RUCHIKA SHARMA vs MS SRV AUTOMATIVES PVT LTD

ffiHARERA #" eunuenRll BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint No.

4966 of 2023 Complaint no, : Order pronounced on: Ruchika Sharma R/o: House no.635, Street no.4, Arjun Nagar, Ncar om sweets, Curugram, Haryana 4966 of 2023 12.o7.2024 Complainant M/s SRV Automotives Pvt.

Regd.

Office: Plot no.

55, 44, Gurugram, Haryana CORAM: Shri Sanjeev Kumar Arora APPEAMNCE: Sh.

Vanshika Chopra (AdvocateJ Sh.

Amarjeet (Advocate) Ltd.

Institutional area, Sector - Respondcnt Member Complainant Respondent ORDER 1. 'l'he present complaint 03.11.2023 has been filed complainant/allottee under section 31 of the Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read with rule 28 of the llaryana Real Estate (Regulation and Development) Rules,2017 (in short, the Rules) for violation of section 11(4)(a) of the Act wherein it is inter alia prescribed that the promoter shall bc rcsponsiblc ibr all obligations, responsibilities and functions under thc provision of the act or the rules and regulations made there under or to the allottee as per the agreement for sale exccutcd inter se the parties. by the Page 1o[14 HARERA GURUGRAII Complaint No.

4966 of 2023 A.

2.

Unit and proiect related details 'l'he particulars of unit details, sale consideration, the amount paid by the complainant, date of proposcd handing over the posscssion, delay period, if any, have been detailed in the following tabular form: S.

No.

Heads Information 1.

Name and location of the project "Landmark the homes 81", Sector-81 , Gurugram 2.

Nature of the project Residential project with commercial complex (Affordable) 3.

Project area 5 acres o+ oiozt daied 02.03.2 021 valid till 01..03.2026 4.

D'f CP License Name ofthe licensee SRV Automotives Pvt.

Ltd.

5.

HRERA registered/ not registered Registered vide no.

36 0f Z0Z7 dated 16.07 .2021 valid till 28.02.20?6 6.

Application dated Allotment letter 04.04.2022 (As per page no.

29 of complaint) 03.06. nt) 03.06.20)2 (Page 24 of complaint) B.

Date of execution of agreement for sale L5.07.2022 (As per pagc no.

27 of complaint) Registered agreement 9.

10.

Unit no.

Super Area H- 0701 on 7rH floor, tower H [As per page no.

29 of complaint) 39tl.tl sq. ft.

Page 2 of 14 HARERA GURUGRANI F",,rrplr"*lr"166 "f ,0r3-.l (As per page no.

29 of complaintl 11, Total consideration Rs.

17,60,552 (As per BBA, page no.

30 of the complaint) 12.

Total amount paid by the complainant Rs.8,89,670l- [As per page 18 of complaint and also accepted by respondent) 13.

Possession clause (The Developer sholl oJfer possession ol the soid to the ollottee within a period of 4 yeors from the dote of opproval of building plons or gront of IiC whichever is later) Taken from another file ofaffordable project 1+.

Date of approval of building plans 01.03.2021 (As per agreement on page 28 of complaint) Date of EC Due date of possession Not available 01.09.2025 (01.03.202 5+ 6 nionths ) (Calculated from the date of approval of building plans + grace period of6 months covid) Grace period is allowed 1,7 .

1t].

Demand/Reminders Final reminder cum cancellation letter 27.03.2023, 09.0 4.2023, 25.04.2023 [Page 29-31 of reply) 11 .05.202:) (Page 32 of replyl INewspaper advertisemcnt - 26.05.2023) 11.0t1.2023 - Cancellation letter collecl Page 3 of 14 _l ---l *HARERT H"euRueRRnr Complaint No.

4966 of 2023 thc rroncry Rs.

7 ,97 ,257 /- Occupation Certificate Not obtained Offer of possession Not offered B.

Iracts of the complaint 3. 't'hat, somewhere in the year 2022 the respondent through its marketing 4.

5. executives had advertisement done through various medium and means approached the complainant with an offcr to invcst and buy a residcntial Unit in thc proposed pro,ect of the respondent, which respondent was going to launch the project under the name and style of Landmark l'he Ilomes 81 situated at Sector-81, Gurugram.

Gurugram.

Relying upon those assurances and believing those to be true, the complainant bookcd a rcsidcntial unit /flat No.

