SURINDER KUMAR AND NARENDER KUMAR THROUGH LR NARESH vs IMPERIA WISHFIELD PRIVATE LIMTED

l{AREl?& ffiGURUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM complaint No.

5508 of 2023 1.

Surender Kumar R/o: H.

No.-1535, Maruti Vihar, Sector-37C, Gurugram -122001,.

2.

Narender Kumar through LR Naresh R/o: H.

No.-119, Mandi Piranu, Tehsil-Charkhi Dadri, Districr-Bhiwani- 1 27 308.

Versus M/s Imperia Wishfield Private Limited Regd.

Office at: A-25, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi - 11,0044 CORAM: Shri Vijay Kumar Goyal APPEARANCE: Sh.

Mohit Dua fAdvocate) Sh.

Sourav [Advocate) Complaint no. : 5508 of 2023 Date of filing complaint: 05.72.ZOZ:I First date of hearing: 14.03.2024 Date of decision : 30 .05.2024 Complainants Respondent Member Complainants Respondent ORDER 1. l'he present complaint has been filed on 0s.l'z.zoz3 by rhc complainants/allottees under Section 31 of the Real Estate IRegulation and Development) Act, 2016 [in short, the Act) read with rule 28 of the ]{aryana Real Estate [Regulation and Development) Rules, 2017 (in short, thc Rules) for violation of section 11(4)[a) of the Act wherein it is intr:r alia prescribcd that the promoter shall be responsible for all obligations, responsibilitics and functions under the provision of the Act or the rules and regulations Page 1 of20 HAl?El1$, ffiOUI?UGRAM made there under or to the allottee as per the agreement for sale exccuted inter se.

A.

Proiect and unit related details Ihe particulars of the project, the details of sale consideration, the amount paid by the complainant(s), date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Complaint No.

5508 of 2023 2.

S.

No.

Particulars Details 1.

Project name and location "El, d.?tt r.iioi jiC,, Cuis Haryana 2.

Project area 1.175 acres 3.

Nature of project Commercial 4.

RERA registered/not registered Not registered 5.

DTCP license no.

51 of 2012 dated t7 .05.201,2 Valid up to 1,6.05.2024 Name of Licensee M/s Prime IT Solutions Pvt, Ltd. others 6. others 6.

Application for allotment 13.09.2012 [As per page no.

23 of complaintl 7.

Date of execution of builder buyer's agreement L0.10.2016 [As per page no.

21, of complaint) B.

Unit No.

G60, Ground Floor, Block-B [As per page no.26 of the complaintl 9.

Unit area admeasuring 315 sq. ft. [As per page no.26 of thc complaintl 10.

Possession clause 11(a) Schedule for possessior the said unit The company based on its pre: plans and estimates and subjec all iust exceptions endeavors ilol ----l the thel on of resent ect to r.s to Page 2 of 2O P, Complaint No.

5508 of Z0Z3 complete construction of the said building/said unit within a period of sixty (60) months from the date of this agreement unless there shalt be delay or failure due to department delay or due to any circumstances beyond the power and control of the compony or Force Majeure conditions including but not limited to rezsons mentioned in clause 11(b) and 1L(c) or due to failure of the allottee(s) to pay in ,time the Total price and other Charges and dues/payments mentioned in this agreement or any failure on the part of the allottee to abide by all or any of the terms and conditions of this agreement. (As per page no.

30 of rhe comnlaintJ LI.

Due date of delivery of possession r0.04.2022 fNote: Due date to be calculated 60 months from the date of execution of agreement i.e., 10.10.2016 ptus 6 months grace period in lieu of covid-19) 12.

Total consideration Rs.36,73,653 /- [As per statement of account on page no.54 of the complaint) 13.

Total amount paid by the complainants Rs.16,09,940 /- (As per statement of accoun[ on page !9.

54 of the complainrJ 14.

Occupati on certificate Not obtained 15.

Offer of possession Not offered 1,6.

Delay in handing over the possession till date of filing complaint i.e., 05.12.2023 2 years 1 month and25 days Page 3 of20 HAl?Tl?,& ffiGURUGRAM Complaint No.

5508 of 2023 B.

Facts of the complaint 3.

The complainants have made the following submissions in the complaint: I. plaint: I.

That the complainants vide application dated 1,3.09.2012 booked a unit bearing no.

