KULDEEP KAUR AND CHETAN RISHI vs SILVERGLADES INFRASTRUCTURE PRIVATE LIMITED

HARERA ng[u,?H"THAR'ANAREAIl;3.fr fcu'nton" NUTTTONTTV, GURUGRAM Complaint no : Date of comPlaint : Date ofdecision : 5758 of ZOZ2 ra.oa.2022 29.O3.2024 1.Mrs.

KuldeeP Kaur, ?

Mr Chetan Rishi '-,i" - u"u,il:;;120, 1" floor' Pink rown House' DiF Phase-3, N athuPur Gurugram' HarYana 122002 Versus M/s Silverglades lnfrastructure Private Limited' Coroorate office - 5'h floor' Time square building'B BlocK' Sushani Lok Phase l' Gurugram 122009, HarYana' COMM: Sanjeev Kumar Arora APPEARANCE: umesh Gulati [Advocate] Harshit Batra (Advocate'1 ComPlainants ResPondent Member ComPlainants ResPondent Page 1 of 14 ORDER 1.

The present complaint has been filed by the complainant/allottees under section 31 of the Real Estate (Regulation and Developmentl Act' 2016 [in short' the Act) read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules' 2017 (in short' the Rulesl for violation of section 11(a) tal of th" Att \Nher"in it is in ter olio prescribcd that the promoter 't'utt t" responsible for all obligations' responsibilities and functions under the provisions of the Act or the A. z.

HARERA GURUGRAM nut". ,na regulations made there under agreement for sale executed inter se' Unit and Prolect related details 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: lc",,,l;t,-trt'"t,"] or to the allottees as Per the Resistered ?2720?0 dated 01.09.2020 valid uP Details -Hish Tot"n" E49I?9 Gu 4.85 acres Residential PI9j99! rroTzora aatea 27 .12.2013 valid up to 26.72.2024 ro 11.10.202 5 6-17g3, 17n Ftoor, Tower 3 PaEe no.

18 of complaiqq 2500 sq ft.

Paee no 41 ol991q laint 15.02.202L Pase no 25 qlco4 l4!!L 05.07.2022 29 of the com laint Not executed allotment -oarezgoz2ozz,o7.o3'2022 and !6.03.2022 D-atea so.os.2o22 and 70'06'2022 ns. :,Za,OZ,SOO7- Pagez of 14 05.01.2025 iC.i.rtrt. iC.i.rtrt.a 3 Years from date of Name ofthe Proiect ect area Nature of the Prqllgq Dtc-P li."nt" no. and validiw status EE registeredTnot registered Unit no.

Fnit area admeasuring Booking Dated Allotment letter Agreement to sale C-"nt b" "aa"ttrin"d Possession clause 5ue date of Possession eminders for execution of agreement to sale bY respondent Reminder for clearing outstanding dues bY ndent ToTal Sale consideration S.

N.

Particulars 1.

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15.

HARERA @ cr rDr tcDAl\l Complaint No.

5758 0f2022 B.

3. (As per payment PIan on Page no.32 of comolaintl 76.

Total amount paid by the complainants Rs.70,79,985/- (As per Statement of accounts on paee no 28 ofreply) 77.

Occupation certificate /Completion certificate Not received 18.

Offer of Possession Not offered L9.

Cancellation Ietter 0L.08.2022 (Pase no.

80 of the complaint Facts ofthe complaint The complainants have made the following submissions in the complaint: l.

That on 05.02.2021 complainants were approached by the respondent in relation ofbooking ofapartment bearing No C- 1703 located on 17th Floor of Tower/ Building No.

C, having carpet area of 1447 sq. ft. and super area measuring 2500 sq' ft in the proiect "HighTown" situated in the revenue state ofVillage Sukhrali' Sector -28, District Gurgaon 122001, Haryana and the total sale consideration was Rs.

3,55,00,000/-' That cheque no 156856 & 000136 were given by the complainants to the respondent of Rs' 30,00,000/- at the time ofbooking of apartment' It is submitted that it is mentioned in the terms and conditions which are contained in the booking form that rate of interest payable by the intending applicant to the promoter on delayed payment shall be the State Bank of India highest marginal cost of landing rate plus two percent. ll.

That on 15.02.2021 confirmation letter of booking of apartment bearing No.

1703 located on 17th Floor of Tower/ Building No' C' having carpet area of 1447 sq.ft.

447 sq.ft. and super area measuring 2500 Page 3 of 14 -l HARERA * eunueRRll I -' sq.ft. in the proiect "High Town" situated in Complaint No.

