a reol to whom a plot, apartment or building, allotted, sold (whether qs freehold transferred by the promoter, and subsequently acquires the said qllotmt otherwise but does not include a oportmenL or building, os the cose moy 19. ln view of above-mentioned definition terms and conditions of the buyer's promoter and complainant, it is crystal allottee(sJ as the subject unit was all The concept of investor is not defined or definition given under section 2 of the and "allottee" and there cannot be a p Thus, the contention of promoter that not entitled to protection ofthis Act also G.

Findings on the relief sought by the G.I.

Direct the respondent be directe Rs.24,O1,719.60/ - along with interest amount.

The complainants "ROF Ananda", in 30.03.2019 for the Tower- D, for the were allotted a unit Sector 95, Gurugra 20. allotment of the unit sale consideration of {v Page 20 of25 Complaint No.

61$5 of 2022 egulafions made thqreunder. d conditions of the 4llotment is buyer's, and they fiave paid ter towards purcha$e of unit to stress upon the 4efinition s reproduced below for ready te project means the person the case moy be, has been leasehold) or otherwise otherwise includes the person who nt through sale, tr sfer or to whom such plot, is given on renti' "allottee" as well as all the reement executed between ear that the complainant are ed to [hem by the promoter. referred in the Act.

As per the there will be "promoter" having a status of "investor". e alllmee being investor are tands re.iected. lainant. to refund an amount of 15olo till the realization of the in the project of respondent vide allotment Ietter dated earing no.

D-708,7th floor in Rs.26,'26,480 /-.

Thereafter, a HARERA GURUGRAM buyer's agreement was executed As per clause 7.1 of the buyer's agree to be offered within 4 years fro (07.12.2016) or the date of enviro whichever is later.

The due date of po date ofenvironment clearance being Iat out to be 09.10.2027.

The responden certificate from the competent Authori on 22.02.2022 and subsequently, the complainants on 23.02.2022.

The co said letter sent a legal notice dated requesting to hand over the physical po 2L.

Thereafter, the respondent vide de requested the complainants to pay the per record, the due date of payment o mentioned by the respondent in the 70.10.2022, the respondent/builder due to non-payment of the outstandin 18.0L.2023, the respondent issued a final statement of account vide which forfeited by the respondent.

22.

The authority obseryes that the compl Rs.28,0L,720/- against the sale consid evident that the complainants hav consideration.

During proceeding date was directed not to create any third hearing as the allottee has paid the v PaEe 2l of 25 Complaint No.

6195 of 2022 n the parties on 22.03.2079. ent, the possession of the unit approval of building plans ent clearance (09.70.2077) session is calculated from the i.e., 09.1.0.2017 which comes has obtained the opcupation in respect of the sa[d proiect ossession was offered to the plainants after receipt of the 4.06.2022 to the respondent session of the allotted unit. nd lJtter dated, 76.08.2022 utstanding dues. ding dues.

However, as the oJtstanrling dues was not d lettdr dated 16.08.2022.

On ed the allotment of the unit dues by the complainants.

0n rmination letter curn full and amount of Rs.6,10,687/- was nants have paid an 4mount of ration of Rs.25,25,4$0/-. lr is paid more than the sale 27.0 t1.202'3, the respondent rty rights till next date of nsideration amount and only 23.

24. some minor amounts towards taxes or be paid which doesn't justiff cancella 25.05.2023, the Authority ordered that relief already granted shall continue till 12.L0.2023, the counsel for the respon ent stated that the Authority continued the stay against during proceeding on 25.05.2023, h creation of third party rights in resp of the allotted unit of the complainants, while the third party ri hts were already created on 11.04.2023 i.e., prior to the directions of e authority for non-creation of the third party rights.

The Authority not in concurrence with the HARERA P*GURUGI?AI/ contention of the respondent that the prior to the direction of the Authority rights as the respondent should have party rights during proceeding on 27. respondent also had also opportunity subsequent proceeding on 2 5.05.2 023, to make such discloser.

It was only months after the order dated 27.04.202 party rights, that the respondent has cre Complaint No, 6195 of 2022 amp duty charges rtmains to ion of the unit.

Fu{ther, on in the meantime th4 interim rther orders.

Therqafter, on ird party rights were created r non-creation of third party sclosqd the creation of third 4.2023 itself.

Moreover, the to disclose the same during wever, the respondent failed n 12.70.2023, i.e., approx.

6 restraining creation of third ted third party rights. by the which is that not in the eves of law?" In line with the aforesaid facts, the w itten submission filed parties and documents placed on rec the mai;:l question arises before the authority for the p ose of adiudication "whether the said cancellation is valid o The authority observes t observes that clause Housing Policy, 2013 deals with the clause is reproduced below: - (iJ of the Affordable Group ancellation and the relevant "U any successful applicant fails to cleposit the i tallment:s h,ithir the time period colonizer, o reminder mav be as prescribed in the allotment letter issued by Page22 of zs 25.

26.