G.

60, ground floor, block-U, 'l'ower-37tr, Avenuc admeasuring 315 sq. ft. in the project of the respondent situated at sector 37 C, Gurugram.

II.

That the complainant no.

2 is wife/ successor surviving member of co-allottee namely Sh.

Narender Singh as he has passed away on 31.06.2019.

IIL That a buyer's agreement signed between complainants and co- allottee and respondent on 10.10.2016 showing the total salc consideration of Rs.34,1 8,258/- including of fixtures & fittings, tjDC & IDC, IFMS, electricify connection charges and other charges and again the respondent assured the complainants that they have takcn all necessary sanctions for the completion of aforesaid project.

Out of this, a sum of Rs.16,09,9401- was demanded and paid by the complainants.

IV.

That on account of'not constructing the above said unit within thc stipulated period of 60 months, the complainants kept on requesting the respondent company's officials to complete the construction of the said unit/shop as early as possible and handover thc peaccful possession of the above said unit/shop.

All the time the re.spondent kept on misguiding and putting forth the complainants on one reason or the others and could not adhere to the terms and conditions as settled and agreed upon between the respondent and the complainant no.

1 and co-allottee.

That thereafter, the complainants tried to approach the respondent and requested them to return their hard-earned money so that they Page 4 of20 V. ffiHAI?ERE #-oURUGRAM can buy their dream unit/shop in somewhere else.

Ilut the respondent/authorized persons never bothered to respond the complainant's request.

That from the above said acts and misdeeds of the responclcnt, it is crystal clear that despite the request of the complainants to rcfund the amount deposited by the complainants with the respondent of Rs. ent of Rs.16,09,940/-, in respect of the above said allotted unit/shop, the respondent neither to refund the same nor to comply with their assurances / promises, thereby misappropriating the huge hard earned money of the complainants.

VII.

That in view of the above said facts and circumstances of the casc the complainants are seeking refund of their paid-up amount with interest till the actual payment from the respondent.

C.

Relief sought by the complainants: Direct the responclent to refund the entire amount paid by the complainants along with prescribed rate of interest.

Direct the respondent to pay the litigation cost of I1s.55,000/-.

D.

Reply by the respondent: The respondent contested the complaint on the following grounds: i.

That the complainants after making independent enquiries and only after being fully satisfied about the project, had approachecl thc respondent company for booking of a unit in restrlondent's project 'Elvedor Retail' located in Sector-37 c, Gurugram.

The respondent company provisionally allotted the unit bearing no.

G60 in favor of the complainants for a total consideration amount of Rs..l6,T3,6s3l- including applicable tax and additional miscellaneous charges vide Complaint No.

5508 of 2023 VI.

4.

The complainants have sought following relief[s): ii.

5.

Page 5 ofZU P ffiHARERA ffioUtiUGRAM booking dated 13.09.201,2 and opted the construction-linked plan on the terms and conditions mutually agreed by the complainants and the respondent company. ii.

That the complainants have not approached the Ilon'ble Authority with clean hands or with bona fide intentions and that depicts in their actions as they haven't paid the instalments on time and still a large portion of amount is still outstanding, despite the fact numcrous reminders sent by the respondent company.

It is stated that the complainants have breached the obligations laid upon thcir booking dated 1.3.09.201,2. .09.201,2.

That the terms under booking delineates the respective obligations of the complainants as well as those of the respondent, in case of brcach of any of the conditions specified therein, the consequences thereof.

The complaint has been made to injure and damage the interest and reputation of the respondent and that of the project. 'l'hereforc, the instant complaint is liable to be dismissed in limine.

The foundation of the said project vests on the joint venture/collaboration between M/s Prime I1' Solutions Priv;rte Limited, a company incorporated under the provisions of companics Act, having its registered office at B-33, First Irloor, Shivalik Colony (Near Malviya Nagar), New Delhi-110017 (as one parry) and M/s Imperia structures Pvt.

Ltd. (as second party), Iaying down thc. transaction structure for the said project and for creation of Spv (Special Purpose vehicle) company, named and titled as Impcria Wishfield Pvt.

Ltd.', i.e. the respondent company.

That in lieu of above said understanding & promises, M/s 'lmpcria Wishfield Pvt.

Ltd.' was incorporated & formed with 4.

Dircctors & 5 shareholders.

Mr.

