SANJIV GOGNA AND PASSERINE WEALTH SOLUTIONS PRIVATE LIMITED FORMERLY KNOWN AS INTEGRATED WEALTH SOLUTIONS PVT LTD vs DSS BUILDTECH PVT. LTD.

HARERA GURUGRAM Complaint No.

279 of 2024 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.i Order pronounced on: Solutions 279 ofzoz4 la.12.2024 1.

Sh.

Saniiv Gogna 2.

M/s.

Passerine Wealth Solutions Formerly known as M/s Pvt.

Ltd. (Through AR) Address: - W-110, Floor-2nd, U Sohna Road, Gurugram-122 Complainants M/s DSS Buildtech Regd. office: 506, Respondent Block-B, Sushnat Lok- CORAM: Shri Ashok Sangwan Member Complainants Respondent ORDER This complaint has been filed by the complainants/allottees under section 31 ofthe Real Estate (Regulation and Development) Act,2016 (in short, the ActJ read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules,2017 (in short, the Rules) for violation of uilding, Page 1of16 'r' A. z.

HARERA GURUORANI Complaint No.

279 of 2024 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 under the provisions of the Act or the Rules and regulations made there under or to the allottees as per the agreement for sale executed infer se.

Unit and proiect details The particulars of unit, sale complainants, date of propo on, the amount paid by the ng over the possession, delay period, if any, have been detailed in the following tabular form: Hi Sr.

No, Particulars 1.

Name of the proiect "The Melia", Sector-35, Sohna, Gurugram, Haryana.

2.

Area of the project 17.41 acres 3.

Nature of proiect Group housing 4.

DTCP license no.

77 of 201.3 RERA registered Registered Registration no.

288 of 2017 Dated-10.10.2017 6.

Unit no.

D-404 8.

Allotment letter Not available 9.

Date of execution of buyer's agreement dated Not executed.

Page 2 of 16 HARERA GURUGI?AI/ Complaint No.

279 of 2024 B.

Fact ofthe 3.

The complainants L That the compl itizen of India and the complainant no. ainant no.

2 under the Companies Act, 1956 having its office Floor, Uppal Southend, Sohna Limited, is a 1956 having its registered office is at 506,Sth Floor, Time Square Building, B-Block, Sushant Lok-1, Gurugram-12 2002, India and claims to be a real estate developer in Delhi NCR.

III.

That the project 'The Melia'is located at Sector 35, Sohna, Gurugram, Haryana.

The respondent through its marketing representatives invited the complainants to book an apartment in the said project.

Possession clause Not available Due date of possession Cannot be ascertained Basic sale consideration Rs.65,47,500/- Total amount paid by the complainant Rs.1.3,50,000/- Cancellation letter 0ccupation certificate on record Offer of possession Page 3 of16 * HARERA *&-eir-nuonanr Complaint No.

279 of 2024 Further, the respondent also claimed that construction would be in full swing and promised to deliver the possession of the apartment as per the projected date.

IV.

Believing upon the assurances and commitments of the respondent, the complainant booked a zBHK apartment bearing no.

D-404 in the project for a total sale consideration of Rs.79,34,850/- and paid an amount of Rs.6,00,000/- towards the booking amount.

The said booking amount was acknowledged by the respondent on 24.L0.20t3.

V.

That the respondent on 01.12.2013 raised a demand of Rs.7,49,963/-.

The complainants duly paid the demands raised by the respondent.

The respondent again raised a demand of Rs.

6,74,945/- on L2.72.2014.

Under the said demand notice, the respondent acknowledged that the complainants have paid an amount of Rs.13,50,000/-.

It is to note that despite receiving more than 10%o of the total sale consideration, the respondent failed to enter into a Builder Buyer Agreement and kept on raising demands to cheat and dupe the complainants.

VI.

That even after the payment of Rs. ent of Rs.13,50,000/-, the respondent did not came forward to execute the Builder Buyer Agreement and kept on raising demands from the complainants on one pretext or the another which is in violation of Section 13 of the Real Estate (Regulation and Development) Act, 2016.

VIl.