0701 in block / tower H, having a carpet area of 39U.860 sq, ft. on 7tr' floor and balcony area 85.336 sq. ft. with one two wheeler parking site and the right in the common areas in the project, for a basic sale consideration of Rs.17,60552 /- @ Rs.4,200/- pcr sq. ft. for apartment and @ Rs.1,000/ pcr- sq. ft. for balcony by paying the booking amount of Rs.84,350.60/- vide acknowledgment receipt dated 04.04.2022.

Thereafter, respondent started raising the demand of money /installments from the complainant as per thc agreed tjmclincs and complainant as on today had paid Rs.8,89,670/- which is vcry much evident from thc receipts duly issued by the respondent to her and she is still ready and willing to pay the remaining sale consideration to the respondent subject to the tinlely handing over the flat. 'l'hat, as a confirmation of the allotment of the said unit by respondent, thc respondent executed an agreement for sale dated 1$ttt l:uly 2022.That, as pcr clause - 7.1 of the agrecment for sale, the respondent was required to Pagc 4 ol 14 19.

E ff HARERA S*eunuenntrl 7.

6. handover the possession of the said unit to the complainant as provided under Rule 2t1)(f] of Rules 2017, but the respondent has arbitrarily and without raising any demand from the complainant cancelled the unit allotted to the complainant vide canccllation lcttcr datcd 11.0t].2023.

The complainant stood shocked and astonishcd, when respondent issucd a cancellation letter dated L1.08.2023 to the complainant, wherein it has becn alleged by the respondent due to non-paymcnt on the part of complainant, thcy are canceling thc unit, allottcd to complainant.

That, thc respondcnI issued the cancellation letter to the complainant without scnding any pl iol demand notice or warning notice after 30.08.2022.

From the perusal of the cancellation letter dated 11. dated 11.0A'2023 issucd by the rcspondcnt itsclf, whcreby the respondent mentions thc demand as statcd in letter dated 11th May, 2023 and clearing the ovcrdue payments along witll applicable interest within 15 days of the notice, it is to particularly deny any receiving of such letter dated 11tr' May,2023 by the complainant That' thc respondcnt never issued any dcmald lctter datcd 11rf May, 2023 to the complainant and shockingly, the respondent has issued the canccllatiott letter dated 11.08.2023, whereby the complainant never expected such cancellation letter, as the same has been issued without any prior intimation/letter/e-nlail/communication, which has no sanctity in thc cycs of law and is liable to bc declared as null, void ab-initio and non-cst in tlrc eyes of law.

8.

She had already informed the respondent regarding the change of its actdress wcll in time I)y way of an D-mail datcd 0407 2022 and scnt it to thc respondent.

9.

That, there is no possibiliry that thc respondent may complcte thc construction of the project soon in future, meaning to say that thc Complaint No.

4966 of 2023 Page 5 ot14 ffi HARER'" tS* eunuennl,r C. llelief sought by the complainant: i.

Direct the respondent to handover the possession of the said unit to the complainant; ii. l)irect the respondcnt to rcstorc thc subjcct ur)it with inrmodiatc effect to the complainant by declaring the cancellation letter dated 71.08.2023 illegal, arbitrary, null, void ab-initio, non-est and not binding upon the complainant in any manner whatsoever; iii.

Direct thc rcspondcnt not to alienate, sell, transfcr, mortS'agc thc said unit and not to create any third-party interest or chargc thercon; iv.

Directing the respondent to waive off so called unnecessary and unwarranted holding charges; v. l)irect the respondent to waivc off so callcd unnecessary ancl unwarranted lnterest charged by the rcspondcnt from thc complainant, if anY; vi. f anY; vi.

Direct the respondent to pay the delayed interest at the prescribed ratc ot.l8% per anllum on lhc anlount of Rs8,ti9,670/- which has been paid by the complainant to the respondent against thc s;llc consideration: vii.

Direct the respondent to pay the delay possession charges to the complainant on account of dclay in dclivering posscssion of the [Init; viii.Direct the respondent to pay an amount of Rs55,000/- to thc complainant as cost of the present Iitigation.

D.

Reply by the respondent 'l'hc rcspondcnt has contcstcd thc complaint on thc lbllowiug grouncls; Complaint No.

4966 of 2023 respondent had no intention to construct the project and even after this fact has been extorting money from the complainant luring her that her drcam home will be delivered to her within the timeline as agreed.

Page 6 of 14 HARERi. *-.@*GURUGRAN/ Complaiot No.

4966 of 2023 10.'l'hat the respondent in the year 2022 floated a project for Affordable Group Ilousing in the name of "Landmark The Itomes 81" in village Nawada Fatchpur, Sector-81, Curugram Mancsar [Jrban Contplex, District GurLlgran] (Haryana), wherein the respondent was constructing residential flat.

