SMT NEETU MANOCHA vs RAHEJA DEVELOPERS LTD

*HARERA S-eunuenm,r BEFORE THE HARYANA REAI, ESTATE CIJRUGRAM NAMEOFTHEBIIII,DIR PRO'ECT NAME cR /2280 / 2022 cR/22?S/2422 1 Reemasaini and RajrvSarnr v/s Rahera Develope.s Limitcd RECUI,ATORY AUTHORITY, Dateof d.cision: 03.04.2024 RATIEJA DEVELOPERS LIMITED "RAHTIAARTNYA CITY" 2280 ot 2022 and T Chand.r Mohan Sharna v/s Rah.ia Dcvelopers Limited Chander Moha.

Sharma CORAM: ORDER 'Ihis order shall dispos€ ofboth the complainrs titled as above fited betore the authority under section 31 of the Real Estare (Regulation and Development] Act 2016 (hereinafter relerred as the Ad") read wirh rute 28 oithe Haryana Real Estate (Regulation and Developmenr) Rules,20t7 (hereinalter referred as "the rules") for violation ofsection t 1(a)[a) otrhe Act wherein it is inter alia prescribed rhat the p.omoter shall be responsible for all its obligations, responsibiliries and functions ro rhe allottees as perthe agreement for saleexecuted inter se between parhes.

The core issues eman:ting from them are similar jn nature and rhe complainaDt(s) in the above rei€rred matters are allottees of the project, namety, " Raheja's Aranyo CiOl' (residential group housing colonyl berng developed by the same respondent/promoter i.e., M/s Raheja Devetopers *HARERA S-eunLnmur Limited.

The terms and conditions of the agreement to sell ahd allotment letter against the allotment of units ih the upcoming project of the respondent/builder and fulcrum ofth€ issues involved ln both the cases pertains to failure on the part ofrhe promoter to deltvertiinely possession of the units in questioD, seeking award ofrefund rhe entire amount atong with intertest and rhe compensation.

The details oftle complaints, reply to sratus, unrr no., dare ofagreemenr, possession ctause, due dare of nlg{on, totat sate consideration, to(at paid amounr. and retief souCht ?lfiisdd in the tabte below: Possession Clause:, 4.2 Possession Time and Compensation fho. ation fho.t the Scll?r Sholl sncerely endea/ot togNe passessrcn ol thc plot to the purchot?t wtthtn thitE.tu (36) no;ks from the d;@ ojthe execurton ol the Agreeme to se oni alter povtdt;s ol 4?cessory tnlostru(ture spe.iolty tood sewer & iot$,n the 5ectot by the GovernmcnL_but sublect & lorce najeure condttrcns at on) Lovemnent/ Regulotory oL\hontys action, inadrcn ot ontrsnn and reosan\ beyond the contol ol the Setlpr.

However, the se er shall _be entltled tot cornpensotjon lree lrace pertod oI sk (6) months in cos? the devetopment b not conpteted wtihin ihe time period men oned above tn thc caent oI h$ la ure to toke ovcr posse.ron of the plot" provttiana ! and /or finotly o ottcd v,.tthtn 30 da!. trom the datc ol tnlimaoon tn vtt ng b! the sellpr. then thc tonc shalt lic at his/her n.k and cort and the turchoser shotl be lie ot his/her dsk and cost the purchoser sholl be tioble to pov @ Rs S0 /- pe r sq yds ot the plot areo per mont h as t o* and he putthaser rhollb" liobte rc pay @ k_50/- per sq yards.

O) the ptat a.rea per nonth as hotding charges fot the entne peiod ol;uch Compl.int No.

2280 of2022 and HARERA Complaint No.

2280 of2022 and P-GURUGRA]V li Note: lh the tabl. referredabove, cerrain abb.eviati6ns cldborated as follows: Abbreviatio.

Full form TSCTotal Sale.on!deraii.n )na wjth prescrib€d ratc ot h.Ebee &d. nEy.* riue. l.

2 n e .omptdtranrs tn rre arov. .o'lpratntr lavaroutrt dre ro[o;;ei;ii.rr 1.

Direct the respondenr to reflnd the paid-up amounratonswith prescrib€d ratc ol 2 Drectrhe:proondenl ropqv rnc. rsationrGr, AP Amount !aid by the altonee(sl *HARERA #,ounuenml 6 l.

1 [- 7.

The aforesaid complajnts were nled against the promoter on accounr ol violation ofthe agreemeni to seltand altotment letter agajnst the altotment of units in the upcoming p.oject of rhe respondent/bujlder and for not handing over the possession by the due dare, seekingaward otrefund th. entire paid'up amount along wth interestand compensarion. pensarion.

It has been decided to treat the said complaints as an appticarion aor non compliance of statutory obligations on the part ot the promoter/ respondent in terms of section 34[D of the Act which mandates rhe au tho.ity to ensu re com pliance of the obligatio ns cast upon rhe pro moters, the allottee(sJ and rhe real estate agents under rhe Act, the rutes and the regulations made thereunder.

The facts ofboth thecomplaints fited bythe complainan(sl/altotree(sl are also similar.

0ut ofrhe above-mentioned case, rhe particutars o ead cjse CR/2280/2022 titleat os Reema Satnt and Raltv Saini v/S Raheja Developers Limited arc being taken into consjderat,on for determining the riBhts oithe allottee(sl qua refund the entire pajd-up amounr along lyith Proiect and unit related detalls Th. particulars ofthe project, the detaih ofsale consideration. the amount paid by the co mplainanr(sl, dareofproposed handing over rhe possession, delay period, ifany, have been detailed,n the fo owingrabutar torm CR/2280/2022 tttted as Reema Saini and Rajiv sotni v/S Roheja Developers Limited.

Particulars conPlaint No 2280 of 202 2 ahd Dctails 11&14, Sohna Gurugram 107.85 acres *HARERA S,ounuenel,l lreFistered Nature ofthe DTCP license ro. and validity Resistered/ Atrt Kumar and 22 0thLrs RERA Cooplaint No.