Pradeep Sharma and Mr.

Avinash Kumar Setia wcre Complaint No.

5508 of 2023 iii. iv.

V.

Page 6 of2O ffiHARE|]A #-GuRUoRAM viii. vi.

Complaint No.

5508 of 2023 from Ms Prime IT Solutions Pvt.

Ltd. and Mr.

I{arpreet Singh l}atra and Mr.

Brajinder Singh Batra were from M/s Imperia Structures Pvt.

Ltd.

That 3 out of 5 shareholders of the respondent company, to the tune of 2500 shares each, amounting to lls.15,00,000/- each wcrc from M/s Prime IT Solutions Pvt.

Ltd. and remaining 2 Shareholders of the respondent company, to the tune of 3750 shares each were from M/s Imperia Structures Pvt.

That the said project suffered a huge setback by the act of non- cooperation of M/s Prime IT Solutions Pvt.

Pvt.

Ltd., which proved to be detrimental to the progress of the said project as majority of the fund deposited with the above-mentioned project account by thc allottces was under the charge of M/s Prime Il' Solutions Pvt. [,td. and the said fund was later diverted by the M/s Prime I'f Solutions Pvt.

Ltd., leaving the respondent company with nearly no funds to proccecl along with the said project.

Further, a case was filed with the title 'M/s Prime IT Solutions Pvt.

Ltd. vs.

Devi Ram and Imperia wishfield Pvt.

Ltd.', pursuant to which a compromise deed clated 12.01.2016 was signed between the respondent company and M/s Prirnc I'l' Solutions Pvt.

Ltd. whereby the respondent company was left with the sole responsibility to implement the said project.

That these circumstances caused monetary crunch and other predicaments, leading to delay in implementation of the said project.

That due to these complications there was a delay in procurement of the land license and ownership by the respondent company.

However, the same has been acquired by the respondent and the project is near to completion. vii. ix.

PageT of2O ffiHAI?ERA ffiGUIIUGRAM That several allottees have withheld the remaining payments, which is further severally affecting the financial health of the respondcnt company and further, due to the Force Majeure conditions and circumstances, which were beyond the control of the respondent company as mentioned herein below, the construction got delayed in the said project.

That both the parties i.e., the complainants as well as the respondent company had contemplated at the very initial stage while signing the allotment letter that some delay might occur in future and that is why under the force majeure clause as mentioned in the allotment letter, it is duly agreed by the complainants that the respondent company shall not be liable to perform any or all of its obligations during the subsistence of any force majeure circumstances and thc timc period required for perfo for performance of its obligations shall inevitably stand extended.

It was unequivocally agreed between the complainants and the respondent company that the respondent company is cntitlcd to extension of time for delivery of the said flat on account of forcc majeure circumstances beyond the control of the respondent company.

Firstly, owing to unprecedented air pollution levcls in l)clhi NCR, the Hon'ble Supreme Court ordered a ban on construction activities in the region from 04.11.2019 onwards, which was a blow to realty developers in the city.

The air quality index [AQ1) at the time was running above 900, which is considered severely unsafe for the city dwellers.

Following the Central Pollution Control Board (CPCB) declaring the AQI levels as not severe, the SC lifted the ban conditionally on 09.11.2019 allowing construction activities to be carried out between 6 am and 6 pm, and the complete ban was lifted by the Hon'ble Supreme Court on 14.02.2020.

Secondly, after the Complaint No.

5508 of 2023 xi.

Page B of2O ffiHARERA ffiGURUCRAM complete ban was lifted on 1,4.02.2020 by the Hon'ble Supreme Court, the Government of India imposed National Lockdown on 24.03.2020 on account of nation-wide pandemic COVID-19, and conditionally unlocked it on 03.05.2020, however, this has left a grcat it-upact on the procurement of material and labour. 'fhe 40-day lockdown effective since 24.03.2020, extendable up to 03.05'2020 and subsequently to 17.03.2020, led to a reverse migration with workcrs leaving cities to return back to their villages.

It is estimated that around 6 lakh workers walked to their villages, ancl around 10 lakh workers were stucl< in relief camps.

The aftermath of lockdown lcft a great impact on the sector for resuming the fast pace construction for achieving the timely delivery as agreed under the agreetnent, That initially, after obtaining the requisite sanctions and approvals from the Concerne'd Authorities, the respondent had comtncnccd construction work tion work and arranged for the necessary infrastrttctttre including labour, plants and machinery, etc.

