BIRDHI CHAND KHATER vs SUNRAYS HEIGHTS PVT. LTD.

HARERA GURUGRAM complaint No.76 of2022 BEFORE THE HARYANA REAI ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.: Date ofcomplaint: Order pronounced on: 76 of 2O22 20.oL.2022 02.o5.2024 Birdhi Chand Khater R/o: G-68, first floor, South City-U, Gurugram, Haryana- 122074 Versus M/s Sunrays Heights Pvt.

Ltd.

Registered office: 211, Ansal, 16 K.G.

Marg, New Delhi-110001 CORAM: Shri Vijay Kumar Goyal APPEAMNCE: Shri Rohit Sharma (Advocate) Shri Naveen Sharma fAdvocate] Complainant Respondent Member Complainant Respondent ORDER 1.

The present complaint has been filed by the complainant/allottee under section 31 ofthe Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read with rule 28 of the Haryana 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 be responsible for all obligations, responsibilities and functions under the provisions of the Act or the Rules and regulations made thereunder or to the allottee as per the agreement for sale executed inter se.

Page I of 12 ffi& GURUGRAM HARERA A, Unit and proiect related details 2.

The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: S.No.

Particulars Details @ Gurugram" 5.9 acres ffi 1.

Name ofthe project 2.

Proiect area J.

Nature of the project 4. a DTPC License no. and validity a2 of 20L4 dated 08.08.2014 valid up_to 07.08.201,9 Sunrays Heights Pvt.

Ltd., Smt.

Kiran W/o Dharam Registered 249 0f 2017 dared 26.09 .20.17 11.01.2016 ] Ipage 27 of complaint ) 04.03201e-. -- Ipase 04 oI comDlainr) Name of licensee 6.

RERA registration details 7.

Allotment letter Flat Buyer's agreement 9.

Unit no.

D-22 (Page 27 ofcomplaint) 10 Unit area admeasuring Carpet Area- 604.83 sq. ft Balcony Area- 95.10 sq. ft.

10 sq. ft. (Page 27 ofcomDlaintl 11 Possession clause 4.Possession The developer sholl endeovour to handover possesslon of the said flat within o period of 4 ) yeors i.e.

48 months from the dote ofl commencement of project, subject to force mojeure & timely payment by the o ottee I towards the sole considerotion, in occordonce with the terms os stipulated in the present I 00reemenL +Note: As per olJordoble housing policy 2013 ) 1(iv) All such projects sholt be required to bel necessorily completed within 4 yeors fiom the opprovol of building plons or gront of I environmental cleoronce, whichever is loter.

Thts dote sholl be referred to os the ,'date oI commencement oI project" Ior the purpose ofl this policy.

The licence shall not be renewed I Complaint No.76 of2O22 PaEe 2 of 12 ffiHARERA S- eunuennu Complaint No.76 of2022 beyond the ssid 4 years from the date of co m mence m e n t of p ro i ec t.

8.

Environmental Clearance t6.09.2076 fpage 10 of complaint) 9.

Building plan approval 10.03.2015 (taken from another file C*128L412027 decided on 30.11 2023 ofsame Project) 10.

Due date of possession 76.03.2027 (calculated from the date ofenvironmental clearance being later with additional grace Deriod of6 months in lieu ofcovid-19) 11.

Total sale consideration Rs.Z4,66,87 0 /- fDase 43 of complaint) 12.

Amount paid by the complainant Rs.22,45,862 /- (as per additional documents submitted by complainant') 13.

Final reminder t4.03.2024 (submitted by complainant during Droceedinqs dated 28.03.2024) 14.

Occupation certificate 15.

Offer of possession Not offered B, Facts ofthe complaint: 3.

The complainants have made the following submissions: - I.

That the respondent launched its project 63 Golf Drive and invited applications from the public by advertising in various newspapers of the state as per the Affordable Housing Policy,2013' Il. ,2013' Il.

That based on the invitation of the respondent the complainant submitted his application vide application number SGDA3209 along with 5% of the total cost Rs.1,20,775/- being the booking amount for participating in the draw of the aPartments.

Ill.