2280 ot2022 and Residential plotted colony I 25 ol 2012 dated 29.03.2012 vatid rp to 28.03.2018 Registered vide no.93 of2017 dated 28.08.201?

RERA registration valid up to 27 0A 202? larntl Unit area admeasuring 232.360 sq. yds.

Paee no 29 ofthe com lainrl tio.

11, Date of exe.ution 12. agreement to sell .

N,A, 20.09_2074 Pase no.

26 olrhe.onr "That the Seller sho sincerelr endeavor to glve possession ofthe plot to the purchaser wlthin thi y-six(36) nonths from the date ol the executlon ol the Agreement to sell and after providing ol necessary inlrostructurc speciolly road sewer & water in the sector by rhe Covernment, but sublect to force maieureconditions or on!

Govemment/ Regulotor Regulotor! authoriy\ action, inaction or omission and teosons beyond the control ol the Seller- However, the seller sholl be entitled lor compeasation lree grace period oJ stx (6) months tn case the deeelopment is not completed a,ithin the tlme period mentloned above. tn the event of his Jailure to take over possession of the plot, provisionally antl /or lnally alloued within 30 dols ton the dote ol "f | | indnation in writinp bv the sellea then flHARERA Seunuemv complaint No.

2280of 2022 and the sane sholl lie at his/het risk oncl cost and the Purchaser shall be lie ot his/her risk and cost the purchoser sholl be liable to pay @ Rs.50/- pet sq.

Yds ol the plot area per month as cost and the purchdser sho be liable to pat @ k.50/- per sq.

Yards.

Ol the plot orea pet nonth as holdins charyesfor the entire peiod olsuch de\at.............

Total sale consideration Allow€d As per clause 4.2 ofrh. agreement to sell,the possession ofihe allotted unit was supposed to be oLered wirhjn a stipulated timeframe of 36 months plus 6 months ofgrace period lt is a matter oflact that the respondenr has not completed the project in which the allotted unit is siruated and has not obtained the occuparion certificate by September 2017.

As per agreement to se1l, the construction of che complalntl the proje.t is to be completed by September 2017 which is nor completed till date.

Accordingty, in the present case the grace period Due date ofpossession 20.03.2018 of6 months is allowed. months srace Deriod (Note - 36 months from date of agreement i.e., 20.09.2014 + 6 R\-7 7 ,49,2061 . (As per applicant 07-04-2023 at pase ledger no 22 .

Amount paid by Rs.39.26884/- t-t f" 14.

15. *HARERA S-eunuennttr Occupatron applicant ledger dated at page no.

22 ol the (As per 07.04-2023 ryplv) Completion certificare Offer ofpossession B.

Facts ofthe complaint 8.

The complainants have made thefollowing submissions in the comptainr:- L The complainants were allotted a residenrial ptot bearing no. earing no.

F154 having 232.360 sq. yds superarea inthe project ofthe respondent named ''Rahejas Aranya Ciry" at Sector 11, 14, Sohna Road, Curgaon vide agreement to sell dated 20.09.2014 tor a rotat sale conside.ari.n nr Rs.67,38,440l- and the complainants have made a substantial paymenr of Rs 39,26,884 /- against rhe same as and when demanded bv the IL Thatthe t,mewas essenceand possession was to be deljvered wirhin 36 months irom the date oftheexecutjon ofrhe agreemenfto setlas assured and agreed bythe respondenr.

IIL That although the complainants always compli€d with their obtigarion, the respondenr however fajled to deliver its obligations.

The complainants made severa) .equesrs to rhe respondent to gjve progress report oi the said project and atso wrote several ema,ls requesting thc same, but the respondenr have failed to respond to emait senr by rhc complainants also fa,led to provide anyprogress report. lV.

That due aloresaid actlronductofthe respondent, the comptainanrs have suffered damages and the respondent, on the hand, made profits an.l Complaint No.2280 of2022 and *HARERA S-eunuenlur enjoyed the money of the complainants with aforethought deception and maliceand withoutever having any intention ro deliver on irs promises V.

That aggrieved with the aforesaid adlconduct of the respondent, the complainants sent a legal notice dated 15.12.2021 withdrawing themselves/herselr trom the project and atso asked ior rhe refund ofrh. money paid, with interesrand orherdamages Vl.

Tha t the co mplaina nts areentitted ro reiundofthe principt€amount paid to respondent aloDguith interestonthe amount paid to the respondenr, as per provisions oi Rule 15 of Haryana Real Estare (Regularion & Development) Rules 2017.

VII.

That rhe comptainants are also entirted to be compensated to. rhe litigation cost ro $erune oi Rs.

2,5 0,000/-.

C.

Reliefsought by the comptainantsr - 9.

The complajnants have soughr fo owing relief(s) a. lief(s) a.

Direct the respondenr ro refund the pa,d-up amount along wirh presc.ibed rare of interest. b.

Dired rhe respondenr to pay the litigation cost to the tu.e ot Rs.2,50,000/- to theconplainants.

D.

Replybyth€respondent 10.

The respo ndent contested the comptaint on rhe toltowing grounds:- i.

That the complaint is neirher maintainabte no. tenableand js liable to be out-righrtydismissed.

The agre€mentro sellwas executed between the parries prior to the enactment oathe Act, 2016 and the provisrons laid down in thesaid Act cannot be enaorced rerrospectively.

Atrhough the provisions of the Ac!

2016 are not applicable to the facts oi the present cas€ in hand yet wirhout prejudice and in order ro avord Complajnt No.2280 of2O22 and HARERA GURUGllA[/ complications later on, the respondent has registered the project with the authority under rhe provisions ofthe Acr ofZ016, vide registration no.

93 ol 2077 dated 28.0A.2017 . ri.

That the €omplaint is not maintainabt€ ior the reason rh:t rhe agreement contains an arbitration clause which refers to the dispute resolution mechanisn to be adopted by the parties in rhe event otany dispute i.e., clause 13.2 ofthe buyer's agreemenr.