Ilowever, since the construction work was halted and could not be carried on in the planned manner due to the force majeure circumstances detailed above, the said infrastructure could not be utilized and the labour was also left to idle resulting in mounting expenses, without there being any progress in the construction work.

Further, most of the construction material which was purchased in advance got wasted/deteriorated causing huge monetary losses.

Even thc plants and machineries, which were arranged for the timely completion of the construction work, got degenerated, resulting in huge losses to the respondent. xiii.

That the delay is caused due to lack of funds, as the allottees have grossly underpaid and failed to make timely payments to the b, Page 9 of 2o Complaint No.

5508 of 2023 xii. ffiHAREI?A ffieunuGRAM complainr No.550B of 2023 respondent.

The complainants have paid only 11s.16,09,9401- to the respondent and a huge sum is still pending to be paid by the complainants.

The complainants have caused loss to the respondent and the project could not be completed without the sum requircd by the respondent. xiv.

That despite all the impediments faced, the respondent was still trying to finish the construction of the said project and managcd to complete the civil work of the said tower/project, and the finishing work, leaving only the MEP work of the towers under progress, which is estimated to be completed by the year 2025 and the responclcnt shall be handing over physical possession of the said unit to the complainants. xv.

That the complainants are not entitled to the relief prayed for because the complainants have miserably failed to bring to the notice of the Hon'ble Authority any averment or document which could form a basis for this Hon'ble Authority to consider the complaint under reply which is totally devoid of any merit in law. it in law. 'l'he complainants themselves have violated the agreed terms by not making timcly payment and not making payment for full consideration of thc said unit and hence are not entitled to get any relief. 'l'he instant complaint is an abuse of process of law.

6.

The counsel for the complainants vide proceedings of the day dated 30.05.2024 has stated that the co-allottee of the complainant no. t has expired and a certificate of the same has been placed on rccord with complaint.

The complainant no.

2 is wife of the co-allottee and the application form for surviving member certificate has been duly placcd on record along with the complaint and the same is not objected by thc respondent.

Page 10 of20 {v ffiHARIR& ffioURUGRAM Complaint No.5508 of 2023 7.

Copies of all the relevant documents have been filed ancl placed on the record. l'heir authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission made by the parties. ' E. furisdiction of the authority: B. 'l'he authority observes that it has territorial as jurisdiction to adjudicate the present complaint below. well as subject matter for the reasons given E.l Territorial iurisdiction 9.

As per notification no.

1/92/2017-1TCP dated 74.12,2012 issued by'fown and Country Planning Department, the jurisdiction of Real Ilstate Ilegulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the projcct 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 jurisdiction 10.

Section 11( )(a) of the Act, 2076 provides that the promoter shall be responsible to the allottee as per agreement for sale. for sale.

Section 11(4)[a) is reproduced as hereunder: Section 17 ft) fhe promoter shall- (a) be responsible for crll obligations, responsibilities and functions under Lhe provisions of this Act or the rules and regulations made thereunder or to the allottees os per the agreement for sele, or to the association of allottees, as the cose may be, till the conveyance of all the aportments, plots or buildings, as the case moy be, to the allottees, or the common areas to the association of allottees or the competent authority, as the case may be; Section 34-Functions of the Authority: Page 11 of20 ffiHAI?ERA ffiCunUGRAM 3afl of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and regulations made thereunder.

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

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 juclgement passed by the Hon'ble Apex Court in Newtech Promoters and Developers Private Limited Vs State of U.P, and Ors. (Supra) and reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLP (Civil) No.

73005 of 2020 decided on 72.05.2022wherein it has bcen laid down as under: "86.

From the scheme of the Act of which a detailed reference hos been made ancl taking note of power of adjudication delineoted with the regulatory authority ancl adiudicating officer, what finally culls out is that although the Act indicates the distinct expressions like'refund','interest','penalty' and 'compensation', a conjoint reading of Sections 18 and 19 clearly manifeststhatwhen itcomes to refund of Lhe Qmottnt, and ottnt, and interest on the refund emount, or directing paymenL of interest for delayed delivery of possession, or penalty and interest thereon, it is the regulatory authority which has the power to examine and determine the outcome of a complaint.

