KRISHNA PRASAD MADVESH AND SHALINI KHANDUJA MADVESH THROUGH POA HOLDER SANJAY KHANDUJA vs RAHEJA DEVELOPERS LTD

Complaint no.

Date of complaint Date of Decision: 1.

Sh.

Krishna Parshad Madvesh 2.

Smt.

Shalini Khanduja Madvesh Both R/o: B-359,2"d floor, Green Fields Colony, BIock B, Faridabad, Haryana-121010.

Versus M/s Raheja Developers Limited.

Regd. office at: W4D,z04/5, Keshav Kunj, Western Avenue, Cariappa Marg, Sainik Farms, New Delhi- 110062.

COMM: Sh.

Vijay Kumar Goyal APPEARANCE: Sh.

Niloptal Shyam (Advocate) Sh.

Garvit Gupta [Advocate) Complaint No.

2787 of 2023 2187 o12023 26.O5.2023 24.03.2024 Complainants Respondent Member Complainants Respondent ffHARERA ffieunuenRvr BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ORDER 1.

The present complaint has been filed by the complainants/allottces under section 31 of the Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read with rule 28 of the Haryana Real Ilstate (Regulation and Development) Rules, 2017 (in short, the Rules) for violation of section 11[4)(a) of the Act wherein itis inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the Rules and regulations PaBe 1 of 13 HARERA P*GURUGRAIi1 Complaint No.

2t87 of 2023 made there under or to the allottee as per the agreement for sale executed inter se.

A.

Unit and proiect related details 2.

The particulars of unit details, sale consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: S.

No.

Particulars Details 1.

Name and location of the project "Raheja Shilas", Sector-109, Gurugram 2.

Nature of the project Low rise floors Proiect area 14.812acres 4.

DTCP License and validiw 257 ot 2007 dated 07.11.2007 valid up to 06.7L.2024 5.

Name of the licensee Brisk Construction Pvt, Ltd. and 3 others 6.

RERA Registration 90 of 20U dated 28.08.2017 valid up to 5 years from the reviscd environment clearance (lnadvertently mentioned as 37.L2. as 37.L2.2020 in proceedings dated 28.03.2024) 7.

Unit no. and floor no.

IF9-03, Independent Floor and Tower- 9 (As per page no.

37 of the complaint) 8.

Unit area admeasuring 2102 sq. ft. (Super areaJ (As per page no.

37 ofthe complaint] 9.

Allotment letter 30.06.2011 [As per page no.

33 ofthe complaint) 10.

Date of execution of agreement to sell 30.06.2011 [As per page no.

35 ofthe complaint) 71.

Possession clause 4,2 Possession Time and Compensation That the seller shall sincerely endedvor to give possession of the plot to the purchaser within twenA-four (24) tL Page 2 of 13 I months from the date of 1 lexecution this Agreement ond aJ I providing of necessary infrastructt lspecially rood sewer & woter in t lsector by the Government, buL subj, Ito force majeure conditions or n Government/Regulotory authorit action, inaction or omission o reasons beyond the control of the sell However, the seller shall be entitt for compensation free groce peri. .of six (6) months in cose t, Qgvelopment is not within the tit, period mentioned above.

In the eve of his failure to Lqke over possession the plot provisionally and/ or fina allotted within 30 days from the date intimation in writing by the seller, th the sqme shall lie at his/her risk at cost qnd the purchaser shall be lioble pqy @ k.7/- per sq. ft. of the ptot orr per month as holding charges for tt entire period of such delay...." (As per page no.

42 of the complaint) 12.

Grace Period Allowed As per clause 4.2 of the agreement sell, the possession of the allotted ur was supposed to be offered within stipulated timeframe of 24 montl plus 5 months of grace period.

It is matter of fact that the respondent h not completed the proiect in which tl allotted unit is situated and has n obtained the part completir certificate by December 2013.

