ASHISH JAIN vs MS PIVOTAL INFRASTRUCTURE PVT LTD

WF{ Q:" ffiG RAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORI'I'Y, GURUGRAM Complaint no. : Date of filing : First date of hearing: Date of decision : Ashish Jain R/o: 41, /123, Opposite Canara Eiank, Near I{indu Girls College, Sonipat, Haryana- 13 1001.

ORDER 1. 'fhe present complaint tras been filed by the complainant/allottee under section 31 of the Real E:;tate llegulation and Development) Act,2016 (in short, thel Act) read with rule 28 of the Haryana I{eal l.lstate fRegulation and Development) Rules, 2017 (in short, the Rules) for violation of section 11(4)[a) of the Act,rvherein it is rnter alia prescribed that the promotet' shall be responsible for all obligations, responsibilities and functions under the provisions of thc Act or the l{ules and regulations made the're under or to the allottees as per the agreement lor sale executed inter se.

Compf aint No.2171 of 2023 2L7l of 2023 15.05.2023 28.09.2023 04.07.2024 Complainant Respondent Member Complainant Respondent Versus M/s Pivot.al Infrastructure Pvt.

Ltd.

Regd.

Office at: 309,3.d Floor, fMD Pacific Sq.uare, Sector-1Ii, Part-ll, Gurugram -121001..

CORAM: Shri Vijay Kumar Goyal APPEARI\NCE: Sh.

Sushil Yadav fAdvocateJ Sh.

Sidharth Sejwal [AI1) Page I ot 27 lL ffiilARER, M- GURUGRAM Complaint No.2L7t of 2023 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.

N.

Particulars Details 1.

Name and locat.ion of the proiect "Paradise" at Village Ullahawas, Sector-62, Gurugram.

2.

Proiect area 5.06875 Acres 3.

Nature of Proiect Affordable Group Housins 4.

DTCP license no. and validity status 05 of 2016 dated 30.05.2016 Valid upto 30.09.2023 5.

Name of Licensee M/s Pivotal Infrastructure Private Limited 6.

Rera registered / not rr:gistered and validity s1[atus 7.

Unit No.

T2-805, on Bth Floor in Tower-T2 fpage no. fpage no.53 of complaintJ B.

Unit area admeasuring 566 sq. ft. fcarpet area) fpase no.

53 of complaintl 9.

Drate of AllotmenlL letter 27.04.20t7 fpase no.

53 of complaint') 10.

Date of buyer's agreement 30.05.20t7 (prge no.22 of complaintJ Lt.

Ilrate of approval of buil.ding plan 25.07.2016 fpaee no.19 ofrepl 12.

Environmental Clearance date 28.07.20t7 fpase no.23 of replyJ 13.

Possession Clause 8.1 time for handing over possession. "Except where any delay is caused on occount of reasons expressly provided for under this agreement and other situations beyond the reasonable control ,f the compqny and subject to the company having obtained the occupation/completion certificate from the competent authority(ies), the compqny shall endeqvor to complete the construction qnd handover the possession of the said apartment within rs from the date Page 2 of 2L ffiHARER.. ffi eunuennM Complaint No.2171 of 2023 B.

Facts of the complaint: 3.

The comprlainant has maLde the following submissions in the complaint: I. 'fhat th.e complainant is a sirnple, law abiding and peacc-loving person. 'fhe complainant throughout has acted as per the terms of the allotmr:nt, rules and regulal.ions and the provisions laid down by law and no illegality whatsoever has been committed by him in adhering to his contractual obligations. 'Ihe booking was made by the complairrant and tht: payments were made by him with all the efforts and hope to fulfil the dream of their fannily of having his own home and to Ive a peaceful and secured life. grant of sanction of building plans for the project or the date of receipt of all the environmental clearances necessory for the completion of the construction and development of the project, whichever rs later, subject to timely payment by the allottee of all the amounts payable under this agreement and performance by the allottee of all other o blig atio ns h e r eun d e r " lEmphasis Suppliedl t4.