At the same time, when it comes to a question of seeking the retief of adjudging compensation and interest thereon under Sections 12, 14, L8 and 19, the adiudicating officer exclusively has the power to determine, keeping in view the collective reading of Section 71 read with Section 72 of the Act. tf Lhe adiudication under Sections 12, 74, L8 and L9 other than compensation os envisaged, if extended to the adjudicating officer as prayed that, in our view, may intend to expand the ambit and scope of the powers and functions of the adiudicating officer under Section 7L and that would be against the mandaLe of the Act 2016." 13.

Hence, in view of the authoritative pronouncement of the Hon'ble Supreme Court in the cases mentioned above, the authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

5508 of 2023 11,.

1,2.

Page 12 of 20 At?El?& URUOI?AM Complaint No.

5508 of 2023 F.

Findings on the obiection raised by the respondent: F.l Obiection regarding force maieure conditions: 14. 'fhe respondent-promoter has raised the contention that the construction of the tower in which the unit of the complainants is situated, has been delayed due to force majeure circumstances such as orders of the NG'l', I{igh Court and Supreme Court banning the construction for a shorter period of time on account of weather conditions in NCR region. 'l'he respondent further raised the contention that other factors like demonetisation, govt. schemes and non-payment of instalment by different allottee of the projcct also contributed in delay in completion of project but all the pleas advancecl in this regard are devoid of merit. of merit.

First of all, the possession of the unit in question was to be delivered by 10.04.2022 including the grace period of 6 months on account of covid-19.

But the project is still incomplete even if 6 months grace period is allowed on account of covid-19.

Hence, evcnts alleged by the respondent do not have any impact on the project bcing developed by the respondent.

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

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

Findings on the relief sought by the complainants: G.l Direct the respondent to refund the entire amount paid by thc complainants along with the prescribed rate of interest.

15.

In the present complaint, the complainants intend to withdraw from the project and are seeking return of the amount paid by them in respect of subject unit along with interest as per section 1S(1) of the Act and the same is reproduced below for re,ady reference: "Section 78: - Return of amount and compensation ffit-l ffic Page 13 of20 ffiHARERA ffiCURUGRAM Complaint No.

5508 of 2023 1B(1).

If the promoter fails to complete or is unable to give posse.s.ston of on apartment, plot, or building.- (a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation ofthe registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that opqrtment, plot, building, as the case rnay be, with interest at such rote as may be prescri be prescribed in this behalf including compensation in the monner as provided under this Act: Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handinpl over of the possession, at such rate as may be prescribed." (Emphasis supplied) Clause 11(a) of the buyer's agreement provides the time period of handing over possession and the same is reproduced below: 11(a) Schedule forpossessi on of the said unit "The company based on its present plans and estimates and subject to all exceptions endeavors to complete construction of the said building/said unit within a period of sixty (60) months from the date of this agreement unless there shall be delay or failure due to department delay or due to atly circumstances beyond the power and control of company or force ntajeure conditions including but not limited to reasons mentioned in clouse 11 (b) und 11(c) or due to failure of the ollottee(s) to poy in time the totol price ctnd other charges and dues/payments mentioned in this Agreement or any failure on the part of the Allottee(s) to abide by all or any of the terms ond conditior-rs ol this Agreement." (Emphasis supplied) At the outset, it is relevant to comment on the present possession clause of the agreement wherein the possession has been subjected to all kinds of terms and conditions of this agreement and application, and the complainants not being in default under any provisions of these agrecntcnts and compliance with all provisions, formalities and documentation as prescribed by the promoter.

The drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promoter and against the allottee that even a singlc default by the allottee in fulfilling lbrmalities and documentations etc. as prescribcd by the promoter may make the possession clause irrelevant for the purpose 16.

1,7.

Page 14 of20 18.

4 of20 18. ffiHARERA #-GuRUoRAM of allottees and the commitment date for handing over possession loses its meaning. l'he incorporation of such clause in the buyer's agreement by the promoter is just to evade the liability towards timely delivery of subjcct unit and to deprive the allottee of his right accruing after delay in possession.

This is just to comment as to how the buikler has misused his dominant position and drafted such mischievous clause in the agrcemcnt and the allottee is left with no option but to sign on the dotted lines.

Admissibility of refund along with prescribed rate of interest: 'fhe complainants are seeking refund the amount paid by them along with interest prescribed rate of interest.