Thereaftet the draw of the project was conducted and the unit no' D22' type-2 was allotted to the complainant' Subsequently' after the allotment of the unit, the complainant paid the next instalment of 20% of the total cost as per the payment plan agreed between the parties' Page 3 of 12 Not obtained ffiHARERA S- eunuenRvr Complaint No.

76 of2022 IV.

Furthel the flat buyer agreement was executed between the parties on 04.03.2016.

As per the flat buyer's agreement both the parties were liable to fulfil their part of obligations.

V.

That the complainant fulfilled all its commitments and obligations by making the timely payment as per the payment schedule agreed between the parties.

However, the respondent failed to keep his commitment of handing over the physical possession ofthe subject unitby 76.09.2020.

VI.

That after getting delay in getting the possession of the subiect unit the complainant started following up with the respondent over phones, e-mail and visited their office for so many days but received no response.

VIL That the complainant left with no option sent a legal notice dated 29.17.2021, seeking possession and compensation towards the delay in possession @ 15% p.a. as per the buyer's agreement.

VIII.

That the complainant cleared all the agreed schedule instalment as per the buyer's agreement and till date after a delay of 16 months neither the possession nor the compensation ofdelay had been paid by the respondent.

C.

Reliefsought by the complainants: 4.

The complainants have sought following relief: I.

Direct the respondent to handover the physical possession.

II.

Direct the respondent to pay delay possession charges. lll.

Direct the respondent to pay litigation cost of Rs.1,00,000/-.

5. ,000/-.

5.

The present complaint was filed on 20.01.2022 in the Authority.

The respondent was granted several opportunities to put in appearance and file reply.

However, despite specific opportunities respondent failed to file reply.

In view of the same, the matter was proceeded ex-parte against the respondent vide order dated 07.!2.2023.

6.

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 Page 4 of 12 && HARERA GURUGRAM D,II Subiect matter iurisdiction 9.

Section 11(a)(a) of the Act, 2016 provides rhat the responsible to the allottees as per agreement for sale. reproduced as hereunder: Section 11,... (4) The promoter shall- basis of these undisputed documents and submissions made by the complainant.

Complaint No.

76 of2OZ2 promoter shall be Section 11(4)(a) is D, Iurisdiction ofthe authority 7.

The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

D.I Territorial iurisdiction 8.

As per notification no.

I /92 /201,7 _lTCp dated 14.12.2077 issued by Town and country pranning Department, the jurisdiction of Real Estate Reguratory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

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

Therefore, this authority has complete territorial jurisdiction to deal with the present complaint. (a) be responsible for _oll obligotions, responsibilities and functions under the provisions of this Act or the rules ord r"grlotionr .od" thereunder or to the ollottees os per the ogurr",r,, Soi-rrt", o, * ,n" association ofqllottees, os the case may be, ttlt the conveyonce oJ all the aportments, plots or bu dings, os the cose mqy be, to the allottees, or the :iTil:;:";:;i::" associqtion of a t to ttees or th e com petent a uthor itv' uthor itv' Section 34-Functions of the Authoriy4 344 of the Act provides to ensure complionce of the obligations cast upon the promoters, the allottees ond the r"ol "rtote og"n:,i, unde, this Act and the rules ond regulations made thereunder.

10.

So, in view of the provisions of the Act quoted above, the authority has complete iurisdiction to decide the complaint regarding non-compliance of obligations by the promoter reaving aside compensation which is to be Page 5 of t2 HARERA MGURUGRAM Cornplaint No.

7 6 of 2022 decided by the adjudicating officer if pursued by the complainants at a later stage.

E.

Findings on the rellefsought by the complainant.

E.I Direct the respondent to handover the physical possesslon.

E.II Direct the respondent to pay delay possession charges.

11..The above-mentioned reliefs sought by the complainant are being taken together as the findings in one relief will definitely affect rhe result of the other relief and the same being interconnected.

1.2.

In 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.

Section 18[1) proviso reads as under. "Section 18: - Return ofamountand compensation 18(1).

If the promoter Iails to complete or is unable to give possession ofan oportment, plot, or building, - Provided thqt where an allottee does not intend to withdraw from the projec| he shall be pqid, by the promoter, interest for every month of delay, till the hqnding over of the possession, at such rate as may be prescribed." 13.