Therefore, it is very clear from the above provision that the Respondent was not entitled to accept the amount beyond 100/o of the cost of the apartment without first entering into the Agreement' t/ Page 4of16 *HARERA S"GURTIGRAT/ Complaint No.

279 of 2024 However, the Respondent, even after accepting a sum of more than 10% of the cost of the Apartment, failed to execute the Builder Buyer Agreement and kept on raising demands.

VIII.

That from 2014 till ZO2Z , the complainants time and again approached the respondent to execute the Builder Buyer Agreement before demanding any further instalments or refund the amount paid along with interest in case the respondent do not wish to execute the Agreement- However, ent refused to execute the Agreement and pressuri mplainants to make payment failing which the com tened of forfeiture of the amounts paid by IX, That the resp 023, sent a Letter of Cancellation o unit whereby the ntire amount paid by I and non est in the respondent can the complainan eyes of law.

It is ent was liable to refund the entire amou nts due to non-execution of the Agre 10% of TSC and delay in the intention, the respondent unlawfully cancelled the unir and illegally forfeited the amount paid by the complainants.

X.

That the complainants have paid an amount of Rs.13,50,000/- as and when demanded by the respondent in accordance with the payment schedule.

But, despite receiving the said amount, the respondent failed to execute the Agreement and further failed to showcase sufficient development in the project as per committed timelines. lm- Page 5 of 16 // *HARERA ffi, eunuennH,r Complaint No. plaint No.

279 of2024 XL That even after such defaults and violation on account of the responden! the complainants, under the hope ofgetting the refund of the hard earned money, kept approaching the respondent to know the status of the refund of the hard earned money paid by the complainant but all the requests and reminders were left unanswered.

C.

Relief sought by the complainants: 4.

The complainants have sought folloiving relieffs); i.

Revoke/set aside the cancellation letter dated 01.05.2023 for the same being unfair and illegal. ii.

Direct the respondent to refund the entire amount i.e., Rs.13,50,000/- paid by the complainants along with prescribed rate of interest from the date of respective deposits till its actual realisation.

D.

Reply filed by the respondent 5.

The respondent has submitted the following by way of written reply: L That the complaint needs to be dismissed on account of maintainability.

It is submitted that the complainants are not allottees in the said project as the unit allotted to the complainants had already been cancelled vide cancellation letter dated 01.05.2023 therefore, the complaint is not maintainable before this Authoritv for this very specific reason.

IL That the complainants have themselves defaulted in making timely payments to the respondent and on that account alone is not entitled to any equitable relief under law.

The complainants failed to clear the Page6of16 / HARERA S* GURUGRAM Complaint No.

279 of 2024 instalments dues despite repeated reminders given by the respondent.

It is relevant to mention here that the complainants did not pay the requisite payment on the initial stage i.e., ,,At the time of Allotment" which was pre requisite for final allotment of the unit.

Thus, no agreement was executed such as Allotment letter, Buyers Agreement etc. with the complainants.

That in 2013, the complainants approached the respondent for booking of a unit in the proiect and paid a booking amount of Rs. unt of Rs.6,00,000/- against the total sale consideration of Rs.79,34,g50/_ plus other statutory charges and taxes, as applicable.

As per the Application form, the respondent was tentatively allotted a 2 BHK unit admeasuring 1350 sq. ft.

Thereafter, the respondent issued a demand letter on lZ.1Z-2014 asking the complainants for a payment of Rs.6,74,945/_ in accordance with the agreed payment plan (refer annexure C/4 of the complaint).

That the respondent obtained the sanction of Building plan [BR_lll) on 21.04.201,5.

The Fire Clearance/NoC was obtained by the respondent on 09.02.20j,6 and the same was submitted to DTCP Haryana.

The Environmental Clearance was obtained by the respondent from State Environment Impact Assessment Authority (SEIM) on ZO.O9.2016. the consent to establish was obtained on 12.17.20t6.

That the respondent has applied for the Occupation Certificate for towers A, D, E & F of the said project and as a goodwill gesture offered interest waiver letter to the complainants to waive off the Page 7 of 76 HARERA GURUGRA[/ interest charges amounting to Rs.14,59,650/_ on 1,5.12.2017 & 01.05.2019.