I:lowever, thc allottee intcnd to withdraw from the project and are seeking refund of the amount paid by them in respect of the subject unit with interest at prescribcd ratc as provided under rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 75.

Prescribed rate of interest- fProviso to section 72, section lB and sub-section (4) and subsection (7) of section 191 (1) F-or the purpose of proviso to section 12; section L8; and sub-sections (4) ctnrt (7) of section L9, the "interest at the rate prescribed" shall be the State llank of India highest marginal cost of tending rate +Z%,: Provided that in case the State Bank of India marginol cost of lencling rate (MCLR) is not in use, it shatt be replaced by such bencimark lencling rcttes whiclt the State Bank of Indio may fix from time to time for lencling to Lhe generat public.

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

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

20. consequently, as per website of the state Bank of India i.e.

India i.e., lrt-tp-s_l/*s_|-i,co*,in, the marginal cost of lending rate (in short, MCLR) as on date i.e., :)0.05.2024 is B.B5%.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +20/o i,e., 10.85%0.

19.

5508 of 2023 Page 15 of20 21. ffiHAI?EI?A ffi-eunUGRAM Complaint No.

5508 of 2023 I'he definition of term 'interest' as defined under section Z(za) of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of clefault. 'fhe relevant section is reproduced below: "(za) "interest" means the rates of interest payabte by the promoter or the alloLtee, as the case may be.

Explanation. -For the purpose of this clause_ (i) the rate of interest chargeable from the allottee by the promoter, in case ol' default' shall be equal to the rate of interest which the prornoter shall be liabte Lo pay the allottee, in case oJ'default; (ii) the interest payable by the promoter to the allottee shall be from the clate the promoter received the amount or any part thereof till the date ihu o^ount or port thereofand interest thereon is refunded, and the interest payable by the allottee to the promoter shall be from the date the allottee defau'lts in 'payment Lo Lhe promoter till the date it is paid;,, fhe counsel has stated that stated that the buyer's agreement dated 10'10.2016 has been executed with the respondent i.e., M/s Impcria Wishfield Private Limited only and it is evident from the documents placed on record that all the payntents were made to said respondent only.

So, M/s Prime I'f Solutions Pvt.

Ltd. has no role to play in it and is neither a party ip the aforementioned agreement with the complaint.

I.'urther, the counsel for the complainants vide proceedings of the day dated 30.05.2024.

0.05.2024. has statcd that till date no occupation certificate has been obtained by the respondcnt till date Ilor any offer of possession has been made. 'l'he counscl l.or thc respondent has duly confirmed that the unit is not yet complete ancl is expected to be completed in the year ZOZS.

0n consideration of the documents available on recorci and submissions made by both the parties regarding contravention of provisions of thc Act, the authority is satisfied that the respondent is in contravention of the section l1(4)[al of the Act by not handing over possession by the clue clare as per the agreement.

By virtue of clause 11(a) of the agreement executed 22.

23.

Page 16 of2O complaint No.

5508 of 2023 between the parties on 10.10.2016, the possession of the subject apartment was to be delivered within a period of 60 months from the date of execution of buyer's agreement.

Therefore, the due date of handing over possession is 1'0.1'0.2021.

It is pertinent to mention over here that even after a passage of more than 7.8 years (i.e., from the date of BBA till ctate) neither the construction is complete nor the offer of possession of the allotted unit has been made to the allottees by the respondent/promoter. 'l'he authority is ol the view that the allottee cannot be expected to wait endlessly for tal<ing possession of the unit which is allotted to him and for which he has paid a considerable amount of money towards the sale consideration.

It is also to mention that complainants have paid more than 430/o of total consideration till Octob er 2023.

Further, the authority observes that there is no documcnt placed on record from which it can be ascertained that whether the respondent has applied for occupation certificat e f part occupation certificate or what is the status of construction of the project. e project.

In view of thc above-mentioned facts, the complainants-allottee intends to withdraw frorn the project and are well within their right to do the samc in view of scction 1B(1) of the Act,2016.

24.

Moreover, the occupation certificate/completion certificate of the project where the unit is situated has still not been obtained by the respondent/promoter.

The authority is of the view that the allottees cannot be expected to wait endlessly for taking possession of the allotted unit and for which they have paid a considerable amount towards thc salc consideration and as observed by Hon'ble Supreme Court of India in lreo Grace Reoltech Pvt.

