PADAMPUR NIRMAN PVT LTD vs EMAAR MGF LAND LTD.

HARERI\ GUilUGRAI/ Complaint No 3la8and 31a9 IJI FORE THE HARY,\\A RLAL ES I'A I'I: RI CIIL \ I'ORT AUTHORI'I'Y, GURUGRAM BIIII,DIR EMAAR INDIA LIMITEI) Complaint no, cotnplaints filed on I Dateofde.ision 3188 and 3189 of2021 13,08.2021 '1o.70_2023 L!!1.K.

Dang,Adv._ - tr'lember Ucmber M.mhe.

COLONN,\DE APP!ARANCE (I;ornrerly kDovtr as Emaar MCF La nd Ltd.l Iada;DurNirnian Pvt r(r Sh.

Ravinder Singh, Ad!. aRl r t8a/2021 sh.

J.K.

Dan& Adv.

Sh.

Ravinder Slngh, Adv. adampurNirma.

Pvt.

Ltd CORAM: ShriVijay Kum:r Goyal ShriAshok Sangwan Shri Sanjeev KumarArora t.

OIIDER 'lhisorder shall dlsposeofl 2 conrplaints titled asabovc filedbelorethis authority in Iorm CRA ur:J,.r, irrxoD 31 of the Real Estate (Regulation and Ilevelopment) Acl2016 (in shon, the Act) also |ead wjth rulc 2tl oi dre llaryana Real Dstate (Rcgulatiun and Developmcrrtl Rules, 2017 0n short, the Rules) for violation ot 5cction 11[4](a) ol the A.t wherein it is inter alia prescribed thnl rh. r)rortroter shall bc rcspoDsible lbr all obhgrtions, responsibilities nnd iinctions to rhc allortec as pcr rhc rgiccnrefr for srlc execLfud | " NO, * HARERn -&-cLtnrnnau ComplaintNo.

3188and 3189 2.

The core issues emanating tiom them are similar in narure and the complainant in the above referred matters are allonees of the proiect 'Emerald Villa-Plors at Emerald Hills, being devetoped by the same respondent promoter i.e., M/s Emaar MGF Land Limited [now known as '[r/s smaar lndia Limited' vide Certificate of, r.corporarion dated 07.10.2020).

The rerms and conditions ofthe buyer,s agreements that had been execured irrer se parries are also almosr similar with some additions or variation.

The fulcrrm of the issue ,nvolved in atl these cases pertains to failure on the part of the respondent/promoter to deliver timely possession of rhe units in question, seekjng award for delayed possession cbarges.

For the above-mentioned reasons, the aforesa,d complaints are beingdealtlvjth bythis common order.

3. order.

3. 'lhe derails oi the complaints, reply statur unit no., dare of allotmenr letter, date ol agreemenr, dar! ot start of €onstruction. due darc ot possession, offer ofpossession a.d reliefsought are given rn the table EMAAR INDIAi,I]VITED (Forme.ly known as fltttAR [rct-LAND l,lt!1t'l tD) Po\.s.ro. oru* 3' s@?i r b roe _t,-,dop"," wt.,| c )phtshattmkeNery deo@ur b det@ pbeskr ol th. ptotb th? ala1eets) winn a p{iod al2. (tw.nt!

Iout) m,.h' Jtun dE dat ol.x.cu.toh oI th,l suy.f.s aa PROI llCT NAME Eme6ld viI.- ptols at Emcrald HiIs, Secror 6S, Guru8ram, pasasiar olthe Pb. n tikett b b. d.htzd tot @tu aI or! hrc mjture evan ar ar! ott et tusn b.lard th. ntot 6Irh. canpo ny indudtnt cnw ne$ l,k] or dw b.tit nnnoth n by men oJ wt t enr o.nah ot eotthq,ake or onr ad aJ c.d u it r rd,!.]! ts 6 o tdutt oI an! oq notid, ode. tub ar notit.ltiot ol the (nw her. ad onr oth.t p"bi t o cokpabrr Authotiq or Iar on, Eotun wnd .he cantut oI rle canpont tlEn ir ort ol k? alaEsit .ver' tle conpoay sholl upon mn@ dainks Iorce frHARERa *s-Gunrcnav Note rn rhet btereferedabovcccnr r Date of fi ling of mnplainr Delayed poss.ssion ch.ryds Amoohrpaid by rh. ait.tl:.rs Jli !liun5haveb.enused'theyareetahorated.s naieure b the Arotu(') be erntted to',,n "t*t", "r tt^" i a"r*.iii,**i*, u" * bqlord the @ntnt aJ th. cdnpoq dn& h IE aventkoihe conpory tats to detiret pwjah ol the plot wthout dbtuae aI My lot, nopE .t.rt ot t.oa)a bclard th? o"rtot aJ,n" co.p.,y *,a. z) 6n,t! ewr) nontta tioh ke dde aJ xqunan oI thts jse Erl. ue conpaunat a, i"* " *y . ,i Alor4l,Lo urdNat rp rqat R\ sa tqrpe\ t\Ft odvt tt.o td p?, roltn ht .wr ,jnad at deta) be.o )t nad\-mr th. d ?otaprumot L\^ atrlqe,L h.,Fode tbtbthe attoe4 t d uadeBtul bt the A o.ae@ dlo. und.t no.ncu6ea@ the pasAior atth. phr v t b. h"lded otu;b rhe ^ aM@ priot ta ihc exrurion olth.sab D...d/c ycrore D.ed. l-"rll", l ,- ComplaintNo.3188and3189 The aaoresaid complainr, dated 13.08. ted 13.08.2021were filed undersecrion 31 oithe Act read with rule 28 ofthe rules by the complainant againsr the promoter M/s Emaar lndia Limited on account of violaiion of the buyer's agreemenrexecured between the parties jn respectofsaid units ior not handing overpossession byrhe due date which is an obt,garion on the part ofthe promoter under section 11(41(a) otthe Act ibid aparr fron the contractual obligation.