As pr agreement to sell, the constructi( and development work of the proje Page 3 of 13 Complaint No. plaint No.

2t87 of 2023 trLIAIENA S- eunuennvr -ii4 after ,rtrr, I n the ubiect I ' nqy irity's I and I seller diledl eriod ,n"l timel event I ton ol I inotty I qte of ) then I r ontl ate to I I oreo r thel I nt) to nit ta :hs ;a he rot on rer as on l ".! l HARERA ffiGURUGRAM Complaint No.

2787 of 2023 is to be completed by December 2013 which is not completed till date.

Accordingly, in the present case the grace period of6 months is allowed.

13.

Due date of possession 30.12.2073 (Note:24 months from the date of execution of agreement to sell i.e., 30.06.2011 + 6 months grace period) 14. 'Iotal sale consideration Rs.l,06,24,129 /- As per applicant ledger on page no.

62 oi1!g!9.!13'nt) Rs.94,63,948 /- (As per customer ledger on Page no, 62 of the complaintJ 15.

Amount paid by the complainant 1.6.

0ccupation Certificate/ completion certificate Not obtained Not offered t7.

0ffer of possession _l B.

Facts ofthe complaint: 3.

The complainants have made the following submissions: - I.

That the respondent through their representative had approached the complainants and represented that the respondent's residential project name "Raheja Shilas" situated at Sector-109, Gurugram, Haryana will effectively serve the purpose of the complainants and has best of the amenities. ll.

That the respondent had claimed that they are seized and possessed of land admeasuring approximately 14.812 acres at the project site and accordingly, obtained license from Director General, l'own & County Planning (DTCP), Haryana for development of residential group housing colony on the said land vide license no 257 of 2007 dated 07 .11.2007.

It was further represented by the respondent that Page 4of13 MHARERA ffieunuenRu Complaint No.

27A7 of 2023 III, IV. the project is an extension of "Raheia Atharva" project having all the necessary sanctions and approvals from the competent authority. authority.

That the complainants shown their willingness to book a unit in the project on the basis of the announcement of the respondent being a renowned builder i.e., Raheja Group along with the aforesaid representation made by the respondent.

That the complainants accordingly booked the unit and also made a payment of Rs.9,00,183/- vide cheque dated 12.02.2011 to the respondent for an independent unit in "Raheja Shilas".

Accordingly, allotment letter dated 30,06,2011 was issued by the respondent to the complainants for the allotment unit no.

IF09-03, admeasuring 2L02 sq. ft.

It is noteworthy that 30,06.2011 was taken as decmcd date of allotment of unit.

V.

That the complainants on the same date of issue of allotment letter also entered into the agreement to sell for the unit was executed on 30.06.20LL between M/s Raheja Developers Ltd. and the complainants.

It is noteworthy that the said agreement to sell is a standard form of agreement which is biased, one sided, amounting to unfair trade practice as the complainants were compelled to sign on dotted Iines in view of one-sided standard form of agreement to sell with no right to bargain especially in view of the fact that the complainants were in fear to lose the money already paid to the respondent.

That in accordance with the agreement to sell dated 30.06.2011, the respondent agreed to sell convey /transfer the unit no.

IF09-03, Independent floor, Tower-9 admeasuring 21,02 sq. ft of super area with the right to exclusive use of parking space in the project for sale consideration of Rs.87,75,850/- calculated @Rs.4,1.75/- per sq. ft.

VI.

Page 5 of 13 ffilAllERA Heunuennu Complaint No.

2187 of 2023 super area and in addition to cost of parking rights, club membership, electricity connection, IFMS, as per the payment plan annexed to the said agreement plus applicable taxes.

Accordingly, the total consideration approximately comes as Rs.1,06,24,129 /- as per the statement of account issued by the respondent. espondent. ,lhe said amount also includes service tax which is legally not chargeabie.

VII.

That the respondent committed under the agreement to sell to handover the possession of the unit within 24 months from thc datc of execution of the agreement to sell with a grace period of 6 months.