That the complainants have nor approached thjs authorjty with cleaD hands and has intentionally suppressed and conceated rhe material facts in the present complaint.

The cornptainr has been nled by rt malic,ouslyw,th an ulteriormotive and itis.othing but a sheer abuse ofthe process oflaw.

The true and correct facts are as fo ows: i That the complainant after checking th€ veracty of the project namely, 'Raheja Aranya City phase-1, sector 11 & t4 Sohna Road.

Gurugram had applied ior allotment of plot vide their booking application form.

The comptainants agreed to bound by rhe terms and conditions olthe booking application fo.m.

The comptajnants we.e aware lrom the very inception that the plans as approved by the concerned authorities are tentative in natu. e in natu.e and thar rhe respondent might have to effedsuirableand necessarv alrerarhns in the layout plans as and when required. > That based on the Applicarion for booking, rhe respondent vide irs allorment oifer tetter allotted to the complainants ptot no.

F-154.

The complainants signed and €xecured the agreement ro selt and the complainanrs agreed to be bound by rhe rerms contained Complaint No.

2280of 2022 and *I]ARERA 4[ eunueml,r complaint No.2280 of2022 and > That the respondent raised payment demands irom the complainants in accordance with the mutually agreed terms and cond,tions of allotment as well as ot rhe payment plan and the complainants made the payment oi the earnest money and part- amount of the total sale considerarion and are bound ro pay thc remaining amount towards the totatsale consideration ofthe ptor along with applicable registration charges, stamp duty, service tax as wellas other charges paFbte at the appticable stase. > That the possess,on of the plot is supposed ro be offered ro the complainanrs in accordance with the agreed terms and conditions of the buyer's agreemenL > Despite the respondent fulRtting alt its obtigations as per the provisions laid down by law, rhe government agencies have tailed miserably to provide essential basic infraskuctu re iacilirjes such as roads, sewerage line, water, and electricity supply in the sector where the said project is being developed.

The development oi roads, sewerage, laying down olwater and electriciry suppty tines has to be undertaken by the concerned governme.rat aurhoriries and is not within the power and controt oi the respondent.

The respondent cannot be held liable on account of non_performance by the concerned governmentat authorities.

The respondent company has even paid alt the requisite amounts including rhc External DevelopmentCharges IEDC) torheconce.nedaurhorities. rhorities.

However, yet, necessary infrastructure iacilities tike 60 merer sectorroadsincluding24-meter-wideroadconnectiviry,waterand ffHARERA Q ounuoRnm sewage which were supposed ro b€ developed by HUDA paralte y have not been developed. > Tharthe time per,od for calcutating the due date oipossession shall start only when the necessary infrastructure taciUties will be provided by the governmental authoriries and the same was known to rhe complainants trom the very inception.

Non-availabilty ofrhc infrastructure facitiries is beyond the controlofthe respondent and the same also falts wirhln the ambit of the definirion of,f-orcc Majeure' condition as sitputated in ctause 4.4 of rhe agreemenr to se1l. > That the development of the township in which the plot aloted to the complainants is locared js S0% complete and the respondent shall hand over the possession oi rhe same to rhe complarnants subject to rhe comptajnants making the payment of the due installments amountand on avaitabitityof infrastructure tacil,ties such as sector road and laying providing basic external infrastructure such as water, sewe., etectriciry etc. as per te.ms oI the application and agreement to sell It is submitted rhat despite the occurrence of such force majeure events, the respondent has completed the part development of rte project and has atready been granted part comptetion certificate on 11.11.2016.

Under these circumstances passjng any adverse order against the respondent at rhis stage would amount ro complete travesry ot 11.

Copies oaall the relevanr documents have been filed and placed on the record.

Their aurhenticity is not in dispute.

Hence, rhe complaint can be Complatnt No.

2280 of2022 and *HARERA *$-eunucnmr decided on the basis of these undisputed documents and submissions made by the parties.

E.

Jurisdiction ofthe authority 12.

The authority has complere territorial and subject matter jurisdiction to adjudicate the presenr complainr for the reasons Siven betow.

E. betow.

E.l Territoriallurisdicrion 13.

As per notificarion no_7/92/2017-l'fcp dated 14_12.2017 issued by Town and Country Planning Deparrment, Haryana the jurisd,ction of Haryana Real Estate Regulatory Authority, curugram shalt be enti.e Gurugram district for all purposes- In the present case, the project in question is situated w,thin the plann,ng area of Curug.am d,strict.

Therefore, rhis authority has complete territo.ial jurjsdiction ro deat with the present E.ll Subi€ct-matterlurisdicdoD 14.

Section 11(a)(a) of the Acr, 2016 provides that the promorer shall be responsible to the allottee as per agreiment for sale. section 11(41(al js reproduced as hereunder: 7i1 n e p,on't", ,n,tr (a) be tesponsibk fot oll abnootioE, rcsponsibilties ond lunctbn, under the provislans of this Act ot the rutes ohd regulotians mode thereundet ar to the otlottees 6 per the agre.nent lor sote, or to the ossaciationolollattees,osthecose oy be, till the convelonce ol oll the aportnents, ploEorblildinss,osthecose hqt be, to the oltott@, at rhe @nm on o reos to the o ssaciotion of o I tottas o r the ca npe tent o utha n q, asthecaseno! bej Section 31-Fun.tions ol the Authorit!: 344 aI the Act provides to ensure conplionce oJ th. abtigotions cost Lpoh the pronotq' the oltottees ond the.eol estote ogents undet thi, Act ona the tulesond rcgulotiohs node thereuhde..

Conplaint No, 2280 of 2022 and *HARERA #-eunuenmr 15.

So, in view of the provisions ol the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance olobligations by the promoter leaving aside compensation which is to be decided by the adjudicating offlcer if pursued by the complainants at a 16.