Due date of possession 28.Ot.2022 (28.07.

22 (28.07.2021 plus additional grace of 6 months of Covid-19 as per HARERA notification no.

9/3- 2020 dated 26.05.2020 for the projects having completion date on or after 25.03.2020.) [due date ofpossession calculated from the date of ,envlronmental clearance dated 28.07.20L7, being laterl.

15.

Sale consideration Rs.23,09,500/- [as per allotment letter at page no.

53-54 of complaint and as mentioned in BBAI 16.

Amount paid by the complainant Rs.24,47,791/- (as per the receipts annexed with complaint at page no.57 -66 of complaintl 1,7 lon for grant of on certificate 22.t2.2022 [As per page no, 4 0 of reply) 18.

Occupat on cert ficate Not obtained 1,9.

Offer of possessic,n Not offered Page 3 ol21 II.

III. ffi r"{ARER-, ffi eunilcRAM That the respondent offered for sale units in an Affordable Group Housing complex known as 'Paradise' which claimed to comprise of multi-storied apartments, residential units, car parking spaces, recreational facilities, gardens etc. on a piece and parcel of land situated in Sector-62, Gurugram, Haryana.

It was claimed that the project would be spread across approx.

5.06875 acres and would consist of several world class facilities.

The said project was represented to be developed by the respondent in accordance with the approvals and other sanctions in terms of the Affordable Group Housing Policy, 20t3 notified by the Government of Haryana vide Town and country Planning _,* ,.o..,ment notification dated 19.0B,2013.

That the complainant received a marketing call from the office of respondent in the month of February, 201,7 for booking in the said residential project of the respondent.

The complainant had also been attracted towards the aforesaid project on account of publicity given by the respondent through various means like various brochures, posters, advertisements etc. ments etc.

The respondent has been making and painting a very rosy picture of the project and made several representations with respect to the innumerable world class facilities to be provided by the respondent in their project to its prospective customers and made the same representations to the complainant as well.

Accordingly, the complainant applied for the booking vide application no.

L41,3 by making payment of 5o/o towards the total sale consideration as per the provisions laid down in Affordable Group Housing Policy, 20L3.

Pursuant to the application, the draw of lots were held and the complainant was allotted unit no.

806, Bth Floor, Complaint No.Z17L of 2023 Page 4 of 2l lL Complaint No.2171 of 2023 'fower no.

T-2 having carpet area of 566 sq. ft, together with a two- wheeler parking.

IV.

That accordingly, a copy of the buyer's agreement was sent to the complainant.

The agreement which was shared was a wholly one-sided documr:nt containing totally unilateral, arbitrary, one-sidcd, and legally untenable terms favoring ttre respondent and was totally against the interesI of the purchasers, including the complainant herein.

V. 'fhat it is pertinent to mention herein that while in the case of the complainant making the delay in the payment of instalmcnts, the respondent is showrr to be entitled to charge interest @150/o per annum.

VI.

However, the agreement is completely silent about the delayed penalty charges which the respondernt would be paying to thc complainant in case of' default of the complainant in handing over the possession to the cornplainant as per the agreed timeline.

It is thus clear, that the delayed penalty demanded from the complainant, in case of default of the cornplainant, has deliberately been formulated to thc detrimcnt of the cornplainant and the sanre is illegal and unsustainable. stainable.

VIL That tl-re above stated pro'risions of the buyer's agreement besides other srimilar one-sidr:d pro'visions were on the face of it highly illegal, absurd, unilateral, arbitrary, unconscionable and not valid. 'l'he Iegislal.ure has promulgated the Real Estate IRegulation and DevelopmentJ Act, ta016 to balance the bargaining power of the allotter:s who have b,een disadvantaged by the abuse of the dominant position of the devclopers.

A bare perusal of thc above clauses highlights the one-sided arbitrary agreement and the abuse of domin;ant position is all pervasive in the terms and conditions of the Page 5 of 21 p ffiFIARER.... #- eunuenArv VIII.