5758 of2022 the revenue state of 122001, Haryana was Village Sukhrali, Sector -28, District Gurgaon issued bY the resPondent to them' IIl.

That between 04.06.2027 to 14'72'2021' they made the timely payment as and when demanded by the respondent and issued the cheque bearing no.022866 dated 74'72'2021 of Rs 15'81'485/- and cheque bearing no' 408062 dated 14'12'2021of Rs' 4'00'000/- both cheques were drawn on Yes Bank After that the cheque no 825854 dated 30 03.21. of Rs 1,27,295 /- drawnbank state Bankof lndia was issued by the complainants to the respondent They further paid to the respondent through cheque no 82 5857' 82 5860 and 825861 all dated 04'06'21 of Rs B'71'205l-' 9'90'000/- and 1,10,000/-.

Therefore, the total amount of Rs 70'79'985/- was paid by them to the respondent in view of the installments towards the payment of apartment and when the demand was raised by the respondentherein.Thecomplainantsmadetheextrapaymentof Rs.

20,00,000/- to the respondent from the demands made by the resPondent' lV.That05.0l.2022TheallotmentletterofapartmentbearingNo.

1703 located on 17th Floor ofTower/ Building No C' having carpet area of 1447 sq.ft and super area measuring 2500 sq ft in the project "HighTown" was issued by the respondent to the complainants.

The complainants were shocked when they saw the Annexure- I of the allotment letter in which respondent mentioned that ifthere is single day delay will increase the Total Sales Value to Rs.

3,78,62,500/- fiom Rs 3'55'00'000/- which was totally illegal and uniust and against the principle of natural justice' They approached to the respondent for this illegal and uniust clause in Page 4 of 14 -.J. ...t.

HARERA GURUGRAM allotmentlefterandinrespectofthatrespondentassuredtothem that said clause will not be mentioned in the agreement of sale That on 14.01. on 14.01.2022 the complainant No' 1 namely Kuldeep Kaur and her son namely Mr' Chetan Rishi entered into an agreement for Sale with the respondent and as per Builder Buyer agreement dated 14.O ..ZOZ?,lhe total sale consideration price was Rs 3'55'00'000/- including PLC and other charges' That on 3O.O5.2OZZ That respondent had sent the demand/reminder letter to the complainants in which again they mentioned that total sale value is Rs 3'78'62'500/- and refer the clause 1.5 of the sale agreement which is unlawful' illegal and against the provisions of The Real Estate (Regulation & DeveloPment) Act, 20L6' That from 30-06.2022 lo 05'07 '2022 they wrote several emails to the respondent for restoring the original cost of the flat to Rs' 3,55,00,000/- from Rs 3'78'62'500/- That an additional amount Rs.23,00,000/- approximately is imposed just because there is delay of 10 days lt is submitted that complainant also mentioned inhisemailsthattheyarereadytopaythedemandifitwillbe raised as per total sale consideration amount which is mentioned in sale agreement i eRs 3'55'00'000/- lt is further submitted that acts ofthe respondent here in have caused severe harassment both physically and mentally and that respondent has duped the complainants of the hard-earned money invested by the comPlainants vlll.

That till 01.08.2022 the respondent sent the cancellation letter to themandcancelledthebookingofapartmentbearingNo.C-1703 located on 17th Floor of Tower/ Building No C' having carpet area vt.

VII.

Page 5 of 14 C.

HARERA GURUGRAM of 7447 sq. ft. and super area measuring "HighTown" situated in the revenue state Complaint No.

5758 of 2022 2500 sq. ft. in the Proiect of Village Sukhrali, Sector -28, District Gurgaon 122001, Haryana' Relief sought bY the comPlainants: The complainants have sought following relief(s)' 1.

Direct the respondent to declare the cancellation letter dated 01.08. ted 01.08.2022 was totally unlawful, illegal and against the provisions of the real estate (Regulation and developmentJ acl'2016' 2.

Direct the respondent to charge the initial cost which was agreed by both parties i.e.

Rs 3,55,00,000/-towards the total cost of the apartment which is mentioned in agreement to sale' 3.

Direct the respondent to receive the payment as per the payment plan which are mentioned in the sale agreement and restore the ownershiP of the complainants' On the date of hearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11(4) (a) of the Act to plead guilty or not to plead guilty.

D.

Repty bY the resPondent 6.

The respondent contested the complaint on the following grounds: - i.

That on 05.02.202L the complainants herein had through real estate agent namely "United Estate", applied for a residential unit bearing C- 703, 17th floor- tower 3 having super area admeasuring 232 Sq mt in the aforesaid project through booking application form and paid Rs 30,00,000/-.