Fu.ther, the authority has no hitch in proceeding with the comptaint and to grant a reliefof.efund in the present matter in view of the judgemcnt passed by the H o n'ble Apex Courr in lvewteci Promo ters ond Developers Private Ltmited vs State ol U,P.ondors.2021. dors.2021.Zo22 (1) RCR (Civit),3s7 and reiteroted in case of M/s Sana Realtors Private Limited & other ys Union ol tndia A others SLP (Civ ) No.

13005 ol 2020 decided on 12.05.202 2whetei\ ithas been laid down as under: ''a6 Fron the the e al the Act ofehich a detailed rcference has beeh no.le ond tahng note oI powet ol odjudi.otnn detneoted with the rcqu 1 o tory o uthotir/ an d odj udica ti n I allce L \| ho t I nu I ly c u lh oat s tha L olthoush the Act indicates the dktihct e@tetsions tike reJtnd,lnte.e*, 'penolt! ohd canpensotioh', o conjoint reoding oJ Sectnns 13 ond 19 dearly nonilests that vhen itconesta refundofthe ohaunLond nbrc! on the .elund on.unt or dnecdng poyneht ol inkrest lat detaletl delivery aJ postettan,at penolty ond lnte.est thercan, it Bthe resutatut! outha rJwhich hasthepawertbexonineand deternne thc out.ane oJ o conploinL Atthesohe Ane,ehen itcon6 ta oqu.stion ofseekina the 'plnl ot o,tjudging.aap"n\ot:on ord hp,?.t thptpor Lnde, 5t.to;. t - 14, 18 and 19, the od)udicating olJi@r dclusivet! hos the pawet La detemine, keepins in vtew thecoUective reading ofSection Tl reodwnh Sedion 72 oltheAct iltheodtudicotian uhderSecaons 12,14,13 ond je other thoh .anpensotion as envsaped, lextended ta the adjudicottn! olrcer os prcled thot, in out viev, noy intend ta expand the onbitont {o pe al th e powe\ ond ft n ction s of the o dlr d ico t i h9 ofi e r u ntler s a tnh 71 ond thot'9alld be ogotnst thc nandote althe Act2afi.

17.

Hence, in viewoirhe authorjtatjve pronouncement oirhe Hon bte Supreme Court in the case mentioned above, the authoflry h:s rhe jurisdictron ro Complaint No.

2280 of 2022 and l]ARERA GURUGRA[/ entertain a complaint seeking refund of the amount and interest on the F.

Fhdings on th€ obiections raised by the respond€nt F.l.

Obiection regardlng iurisdiction of authoriry w.r.t. buyer,s agreement executed prior to coml.g itrto force ofthe act.

18. e act.

18.

The respondent has raised an objection that the aurhority is deprived of the jurisdiction to go into the interpretation of, or rishrs of rhe parties inter{e in accordance with the flat buyer's agreement executed berween the parties and no agreement for sale as referred to under the provisions oftbe Act or the said.ules has been e-\ecuted interse parties.

The authority 's olthe view that the Act nowhere provides, nor can be so construed, thar all previous agreements will be re-wr,tten after coming into force ol rhe Act.

Therefore, the provisions oithe Act, rules and agreemenr have to be read and interpreted harmoniously.

However, ifrhe Act has provided for dealing with certain speciflc provisions/situat,on in a specific/parricular manner, then that sitLration will b€ dealt with in accorda.ce with the Act and the rules alter the date otcoming inro force oarhe Act and rhe rules.

Numerous provisions ol the Act save the provisions of, the agreements made between th e buyers and sellers.

The said conrention has been u ph e ld in the landmark iudgment ot Neelkamol Redltors Suburban PvL Ltd.

Vs.

Uot and others. tW.P 2737 ol 2017) decided on 06.12.2017 which "119.

Undu the prcvisions of Se.tion 1A the deloy in hondinA ovet the pNssion would be countzd lron d1e dote entioned in th. aq@nehr lor ele tered into by the prcnoter and the allott@ ptiot to itt regisrrctioh uhdq RERA.

Under the prcvisions oI REP.r'., rhe prcnoe. k given o fucility to reie the dotz ol.onpletior ol prcject ond .hclore the ehe under Section 4, The REPJ. does not contanplate @riting of contra.t betwen the lot purchoyr and the prcnoter,,,, Conplaint No 2280 of 2022 and *HARERA $-ounuoneu Compl.intNo 2280 ot2022 and We hate oheodt dktu$ed thot above stoted prcvisions ol the RERA orc not retrdpative in noture. fhey ho! to tone enent be having o t cttooctNe ot quo'i .etrcot aR efen btt then on thot g, ound th. , ound th. lotdtr, ol Lhe provs@n' ol RE,d connor be thole\qea_ in" poaianea u conpetent enough to legislate low havikg retaspatite or rctooctoe ellect.

A law coh be even lraned to ollect subsistins / existjns contactuot rightt between the pofties in the laryer publi. ntercsa We do not have ont dotbt in our nind thot the REP.. hos been lroded n the larget pubhc intetest after o thorough studt ohtl dxcusion dode at rne highest level by the Standing Connittee and Select Contuittee which subnitted its detailed repotts." 19.

Also, in appealno.173 of 20,19 tirledas Magic Eye Devetoper pvL Ltd. ys.

IshwerSingh Dahiya, in order dared 17.12.2019 the Hary:na Reat trtate Appellate Tribu nal has observed- 34 Thut keeptns in view out ohresoid discfsion, we ore ofthe cohtlttete.l a p t ni on tho t the ptuvkian s af the A.t o rc q uos re t rooc tiv e to.one ext e n t even ptiar to mhino into onetutian olthe Arrwhere the trohn.tion orc nitl in the pfn p* at contlettdn, nene in case ol dpla, n the offer/detlvety ol passeseon 6 per the tems ond condtians ol the aqreenentlot sdle the ollottee sho be entitled ta the intetest/deloled posseseon chargeson the re$anabte rcte ol interest ds pravide(t n Rule 1s oJ the ru|es on.l ane sided, unfan and unreosanablc rate ot ,onp?h.atbn rentDned .r r4p agtc"ne F, ,o" I ],ob. to D, ignoted.