Complaint No.2171 of 2023 agreelrrent executed by the respondent vide various clauses imposing all thc lliabilities on the complainant, while conveniently relieving itself from all obligations on its part.

That th'e complainant made vocal their objections to the arbitrary and unilateral clauses of the agreement to the respondent.

It is pertinent to mention herein that prior to the signing of the agreement, complainant had made payment of Rs.5,77 ,375 /- out of the consideration amount of Rs.23,0 9,500 / -.

The respondent categorically assured the complainant that th.ey need not worry and that the respondent would strictly adherc to the timeline, terms of the allotment and the provisions laid down by Iaw including Real Estate (Regulation and Development) Act, 201,6 and Affordable Group Housing Policy, 20L:1.

Since the complainant had already parted with a considerable amount, he was left wi[h no other o;rtion but to accept the lopsided and one-sided terms of the agreemerrt.

The complainant felt trapped and had no other option but to sign the dotted lines.

Hence, the buyer's agreement dated 30.05.2:017 was executed.

That the respondent had demanded and the complaLinant had to pay rrrore than 100/o of the sale consideration amount prior to the execution of the agreement and the same is violaticrn of Section 1!l of t n 1!l of ther RERA Act,2016.

That tkre complainant made all the payments strictly as per the tcn-ns of thc allotment and the construction linked payment plan and no default in making tirnely payment towards the instalment demands was committed by the complainant.

That the respondent used to only provide a short time span to make the payment of all the payment demands.

Yet, all the payments were made by the complainant without IX.

Page 6 ol 27 k ffir-i R S*G nArrl Complaint No.2171 of 2023 any delay.

The complainant has till date made the payment of Rs.

21,40,955 /- i.e., !00o/o of the demanded payment.

X.

That despite having made the buyer's agreement dated 30.05.201,7 containing terms very much favorable as per the wishes of the respondent, still the respondent miserably failed to abide by its obligations thereunder.

The respondent failed to perform the most fundamental obligation of the agreement which was to handover the possession of the flat within the promised time frame, which in the present case was delayed for an extremely long period of time.

I'he failure of the respondent and the fraud played by it is writ large.

XL That as per clause 8.1 of the agreement, the possession of the unit was to be handed over by the respondent within a period of 4 years from the date of approval of the building plans or grant of environment clearance.

As per clause B.l. of the buyer's agreement, the developer was to provide ready to move in possession of the allotted unit to the complainant on or belore 27'.07.2021,.

XIL 'fhat it is evident frorn a bare perusal of the abovc-mentioned clauses and a c:opy of the environmr:nt clearance submitted by the respondent with this Hon'ble Authority at the time of registration, that the environment clearance of the project was obtained on 28.07.201,7. 'fhus, the due date to deliver the possession as per thc agreed tcrn-rs of the buyer's agreemenLt was on 27.07.2021.

7.07.2021.

Ilven on the websitc of this Ilon'ble Authority, the respondent had at the time of registration of the project mentioned the due d,ate of completion as 27 .07 .2021.

XIIL That on the lapse ol the clue date to handover thc possession, the complainant visited the project site in August, 2021, and was shocked to see that no construction activity was going on there and the work PageT ol27 t{ R,,,.

G RAM XIV.

Complaint No.Z171 of 2023 was at standstill.

The actual ground reality at the construction site was way different than what the respondent had claimed to the complainant regarding the completion of the project.

There was inordinate delay in developing the project well beyond what was promised and assured to the complainant.

This further shows that the demands which were raised by the respondent didn't correspond to the actual construction status on the site.

On their part, the complainant was at all material times ready and willing to pay the balance consideration and other charges as per the terms of the allotment and they had ready funds for the same.

However, as stated above the respondent miserably failed to abide by its obligations. 'l'hus, since the timr: period to handover the possession stated by respondent in the buyer's agreement had lapsed, the complainant requested responderrt telephonically, and by visiting the office of respondent to update thenn about the date of handing over of the possession. ]'he rrepresentatives of respondent assured the complainant that the posser;sion of the unit would bc handed ovcr to them very shortly as the construction was almost over.