That the complainant had agreed and signed the payment. lt is pertinent to mention that in the said form it was clearly Page 6 of 14 ffiHARERA S- eunuenAvt Complaint No.

5758 of2022 .-oiJ ,t ", ,irn"fy payment rebate (Discount) would be conditional on " timely poymentby customer of eoch lnstalment due " ii.

That pursuant to the aforesaid application' on 15'022021' the respondent acknowledged and confirmed the booking and tentatively allotted the aforementioned unit to the complainants' iii.

That it is apposite to state that, at the time ofbooking application' the complainants had to pay Rs 30,50,000/- however they had only made a payment of Rs.

30,00,000/- Thereafter on 30 03 202f ie ' after a delay of 38 days, the complainants herein made an outstanding payment of Rs.

L,27,2951- to the respondent' iv.

That on 25.05. on 25.05.2021', in accordance with the agreed payment plan' the respondent herein issued demand letter of Rs 20'22'705/- to the complainants, which was to be paid by 07 06 2021however' on 05.06.2021, the complainants made a payment of Rs 1'10'000/- and 9,90,000/-, on 29.06'2021, i e ' after a delay of 22 days' made a part payment of Rs 8,71,205/- towards total outstanding as on 07 06 2021 and on 15.12.2021, after a delay of 191 days' made a part payment of Rs.

4,00,000 towards outstanding dues and Rs 15'81'485/ resPectivelY. v.

That on Ol-of.2)22,the respondent herein issued allotment letter to the complainants and allotted them a unit bearing C-1703 with one car parking space in the project That in the said allotment letter' it was clearly indicated that the total sales value of the allotted unit (inclusive of GSTI was Rs.

3,78,62,500 [t was also explicitly mentioned that the total sales value was calculated excluding the timely payment rebate (TPRJ, and that the final total sales value would include the TPR discountvaluelf"alttheinstalmentsarepoidontimeasperthe ottached paymentplan " The terms and conditions ofthe payment plan Page 7 of 14 mHARERA I1",",*,,,* s,,*,,,-, S-eunlennu r"- '- *- "O"ift\/vt,ft and without TPR)' The total sales value without TPR would amount to Rs.

3,78,62,500' while the total sales value with TPR would amount to Rs 3,55,00,000' vi.

That on 1'4.01.2022, the agreement for sale was executed between the parties. lsame was annexed but not executed between the parties) vii.

That vide reminder letter dated 2a'02'2022' 07 032022 and 16.03.2022' the respondent herein has requested the complainant for the registration ofthe said agreement for sale with the concerned sub- registrar office in compliance with the provisions of the RERA Act' However, despite various follow ups' they were failed to adhere the said obligation' viii. ion' viii.

That the reminder letter dated 30'05'2022 and 10'062022' the respondent requested to clear the aforesaid due amount along with an interest however the complainants did not pay any heed to the said Ietters and failed to make outstanding dues lt is apposite to state that in said letters, the respondent herein also informed the complainants that since the total payment as on 10 '06 2022 madeby them is delayed for more than 30 days cumulatively' hence' the TPR discount is withdrawn consequently' the total sale value of the said unit stands revised to Rs' 3,78'62'500/- in accordance with the terms of the booking application form' allotment letter and agreement for sale' ix.

They have violated both the agreement for sale and the real estate [Regulation and Development) Act' 2016' by not making timely 'instalment payments As a result of their intentional and blatant disregard for the agreement's terms' the respondent had no choice but to cancel the allotment of unit No C-1703' in accordance with Clause 9 3 ofthe Agreement for Sale' Page 8 of 14 HARERA Complaint No.

5758 of2022 x. ihat till the date of filing the present reply, the complainants have only paid an amount of Rs.

70,79,985/- and as per the statement of account' an amount of Rs.

5 7 ,78,7 651- is otttstanding towards installments and an amount of Rs.

6,52,060 is outstanding towards interest as on 31.07.2023.

All other averments made in the complaints were denied in toto' 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 basis of these undisputed documents and submissions made bY the Parties E. furisdiction ofthe authority 6.

The authority has complete territorial and subiect matter iurisdiction to adiudicate the present complaint for the reasons given below' E.I Territoriatiurisdiction 7.

As per notification no. cation no. l/92/2077 -ITCP dated 74 7?

201'7 issued by Town and Country Planning Department' Haryana the jurisdiction of Haryana Real Estate Regulatory Authority' Gurugram shall be entire Gurugram district for all purposes ln 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' E.U Subiect-matter iurisdiction 8.