20.

The agreements are sacrosanct save and except for the provisions which have been abrogated by theAcritself.

Further it is noted thar the builder buyeragreements havebeen executed in rhe mannerthar rhere is no scope left to the allottee to negotiate any of the clauses conrained the.ein.

Therefore, the authority is oi the view that rhe charges payabte under various heads shall be payable as per the agreed terms and condinons ot the agreement subject to the condition thar the same are in accordancc with the plans/pe. plans/pe.missions approved by the respective departments/competent authoriries and are nor in conkavenrion of any other Act, rules, statutes, insrructions. directions issued thereunder and ffHARERA gP- GURUGRA[/] are not unreasonable orexorbitant in nature.

Further, as per submissions made by the parties as well as documents avaitabte on record ,t is evident that OClCC has nor been issued ro the projecr in question bythe comper€nt authority till date.

Theretore, the project wi be treated as an ongoing project as per section 3 otthe A€r ot20t5 and rhe provisions ofthe acr as wellas rules are duly applicable on ir.

The same view has also been uphetd by the Hon'bleAppellateTribunalin case titled as Em mor McF Land Ltd. ys.

Ms. simmi Sikka aul ors. (Appeal no.

52 & G4 ol 2o1B) doted 03.17.2020.

Hence, tn yiew oi the same, objection w...r to jurisdicrion of the autho.ity stands rejeded.

F.ll Obiection regarding ag.eements contains an arbitrarion clause whi.h refers to the dtspute resotuflon system mentioned in .greement 21.

The ag.eement to sell executed belween the parties on 20.09.2014 contains a clause 13.2 relating to dispute resoturion between the parries The clause reads as under: - 'All orah!dsputesaritihgoutot touchlng upan in retotion to theterns olthis Appiicotian/Ag.eenent to Selt/ Cohveyonce Deed nctudhg the inte.pretation ond votidrtJaJth. tems thereofond the respective flghr\ and obtigations al be pdfties sholl be seuled throush otuiraton t.he arbitrottan proceedings sho be governed b! the Atbtt otnn on.) Canciliotion Act, 1996 ot ont stotutory onendhenE/ nodittcatioE the.cal lor the tine being in hrce, The orbfiotion prcceedings shalt be het.t at the olJie olthe seler in N.w Dethi bro nte orbtrab; wha \halt be oppointed bf nu.uatcansentolthe potues. tfthere k no consh,uson oppointnent oI the Arbjtator, the notet wnl be reJened ta thc conc ned.auttkt the sone. tn cose of any praceedins, refercn.e ek toL. .e ek toL.hins upon theofitrotorsubjectocluding ony o\|otd, the territanal jurisdiction oI the Cou s shall be Gutgaon os well as af pun)ob on.l Hotlono ttiqh CounotChondigarh .

22.

The authority is olthe opinion that the jurisdicrion oithe aurhority cannor be fettered by the existence of an arbitration clause in the buvc.s Complaint No.

2280 of 2022 and gHARERA Seunuennttr ComplalntNo 2280 of2022 and ag.eement as it may be noted that secrjon 79 of the Acr bars thc jur,sdiction ofcivilcourts aboutany mafter which falts withjn rhe purview ofthis authority, or the Real Estare Appellate Tribunal.

Thus, the inrention to render such disputes as non-arbjrrable seems to be ctear.

Also. sectjon 88 ofthe Act says that the provisions ofthrs Acr shatl be in addirion ro nnd not in derogation oithe provisions otany other law ior the time being rn force.

Further, the authoriry puts reliance on catena otjudgments of thc Hon'ble Sup.eme Cou.! particularly jn Nationol See.ts Co.pototion Limtted v.

M.

Modhusudhan Reddy &Anr, (2012) 2 SCC 506, wherein ir has been held rhat the remedies provided under the Consumer prorectron Act are in addition to a.d not ,n derogation of rhe other laws in torce, consequently the authority woutd not be bound to refer parrics to arbitration even ifthe ag.eement between the panies had an arbjrrarron clause.

Therefore, by applying same anato8y the presence of arbikation clause could nor be construed to take away the jurisdiction of rhe 23.

Further, inAltab Singh and ors. v.

Emaar McF Lanc!

Ltd and ors., Consuner case no.

701 of 2015 decided on 13.07.2017, the Nationat Consume.

Disputes Redressal Commission, New Delhi (NCDRCI has hetd that the arbitration clause in agreements betlveen rhe complainanrs and builders could not circumscribe rhe jurisdiction of a consumer 'the relevant paras are reproduced below: n9, Suppart to the abov. view is olso lent b!

Section 79 of the raqtlt aocte. tlt aocte.l Reol Estote (Regulotion o\l Developnenr) Aca 2A16 tor short "rhe Rql Estote Act").

Section 79 ofthe tuid Act reods 6 lotows: - '79.

Bot ol jutisdiction - No .ivit court shotl have jurisdiction to entertain any tuit or proceeding in rcspect oJ any notter which &e Atthoriu or the adiutlicoting oJlet ot the Appellate Tribunot is *HARERA $-eunLnmur enpowered by or uhdet this Act ta deternine ond no injunction shollbe grcnted bt any court or oth oLthorirJin rcspectalan! octjon taken ot to be taken in pwsuonce alont power conlened by otunderthisAcL" tt con thut be seen thot the soid provision expresly oust: the iuns.liction otthe C v,] Cou, t tq.etpe.tar on, noftet whtth the Reol Edote Resutotory An,h;.ii e.tobh.hed uadq \ubaea,on (t) ot Sernn 2a ot the Adtudnaas Olll;t oppointed under Stb.section [1) of Section z1 or the Reot Estote Appejtont Tribunal estoblished undet section 43 of the Reot tstote Act, k enpowered to detetnine.