However, the complainants did not paid any heed to the same and failed to clear the outstanding dues according to the payment plan.

VIL That the respondent has given ample opportunities to the complainants to clear the pending dues since 2014 but the complainants haven't paid any heed to the same and deliberately failed to clear the pending dues.

It is f, submitted that the complainants had only made a payment of Rs.13,50,000/_ towards the booking amount and thereafter stopped making the payments despite ofvarious reminders sent by the respondent_ Vlll.

That the complainants had opted for a Construction linked payment plan wherein the next instalment was due on the stage ,,At the time of Allotment* However the complainants failed to make the payment of the next instalment. nstalment.

It is relevant to mention here that the final allotment was subject to the payment of requisite payments as per the agreed payment plan i.e., 30% of the total sale consideration.

The respondent had issued various demand letters, reminder letters to the complainants on various dates, however, it,s been more than 9 year: since the booking but the complainants did not paid any heed to the said demand letters and reminder issued by the respondent and have failed to pay the pending instalments. pursuant to which, vide letter date 01.05.2023, the respondent cancelled the tentatively allotted unit.

IX.

That after giving ample opportunities to the complainants for clearing pending instalments, the respondent cancelled the Complaint No.

279 of2024 Page 8 of 16 .r'' *HARERA ffi eunuennvr Complaint No.

279 of 2024 tentatively allotted unit vide cancellation letter dated 01.0S.2023 and forfeited the entire amount of Rs.13,S0,000/-.

That the forfeiture calculation is being made herein below: 4 Totol Sales Consideration RS.7L,3LBSO/_ B.

Amount Fo*ited- 1lck Eornest Amount (100k ofAl Rs.7,gg.4BS/_ c. tnteres.t ti 01.0s.2023 Rs, 3J,67,906/- : nr"it iriir'inZ nilie ,an D. t otot Amount to be forfeited (B + C) Rs.4t,61,Zg1/- E Amount recelved by Lhe allodees Rs,1S,SO,O0O/- That the complainants have only paid Rs.13,50,000/_ thereafter the complainants stopped making payments of the instalment and have now filed the present complaint seeking refund of the payment made by him on baseless and frivolous grounds.

6.

Copies of all the rel filed and placed on the record.

The authe the complaint can be decided on the ts as well as written submissions E.

Jurisdiction ofthe a 7.

The Authority obse as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.

I Territorial iurisdiction 8.

As per notification no.

1. /92 /201,7 -LTCP dated 1,4.L2. ed 1,4.L2.2017 issued by Town and Country planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for a purpose with offices situated in Gurugram.

In the present case, the proiect in question is situated within the planning area of Gurugram X.

XI, those undisputed d Page 9 of 16 * HARERA *.db- arnuennH,r Complaint No.

279 of 2024 District.

Therefore, this authority has complete territorial jurisdiction to deal with the present complaint.

II Subiect matter iurisdiction 9.

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

Section 11(aJ(a) is reproduced as hereunder: Section 71 (;) The prcmoter shotl- . .._ _!r IoJ De responstDle lor Io) be responsible Jbr all obligations, responsibilities and functions under the provisions of this Act or the rules ond regulations made thereunder or to the allottees as per the ogreement for sole, or to the association of ollottees, as the case may be, till the conveyance of otl the apartments, plots or buildings, as the case may be, to the altottees, or the common oreas to the association of allottees or the competent authority, as the case may be.

10.

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

F, Findings on the reliefs sought by tfie complainant: F,l.

Revoke/Set aside the cancellation letter dated 01,05.2023, for the same being illegal.

F.II Direct the respondent to refund tlle entire amount i.e,, Rs.13,50,000/- along with prescribed rate of interest from the date ofrespective deposits till its actual realisation.

11. ation.

11.

In the present case, the complainants intend to withdraw from the project and are seeking return of the amount paid by them in respect of Page 10 of 16 * HARERA Hh GuRUGRAT/ Complaint No.

279 of2O24 subject unit along with interest at the prescribed rate as provided under section 1B(1J of the Act.

