SHEILESH KUMAR AGARWAL vs ANAND DIVINE DEVELOPERS PRIVATE LIMITED

HARERA GURUGRA[/ Complaint no.

2631 of 2021 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Sheilesh Kumar Agarwal R/o: 19/107 Satyam Khand Vasundhara, Ghaziabad Complainant Complaint no,: Date offiling ; Date ofdecision: 2631 of 2O2r 24.07.202r 22.O3.2024 Respondent Member Complainant Respondent Versus Anand Divine Developers Private Ljmited Regd. office: TlLl92,Deepali Nehru Place, New Delhi - 110019 Also At:- ATS Tower, Plot No 16, Sector 135, Noida - 201301 r CORAM: Shri Sanjeev Kumar Arora APPEARANCE: Shri.

Yogesh Kumar Goyal (CAJ None complainants/allottees and Developmentl Act,2016 [in shgs. thq the Haryana Real ert"t" tn"sutrtL7lJ 17 (in short, the Rules) for violation of section 11[4J(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions to the allottees as per t}le agreement for sale executed inter-se them.

A.

Unit and Proiect related details: 2.

The particulars of the project, the details of sale consideration, the amount paid by the complainants, date ofproposed handing over the Page 1 of16 ffiHARERA ffi eunuennvt Complaint no.

2631 of 2021 possession, delay period, if any, have been detailed in the following tabular form: s.

N.

Particulars Details 1.

Name of the project ATS Triumph 2.

Nature ofthe project Group housing colony 3.

Project area 14.093 acres +.

DTCP License 63 of 2011dated 16.07.2011 valid till 75.07.2019 L0 of 2012 dated 03.02 2012 vaLd till 02.02.2020 5.

Name of the licensee HPL Infratech Private frastructure Private 6.

HRERA registered/ not registered 7.

Unit no.

H r, tower 0L 2 of the complainQ B.

Super area admeasuring 2290 sq. ft. (As per page no.

32 ofthe complaint) 9 Date of builder buYer agreement 22.07 .2014 (page no.

29 ofthe complaintJ 10 Possession clause 18. clause 18.

Time of handing over possession Barring unforeseen circumstances and force majeure events as stipuloted hereunder, the possession of the soid Page 2 ol 16 HARERA ffiGURUGRAI/ Complaint no.

2631 of 2021 ffi 1r€I building in which the registration for ollotment is made, such dote hereinofter referrecl to as "stipulqted dqte", subject olwcrys to timely payment of all charges including the bqsic sale price, stqmp dury, registrotion fees ond other charges as stipulated herein or as may be demanded by the comPanY from time to time in this regard.

The date of oqtqgl stort of construction shall be the date on which the foundation of the particular building in which the said qpartment is allotted sholl be laid os per certificqtion shall be Jinal and binding on the allottee.

11.

Date of start of construction 24,12,2013 which is date of completion of basement as the date of start of construction is not placed on record.

12 Due date of possession 24.06.20t7 [Grace period of 6 months allowed being unqualifiedl 13.

Total sale consideration as per BBA at page 52 of complaint < 2,03,36,7 50 /- L4.

Amount paid by the complainant < 28,16,7 oo / - [As per BBA at page no.

33 of complaint) Loan disbursed by the TCICI Bank Page 3 of 16 B.

3.

Complaint no.

2631 of 2021 Gurugram, H ndent M/S Anand a total price of Rs.

Divine Develo 7 ,82 ,33 ,000 / - Lakh Thirw Three Thousand Only) and opted for construction link payment plan.

The a. builder buyer agreement was executed on 23.08.2013 between the complainant and respondent in respect to this flat.

The complainant had taken finance from ICICI Bank Ltd.

And had made a total payment of Rs.

85,94,812/- (including Service Tax) to the respondent, Rs.

54,86,049/- from own sources and balance of Rs.

31.,08,763/- through loan taken form ICICI Bank Ltd.

The respondent had issued a scheme under subvention payment plan and the complainant had accepted this plan and a new application form dated 19.07.2014 was filed for same flat no. e flat no.

1192 on 19TH Floor in Tower / Building -1 having Super Area of 2 290 Sq.