Section 11(4)(a) of the Act,2OL6 provides that the promoter shall be responsible to the allottees as per agreement for sale section 1 1[4J(a) is reProduced as hereunder: Section 17.,.'. l4) The Dromoter sholl' " ia1- [e iesponsiole for all obligotions' responsibrl.ines o,nd funcr tons under the provisions of this ict or the rules ond regulottons mode Page 9 of 14 HARERA complaint No.

5758 ot 2022 SHounuonRu |'- ' - ther"urde, or to the ollottees as per the ogreeme.nt for sole' or to- ii, iitiriotion ol ottottees. os the cose moy be till the convey-on-ce- ofoll the aportments, ptots or buildings' qs the cose moy be' to tne Ttiii*iri, "i rni ,iiion oreos to theissociotion oJ ollottees or Lhe competent authoriry, os the case moy be; Section 34-Functions of the Authority: 'ii| ifrn" eu p'ovid6s to ensure compliance ol the obligotions coit' upon the promoters, the allottees ond the reol esrute.ogents under this Act ond the rules ond regulolions made lhereunqer' 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' F.

Findings on the relief sought by the complainants' 1.' Direct the respondent to declare the cancellation letter dated 01.08.2022 was totally unlawful' illegal and against the provisions of the real estate (Regulation and develoPment) act,2016' 2. t,2016' 2.

Direct the respondent to charge the initial cost which was agreed by both parties i e' Rs 3'5 5'00'000/-towards the total cost of the apartment which is mentioned in agreement to sale.

Direct the respondent to receive the payment as per the payment plan which are mentioned in the sale agreement and restore the ownership of the complainants' 10.

The above-mentioned reliefs no Fl' F2 & F3 as sought by the complainant is being taken together as the findings in one relief will definitely affect the result of the other reliefs and these reliefs are interconnected.

Page 10 of 14 ffiHARERA S- eunuennvt Complaint No.

5758 of 2022 11.

The complainants were allotted a unit bearing no C-1703 in the proiect named "HlGHTOWN Residences" at Sector-28' Gurugram vide allotment letter dated 05.01.2022.

No buyer's agreement has been executed between the parties, whereas, allotment letter for the apartment bearing no 1703,lTth floor, Tower C, having carpet area of 1447 sq ft' and super area measuring 2500 sq ft daled 05'07 '2022 was issued by the respondent, regarding the said allotment for a total sale consideration of Rs 3,78,62,500/- and the complainants have paid a sum of Rs.70,79,985/- against the same unit' L2.

The respondent states that they have sent several reminders for execution of BBA as well as the payment outstanding which were accompanied with the progress of the project under construction but the complainants did not come forward to execute the same and further statedthattherewereclearcutmentionintheapplicationformitself which is clause 13 atpage 22 of lhe complaint' Clause 13 is re-produced as under:- "ry the intending appticont foils in submissior ol consent or seeks concetlotion/withatrowotlro the proiectwithout sny lqtltolthe promoter or foils in p(ryment of required oitditional amount toworils TSV ol unit ond signing ol dgreement fot sole within given time' then the promoter is entitled to forfeit the entire o,|plication money or 70o/o o[ the totol Sa e totol Sales Volue os moy be opplitoble ond interest component on deloyed payfient (poyoble hy 'he customer [or brcoch o[ ogreement ond non payment of ony ilue poyable to the promoter) The rote ol interest p.lyoble by the intending applicontto the promoter shalt he the stite Bonk oflndio highest moryinal cost ollending rate plus two percent The balonce amount ol money poid by the intending oppticant sholt he returned within ninety doys of suchcancellotion,Anyspeciolincentivediscount,ofrerorprivilegeo|Ieredtothe applicant dt the time oI sole sholl stand revoked in such situation" 13.

The complainant received cancellation notice dated 01' 082o22 and respondent-builder refunded an amount of Rs 29'99'884/- after deduction of earnest money, interest till 01 08 2022 and GST 'Ihe RTGS Page 11of 14 ffHARERA @*,-" ",,"',,r ffi eunuennu''' -^--^untofMs KuldeepKaurandMr'chetanRishi had been made to the accot amounting of Rs' 14'99'943/- each dated 72'08'2022' However' it was observed that the RTGS pertaining to the account of Mr' Chetan Rishi returned back to respondent's account reason being NRE VALIDATIoN FAILED.NowthequestionbeforetheauthorityisWhetherthe cancellation issued vide letter dated O:l'Oa'2022 is valid or not' 14.