Thus, the commitment of the respondent to deliver the possession of the unit to the complainants was till December, 20.13 (i.e., 30.12.2013) even when including the grace period of six months.

However, the respondent has failed to hand over the possession of the flat to the complainants till today.

It is suhmitted that there has been no force majeure condition till date justifying the delay in handing over the possession even after elapse of more than 9.5 years from the date as promised in agreement to sell.

The reason for non-delivery of possession is solely attributable to the respondent and hence the respondent cannot ciaim benefit off their own wrong.

VIII.

That the respondent failed to keep their promised of delivery of the unit within the time prescribed under the agreement to sell i,e., latest by 30.72.201.3.

The respondent did not even bother to give reason about such unreasonable delays in handing over the possession of unit to the complainants.

The respondent does not respond to the genuine problems faced by the complainants.

While the respondent failed to keep its promise of deliver the unit by due date, at the other hand, the complainants were compelled to pay Page 6 of13 ffiHARERA ffiounueirnu 4.

5.

IX.

2787 of 2023 X. compound interest @18%o per annum for any delay in payment of due installments.

That more than nine and half (9.5) years have elapsed from the date from which the respondent was under a contractual obligation to obtain the occupancy certificate and accordingly handover thc possession of the unit. the unit.

The aforesaid reason of delay of more than nine years in obtaining the occupancy certificate/possession is itself a ground for granting interest for delayed period.

The present complaint shall be treated as demand for getting possession along with interest of the project of respondent(s) in accordance with Section 18 ofAct of 2016.

That it is a fit case wherein Hon'ble Authority shall order for granting possession along with interest in view the mandatory obligation as provided under RERA Act, 2018 as well as on account of the acrimony of respondent company wherein they obliterated the trust reposed on them by complainants by handing over of unit along with interest.

It is important to note that the Complainants have paid more than 950/o of the total sale consideration with no date of delivery of possession in sight till date due to the illegalities conducted by the respondent.

C.

Relief sought by the complainants: The complainants have sought following relief(s): i.

Direct the respondent to immediately (not more than 30 days fronr the date of order) deliver the possession of unit no.

IF 09-03 after adjusting the delayed possession interest.

0n the date of hearing, the authority explained to the respondent /promoter about the contraventions as alleged to have been committed PaSe 7 of 13 tv I]A|jEBA GURUGRAM in relation to Complaint No.

2187 of 2023 section 11(4J (a) of the Act to plead guilry or not to plead guilB/.

The respondent/promoter put in appearance through its Advocate and marked attendance on 12.10.2023 and sought short adjournment for filing of the reply.

Despite a lapse of more than seven months since the notice has been issued to the respondent to file reply, it failed to file the reply.

It shows that the respondent was intentionally delaying by avoiding filing of written reply.

Therefore, in view of above, rhe defence of the respondent was struck off on 0 4.Ol.ZOZ4.

4.Ol.ZOZ4.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submrssrons made by the complainants-allottees.

D.

Jurisdiction ofthe authority: The authority has complete territorial and subject matter iurisdiction to adjudicate the present complaint for the reasons given below.

D.l Territorial iurisdiction As per notification no. t /92/201,7-1t.Cp dated 14.12.201,7 issued by Town and Country Planning Department, Haryana the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entirc Gurugram district for all purposes.

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

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

D.ll Subiect-matter iudsdiction Section 11(4)(a) of the Ac!

2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(aJ(al is reproduced as hereunder: Section 11 6.

7. u. {4, PaSe 8 of 13 ffi HARERA ffi cllRUGRAr,/ Complaint No.

21-87 of 2023 (4) The promoter shall- (a) be responsible for qll obligotions, responsibilitrcs and lunctions under the provisions of this Act or the rules ond regulations made thereunder or to the allottees as per the ogreement for sale, or to the association of allottees, os the case may be_, till the conveyance ofallthe opartments, plots o; buildings, as the case may be, to the allottees, or the common qreos to the assoctotion oJ ollottees or the competent authority, as the cose moy be; Section 34-Functions oI the Authority: .