Howevcr, the representations of rer;pondelnt turned out to be false.

The complainant realized that respondent has continuously been misleading the allottees by giving inr:orrect information and timelines within ivhich it was to hand over the possession of the unit to the complainant. mplainant. respondent had representecl and warranted at the time of booking that it would deliver the dream home of the complainant and his family to them in a timely manner.

However, the failure of rcspondent rcsultcd in serious consequences being borne by the complainant.

Page B o[ 21 ffii{ R lll lu.

W* G RAM Complaint No.2171 of 2023 XV.

That the respondent has misused and converted to its own use the huge hard-earned amounts received from the complainant and other buyers in the project in a totally illegal and unprofessional manner and the respondent was least bothered about the timely finishing of the project and delivery of possession of the apartment in question to the complainant as per the terms of the buyer's agreemcnt. 'l'he respondent has deliberately, mischievously, dishonestly and with malafide motives cheated and defrauded the complainant.

It is unambiguously lucid that no force majeure was involved and that the project has been at standstill since several years.

The high headedncss of the respondent is an illustration of how the respondent conducts its business which is only to mirximize the profits with no concern to the buyers.

XVL 'l'hat due to the illegJalities of the respondent, thc complainant has been deprived of what they are entitled to as per law. 'l'he respondent is bound to comply with provisions of the Act and the Rules and Regulations made there under, It is, thus clear that respondent has acted not only in conr[rary to the tr:rms of the agrecn]cnt which wcre drafted by respondent itself but has also on account of its own acts and has reduced the complairLant at its mercy wherein but also in continuing with its illegal acts acting strictly in violation of the provisions of the RIiRA Act, 2016.

Haryana ll.tlRA Ilules, 2017 and Affordable Group Housing Policy, 2013. icy, 2013.

XVIL That the respondent is enjoying the valuable amount of consideration paid by the complainant out of his hard-earned money and the complainant realizing the same demanded delayed possession charges and compensation from the respondent.

But a week ?Bo, the Page 9 of21 L{ARER GURUGRAM complaint No.2171 of 2023 respondent has in complete defiance of its obligations refused to give delayed possession clharges and compensation leaving him with no other option but to file the present complaint.

Since respondent miserably failed in its obligations, hence the complainant is entitled to delayed possession charges; at the rate prescribed as per the Real listatc [Regulation and Development) Act, 201,6 and llaryana Real listate [Regulation and Development) Rules, 2017.

XVIIL 'fhat the cause of action for the present complaint is recurring one on account of the failure of respondent to perform its obligations within the agreed time frarne. 'fhe cause of action again arosc whcn the respondent failed to give delayed possession charges and compensation and finally :rbout a week ago when the respondent refused to compensa[e the complainant with the delayed possession interest amount and compensation,'l'he complainant reserves his right to approach the appropriate forum to seek compensation.

C.

Relief sought by the complainant: 4.

The complainant has sought following relief(s): i.

Direct the respondent to pay interest for every month of delay at prevailing rate of interest from 27.07.2021 till the date of actual handing over of possession. ii.

Direct the respondent to handover the peaceful possession of the habitable unit after receipt of the occupation certificate. iii.

Direct the respondent to provide interest for the excess amount taken by it from the complainant at the stage of allotment which was in violation of the Affordable Group Housing Policy, 201,3. iv.

201,3. iv.

Pass an order imposing penalty in the builder on account of various defaults under RERA Act, 20L6 and the sarne be ordered to be paid to the complainant.

5.

0n the date of hearing, the authority explained to the respondent/promoter about the contraventions as alleged to have been Page 10 of 21 tu GURUGRAM Complaint No.2171 of 2023 I.{AR committed in relation to section 11[4) [a) of the Act to plead guilty or not to plead guilty.

D.

Reply by the respondent: 6.

The respondent has contested the complaint on the following grounds: a.