Ft., in the { 1,50,40,000/- (pg 56 of complaint) 15.

Amount paid as alleged by the complainant during the course of hearing dated 22.03.2024 corroborated by the SOA dated 05 .02.2024 < 1,87 ,52,7 98 / - 16.

Offer ofpossession 02'1, no. l.32 ofthe complaintJ Facts of the comp The complainant h That the complail project "ATS Tt made the following subl rt had booked a residen mph" in Sector 104, ;ions: - flat No.

1192 in the uarka Expressway, Page 4 of 16 HARERA P*GURUGRAV proiect "ATS THIUMPH" of the respondent.

The new "Buyer Agreement" dated 22.07.2014 was also executed between the complainant and the respondent for the same flat along with Exclusive right to use of the Two parking space(s).

The total cost of the flat including EDC/IDC, Power back up, IFMS etc. was Rs.

2,03,36,750/- (Rs.

Two Crore Three Lakh Thirty Six Thousand Seven Hundred Fifty Only).

The respondent had adjusted Rs.

29,21,143/- (lnclusive of Service Tax) (Rs.

Twenry Nine Lakh Twenty One Thousand One Hundred Forty Three Only) under new plan and had promised that balance amount of Rs.

25,64,906/- (Rs.

Twenty Five Lakh Sryty Fou,l.lh,:tl:and Nine Hundred Six Only) will be refunded to the compldiiieili, and the otd bank loan account will be merged in new loan form ICICI.

As per the agreement the period of possession of the flat was 36 Months with a grace period 6(six) months from the date of actual start of construction of a particular tower.

The construction ofthe Tower was started before the earlier booking so the possession was required to be given to 08.10.2016.

The complainant had paid Rs.

1,95,05,564/- (Rs.

One Crore Ninety Five Lakh Five Thousand Five Hundred Sixty Four Only) till date.

The respondent failed to pay the refund of amount Rs.25,64,906/- (Rs.

Twenty Five Lakh Sixty Four Thousand Nine Hundred Six Only) and with rigorous follow up Rs. low up Rs.

10,20,486/- was adjusted in other booking with the respondent in the month of April, 2018.

Also Rs.

75,44,421/- (Rs.

Fifteen Lakh Forty Four Thousand Four Hundred Twenty One Only) was adjusted in the final demand raised by the respondent.

The possession of the flat was required to be given till 08.10.2016.

The respondent has not given possession ofthe flat till date to the complainant even after taking a hefty amount from the Complaint no.

2631 of2021 Page 5 of15 Complaint no.

2631 of 2021 C.

4.

D.

5.

HARERA GURUGRAN/ complainant.

Thereby, the Respondent was required to hand-over the possession of the flat latest by 08.04.2016 in normal conditions or latest by 08.10.2016 after allowing 6 month grace period The Complainant has already suffered an unnecessary delay of 56 months till date.

The respondent had send offer of possession hut no occupancy and completion certificate copy is made available to the complainant.

Therefore, the Complainant has filed the present Complaint before this Hon'ble Authority for possession of flat along with occupancy and completion certificate, delayed interest and interest on money not refunded by the respondent at the time of change in payment plan as per Rera Act' 2016.

Relief sought bY the comPlainant: The complainant has sought following relief: a.

Direct the respondent to complete legal possession of the property along with occupanry and completion certificate b.

Direct the respondent to pay delay possession charges from the due date of possession till actual handing over of possession c.

Direct the respondent to file the status report with regard to rhe status of the project. d, Direct the respondent to charge interest on delayed payment at equitable rate of interest. e.

Direct the respondent not to charge holding charges' Reply filed by the resPondentr The respondent put in appearance through it's Advocate and marked attendance on O2.Og.2OZl, 03.12.2027, 09'02'2022 & 22.04.2022.

2.04.2022.

Despite specific directions it failed to comply with the orders of the authority.

It shows that the respondent is intentionally delaying the procedure of the court by avoiding to file written Page 6 of15 HARERA GURUGRAM reply.

Therefore, in view of order dated 02.02.2024, the defence of the respondents was struck off.

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 documents and submissions made by the complainants.

Iurisdiction of the authority The authority observes that it has territorial as well as subiect matter jurisdiction to adjudicate the present complaint.