344 of the Act provides to ensure compliance of the obligotions cqsL upon the promoters, the qllottees and the reol estate ogints unde; this Act ond the rules and regulations made thereunder.

9. eunder.

9.

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.

E, Findings on the relief sought by the complainants.

E.I Direct the respondent to immediately (not more than 30 days from the date of order) deliver the posseision of unit no.

IF 09_03 after adiusting the delayed possession interest.

10.The above-mentioned reliefs sought by the complainants are taken together being inter-connected.

11.

In the present complaint, the complainants intend to continue with the project and are seeking delay possession charges as provided under the proviso to section 1B(1) ofthe Act.

Sec.

1B(1) proviso reads as under. "Section 18: .

Return ofamount and compensation 18(1). lf the promoter fails to complete or is unable to give possession of an lpartment, plot, or building, - Provided thqt where on ollottee does not intend to withdraw from the projec, he shall be pqid, by the promoter, interest for every month of detay, till the handing over ofthe possession, at such rate as may'be prescribed,,, (Emphasis supptied) 12.

Clause 4.2 of the apartment buyer,s agreement provides for handing over of possession and is reproduced below for ready reference: /1 4,2 Possession Time and Compensation lv Pate 9 of 13 ffi HARERA ffi aiRuGRAM Thot the seller shall sincerely endeavor to give possession of the plot to the purchoser within twenty-lour (24) months from the dqte of the execution this Agreement ond after providing of necessary infrostructure speciolly rood sewer & water in the sector by the Government, but subject to force mojeure conditions or nay Government/Regulotory authoriA's action, inoction or omission snd reqsons beyond the control of the seller, ,towever, the seller shall be entitled for compensation free grace period ol six (6) m six (6) months in csse the development is not within the time period mentioned above, ln the event of his foilure to take over possession of the plot provisionally and/ or finolly allotted within 30 days from the date of intimation in writing by the seller, then the some shqll lie athis/her risk and costand the purchoser sholl be liable to poy @ k,7/- per sq. ft. of the plot orea per month as holding chorges for the entire period of such delay...." (Emphasis supplied) 13.

The due date of possession of rtment as per clause 4.2 of the flat buyer's agreement dated 30.06.2011, is to be calculated as 30 months from the execution of flat buyer's agreement in case of independent floors including grace period of 6 months.

Therefore, the due datc oI possession comes to 30.12.2073.

14.

Admissibility of delay possession charges at prescribed rate of interest: The complainants are seeking delay posscssion charges at thc prevailing rate of interest.

Proviso to section 1B provides that wherc an allottee does not intend to withdraw from the project, they shall be paid, by the promoter, interest for every month of delay, till the handing ovcr of possession, at such rate as may be prescribed and it has been prescribed under rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 75, Prescribed rak oJ interest- lProviso to section 72, section 78 ond sub-section (4) and subsection (7) ol section 79., (1) For the purpose of proviso to section 12; section 18; ond sub'sections (4) ond (7) of section 19, the "interest otthe rote prescribed" shall be the Stote Bank of Indio highest morginal cost of lending rate +20k.: Provided thot in cose the Stote Bank of lndia marginal cost of lending rote (MCLR) is not in use, it shall be replaced by such benchmark lending rates which the Stou Bank of lndia may fix from time to time Ior lending to the general public.

2187 of 2023 Page 10 of 13 ffiHARERA ffi ounuenntr,r Complaint No, 2187 of 2023 15. f 2023 15.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 legislaturc, is reasonable and if the said rule is followed to award the interest. it will ensure uniform practice in all the cases.

16.