Sec.

1g(1) of the Act is reproduced below for ready reference. (a) (b) "Sedion 78: - Return olamount and compensotion ,^l(-rl.l! !h: prrrr!"r foits to complete or is unobte to give possession oI on dpartment, plot, or building. _ tn occ,ordonce with the terms of the ogreement Ior sole or, as the cose may be, duty completed by the dote specilied therein; or due to discontinuonce oi his a developer on accouft of respect of that with interest including 12.

Date of possessio unit in the project su sp en si o n or revocation other reason, he shqll be liable on wishes to withdraw remedy ovailqble, under this Act orfor any in case the allottee ut prejudice to any other by him in the cqse may be, in this behalf this Act:" is supplied) lainant applied for a , Gurugram, Haryana 013.

The complainants ject and paid an amount of :I and pursuant to the booked a unit bearing no.

Iis.6,00,000/- towards the acknowledged by the respr Thereafter, the respondent rat nt and the same was dated 24.1,0.2013. on 01.12.2 013 for an amount of Rs.7,49,963 /- and requested the complainants to pay the same by 15.12.2013.

The complainants made a payment of Rs.4,50,000/_ and the same was acknowledged by the respondent vide receipt dated 1,2.02.2074.

On 12.7Z.ZOj,4, the respondent again raised a demand letter of an amount of Rs.6,74,945/- and the same was to be paid by the t/ in the mqnner qs on Page 11 of 16 ffiHAREIA *ro" euRuenRv Complaint No.

279 of 2024 complainants by 31.12.201,4.

The respondent neither formerly allotted the unit to the complainants by issuing any allotment letter nor executed the Buyer's Agreement in favour of the complainants till date. till date.

After a delay of 10 years, from the date of bookin& the respondent out of blue cancelled the unit on 07.05.2023 stating that due to non_payment of outstanding dues the unit has been cancelled.

13.

Admlssibllity of retund al('PdHffi*S"""ibed rate of interest: The complainants are seeking .ef,pffie amount paid by them at the prescribed rate of intery1!.,fugt#Etttltl "es intends to withdraw from the project and are seeking refund of the amount paid by them in respect of the subject unit with interest at prescribed rate as provided under rule 15 ofthe rules.

Rule 15 has been reproduced as under: Rule 15. prescrtbed rate of interest- [proviso to section 12, section 78 qnd sub,section (4) and subsection (7) ofsection 1gl (1) For the purpose of proviso to section 12; siciioi 18; and sub- sections (4) and (Z) of section 19, the ,.interest at the rote prescribed" shall be the State Bank of lndia highest marginal cost oflending rate +20k.: Provided that in cose the State Bank of lndia maryinol cost of l.ending rate (MCLR) is not in use, it shqll be repliced by such benchmork lending rates which the State Bonk of lndia moy lix from time to time for lending to the general public, 14.

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

Page 12 of 16 *HARERA S-ounuenntr,r Complaint No.

279 of 2024 15.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in. the marginal cost oflending rate (in short, MCLR) as on date i.e., 18.L2.2024 is 9.10%.

Accordingly, the prescribed rate of interest will be marginal cost of len dingrute +2o/o i.e.,1-]..l\o/o.

16. l\o/o.

16.

The 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 default.

The relevant section is reproduced below: "(zo) "interest" means the rates of interest payobte by the promoter or the ollottee, as the cqse may be.

Explanation. -For the purpose ofthis clause_ (i) the rate of interest chargeable from the allottee by the promoter, in cose of default, shall be equal to the rote of interestwhich the promoter shsll be liable to pqy the q ottee, in cose of default; (ii) the interest payoble by the promoter to the allottee sha be from the date the promoter received the amount or any port thereof till the date the qmount or part thereof and interest thereon is refunded, and the interest payable by the allottee to the promoter sholl be from the date the allottee defoults in payment to the promoter till the date it is paidi, 17.

In the present complaint, the complainant booked a unit in the project "The Melia" situated at Sector-3s, Gurugram, Haryana and the only document available on record is the "Application Form and the payment Plan" dated 16.11.2013 wherein a booking amount of Rs.6,00,000/_ was paid by the complainants.