That the present complaint in the present form cannot be maintainable as the same is contrary to the provision of the Real Ilstate fRegulation and Development) Act,2016 and Haryana Real Estate fllegulation and Development) Rules, 2017 and therefore, the present complaint is liable to be dismissed in limine. b. 'fhat this FIon'ble Authority does not have the ;urisdiction and adjudicate the present comlllaint.

Therefore, the present complaint is liable to be dismissed. c. 'fhat the respondent was granted a License bearing no.

05 of 201,6 dated 30.05.2016 for the development of an affordable group housing residential colony on the land admeasuring area of 5.06875 acres situated in the revenue state of village Ullahawas, sector-62, Gurugram.

The respondent thereafter, obtained all the relevant approvals and sanctions to commence the construction of the project,'l'he respondent obtained the approvals of the building plans vide approvals dated 25.07.201-6 and also obta.ined the environmental clearance vide approvals dated 28.0",7.2017.

That the respondent further obtained the registration under REI{A ^Arct and the respondent was granted the registration no.1,7B of 201,7.

The said RERA registration was valld till 29.11..2021 taking into account the order dated 26.05.2020 passed by this Hon'ble authority'grantring extension of the REITA registration for a periocl of six months due to lockdown measures owing to pandemic of covid-19. covid-19.

Page ll ol2l lL ffi,HARER' lJtu.ffi GURUGRAM d.

That due to the outbreak of the pandemic covid-19 in march,2020, a national lockdown was imposed as a result of which all the construction works were severely hampered.

Keeping in view the difficulties in completing the project by Real Estate Developers, this Hon'ble Authority granted 6 months extension to all the under- construction projects vide order dated 26-05-2020.'l'hereafter due to the sccond covid wave from fanuary to May 2021 once again the construction activities came to a standstill.

The covid pandemic led to severe shortage of labour which resulted in the delay in completing the construction of the project fbr which the time of 6 months grantcd by this Ilon'ble Authority was not sufficient as the effect of labour shortage continue well bey'ond for more than 1,2 months after the covid lockdown.

Furthermore, the covid pandemic lockdown caused stagnation and sluggishness; in the real estate sector and had put the respondent company in a financial crunch, which was beyond the control of the respondent company, e. 'fhat the construction of the project had been stopped/obstructed due to the stoppage of construction activities several timcs during this period with effect from 201,6 as a result of the various orders and directions passed by' Hon'lcle National Green Tribunal, New Delhi; Environment Pollution [Corntrol and Prevention) Authority, National Capital Region, Delhi; Haryana State Pollution Control Iloard, Panchkula and variclus other authorities from time to timc. 'l'he stoppage of construction acl.ivities abruptly had led to slowing down of the construction activities for months which also contributed in the delay in completing the project within the specified tinrc pcriod.

Complaint No.2171 of 2023 Page 12 ofZl ffiHARER* #- CunuennM Complaint No. plaint No.2171 of 2023 That the delivery of the flat by the respondent within the agreed period of 4 years from the date of grant of building approvals or from the date of grant of environmental clearance, which is later, was incumbent upon the complainant making timely payments.

The complainant, in the present matter, had failed to make timely payments and there were substantial delays in making the payments of the due installments as is evident from the demand letter.

Therefore, thc complainant is forbidden to demand the timely performance of the 'contractual obligations' by the respondent, wherein the complainant, himself, had failed to perform his part of the'contractual obligations'on timc. g. 'fhat the present project is an affordable group housing projcct bcing developed in accordance with the provision of the affordable housing policy, 2013.

The allotment price of the unit was fixed by the government of Haryana and in terms of the policy, the respondettt was paid the allotment price in installment.

Though, the allotment price was fixed by the government of Haryana in the year 20L3 but the same was not revised till date.

Although the construction cost for increased manifold but the Gorrernmr:nt of Haryana had failed to incrcase the allotment price.

The Government of Haryana had failed to take into account the increase in the construction cost since the policy in the year 201,3.