Consequently, as per website of the State Bank of India i.c., httns://sbi.co.in. the marginal cost of lending rate [in short, MCLR) as on date i.e., 28.03.2024 is 8.850/o, Accordingly, the prescribed rate of interest will be marginal cost of lending rate 12 % i.e., 10.BSo/0.

17.

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 shail be liable to pay the allottee, in case of default. 'l.he relevant section is reproduced below: "(zo) "interest" means the rqtes of interest poyabte by Lhe promoLer or the ollottee, as the case may be.

Explqnotion. -For the purpose ofthis clouse_ (i) tl".e-rate of interest chargeable from the allottee by the promoter, in cctse oJ. defoult, sholl be equal to the rate of inkrest which the promoter sholl be liable to pay the allottee, in cqse oI default; (ii) the interest pqyable by the promoter to the ollottee shall be from the dote the promoter received the qmount or any pctrt thereof till the dqte the qmount ot pqrt thereof and interest thereon is relunded, and the interest payable by the allottee to the promoter shall be from the dqte the ollottee defauks in paynenr to the promoter till the dote it is paid;,' 18.

Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate i.e., 10.85% by the respondent /promoter which is the same as is being granted to the complainants in case of delayed possession charges.

19. arges.

19.

On consideration of the documents available on record and submissions made by both the parties regardjng contravention of provisions of the Act, the authority is satisfied that the respondent is in contravention of lAz' the section 11(a)[a) of the Act by not handing over possession by the due Page 11of 13 HARERA Complaint No.

2787 of 2023 ffiGURUGRAM date as per the agreement.

The due date of handing over possession is 30.12.2013.

No document is placed on record to show that after completing the unit, OC has been obtained or even applied to the competent Authority and no offer of possession has been made to the complainants-allottees.

20.The respondent has failed to handover possession of the subjcct apartment till date of this order.

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

Accordingly, the non-compliance of the mandate contained in section 11(4)(a) read with proviso to section 18(1) of the Act on the part of respondents are established.

As such the allottee shall be paid, by thc promoter, interest for every month of delay from due date of possession i.e.,30.12.2013 till offer of possession of the said unit after obtaining the occupancy certificate from the concerned authority plus two months or actual handing over of possession, whichever is earlier, at prescribed rate i.e., 10.85 % p.a. as per proviso to section 18(1J of the Act read wirh rulc 15 ofthe rules.

F.

Directions ofthe Authority: 21.

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 34(l: i. 'l'he respondent is directed to pay interest on the paid-up amount of Rs,94,63,948/- by the complainants at the prescribed rate of 10.8S% p.a.

0.8S% p.a. for every month of delay from the due date of possession i.e., 30.12.201,3 till valid offer of possession of the said unit after obtaining the occupancy certificate from the concerned authorify plus two months or actual handing over of possession, whichever is earlier.

Page 12 of 13 ffiHARERA ffi eunGnnu Il.

The arrears of such interest accrued from 30.i,2.ZOi.3 till the date of this order by the authority shall be paid by the promoter to the allottee(s) within a period of 90 days from date of this order.

Thereafter, interest for every month of delay shall also be paid by the promoter to the allottee(s) before 1Oth of the subsequent month as per rule 16(2) of the rules tir a varid offer of possession is made to the complainants/allottee(s) after obtaining occupation certificare.

The complainants are directed to pay outstanding dues, if any remains after ad,ustment of interest for the delayed period, the respondents shall handover the possession of the ailotted unjt on obtaining of occupation certificate.

The respondent shall not charge anything from the complainants which is not the part of the flat buyer,s agreement. v.

The rate of interest chargeable from the allottee(sl by the promorer, 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 allottee, in case of default i.e., the delayed possession charges as per section Z(za) oF the Act.

22.

Complaint stands disposed ofl 23.

File be consigned to registry. \t,t - -'2,--) (viiay KuKcoyat) Member Haryana Real Estate Regulatory Authority, Gurugram Date:28.03.2024 lll. lv.

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