E.

I Territorial iurisdiction As per notification no.

L/92/2017 -1TCP dated L4.1,2.20tT issued by Town and Country Pinnihg D<ipartment, the jurisdiction of Real Estate Regulatory Authoriti;;, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

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

Therefore, this authoriry has complete territorialjurisdiction to deal with the present complaint.

E. lI Subiect matter iurisdiction 9.

Section 11[4] (aJ of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)[a) is reproduced as hereunder: "Section 11(4)(o) Be responsible for all obligations, responsibilities and functions under the prcvisions of this Act or the rules and regulations mqde thereunder ot to the allottee as per the agreementfor sale, or to the qssociation of allottee, as the cose moy be, till the conveyance of qll the opartments, plots or buildings, as the case moy be, to the allottee, or the common areas to the ossociation of allottee or the competent outhority, as the cose moy be; 344 of the Act prov[des to ensure compliance of the obligations cost upon the promoters, the allottee and the reol the reol Complaint no.

2631 of 2021 6.

7.

8.

PaEe 7 of 76 HARERA ffi.

GURUGRAM estqte agents underthisActond the rules thereunder." 10.

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

F.

Findings regarding reliefsought by the complainant, F.I Direct the respondent to complete legal possession of the property along with occupancy and completion certilicate.

The respondent has offered the possession ofthe unit on 10.02.2021 which was not enclosed wlth the copy of occupation certificate received from the qqulpelqatiutt\o{b/..

Validity of offer ofpossession 12.

At this stage, the authority would express its views regarding the concept of 'valid offer of possession'.

It is necessary to clarify this concept because after valid and lawful offer of possession liability of promoter for delayed offer of possession comes to an end.

On the other hand, if the possession is not valid and lawful, Iiabiliry of promoter continues till a valid offer is made and allottee remains entitled to receive iliterest for the delay caused in handing over valid possession.

The authority after detailed consideration of the matter has arrived at the conclusion that a valid offer of possession must have following components: i.

Possession must be offered after obtaining occupation certificate- The subject unit after its completion should have received occupation certificate from the department concerned certifying that all basic infrastructural facilities have been laid and are operational.

Such infrastructural facilities include water Complaint no.

2631 of2021 qnd regulations made of 2015 quoted above, the PaBe B of 16 HARERA GUl?UGRAM supply, sewerage system, storm water drainage, electricity supply, roads and street lighting. lighting.

The subiect unit should be in habitable condition- The test of habitability is that the allottee should be able to live in the subject unit within 30 days of the offer of possession after carrying out basic cleaning works and getting electricity, water and sewer connections etc from the relevant authorities.

In a habitable unit all the common facilities like lifts, stairs, lobbies, etc should be functional or capable ofbeing made functional within 30 days after completing prescribed fomalitie-9.

The authority is further of the view that minor defects like little gaps in the windows or minor cracks in some oithe til chifling plaster or chipping paint at some places or improper functioning of drawers of kitchen or cupboards etc. are minor defects which do not render unit uninhabitable.

Suah niinor defects can be rectified later at the cost of the developers.

The allottees should accept possession of the subiect unit with such minor defects under protest This authority will award suitable relief for rectification of minor defects after taking over ofpossession under protest.

However, if the subiect unit is not habitable at all because the plastering work is yet to be done, flooring works is yet to be done, common services like Iift etc. are non-operational, infrastructural facilities are non-operational then the subiect unit shall be deemed as uninhabitable and offer of possession of an uninhabitable unit will not be considered a legally valid offer of possession.

Possession should not be accompanied by unreasonable additional demands- [n several cases additional demands are made and sent along with the offer of possession.

Such additional Complaint no.

2631 of 2021 II lll Page 9 of 16 HARERA P*GURUGRAN/ Complainl no.2637 of 2027 demands could be unreasonable which puts heavy burden upon the allottees.

An offer accompanied with unreasonable demands beyond the scope ofprovisions ofagreement should be termed an invalid offer of possession. ossession.

Unreasonable demands itself would make an offer unsustainable in the eyes of law.

The authority is of the view that if respondent has raised additional demands, the allottees should accept possession under protest 13.