Hence, in view ol the binding dictun olde Han ble Suprcne Cau.r tn A.

Awo swo nr bup td ), the noae B/disp L tes, whi ch the AL thot ities und er the keol Estote Act are ehpaw.red ta decide,arenon.otbit.able, natethstaruJng ah Afiitrotian Agreenent between the pofties to such natte, which, k) o large exteht, are sinilor to the dkputes lalhng lar aotutnn under the Cansuner Act. s6.

Cansequently, we unhesitotingly .eject the oryunenL, an beholf ol the Duilder ond hold thot on Arbitrotion dous. in the olorertated kind af Agreenenrs betw*n the cotuplainonLs ond the BLildet connotcntunthb; the jurisdEtion af o Cansune.

Foro, notwithstanding the an dnenE made ro Section 3 oI the A.bittotion Act" 24.

While considering the issue ot mainrainability of a complaint before a consumer forum/cornmiss,on in the fact ofan existine arbitrarion clause in the bu,lder buyer agreemenr, the hon'bte Supreme Court in cose aialed as M/s Enaar MGF Lond Ltd. v.

Aftab Singh in revision petition no.

2529-30/2018 tncivil appeol no. appeol no.

23s12-23513 ol2012 decided on 10.IZ20r 8 has u pheld the aaoresaid judg€ment of NC D RC and as provrded in Article 141 ofthe Constitution oftodia, rhe law dectared by the Supremc Court shall be binding on all courts within the rerritory of India and accordingly, the author,ty is bound by the aioresaid view.

The relevant paras are of rhe judgement passed by the Supreme Court js reproduced ''25.

This Coun in the se es al jujgnehts os noticetl obove .onsidered rhe provtsons olConsunet Protection Act, 1986 os \|elt os A.bit.ation Act, j996 ond lad dawn thotconplatnt under Cansune. protecton Actbeins o spe.rul rened!, dapte there behg dn arb itt otion ag rcenent the proceed nss belarc €omplaint No.

2280 of 2022 and *HARERA S-emuennv Consune.

Fa.un haveto!)oon ond ^oe at conntted bt Consuner Fotun on retecting the opplication fhere n reden lo/ hat ihte*cting praceedings undet Consunet Prctectin Act on the strength ah orbitrotion ogreenent b!

Act,1996.

The.enedr uhderCansun.r Pratectian Actis o renedy provided k) o consunet when there is o delect in on! goads ot teruices.

The conplaint neons ony olkgotion jn writing node by o conploinont hos oln been dplatned in Section 2(c) olthe Act The remedy unde. the Consuner Protectton Act is confned to conptoint by consLner ds defned tnaet the Act fot delcct or .tefi.iehcies.oued by o se.rice prcvide., the cheap ohd o qrick renedt hos been pravided to the cahsunet which ts the object ohd purpoe olthe Ad os nottced above.

25.

Therelore, in view ofthe above judgements and considering the provision ofthe Act, the authority is of the v,ew that complainants are well within their rights to seek a special remedy available in a beneficialAct such as the Consumer Protection Actand RERAAct,2016 instead ofgoing in for an arbitratioD.

Hence,we have no hesitation in ho lding that this autho rity has the requisite jurisdiction to entertain the complaint and that the dispute does not require to be rei€rred to arbitration necessarily.

C. sarily.

Findings o. the rellef sought by the complalnants. c.l, Direct the respondeot to retund the paid.up amount alongwith prescribed Ete of interest 26.

In the present complaint, rhe complalnants intend to withdraw irom the project and are seeking return ofthe amount paid by them in respect of subiect unit along with interest ai the prescribed rate as prov,ded under section 18[1] oltheAct.

Sec.18[1) oftheAcris reproduced below lor ready ,section fi: - Retutu ofamouht dn.! @npensdtion 13A ).

I the pronot* loils to canplete at is unable to give possession af an dpo ttn da p I oa or bu ildi ng.. (a) i^ occordonce wlth the terms olthe osrcenent far nte oL os the cae noy be, dul, completed by the date speciled therein: or (b) due to dkcontinuonce ol his busine$ os o devetoper an account of suspensian or revocotian of the rcgisnation under this Act or lor ony Complaint No.2280 of2022 and $HARERA S-ernuennll he shdl be lidble on denohd tothe o otteet, in cose the ollottee wishes to wxhd.aw ton the project" wtholt preludtce ta on! athet renedt avoilable, to return the amount receive.l by him in respqt olthat aportnent ploa building, os the coe not be, with interest ot such rote as no! be pre{ribed in thi s be ho ll j n c I ! di ng coh pensotion i n th e nonner o s p tor ided undetthk Act: Provided that where an ollottee docs not intend to withdtow fron th. pra)ect, he \hott he poid, b! the pr.notel, interc* Jor evety nanth aJ dekry, ttll the hondtns aver ofthe passessnn,at such nte os nay be prescribe.l' (EnphonssLpptied) 27 As per clause 4.2 ofthe agreement to sell dated 20.09.2014 provides for handins over ol possession and is reproduced below: 4.2 Possession Timeand Compensation Thotthe seller shallsincerely rleowr to give posesson althe plot to the purchoser \|ithin thttt-nr G6) nonths lrom the .tat ol the decutiot oJ the [email protected] ao el ohd oftq p. hd oftq p.avtdtns ol necessorr inlrostructure speciolly rood n||er & voter in the sedor b! the cavcrnnent but subtect ta fofte ndjeu.e condttiohs or any covernnent/ Regulota.t authoritr's octtan, indctioh a. odt$ion und reofrns belnnl the conttal ol the Seller.