If by conservative estimates the construction cost is deemed to have increasecl by 1,0o/o every year then till date the construction costs have got doubleld since the date of promulgation of affordable housing policy, |201,3.l'he license for the project paradise was granted on 30.05.2016 and the respondent was permitted to sell the units and the allotment price of Rs.4.000 per sq. ft. the project is being constructed b1' the respondent and is near in completion. '['he Page 13 ol21 lu @# HARER* ffi eunuenArv Complaint No. plaint No.2171 of 202i1 photographs of the current status of the project are attached herewith which clearly proves that the entire construction has been done and the formalities of obtaining occupation certificate remains pending.

The respondent had applied for grant of occupation certificate vide application dated 22.72.2022.

7.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of those undisputed documents and submissions made by the parties. |urisdiction of the authority: 'fhe respondent has raised a preliminary submission/objection the authority has no juriscliction to entertain the present complaint. 'l'he objection of the respondent regarding rejection of complaint on ground of jurisdiction stands rejected.

The authority observes that it has tcrritorial as well as subject matter jurisdiction to adjudicatc the prcsent complaint for the reasons given below.

E.l Territorial iurisdiction As per notification no.

1,/92/2017-ITCP dated 1+.1,2.2017 issued by Town and Country Planning Department, Haryana, the jurisdiction of Ilaryana Real [lstate Ijlegulatory Aurthority, Gurugram shall be entire Gurugram district for zrll purposes.

In the present case, the project in question is situated radthin the planning area of Gurugram district. 'fherefore, this authorit'y has complete territorial jurisdiction to deal with the present complaint.

E.II Subiect-matter iurisdiction Section 11(4)(a) of the Act, '201,6 provides that the promoter shall be responsible to the allotl:ees as per agreement for sale.

Scction 11[4)[a) is reproduced as hereunder: E. u.

PageL4 ofZl tv ffiHARER,:' #- CunuennM Complaint No.2171 of 2023 Section 77.., ft) The pro^'oru shall- (a) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to the associa he association of allottees, as the cose may be, till the conveyance of all the apartments, plots or buildings, as the case may be, to the allottees, or the common areos to the association of allottees or the competent authority, as the case may be; Section 34-Functions of the Authority: 3a(fl of the Act provides to ensure complionce of the obligations cast upon the promoters, the allottees and the real estote agents under this Act and the rules and regulations made thereunder.

9.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide thg..-9.,-omplaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainant at a later stage.

F.

Findings on obiections raised by the respondent: F.I Objection regarding delay due to force maieure circumstances 10.'fhe respondent-promoter rais;ed the contention that the construction of the project was delayed due tro force majeure conditions such as certain orders/restrictions of tlhe NGT and other authorities in NCR region, increase in cost of constructicrn material and shortage of labour, etc.

All the pleas advanced in this regard are devoid of merit.

Irirstly, thc cvcnts taking place such as orders of NGT in NCll region on account of the environmental conditior:rs are flor short duration, and thus, cannot be said to impact the respondent leading to such an inordinate delay in the completion.

Secondly, the respondent is claiming benefit of lockdown in licu of Covid-19, which came into effect on 23.03.2020, due to covid-19 there may be a delay buLt the same has been set off by the government as well as authority while granting extension in registration of the projects, the validity which expired from March, 2020 for a pcriod ol' six [6) months. 'l'he due date of possession in the present case as per clausc B is Page 15 of 21 rv ffiHARER,&, #- GURUoRAM come to 28.07. to 28.07.2021,, which is after March, 2020.

Therefore, an extension of six months is to be given over and above the due date of handing over of possession in view of HARERA Notification no.

9 /3-2020 dated 25.03.2020, on account of force majeure conditions due to outbreak of Covid-19 pandemic.

Thus, the due date for handing over of possession is comes out to 28.07.2022.

G.

Findings on the relief sought by the complainant: G.l Direct the respondent to pay interest for every month of delay at prevailing rate of interest from 27.07.2021 till the date of actual handing over of possession.

G.II Direct the respondent to handover the peaceful possession of the habitable unit after receipt of the occupation certificate.

G.III Direct the respondent to provide interest for the excess amount taken by it from the complainant at the stage of allotment which was in violation of the Affordable Group Housing Policy, 2013.