Clause 4 of the buyer's agreement provides for time period for handing over of possession and is reproduced below: "4-Possession The Developer sholl endeovor to handover possession of the said llot within a period of four years i.e. years i.e.

48 months from the date of commencement of project, subject to force msjeure & timely payments by the ollottee towards the sale considerqtion, in accordance with the terms as stipuloted in the present agreement.,' 14.

The authority has gone through the possession clause of the agreement.

At the outset, it is relevant 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 the complainant not being in default under any provision of this agreement and in compliance with all provisions, formalities and documentation as prescribed by the promoter.

The drafting of PaEe 6 of 12 ffi ffi HARERA GURUGRAM Complaint No.76 of2022 this clause and incorporation of such conditions is not only vague and uncertain but so heavily loaded in favour of the promoter and against the allottee that even a single default by the allottee in fulfilling formalities and documentations etc. as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning.

15.

The buyer's agreement is a pivotal legal document which should ensure that the rights and liabilities of both builder/promoter and buyer/allottee are protected candidly.

The apartment buyer's agreement lays down the terms that govern the sale of different kinds of properties like residentials, commercials etc. between the buyer and builder.

It is in the interest of both the parties to have a well-drafted apartment buyer's agreement which would thereby protect the rights of both the builders and buyers in the unfortunate event of a dispute that may arise.

It should be drafted in the simple and unambiguous language which may be understood by a common man with an ordinary educational background. ackground.

It should contain a provision with regard to stipulated time of delivery of possession of the apartment, plot or building, as the case may be and the rights of the buyer/allottees in case of delay in possession of the unit.

16.

Admissibility of delay possession charges at prescribed rate of interest: The complainant is seeking delay possession charges till delivery of possession.

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 of possession, at such rate as may be prescribed and it has been prescribed under Rule 15 of the Rules, ibid.

Rule 15 has been reproduced as under: "Rule 75.

Prescrtbed rqte oI interest- lProviso to section 12, section 78 and sub-section (4) qnd subsection (7) oJsection 791 Page 7 of 12 ffHARERA #eunuennHr complaint No.76 of2022 (1) For the purpose of proviso to section 12; section 1B; and sub- sections (4) qnd (7) ofsection 19, the "interest at the rqte prescribed" shall be the State Bqnk of lndio highest marginal cost of lending rqte +2(%.: Provided that in case the State Bonk of lndia morginal cost of lending rate (MCLR) is not in use, it sholl be replaced by such benchmark lending rotes which the State Bonk of lndio nay fx from time to time for lending to the generol public." 17.The legislature in its wisdom in the subordinate legislation under the provision of Rule 15 of the Rules, ibid, 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.

18.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLR) as on date i.e., 02.05.2024 is 8.85%.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2% i.e., 10.85%.

19.

0.85%.

19.The definition of term 'interest' as defined under Section 2(zal 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 rqtes of interest payable by the promoter or the ollottee, os the cose moy be.

Explqnotion. -For the purpose ofthis clouse- O the rote of interest chargeable from the ollottee by the promoter, in case of default, sholl be equol to the rote of interest which the promoter sholl be lioble to poy the allottee, in case ofdeloult. (iD the interest poyoble by the promoter to the allottee sholl be from the dote the promoter received the amount or ony port thereof till the date the omount or part thereof ond interest thereon is refunded, ond the interest payable by the allottee to the promoter shall be lrom the dote the ollottee defoults in payment to the promoter till the dote it is paidi' Page B of12 ffHARERA ffi eunuennlr complaint No.

76 of2022 20.

Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., L0.85 % by the respondent/promoter which is the same as is being granted to them in case of delayed possession charges.

21.

On consideration ofthe 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 4 of the buyer's agreement, the possession of the subiect apartment was to be delivered within 4 years from the date of commencement of proiect (as per clause 1(iv) of Affordable Housing Policy, 2013, oll such proiects shall be required to be necessarily completed within 4 years from the approval of building plans or grant of r grant of environmental clearance, whichever is later' This date shall be referred to as the "date of commencement of proiect" t'or the purpose of this policy).

In the present case, the date of approval of building plans is 10.03.2015, and the date of environment clearance is 16,09 2016 The due date of handing over of possession is reckoned from the date of environment clearance being later.

Therefore, the due date of handing over of possession comes out to be 1.6.09.2020.