EoweveL the se q sho be entitled lor conpensotion lree srdce pertod ol sit (6) honths in cae rhe develop ent is not @npleted wtthin the tine penod nentionen obo@. tr the event al ha laiture to take over po$eisian .l the ptot. provaianollr ond /or tnaly ollotte.l within 30 dols fram the date aJ tntunation in w.iting by the eller, theh thesone shott tie ot his/her ri:k ond .ost and the Purchasr shal be lie ot hk/her nsk and cosc the putchoser shall be liobl.to pay@ RtSA/- persq Yds. altheplotareo pd hohth os cost and the putchoser shollbe lioble to po! @ RsSa/ per sq Yord s Ol th e plot orca pq nonth at holding chatges lo. the ehtue per in,l af su c h de I oy.........,." 28.

Atthe outset, it is relevant to comment on the preset possession clause of the agreement wherein the possession has been subjected to providing necessary ,nfrastructure specially road, sewer& water in the sovernment, but subject to force majeure conditions or any /regulatoryauthority's action, inaction oromission and reason beyond the control of the seller.

The draft,ng of,th,s clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded 'n favour ofthe promoter and against the allottee that even a sinCle default " PaEe 20 ol26 Comphint No.2280 of2022 and I fiHARERA S-eunLnnlv Complaint No.2280 0f2022 and by the allottee in makingpaymentas per the plan may make the possession clause jrrelevant for the purpose ofallortee and rhe commitmenr date tor handing over possession loses its meaning.

The incorporation ot such a clause in the agreement to sellbythe promoter is just to evade the tiabitity towards timely delivery of subject unir and to deprive the allottee of his rjght accruing after delay in possess in possess,on_This is just to comment as to how the builder has misused his dominanr position and drafred such a mischievous clause in rhe agreemeotand the altortee is teftwirh no option but to sign on the dotted lines, 29.

Due date of handing ov€r possession and admissibittty of grace pe.iodr As per clause 4.2 ofthe agreement to sell, the possession ot rhe allotted unit was supposed to be oifered within a stipulated timetrame ot 36 months plus 6 months ofgrac€ period, in case the devetopment is nor complete within the time frame specified.

It is a marrer ot fact rhar the respondent has not completed the projed in which the altorted unir is situated and has not obtained the occupanon ce.tificare by September 2017.

However, the facr cannot be ignored rhat there were circumstances beyond the conkolofthe respondent which led to detay,ncompl.tion oi the project.

Accordingly, in the present case the grace period of 6 months 30.

Admissibility of retund along with prescribed rate of inter€st: The complainants are seekjng refund rhe amount paid by them ar the prescribed rate interest- However, rhe alloftees intend to withdraw irom the project and are seeking reiund ofthe amount paid by rhem in respecr of the subject unit with interest at prescr,bed rate as provided under rnle 15 ofthe rules.

Rule 15 has been .eproduced as underl Conplaint No,2280 of2022 and Rul.15.

Prescdbe.l rut olhtercst-lPtueisorot cion 12 ection 18 anat tub-sec.ion (4) on.t s,,se..ton O) ol cdon 191 (1) Fot the purpoe of proviso b sttioh 12r yction 18; ahd sub-sections (4) ond (7) oJ ction 19, the .inte6t dt the rute prsiibed" sho be the State Eonk oJ tndia highest orginatcostoftending rate +2%.: Provkled thot in case the Stote Bonk ol India noryinol @sr of lading rote (MCLR) is not in tk, it sholt be reptaced b! such ben.hnotk len.ling rotes which the Stda Bahk of tndio na! lr lion ti e to tine Ior lending to the geneml pubtic.

31. ubtic.

31.

The legislature in its wisdom in the subordinate legistation under rhe provision oi.ule 15 of the rules has determjned the prescribed rare of interest. fhe rate of interest so determined by rhe legistature, is reasonable and if the said rule is followed to award the inreresr. it wrtl ensure unilorm pracric€ *HARERA S- eunuennur 32.

Consequently, as per website ol the Stare Bank oi India i.e the marginalcost oflending rate [,n shorr, MCLR) as on date i.e.,03.04.2024 is8.85o/o.

Accordingly, rheprescribed rate otinterest will be marginalcost oflending rate +20lo i.e.,10.85yo.

33.

0n consideration of, the circumstances, rhe documents, submissions and based on the findings ol the authoriry regarding contraventions as per provisions ofrule z8(1), theauthority is sarisfied thafthe respondent is in contravention of the provisions of the AcL By virrue ot clause 4.2 of rhe agreement to selldated form execlted berween the paffes on 20.09.2014. the possession oithe subject unitwas to be delivered within a period ot:16 months irom the date oiexecution ofbuyer's agreement which comes out to be 20.09.2017.

As faras grace period is concerned, rh. same is a owed lor the reasons quoied above.

Therefore, the due date othanding over ot possession is 20.03.2018. *HARERA $-eunuennu 34.

Xeeping in view the fad that the allottee/complainant wishes to withdraw irom the project and demanding return of the amount received by rhe promoter in respect of the unitwith intereston failure ofthe promoter to complete or inability to give possession oithe plot in accordance wirh the terms of aSreement for sale or duly completed by the date spe.rtied therein.

The matter is covered under section 18(1) ofthe Act of 2016.

35.

The due date ofpossession as per agreement lor sale as mentioned in the table above is 20.03.2018.

The authonry has further, observes rhat even aftera passage ofmore thans. ore thans.11 yeals till date nether the construdion is complete nor the offer olpossession of the allotted unir has been made ro the allottees bythe respondent/promoter.

Theauthority is oftheview rhat the allottee cannot be exp€cted to waltendlessly lor taking possession of the unitwhich is allotted to ir and forwhich theyhave paid a considerabte amount of money towards $e sale consideration.

Furrher, the authority observes that there is no document place on record from which ir can be ascertained that whether the respondent has applied ior part complerion certincate/completion certificate or what is the status of.onstrucrion ot the project. ln view ofthe above-mentioned fact, the allotrees intend to w'thdraw from the project and is well within rhe right to do rhe same in view olsection 18(1J ofthe Ac!

2016.

36.