1 1. 'l'hat the complainant vide application no.

3987 6, has applied for allotment of a residential unit in the project.

In pursuance to the application, she was provisionally allottcd, a residcntial flat typc unit - 7 (f BllKl bcaring Lrnit no H-0701 having carpet area 398.860 Sq. l.-t. and balcony area 85.336 Sq. |t along with one 2 wheeler parking for a total consideration of Rs.17,60,552/ in the project vide allotment letter d ated 3rd ,ltrne,2022.

12.

Thus, it is apparent that the posscssion oI the sairi flat was sr.rbjcct to tinrcly payment. 'l'hat subsequent thereafter a flat buyer agreement was cxccutecl and was registered on 15.07.2022 for unit nit No H-0701 having carpet area 398.860 Sq.

Irt. and balcony area 85.1136 Sq.

Irt., on 7th tloor'['owcr H. '['owcr H.'l'hat As per thc tcrms of the allotmcnt lcttcI antl buycr's agrecnrent, shc l)as agreed to the payment plan and undertaken to m.ike timcly paymcnts of thc demands raised in accordance with the payment plan.

It is further imperative to mention here that a perusal of the agreement to scll would also reveal that the date of thc approval of tlic bLrilding Plan rvas 01 .0 3.2 0 2 l vide license no.4 of 2 021.

1:J,That she till date has only paid a sum of Rs.

8,89,670.60/- in 5 different tranches i.e.

Rs, 84,350.60 as booking amount and thereafter dcposited Rs.

8,05,3201- towards the paymcrt ol thc sirid Ilat stirrting ll'onr 1:1.06.2022 lill 04.10.2022.It is pertinent to mention herc that post 04.10.2022 no paymcnt was ever made by the her towards the said allotment.

14. 'l'hat pursuant to the default in making payments of the demand/instalments that fell duc as per thc paymcnt l)liur, respolrdctlt also scltl v.rt tutts Page 7 of 14 Fryygg:!,,r-l reminders/communications calling upon the complainant to clear thc outstanding instalments and to comply with the other obligations as set out thcrein.

However, thc complainant havc contillucd to dcfault in making tlto payments and have breached the terms of the allotment lettcr/ buildcr buyer agreement.

That thereafter, on date 1 1th May 2023 respondent raised a final reminder- cum cancellation letter for demand upon the complainant to rcmit thc overdue payn'tcnts along with thc applicablc intcrcst within 1 u days of the date of the notice in respect of thc said unit. [Jnfortunatcly, respondent neither received any reply from you nor the payments of thc outstanding amounts as per the agreed payment plan.

That as per the tcrms of the buycr's agreement/application lornt/allotmcllt lcrr.cr, timcly payntL.nr of instalments was, inter alia, the essence of provisional allotment of thc uIlit and respondent was entitled to cancel the allotment in the evcnt of non- payment of instalments and/or non-compliance of other obligat er obligations. 'lhus, in cxcrcisc of thc rights vcstcd in thc cornpany undcr tltc ternrs ol thL.

Affordable Housing Policy of 2013 and other relevant provisions ol tho allotment letter, the respondent was constrained to issue the cancellation of the allotment of the unit, i.e., 11.08.2023 15. 'l'hat despite issuancc oI several noticcs as thc conrplainaI1t still dciaultcd ir) making the payment, the respondent thereaftcr on 26.05.2023 publishcd in the Newspaper Dainik Savera Times wherein the respondent has categorically stated the allottee code of thc complainant i.e.

39876 stating thal shc is not dcpositing tluc despitc nany rcmitrde|s and il shc cortirLlcs to default, the respondent would be constrained to canccl thc said allotnrcnt.

16.

That as despite numerous notices and calling the complainant to deposit the dues, the complainant neither came forward nor deposited any duc, thc Page I of 14 ARERA URUGRAII "17 .

18. * HARERA ffi eunuennv Conrplaint No.

4966 of 2023 respondent vide letter dated 11 .09.2023 cancelled the said allotmenr of Unir No H-0701 in our project.

All other averments madc in thc complaint were denied in toto.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documcnts and submission madc by the partjes.

E.

Iurisdiction ofthe authorlty 19.'l'hc authority observes that it has territorial as well as subiect matter jurisdiction to adjudicatc thc prescnt conlplaint for thc rcasons givcn bclorv.

E.I Territorialiurisdiction 20.

As per notification no.

1,/92/2017-7TCP dated 74.1.2.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, .Gurugram shall be cntire Gurugram District fbr all purpose with offices situated in Gurugram.

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

District.