The complainant stated that till date they have not taken the possession of the unit since the offer of possession was not accompanied with the occupation certificate and the defence of the respondent has already been struck off accordingly, no copy of OC is placed on record accordingly the authority presumes the said offer of the au possession is not valid being not accompanied by the OC.

Therefore, applying above principle on facts of this case, the respondent is directed to issue fresh offer of possession within 2 months from the date of this order and at the same time the complainants are directed to take possession of the said unit after a valid offer of possession within 60 days from the date ofissuance ofvalid offer ofpossession.

F.II.

Direct the respondent to pay delay possession charges from the due date ofpossession till actual handing over ofpossession.

F.III.

Direct the respondent to charge interest on delayed payment at equitable rate of interesL 14. tn the present complaint, the complainant intends to continue with the project and is seeking delay possession charges as provided under the proviso to section 18(1) ofthe Act.

Sec.

18(1J proviso reads as under: Section 18: - Return oJqmount and compensation If the promoter fails to complete or is unable to give possession oI an apartmenC plot or building, - Page 10 of16 ffiHARERA ffieunueRRHr Complaint no.

2631 of2021 Provided thatwhere an ollottee does not intend to withdrow from the project, he sholl be paid, by the promoter, interest for every month oI delqy, till the handing over of the possession, at such rote os may be prescribed.

15.

As per clause 18 of the buyer's agreement dated 22.07.2074, the possession of the subject unit was to be handed over by 24.06.20L7 . .06.20L7 .

Clause 18 of the buyer's agreement provides for handover of possession and is reproduced below: 78, Time oJ handing over possession "Barring unforeseen circumstances and force moieure events as stipuloted hereunder, the possession of the said apartment is proposed to be, ot'fered by the.compqny to the allottee within o period of 36 (Thirty-Six) nioiths with q grace period oI6 (Si9 months from the date of o.greement of particular tower of du\t, reg istration fees qnd:other charges os stipulqted herein or os moy be demanded by the compony from time to time in this regord." 16.

At the outset, it is, rglevant to comment on the pre-set 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 this agreement and com.yliqrce urith allprovisions, formalities and documentation ii prescribed by the proinoters.

The drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promoters and against the allottee that even a single default by the allottee in fulfilling formalities and documentations etc. as prescribed by the promoters may make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession Ioses its meaning.

The incorporation of such clause in the flat buyer agreement by the promoters are just to evade the liabilily Page 11of16 HARERA GURUGRAN/ Complaint no.

2631 of 2021 towards timely delivery of subiect unit and to deprive the allottee of his right accruing after delay in possession.

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

17. lines.

17.

Admissibility of grace period: The promoter has proposed to hand over the possession ofthe apartmentwithin 36 months from the date of start of construction which shall be treated as the date of completion of bas efienti.e.,24.72.2013 as the date ofconstruction is not held on record with a grace period of 6 months.

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

Accordingly, the authoriry literally interpreting the same allows this grace period of 6 months to the promoter at this stage.

18.

Admissibility of ilelay possession charges at prescribed rate of interesu The cori-rplainants are ieeking delay possession charges as one of the reliefs.

However, proviso to section 18 provides 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 handing over ofposiession, at 'uch rate as may be prescribed and it has been prescribed under rule 15 of the rules Rule 15 has been reproduced as under: "Rule 15.

Prescribed rate oI interest- [Proviso to section 72, section 78 and sub-section (4) and subsection (7) of section 1el (1) For the purpose ofproviso to section 12; section 18; qnd sub' sections (4) and (7) ol section 79, the "interest ctt the rote prescribed" sholl be the State Bqnk of lndio highest marginal cost of lending rote +20k; Provided that in case the Stote Bonk of lndiq marginal cost oI lending rate (MCLR) is not in use, it shall be replaced by such Page 12 of 16 HARERA ffiGURUGRAI/ benchmark lending rates which the Stote Bonk of lndia moy lx from time to time for lending to the general public " The lelislature in its wisdom in the subordinate legislation under the provision of rule 15 of the rules, has determined the prescribed rate of interest. interest.