HARERA *E-GURUGRAI/ frenJhs-ds@-eiis&s4 irr-tfthe ttee still defoulls in making the ublished in one regionol Hindi usand in the SA,te for payment oJ due omount within 8s25,!n may be deduded by the coloniser nd the bilance amount sholl be refunded to the applicanL Such jlots moy be by the conmittge lor ofrer to those opplicontslalling in thewoiting list".

The respondent company has publishe a list of defaulters in making timely payments in the daily English n paper & Hindi newspaper on 78.03.2023 and 28.032023 respectivel and has thereafter cancelled the unit vide termination letter da 70.10.2022.

Thqugh the respondent followed proper procedure with the policy of 2013, but it is to be raised by the respondent was as per the Firstly, it is observed that the responden favour of the complainants on 30.03.20 paid an amount of Rs.13,55,140/- by payment plan? has issued allotment letter in 9 and the complainants have 3.02.2019.

However, as per clause 5(iii)[b) ofthe Policy 2013, the co pay Rs.6,56,620/- i.e., 250/o of the sale plainants lvere only liable to allotment.

It is of grave importan respondent has collected more than 5 o/o of the sale consideration prior to the issuance of allotment whi 2013 and the Act of 2016.

As per the sale consideration is payable at the of application form, second installment of 20% of the sale consider tion i$ payable at the time of allotment of the unit and rest 750lo of (12.5% of sale consideration) six mon ount is payable in 6 equated Iy installments spread over 3 years period, with no interest followi due befor,: the due date of payment. f payment.

However, the respondent has demanded all the installment e policy as is evident from the in violation ofthe payment plan as per table given by the respondent along wi written submission filed on Complaint No.

6195 of 2022 f cancellation in accordance en r,r,hether the demand so consid.erati0n at the time of to mention here that the poynent, the lisl of such dehulters moy be newspaper having circulation oJ more than ten is in Jiolation of the Policy of en terlns of the policy, 5olo of b, Page 23 of ZS HARERA ffi,GURUORAII 30.0L.2024 and as reproduced in para the complainants were liable to pay Rs.2 09.70.202L.

However, the complainan 31.10.2027 i.e., an excess amount of complainants in October Z02l befo certificate.

Thirdly, the respondent 23.02.2022 has raised an demand of Rs. dated L6.08.2022 i.e., after a gap of intimation of possession.

It is pertine demand letter dated 1.6.08.2022, the re of Rs.3,24,31,4/- towards interest du imagination of the Authority as to ho interest on delayed payments when made payments in excess of the Authority is of the view that the res demands in violation of the payment demand raised vide Ietter dated 16.08 complainants and consequently, the 10.10,2022 and the same is not valid reasons quoted above.

But since ca deduction of said Rs.25,000/- is not complainants are seeking refund of the interest and hence, the cancellation respondent is under obligation to refu after cancellation as per provisions of to make refund of requisite amount a PaEe 24 of 25 Complaint No.

6195 of 2022 10.

11 of this order.

Secondly, 5,26,480 /- by the duq date i.e., ; had paid Rs.28,01,720/- by s.L,75,240/- was paild by the e obtaining the occupation r offering the possession on 1,86,555 /- vide dem4nd letter almost six months from the 1t to note that the vide the pondent has raised a demand till date. lt is beyond the /v the respondent has raised e cornlplainants have already rmanded amount. ed amount.

Thus, the cndent has arbitrarily raised plan hs per the policy.

The 2022 was not payable by the ancellation vide letter dated n the Fyes of the law for the :ellatidn is not valid hence, Cmissible.

However, now the amount deposited along with is not being set aside.

The rd the amount received by it, e policy of 2013 but has failed per the said policy.

It is not iU 27.

HARERA ffi.GURUGRAM justified on the part of the respondent / withholding the said amount after ca In light of the afore said circumstan the respondent to refund the Rs.28,01,720/- received by it from interest at the rate of 10.850/o p.a. as p Rules, 2017 from the date of can actual realization of the amount.

Directions of the Authority: G.

Hence, the authority hereby passes this directions under section 37 of the obligations cast upon the promoter as the authority under section 34(0 ofthe i.

The respondent/promoter is di amount i.e., Rs.28,01,720/- recei along with interest at the rate of 10.8 15 of the Rules, 2017 from the date o the actual realization of the amount. ii.

A period of 90 days is given to the directions given in this order and would follow.

29.

Complaint stands disposed of.

30.

File be consigned to the registry.

Dated: 28 .03 .2024 Complaint No.

6195 of 2022 romoter as to why it has been Iation- the authority hereby directs tire paid-up amount i.e., e complainants along with ibed under rule [5 of the on i.e., 10.10.2022, till the rder and issues the following ct to ensure compliance of er the function entrusted to to refund the entire paid-up by it from the complainants o/o p.a. hs prescribed under rule cancellation i.e., 10.10.2022 till espondent to comply with the Iing *li.t Iegal consequences [Vilay Krfu-ar Goyal) Mdmber Haryana Real Estate Regulatoty Authority, Gurlugram Page 25 of 25