0n consideration of documents available on record and submissions made by both the parties' the authority is of the view that on the basis of provisions of allotment' the complainants have paid Rs 70'79'985/- against the total sale consideration of Rs 3'78'62'500/- The respondent/builder sent reminders letters dated 30 05 2022 and lo.o6.2o22askingtheallofteestomakepaymentofRs.50,70,015/-as per payment plan but the same having no positive results and ultimately leading to cancellation of unit vide letter dated 01 082022 The authority is of view that as per section 19 (6) and [7) of Act of 2016' the allottee is under obligation to make timely payment as per payment plan towards consideration of the allotted unit Also vide proceeding dated 22. dated 22.L2'20?3' it is observed that complainant wrote a mail dated L6.03'2[Z|'stating that "we hod noted your initial letter in this regord kindly do not issue further remindet)" Through which it is concluded that they have made defaults wr't agreement by not executing it in prescribed time period' The complainants have continued with their default and making payment even after of various reminder letters' which led to cancellation of their unit The authority is of considered ViewthatthecancellationdonebyreSpondentisValidintheeyesoflaw.

However, the deductions made from the paid up amount by the respondent are not as per the law of the land laid down by the Hon'ble apex court of the land in cases of Maula Buxvs lJnion of lndia 1969(2) Page 12 of 14 HARERA SH, ounuonnu SCC 554 and where in it was held that a reasonable amount by way of ;;;;;;" deducted on cancellation and the amount so deducted should not be by way of damages to attract the provisions of section 74 ofthe lndian Contract Act'1972 The same view was followed later on in a number of cases by the various courts' Even keeping in view the principles laid down those cases' a regulation in the year 2018 was framed known as the Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builder) Regulations' 11[5) of 2018, Providing as under: -5.

AMOUNT OF EARNEST MONEY Scenorio prior to the tt"oi-itii" 8"suto'ions ond D'evelopment)' Act 20l6 wqs diflerent' Frouds were corried ouL wtthout ony lPor i"''i""'i"i 'i't"* lor the some but now' t.n view .ol the"ooove facts ond loking ^* '""''i"i"i'i' the iudgemenLs of H-o'n hle Notionol consumer i'ip'it -iia*"t- commtsvon on'd :he Hon'ble Supreme Cou"'[f"niio' 'n'" o"nority is'of 'rhe vrctu"thot the forkirure "'** ir''i""'i':'"si't noniv shol'l not excced more than 10o/o oJtn"ioiiia"'otion otount ofthe re-ol e$tote ' i. $tote ' i.'" "'p *ii*t tit "" :i'::,'fi:" ;: :,i; ri::il:!o,o ; r' in?' ;:i;Zi wherethe concellotion in a uniloterot ,,onn*Z' iii iii"' 'i*'as b wthdrow from' the proiecl and any agre""'i' '"iitl'''g *' clou5e conu ary-to t:: iiint'ia ngitotions sholl be void ond not binding on the buver' 15.

There is nothing on '"t"Ji" *i't"n'trto*t tr-rut RTGS done by the respondent to the complainant'1 of amount of Rs 14'99'943/- was returnedbacktotherespondent.so,keepinginViewtheaforesaidlegal provisions and the facts detailed above' the respondent is directed to refund the deposited amount of Rs'70'79'985 /- after deducting 107o of the basic sale price being earnest money after adiustment of Rs' 14,99,9431- already paid to the complainant no' 1 along with an interest @10.85% (the state Bank of lndia highest marginal cost of lending rate (MCLR) applicable as on date +20lol as prescribed under rule 15 of the Haryana Real Estate [Regulation and Development) Rules' 2017 on the refundable amount' from the date of cancellation ie ' 01.08 2022 till Page 13 of 14 ffiHARERA ffieunuonnl,l H.

1-6.

Complaint No.

5758 of 2022 actual refund of the amount within the timelines provided in rule 16 of the Haryana Rules 2017 ibid.

Directions of the Authority: Hence, the authoriry 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(f): i.

The respondent/builder is directed to refund the deposited amount of Rs.70,79,985/- after deducting 10% of the basic sale price being earnest money and adiustment of Rs.

14'99'943/- already paid to the complainant no.

1 along with an interest @10.850/o on the refundable amount, from the date ofcancellation i.e.,01.08.2022 till the date of realization of payment. ii. yment. ii.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences would follow.

17.

Complaint stands disposed of.

18.

File be consigned to the registry Haryana Real Estate Regulatory Authority, Gurugram Datedt 29 .03 .2024 Page 14 of 14 irniar Arora) Member