Thercfore, this authority has complete territorial jurisdiction to deal with thc present complaint.

E.ll Subiect matter iurisdiction 21. 'l'he Section 11(4)(a) of the Act,2016 provides that the promorcr shall bc responsible to the allottee as per agreentcnt for salc.

Section i 1(a)(aJ is reproduced as hereundcr: Section 11(4)(o): Be responsible for all obligotions, responsibilities and functions under the provisions of this Act or the rules qnd regulations mocle thereunder ot to Lhe allottees as per the ogreement Ior sole, or Lo the association of allottees, as the cose mqy be, till the conveyance of oll the opqttments, plots or builtlinlls, os the cose noy hc, b the ollouces, at tlle coiln)on areos to Lhe ossociulion ol ollotLees or Lhe co jpeLent authority, os the cose moy be; Page 9 of 14 ffiHARER ffi eunuenml I ir",pr"i"i N". rg66 "izoz: -_] Section 34-Functions of the Authority: 344 of the Act provides to ensure complionce of the obligations cost upon the promoter, Lhe allottees ond the rcol esloLe ullenLs undcr Lhis Act ond Lhe rules and regulations ntade Lhereunder.

22.

So, in view of the provisions of the act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance ol' obligations by the promotcr lcaving asidc compcnsation which is to bo decided by the adjudicating officer if pursued by the complainant at a later stage.

F.

Findings on the relief sought by the cornplainant i.

Dircct the respondcnt to handovcr the possessioD of thc said unit to thc complainant; ii.

Direct the respondent to restore the subiect unit with immediate effect to the complainant by declaring the cancellation letter dated 77.0A.2023 illegal, arbitrary, null, void ab-initio, nonest and not binding upon thc complainant in any manDer whatsoever; iii.

Direct the respondent not to alienate, sell, transfer, mortgage the said uuit and not to create any third-party interest or charge thereon; lv. ereon; lv.

Directing the respondent to waive off so called unnecessary and unwarrantcd holding charges; v, Direct the respondent to waive off so called unnecessary and unwarranted Interest chargcd by thc respondent from thc complainant, if any; vi.

Direct the respondent to pay the delayed interest at the prescribed rate of 1B7o per annum on the amount of Rs.8,89,670/- which has been paid by thc complainant to thc respondcnt against tllc sale considcration; vii.

Direct the respondent to pay the delay possession charges to thc complailrant on account ofdelay in delivering possession ofthe Unit; viii.

Direct the respondent to pay an amount of Rs.55,000/- to the complainant as cost ofthe present litigation.

2:J.

Sor.rle of thc admitted thcts of thc casc are that vide allotment letter dated 03.06.2022, the complainant allotted a unit under thr: affordablc hor.rsing Pagc 10 ol 14 ffi HARER' ffieunuonnM Complaint No.

4966 of 202:l policy, 2013 in the project of the respondent detailed above.

The complainant being successful was allottcd unit bcaring no.0701, towcr_lt, 7rH floor admeasuring 398.9 sq. ft. by the respondent for a consideration of Rs.

1.7,60,552/ -. [t led to execution of a buyer,s agreement dated 15.07.2022 between the parties containing various terms and conditions of allotment including dimensions of thc unit, its pricc, duc date. ol.posscssion & paylrrcnt plan etc.

The complainant is seeking restoration of unit, handovcr. of possession and delayed possession charges.

24.'l'he respondent-builder has sent reminder letters dated 2L.03.2023, 09.04.2023 and 25.04.2023 to thc corltplaillar]t to pay thc outstanding (lucs as per the payment plan.

But despite issuance of that reminder lctters thc complainant failed to make payments leading to issuance of cancellation notice dated 11.05.2023, wherein providing him 1s-day,s time to make payment failing which fhc allor.tcd ullit shall starri tenninatcd/canccllcrl without further notice. er notice.

While the complainant failed to comply with thc reminders as well as cancellation notice.

25.

Now, the issue arises before the Authority is whether the cancellation of thc subjcct unit was ntade as pcr thc provisions of the policy of 201:l or not.

ID the present case the complainant only paid about 50.50lo of the salc consideration but he was also required to pay the amount due on the basis of payment plan as per the policy of 2073, the terms and conditions nrcntioned in thc buycrs' agrccment.

A public noticc dated 26.0!r.20.2..) through publication in the daily newspaper of ,'Danik Savera l.imes,, was made by the respondent, when the complainant failed to pay the outstanding dues despite issuance of various reminder.

Subsequently, it led to thc cancellation of thc allottcd Lltlit iis pcr thc policy of 2013 antl truycr.s, agreement.