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

Consequently, as per website of the State Bank of lndia ie' https://sbi.co.in. the marginal cost of lending rate (in short, MCLRJ as on date i.e., 22.03.2024 is rdingly, the prescribed rate of interest will be marginal co Lding rate +20lo i.e., 10.85%. defoult; 1ii) the interest payable by the promoter to the ollottee shall be ftom the dote-{he ,promoter received the amount or ony part thereof till th; da;; the omou'ti or i)ort thereof ond intere.st therein is refunded, and the interest payable by the ollottee to the promokr shall be from the dote the allottee defaults in poyment to the promoter till the date itis poidi' 22.

Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate ie, 1'075% by the respondent/promoter which is the same as is being granted to the complainants in case of delayed possession charges Complaint no 2637 of 2021 19.

20.

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 default.

The relevant section is reproduced below: the rotes of interest payable by the as the cqse maY be, urPose ofthis clouse- , urpose of this clouse- terest chorgeable from the allottee by the (i)the rate of interest chorgeable Jrom the auotcee Dy tne promoter, in case of default, shall be equol to the rate of mterest- 'which the promotir shatl be liable to pay the allottee, in case of Page 13 of16 21.

The definition of term'interest' as defined under section 2(za) of the HARERA @ cr rDr reDAI/ 23. reDAI/ 23.0n consideration of the documents available on record and submissions made regarding contravention of provisions of the Act, the authority is satisfied that the respondent is in contravention of the section 11[4) [a) of the Act by not handing over possession by the due date as per the agreement.

By virtue of clause 18 of the agreement executed between the parties on 22-07.2074, the possession of the subject apartment was to be delivered within 36 months from the date of start of construction which shall be treated as the date of completion o ement i.e., 24.L2.2013 as the date of construction is not held on r( e period of 36 months expired on 24.12.2016.

As far as grace period of 6 months is concerned, the same is allowed for the reasons quoted above.

Therefore, the due date of handing over possession is 24.06.20L7.

The respondent has offered the possession of the subject apartment on 10 02 2021' however, this offer is not a valid offer of possession for the reasons quoted above.

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

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

As such the allottee shall be paid, by the promoter, interest for every month of delay from due date of possession i.e., ?4.06.2017 till actual handing over of possession or valid offer of possession plus two months at prescribed rate i.e., 10.850/o p.a. as per proviso to section 18(11 of the Act read with rule 15 ofthe rules.

F.lV.

Direct the respondent not to charge holding charges' Complaint no.

2631 of 2021 Page 14 of16 HARERA P*GURUGRAN/ Complaint no.

2631 of 2021 24.

The respondent shall not charge anything from the complainants which is not the part of the agreement. agreement.

However, holding charges shall not be charged by the promoters at any point of time even after being part ofagreement as per law settled by Hon'ble Supreme Court in civil appeal no.

3864-3889 /2020.

G.

Directions of the Authority 2 5.

Hence, the authority hereby passes this order and issue 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 34t!: a.

The respondent is directedto'pay interest to the complainants against the paid-up amount at the prescribed rate i.e., 10.85% per annum for every month of delay on the amount paid by the complainant from due date of possession i.e.,24.06.20L7 till actual handing over of possession or valid offer of possession plus two months.

The arrears of interest accrued so far shall be paid to the complainant within 90 days from the date of this order as per rule 16[2) of the rules.

The rate of interest chargeable from the allottees by the promoter, in case of default shall be charged at the prescribed rate i.e., 10.85% by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottees, in case ofdefault i.e., the delayed possession charges as per section 2(zal ofthe Act, The complainants are directed to pay outstanding dues, if any, after adjustment of interest for the delayed period within 30 days from the date of this order and the respondent shall b.

Page 15 oF 16 ffiHARERA #- arnuennnr 26.

27.

2631 of 2021 handover the possession in next 60 days to the complainants/allottees. d.

The respondent shall not charge anything from the complainants which is not the part of the agreement.

However, holding charges shall not be charged by the promoters at any point of time even after being part of agreement as per law settled by Hon'ble Supreme Court in civil appeal no.

3864- 3889 /2020.

889 /2020.

Complaint stands File be consigned to Arora) Member ; Gurugram Datedi 22 HARERA GURUGRAM Page 16 of16