G.IV Pass an order imposing penalty in the builder on account of various defaults under RERA Act, 2OL6 and the same be ordered to be paid to the complainant.

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

1,2. the present complaint, the complainant intends to continue with the project and are seeking delay possession charges as provided under the proviso to section 1B[1) of theAct.

Sec.

1B(1) proviso reads as under. "section 18: - Return of amount and. compensation 1-8(L).

If the promoter fails to complete or is unable to give possesston of an opartment, plot, or building, - Provided that where qn allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interestfor every month of delay, till the handing over of the possession, at such rate as may be prescribed. (Emphasis supplied) 13.

Clause B.

Clause B.l- of the apartment buyer's agreement provides for handing over of possession and is reproduced below for ready reference: Complaint No.2171 of 2023 Page 16 of 2l /u ffiHARER,I ffi GURUGRAM Complaint No.2171 of 2023 B.

Handing over of possession 8,1 Expected Time for Handing over Possession "Except where any delay is caused on account of reasons expressly provided for under this agreement and other ,situations beyond the reasonable control of the company and subject to the company having obtained the occupation/completion certificctte from the competent authority(ies), the company shall endeavor to complete the construction and handover the possession of the said apartment within a period of 4 years from the date of grant of sanction of building plans for the project or the date of receipt of all the environmental clearances necessary for the completion of the construction and development of the project, whichever is later, subject to timely payment by the allottee of all the c)mounts payable under this agreement and performance by the ollottee of all other obligations hereunder." (Emphasis supplied) 14.'fhe authority has gone through the possession clause of the agreentent and observed that the respondent proposes to handover the posscssion of the allotted unit within four years from the date of approval of building plan or from the date of grant. of environmental clearance, whichever is later.

As per clause 13.1 of the apartment buyer's agreemcnt the possession of the allott,ed unit to be handed over the possession of tlie allotted unit within four years from the date of approval of building plan i.e.,25.07.2016 or from the clate of grant of environmental clearatrce i.e.,28.07.201,7, whichev'er is later.

And hence, the due date is calculated from the date of environmental clearance i.e., 28.07.2017 being later. 'fherefore, the due date of possession comes out to be 28.01,. be 28.01,.2022 (by adding a period of six months due to covid-19 as per HAI1ERA notification no.

913-2020 dated 26.05.2020 for the projects having completion date on or af,ter 25.03.2020.) i5.Admissibility of delay posisession charges at prescribed rate of interest: The complainant is seeking delay possession charges at the prescribed rate as per tlhe Act of 201,6.

Section 1B provides that where an allottee does not intend to withdraw from the project, shc shall bc paid, PagelT of2l p ffiHARERA ffiouNUGRAM Complaint No.2171 of 2023 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.

Rule 15 has been reproduced as under: Rule 75.

Prescribed rate ofinterest- [Proviso to section 72, section 78 and sub-section (4) and subsection (7) of section 791 (1) For the purpose of proviso to section 72; section 78; and sub-sections (4) and (7) of section 19, the "interest at the rate prescribed" shall be the State Bank of India highest marginal cost of lending rate +20/0.: Provided that in case the State Bank of lndia marginal cost of lending rate (MCLR) is not in use, it shall be replaced by such benchmark lending rates which the State Bank of lndia may fix from time to time for lending to the general public.

16.'fhe legislature in its wisdom in the subordinate legislation under the provision of rule 15 of the rules, has determined the prcscribed rate of interest. 'l'he 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.

17.

Consequently, as per webs;ite of the State Ilank of India i.e ., https://sbi.co.in, the marginal cost of lending rate [in short, MCLI{) as on date i.e., 04.07.2024 irS 8.95%.

Accordingly, the prescribed rate of interest will be marginaI cost c,f lending rate +20/o i.e,, 10.95%o.

1tl.

95%o.

1tl. 'fhe definition of term 'interest' as defined under section Z(za) of thc Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, srhall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default. 'l'he relevant section is reproduced below: "(za) "interest" means the rates of interest payable by the promoter or the allottee, as the case may be.