Clause 5(iii)(i) of thc Alfordabic Group Itousing t,oljcy, 20t:.1 Page 11of 14 FIARER 4966 ot 2023 Complaint GURUGRAM talks about the cancellation.

Thc rclevant part of thc clausc is rcprodrrccrl below:- " if ony successful opplicant foils to deposit the instollments within the time period as prescribed in the allotment letter issued by the colonizer, a reminder may be issued to him for depositing the due installments witllin o period oJ 15 doys Jron the (laLe ol jssue oJ sLt.h noLice. lf the allottee sLill deloults in making the payment, the lisL of such defoulters moy be puhlished in one regional Hindi news-poper hqving circulation of more than ten thousand in Lhe State for poyment oI due amount within 15 Dqys from the date of puhtication of such notice, foiling which allotment moy be concelled. ln such coses also un omount of Rs.

25,000/- moy be deducted by the coloniser ond the bdlance omount sholl be refunded to Lhe appli(0nt.

Su(.h llats tnoy l)a considered by the contmittee for ofJbr to those opplicants Jqlling in the waiting list".

26. list".

26.

A perusal ofthe facts detailed earlier, and the policy of 2013 shows that thc respondent has sent demand and reminder letters dated 25.04.2023 and 11.05.2023 respectively followed by public notice in the daily newspaper on 26.05.2023.

But despite that complainant failed to make payment ol thc outstanding dues leading to cancellation of the allotment of the said unit.

Thus, it shows that the respondent followed the prescribed procedure and cancelled the unit of the complainant with adequate notices.

So, thc cancellation ofthe unit is valid as per the procedurc prescribed by law.

As per clause 5[iii)(iJ of the affordable housing policy, 2013 in the casc of cancellation, the respondent can deduct the amount of Rs.25,000/- onlv from the amount paid by the complainant.

As per clause 5(iii)(b) of the Policy of 2013, the allottee/applican t is under obligation to deposit the amount of the sale consideration of thc unit till allotment.

However, in the present case, thc agreement to sell was cxccuted intor-sc the parties on 15.07.2022, and thc complainant/allottee has paid ar] amount of Rs.8,89,670/- which constitutes 50.5% of the sale consider.rtion.

Accordingly, the respondent/builder issued reminder letters dated PaEe 12 of 7 4 ]-,ARER GURUGRA[/ Complaint No.

4966 of 2023 27, 09.04.2023 and 25.04.2023 to the complainant.

Thereafter, thc respondenr issued pre cancellation notice dated 11.05.20.23 followed by cancellation notice dated 17.08.2023. 'l'he respondent has also published a list of defaulters of payments in the daily Ilindi newspaper ,,Dainik Savera .limcs,,.

The authority is of the considered view that the respondent/buildcr has followed the prescribed proccdure as per clause 5(iiiJ(i) of the policy, 20113 and in vicw of the samc, the cancellation notice datcd 1L.0g.2023 is held to be valid.

Thus, the respondent is directed to deduct only Rs. t only Rs.25,000/- as pcr clausc 5(iii) (i) ofthe policy of2013 and shall also adjusr rhe refunded amounr paid to the complainant if any and refund the balance amount within a pcriod ol' 90 days along with interest on the balance amount from thc datc of cancellation notice i.e.

11.08.2023 tillits actual realization.

Vidc procccding d ated 24.05.2024, rcspondent has satcd at bar that they arc ready to rcfund the amount providcd thc complainant return tltcm thc original documents of the subject unit.

G.

Directions ofthe 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 promoter as per the function entrusted to the authority under section :i4 (fJ: i.

Thc respondent is directed refund the paid-up amount of lls.

Rs.8,89,670l- after deduction of 11s.25000/- as per clause 5(iii)(i) of the Affordable Housing Policy 2013 as amended by the State Government on 05.07.2019, along with interest @10.g50l0 per annum as prescribed under rule 15 of the Haryana Real Ilstatc Page 13 ol 14 I.]ARER GURUORANI Complaint No.

4966 of 2023 (Regulation and Development) Rules, 2017 from the date of canccllation noticc i.c.

1 1.08.2023 till thc actual rc.riization o1 thc amount. ii.

The above-mentioned amount be refunded to the complainant within a period of 90 days and failing which legal consequence would follow. iii.

The complainant is directed to rcturn thc original documents ol' the subiect unit to the respondent within a period of 30 days.

30.'fhe Complaint stands disposed of.

31.

Iiilc be consigncd to rcgistry.

Dated: LZ,O7 .ZOZ4 Haryana Real Estate Regulatory Authority, Gurugram Page 14 of 74