Further as per HARERA notification no 9 /3-2020 dated 26.05.2020, an extension of 6 months is granted for the pro,ects having completion date on or afler 25 03.2020.

The completion date of the aforesaid proiect in which the subiect unit is being allotted to the complainant is 1-6.09.2020 i.e., after 25.03.2020.

Therefore, an extension of 6 months is to be given over and above the due date of handing over possession in view of notification no.9/3-2020 dated 26.05.2020, on account of force maieure conditions due to outbreak of Covid-19.

As such the due date for handing over ofpossession comes out to be 16 03.2021.

Page 9 of12 @& HARERA GURUGRAI\4 22.

It is the failure of the promoter to fulfil its obligations and responsibilities as per the buyer's agreement to hand over the possession within the stipurated period.

Accordingly, the non-compliance of the mandate contained in Section 11(4)(aJ read with Section 18(1) of the Act on the part of the respondent is established.

As such the complainant is entitled to delay possession charges at rate of the prescribed interest @ l}.gio/o p.a. w.e.f.

76.03.2e2.1, till the actual handing over of possession or valid offer of possession plus 2 months, whichever is earlier as per provisions of Section 1B(1) of the Act read with Rule 15 ofthe Rules, ibid.

23.

Further, as per Section 17(1) of the Act o f 201,6, the respondent is obligated to handover physical possession of the subject unit to the complainant. mplainant.

Therefore, the respondent shall handover the possession of the allotted unit as per specification of the buyer,s agreement entered into between the parties, after receiving occupation certificate from the competent authority, E.III Direct the respondent to pay litigation cost of Rs.1,00,000/- 24.

The complainant is seeking above mentioned relief w.r.t. compensation.

Hon'ble Supreme Court of India in case titled as M/s Newtech promoters and Developers pvl Ltd.

V/s State of tlp & Ors.

2021-2022(1) RCR (C), 357 hetd that an allottee is entitled to claim compensation & litigation charges under sections 12, 14, 18 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation & litigation expense shall be ad,udged by the adjudicating officer having due regard to the factors mentioned in section 72.

The adjudicating officer has exclusive jurisdiction to deal with the complaints in respect of compensation & legal expenses.

F.

Directions of the Authority 25.Hence, the authority hereby passes this order and rssues the folrowing directions under section 37 of the Act to ensure compliance of obligations cast Complaint No.

76 of2022 Page 10 of12 HARERA GURUGRA[/ Complaint No.

76 of2022 upon the promoter as per the function entrusted to the authority under section 34(f): I.

The respondent is directed to pay interest to the complainant against the paid-up amount at the prescribed rate of interest i.e.,10.g5% p.a. for every month of delay from the due date of possession 16.03.2021 till actual handing over of possession or valid offer of possession plus two months after obtaining occupation certificate from the competent Authority, whichever is earlier as per proviso to section 1g(11 of the Act read with rule 15 ofthe rules.

II. rules.

The arrears of such interest accrued from due date of possession till the date of this order by the authority shall be paid by the promoter to the allottee within a period of 90 days from the date of this order and interest for every month of delay shall be paid by the promoter to complainant before 1oth ofthe subsequent month as per rule 16(Z) ofthe rules.

III.

The complainant is directed to pay outstanding dues, if any, after adiustment of interest for the delayed period.

IV.

The respondent ls directed to offer the possession of the allotted unit within 30 days after obtaining occupation certificate from the competent authority.

The complainant w.r.t. obligation conferred upon him under section 19(101 of Act of 2016, shall take the physical possession of the subject unit, within a period of two months ofthe occupancy certificate.

The rate of interest chargeable from the allottee by the promoter, in case of default shall be charged at the prescribed rate i.e., 10.85%0 by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottee, in case of default i.e., the delayed possession charges as per section 2 (za) of the Act.

Page ll of 12 & ffi ffHARERA #eunuennnr Complaint No.76 of2022 VI.

The respondent shall not charge anything from the complainant which is not the part ofthe buyer,s agreement.

26.

Complaints stand disposed of.

27.

Files be consigned to registry.

Dated,t O2.OS.ZOZ4 Nlili*H2r,v^t) Member Haryana Real Estate Regulatory Authority, Gurugram Page 12 of 72