Explanation. -For the p,uvpste of this clause- Page 18 of21 HARERA GURUGRAM (i) the rate of interest gfiqrgeable 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; (ii) the interest payable by the pr(rmoter to the allottee shall be from the date the promoter received the amount or any part thereof Lill the date the amount or part thereo.f and interest thereon is refunded, ond the intere.st payable by the allottee to the promoter shall be from the date Lhe allottee defaults in payment to the prontoter till the date it is paid;" 19.'fherefore, interest on ttre delay payments from the complainant shall be charged at the prescrib€rd rate i.e., 10,95o/oby the respondent /promoter which is the same as is being granted to the complainant in case of delayed possession charges.

20.

0n consideration of the documents available on record and submissions made by both the parties regarding contravention of provisions of the Act, the authority is satisfied tthat the respondent is in contravention of the section 11(4)[a) of the Act by not handing over lrosscssion by the due date as per the agreement.

By virtue of clause 8.1 of the buycr's agreement, the due date of hranding over of possession of tlte unit in question is 28.01,.20221, (calculated from the date of cnvironntcntal clearance, being later, irrcluding additional period of six months l{AllERA notification no.

9/3-2C120 derted 26.05. ted 26.05.2020 for the projects having completion date on or after 25.03.2020.).A document is placed on record by the respondent which srhows that an application for gratrt of occupation certificate was made on 22.1,2.2022 which is yet to be approved by the compg[snt authority.

Therefore, the respondent has failed to handover possession of the subject apartment till date of this order.

Accordingly, it is the fzrilure of the respondent/promoter to fulfil its obligations and respor-rsibilities as per the agreemcnt to hand ovcr thc possession within ther stipulated period.

The authority is of the considered view that there is rlelay on the part of the respondent to offer the possession of the allotted unit to the complainant as per thc tcrms Complaint No.Z171 of 2023 Page 19 of21 ffiI{ARER #- eunuenAM and conditions of the buyer's agreement dated 30.05.201,7 executed between the parties.

21.

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

As such the allottees shall be paid, by the promoter, interest for every month of delay from due date of possession i.e.,28.01,.2022 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 prescribcd rate i.e., L 0.95 0/o p.a. as per proviso to section 1B[1) of the Act read with rule 15 of the rules.

H.

Directions of the Authority: 22,Hence, the authority hereby llasses this order and issnes the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as pr3r the function entrusted to the authority under section 3 (f): i. 'fhe respondent is directed to pay delay interest on the paid-up amount of l\s.24,47,'791/- by the c'omplainant at the prescribed ratc of 1,0.950/o p.a. for every month of delay from the due date of possession i.e. ssion i.e., 28.01,.2022 till offer of'possession of the said unit after obtaining the occupancy certificate from the concerned authority plus two months or actual ha.nding over of possession, whichever is earlicr. ii. 'Ihe arrears of such interest accrued from 28.0L.2022 till the date of order by the authonlty shall be paid by the promoter to the allottee[s) within a period of '90 day,s from date of this order and intcrcst for cvcry month of delery shall be paid by the promoter to the allottce[s) before 1Oth of the subsequent month as per rule 16[2J of the rulcs.

Complaint No.2171 of 2023 Page 2O ol 2'1. {4' ffiHARER:' i lr..

W*GURUGRAM Complaint No.2171 of 2023 The respondent is directed to issue a revised account statement after adjustment of delayed possession charges within 30 days and complainant is directed to pay outstanding dues, if any remains after adjustment of interest for the delayed period, the respondent shall handover the possession of the allotted unit after obtaining of occupation certificate.

The respondent shall not charge anything from the complainant which is not the part of the builder buyer's agreement. 'fhe rate of interest r:hargeable from the allotteefs) by the promoter, lll iv.

V. in case of default shall be charged at the prescribed rate i.e., 10.95o/o 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.

23.

Complaint stands disposed of.

24.1;lle be consigned to registry.

Haryana R PageZL ofZl