Nloreover, the occupation certificate/completion certificate ofthe projec! where the unit is situated has st,ll not been obtained by the respondent /p.omoter.'lhe authority is of rhe view thar rhe atlotrees cannot be expected to waitendlessly lor taking possession ofrhe allotted unitand for which they have paid a considerable amounr rowards rhe sate consideration and as observed by Hon'ble Supreme Court of tndia in lreo CohDlaint No.22a0 6f2022:nd l I *HARERA Seunuennm Grace Realtech PvL Ltd. ys.

Abhi$hek Khanna & Ors., civll appeol no.

5785 o12019, decided on 11.01.2021 " The odupotlon cefiilcote E nat otaitoble even as on date. whtch .leattronounts todelctency al sen@. rhe a ottee: cohnot be nat)e to Mtindelinneuhr po$*sion olthe aporth.nts olloted to then, nor un ther be bouhd to toke the opoinents in phose t ol the proje.t , 37 Further in the judgement of the Hon,bte Supreme Court ot India in thc cases of Newtech Promorers and Devetope.s private Limited Vs Stare of U.P. and Ors. (supra) reiterated jn case of M/s Sana Realrors private Limited &otherVs Union oftndia&others SLp {Civill No.1300s of2020 de.ided on 12.05.2022.

2.05.2022. it was observed: ?5 Thc uhquohfed tight of the otlottee to yek rct'und rckte.l Undet Section $a)k) ahd section 1e(4) ol the Act is not aependent on oh! contingenaes ar stipulotbnt thercaf. ttoppeo$ thot the legjstoture h;s con{tali ptovided thj.isht oI relund oh denand os on incandtianol absalutenght tatheoltottee, tfthe proho\t foits to give possesion olrhe opormena plototbujlding wittun the tihe stipuloted uhder the terns aJ the asreenehr reeardles of unloreseen event at sto! orde6 ol rhe court/T bunot, whrch is in ;hhei \|oy not ottibutobte to the allottee/hone buyer, the prcnoter 6uder an obhgotion to refLnd ke onount on denand with interest ot the tute ptesiibed b! the Stote Cavcrnhent nclldihg.ohpensotion in the nonner provjded undet the Actwth the pransa thatilthe ollottee does natwish ta withdrow lton thc prolect he shall be ertttledlor intetest lor the period oldetoytill hondtnll ovet pasession ot the rate presnibed 38.

The p.omoter is responsible for all obligatjons, responsibilities, and tunctions under rhe provjsions of th€ Ad of 2016, or the rutes and regulations made rhe.eunder orto the alorrees as peragreemenr for sale under section 11(a)(al.

The promoter has faited to complete or unable ro give possession of rhe u nit/plot jn acco.dance with rhe terms of agreenren t for sale or duly completed by the date specified rherein.

Accordingly, rhe p.omoter is liable to the allottees, as the allortees wish to withdraw from theproject, without prejudice ro any other r€medy available, to return rhe ComplalntNo 2280 of2022 aDd *HARERA S-eunucnnnr complaint No, 2280 of 2022 and amount received by it in respect of the unit with interest at such .ate as may be prescribed.

39.

Accordingly, the non-compUance of the mandate contained in secrion 11[a)(a) read with section 18(1] ofth€ Act on rhe part of the respondent is established.As such, rhe complainanrs are entirled ro refund ofrhe entire amount paid by them ar the prescribed rate oainterest i.e., @ 10. .e., @ 10.850/o p.a. (the Stare Bank of rndia highest marg,nal cost of lending rare {I4CLR) applicable as on date +2%l as prescr,bed under rule 1S oi rhe Haryana Real Estare [Regulation and Developmeno Ru]es,2017 from the dare of each payment till the actual date of.efund of the amounr within the timelines provided in rule 16 ofthe Haryana Rutes 2017 ibid.

C,ll Directthe respoldentro pay the lirigatioD cosL 40.'lhe complainantsareseekingabovemehtioned relietw.r.r. compensation Hon ble Supreme Courtoitnd,a in case ritled as M/s Newtech promoters and Developers PvL Ltd. v/s State olUp & Ors.

2021-2022 (1) RCR (c), 357 held that an allottee is entitled to claim compensation & titigation charges under sections 12,14,18 and sectjon 19 which is to be decided by the adjudicating offcer as per section 71 and the quantum ot compensation & litigation expense shatl be adJudged by the adjudicariDg ofticer hav,ng due regard to the factors mentioned in secrion 72.,the adjudicating officer has exclusive jurisdicr,on to deat w,th the complaints in respect olconpensation & legal expenses.

Therefore, rhe complainant is advised to approach rhe adjudicating officer for seekins the retiet of ffHARERA *s-eunuennv H.

Directio ns of the authortty 41.

Hence, the authority hereby passes thjs order and issues the io owing directions under section 37 oithe Acr ro ensure compliance otobtigations cast upon the promoteras per the functjon e.rrusred to the authority under section 34(11: i.

The respondent/promoter is direcred to refund rhe amount recejved by rr from each of rhe compiainant[s] along with interest at rhe rate of 10.85% p.a. as prescribed under rule 15 ofrhe Haryana R.al Estate [Regulation a.d Dev€lopmenr) Rules,2017 from rhe date or each payment tilttheaotuat date ofretund oathe deposited amount. ii.

A period of 90 days js given to the respondenr to comply wirh rhe directions given in this order and failing which legat consequences would follow iii. ollow iii.

The respondent is furtherdirected not to create any thjrd-party rights against the subject unit betore fut] realizatjon oi rhe paid-up amounr along wjth inte.est rhereon to the complajnants, and even ii, any transier is init,ated with respect to subject unir, the.eceivabte shaI be fi rst urilized ior clearing dues of altolree/complainants.

42.

This decision shallmutatis mutandis apply to cases mentroned in para 3 of 43.

Complainrs stand disposed off 44.

Pile becons,gned to registry.

Haryana Real Estate Regulatory Authoriry, Dated:03.04.2024 L te.r'o( s"'i*<I*r MembFt Curuqram i CompldintNo 228l]otZr]22 jnd