The application form and the payment plan mentions specifically that a 2 BHK unit has been booked admeasuring super area of 1350sq.ft. @Rs.4850/- per sq.ft. resulting in the basic sale Page13of16 ,/ ffiHARERA #ounuennH,r Complaint No.

279 of2024 consideration of Rs.65,47,500/-.

As per the payment plan annexed with the application form on page no.

25 of complaint, the complainants had to made the payment as follows: At the time of Booking Within 60 days from the booking date At the time ofAllotment 0n Start ofExcavation 0n Costing of Ground Floor Slab 0n Casting of2d Floor Slob 0n Casting of,k Floor Slab . oor Slab .

0n Casting ofTth Floor Slab 0n Casting ofgd Floor Slab On Costing of11th Floor Slob 0n Casting ofTop Floor Sl\b 10% of BSP 10% of BSP 10% of BSP 5% of BSP + 50% of PLC (ifany) 7.5% of BSP + 50ot of EDC ond IDC Weof BSP "iffiBp ffir;::::t;x"' 0n Completion of Internal plaster Sok of BSp + S0% of pLC (tf any) 0n Completion of Flooring 5% ofBSp + Slok Aidition; cnirges an 1ffer ofPossession Sok ofBsp + 100ak \FMD + 1ther"charges.

18.As per the above mentioned payment plan, the complainants had to make the payments in different stages.

The complainants have paid an amount of Rs.13,50,000/- against basic sale consideration of Rs.65,47,500/-.

The respondent failed to issue an Allotment Letter in favour of the complainants and also failed to execute the Buyer,s Agreement till date and instead sent a cancellation letter on 01.05.2 023.

19.Thus, keeping in view the aforesaid factual and legal provisions, the failure of the respondent is established under the Act, 2016 as the respondent failed to issue allotment letter and execute Buyer,s Agreement even after a lapse of 10 years.

Even after the coming of the Act, 2016, the respondent has been demanding more than 10% of the sale consideration which is a violation under Section 13 ofthe Act, 2016.

As per the payment plan, the complainants are not in default as the Page 14 of 16 ffiHARERA #, aJRUGRAT/ Complaint No.

279 of2024 complainants had to pay Z0olo ofthe BSp in two stages i.e., 10% of BSp at the time ofbooking and 10 % ofthe BSp was to be paid within 60 days of the booking.

The complainants have paid the above mentioned payments and the same is evident from the payment receipts issued by the respondent.

200/o of BSp amounts to Rs.13,0g,000/- and the complainants have paid an amount of Rs.13,S0,000/_ which is more than 200/0 of the BSP. f the BSP.

As per the the next payment on the all the complainants had to make issued by the complainants refrained themselves from p ent has been holding unit and the same has not been the amount paid allotment letter n neither issued any by the respondent till date.

The paid by the complainants unit and issued by the respondent is bad in the eyes of law as the same has been issued by the respondent on the failure of the complainants to clear the outstanding dues but the same were not paid due to the respondent,s own defaults.

Thus, the respondent is directed to refund the full amount paid by the complainants i.e., Rs.13,50,000 /- along with interest at the rate of 11.10% (the State Bank of India highest marginal cost of lending rate (MCLRJ applicable as on date +2%) as prescribed under rule 15 of the llaryana Real Estate (Regulation and Development) Rules, 201,7, from Page 15 of 16 ffiHARERA #.arRuGRAM Complaint No.

279 of 2024 the date of each payment till the actual realization of the amount within the timelines provided in rule 16 ofthe Haryana Rules 2017 ibid.

H.

Directions ofthe authority 22.

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 l. the authority under secti The cancellation is set refund the full interest at th the comDlai realization of the Harya the respondent is directed to 13,50,000 /- alongwith n the amount paid by till the actual provided in rule 16 nt to comply with the A period of 90 directions given in the order would follow.

23.

Complaint stands disposed oi 24.

File be consigned to registry Dated: 18.12.2024 failing which legal consequences (Ashok Haryana Regulatory Authority, Gurugram ) Page 16 of 16