Vs.

Abhishek Khanna & Ors., civil appeal no. ffiHARERA ffioUttUGRAM 57BS of 2019, decided on 11,01.2027. "....

The occupation certificate is not available even as on date, which clearly amounts to deficiency of service.

The allottees cannot be made to wait indefinitely Page17 of20 ffiHARERN ffioUnUGRAM Complaint No.

5508 of 2023 for possession of the apartments allotted to them, nor cen they be hound to tal<e the apartments in Phase 1 of the project......." 25.

Further, the Hon'ble Supreme Court of India in the cases of Newtech Promoters and Developers Private Limited Vs State of U,P, and Ors. (supra) reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLP (Civil) No.

13005 of 2020 decided on 12.05.2022 observed as under: "25.

The unqualified right of the allottee to seek refund referred []nder Section 1B(1)(a) and Section Dft) of the Act is not dependent on any contingencies or stipulations thereof. lt appears that the legislature has consciously provided this right of refund on demand os an unconditional absolute right to the allottee, if Lhe promoter fails to give possessron of the qpartment, plot or building within the time stipulated under the terms of the agreement regardless of unforeseen events or stay orders of the Court/Tribunal, which is in either way not attributable to t table to the allottee/home buyer, the promoter is under an obligation to refund the omounL on demand with interest at the rate prescribed by the State Government including compensation in the manner provided under the Act with the proviso that if Lhe allottee does not wish to withdraw from the project, he sholl be entitled for interest for the period of delay till handing over possession at the rate prescribecl." 26.

The promoter is responsible for all obligations, responsibilitics, and functions under the provisions of the Act of 201,6, or the rules and regulations made thereunder or to the allottees as per agreement for sale under section 11[4)(a).

1'he promoter has failed to complete or Llnablc to give possession of the unit in accordance with the terms of agreement for sale or duly completed by the date specified therein.

Accordingly, the promoter is liable to the allottee, as they wish to withdraw from the projcct, without prejudice to any other remedy available, to return the amount received by the promoter in respect of the unit with interest at such rate as may be prescribed.

27.

Accordingly, the non-compliance of the mandate contained in section l1(4)[a) read with section 1B[1) of the Act on the part of the respondent is established.

As such, the complainants are entitled to refund of the entire amount paid by them at the prescribed rate of interest i.e., (@ 10.85% p.a.

Page 18 of20 l.{Al?I11& GURUGI?AM fthe State Bank of India highest marginal cost of lending rate (MCf,RJ applicable as on date +20/o) as prescribed uncler rule 15 of the l1aryana Real Estate [Regulation and Development) ILule s, 2017 frotn the date of each payment till the actual date of refund of the amount within thc timclincs provided in rule 16 of the Haryana Rules 2o1z ibid.

G.II Direct the respondent to pay the litigation cost of Rs.Ss,0 o0 /-.

28' 'l'he complainants are seeking above mentionecl relief w.r.t. compensation.

Hon'ble Supreme Court of India in civil appeal nos. ppeal nos.6T45-6749 of 2021 titled as M/s Newtech Promoters and Developers pvt.

V/s State of Up & Ors. (supra), has held that an allottee is entitled to claim compensation & litigation charges under sections 1.2,14,L8 and section 1g which is to be decided by the adjudicating officer as per section 7l and the quantunr ol compensation & litigation expense shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72. 'fhe adjudicating officer has exclusive jurisdiction to deal with the complaints in respect of compensation & legal expenses.

H.

Directions of the authority: 29' Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the prontoter as per the function entrusted to the authority under section 3a(fJ: i.

The respondent/promoter is directed to refund the amount i.e., Rs.16,09,940/- received from edr C the complainants along with interest at the rate of 10.85% p,a. as prescribed uncler rule 15 of the Haryana Real Estate (Regulation and Development) Ilules, ZO17 from the date of each payment till the actual date of refund of the depositcd amount.

5508 of 202'3 Page 19 of20 I 30.

The complaint stand disposed of.

31.

File be consigned to registry, Dated: 30.05.2024 Complaint No.

5508 of 2023 V, l- (Vijay Kumar Goyal) Member Haryana Real Ilstate Regulatory Authority, Gurugram GUl?UGl?AM 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.

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