Delaypossession charges to be pajd by the promoter is positive obligation under proviso ro section l8 otthe Actin case offailure ofthe promot€rtohand over possess,on by the due date as per builder buyer's agreemenr.

5. 'Ihe author,ty hasdecided totreatthesaid complainrs as an applica tion tar lron-conrpliance of statrtofy obligations on rhe parr of thc pronorer/respondent l| rcrnr! .1 secrion 34(lJ ot ihe Act which n)andates the authoriry to cnsure compliance of rhe obligations casr upon thc promoters, lhe allottees and the reat es(ate agents undcr !hrl Act.lhe rulcs a nd the regulations made rhereunder.

GURUGRA[/ rcR/314a /202 tj 6. 'Ihe facts ofboth the almostsimilar.ourof pla conlplaints filed by the com the abc\'0 relerred matters. rhe decidins both $e lead conrpla,nt no.3188 of Z02t rited as padahpur vs.

Emaor hdia Limlted arc taken into consideration for determining rjght ofthe allottee(s) qua possession and delay per proviso to section 18(!j ot the Ad for URUGRAi/ t,urr!t ii ne rnd to., Lln Emer d Villa PLorsat Enrcratd Hnts, Se(or 6s-l R{ ddrL rrrr;r ro, ] 10ol2009dated21 0s1009 vxlid/r.nowcd up to 20 05 20t9 Rtlistcred vldc no.

162 7.

DateolallormenrteBer 011.012018 16.17.24L2 E :s. -unirr",.,rG - l r,;,rtq.yasi - cti"g;ln a,lrrer r".I 7.i;s "q yds r"l)m,,re. arcr orfs-.q yds unrtvrdeletterol.ll!.oi Po$ession at p.8r 130 t2.

Tr"rEblu", p"-ftenapb" 2?.7\.2012 ARERI\ Complaint No 3188and 3189 complaints.

The facts of this complaint is considered for disposat ofboth the matersand the ratio ofthiscomplaintshal be appticable in another complainr also. ainr also.

The requ,sire particulars of the project, rhe detajts oi sale consideration, the amount paid by the comptainant, date of proposed handing over rhe possession, detay period, ifany, have been detailed in the iollowing table: ) L.P !, '" "; .,,,r r IlPase s3 orcomplaintl HARERA GURUGRAI/ Rs.1/- (lxdusive ofEDC & IDC] 'lotal consideration of said plot as per sta!.ment ot accou.t dated 15.09.2021 ar possession as per cl3use ta 'i srbtcd b Io e nqeft antt t:tj-rnl the tnrtrut al tht Lonpuny th? canpdry thatt r.lNc evlt! entleavout to ntttllt N *\sron o/ rrr flor ta rhe Attax?eb) within o priod ol24 (twentr Joda tntnrhs fo be do.. rl cte.rtion olthn t w\ AltteenenL ln Lhe ellrt tt rL Ltn t)o$!s,.n d .h. d )\ hkat! tD be d.toleLt F r?ai,) t)l ory Io.. nr)uk ?vent ar art o.hq reosa\ bqand th! ont.t .1 th.

Canpon! h|ludhg sovtnrnert inke ar du tu url .onndtbt t, rcaer oI wr o lflhquokz or anr o.t oJeod ar t] nat d?ti!!4 t\t\t znir oI on! oct, haticq atu.r, tute at naulittnor rl .ht t:rvetntnent dhd h! oth! pubht at tar+led )tl)anO ot Iat ony reaer ber d dte contd o1 ht L ?nnj,, the, in onr a] ttt tlaregi ev?rt rhe coapo,\ttho upon noritu.loinins rorce noEurc to he ^ttorp.(t) be qti e.t to ch ddnst n oJ titne tt the lqe hojeure ev t pedisLt or the tutson lE nn l the @niol ol rhe compoh! extsL\ hl th? evnL rhtt the canparr lrtt\ ta d./,yer,or5A:r0r otthe PtaL with t dh.ere,t 0! / ot rentun byord rh. tartu1 ol ltt co,npan! nnht,) lL ?ntr w.1)nonth\ lt n the dd. oI*uaan al LhL \sken)err the conprt! ,ha]] b? hable to N! to np ^ttaiecq, a ,ennt, ol rt)p \un al K s0/- lRupe{ ,':',r )rt:) 2?. sc ld per north I.'t tu.h penaa ol tutu) 5., .Dt )7 rnrths Iran, th. dnt. at *e.utar ol th,, ..rc?nqnL k ts nuh thur tu tht Atto4.tls) trtt )!\\'dtLall l, tht lhruett, thot unler r! rtr1LDJ&'L<!r'?Porlsrororih. t'lot will h? hartllt '): a ta rtn, Alkttue(s) pnat b rtn ex.curon at th( 5!t!

L iI,, 17 27.!1.2414 13 n B.

7. i. n B.

7. i.

18, Date of ofier possession ro Facts ofthe complalnt The complainant has made the 'lhal thc complainant on 16.11 otf rqol.1016- followrnE submr5sront the complainrr Arf 169 admeasuring 633.78 sq. meters reierred to as the said plof') in Eme.ald Projeciolrhe respondenr. ii. l'hat in this regard, rhe respondent issued provisronlt a otment lertc. dared 16.11.2012, thereby allottjng rhe said ptot rn tavour oi rhe complainant.

The allotmenr in iavour ot rhe comptarnant being fu|y paid, it was menrioned t|er€by in the schedule oipal.nrcrrt alongs,ith the said provisionalallorrncnt lctrer that Rs.2U,46,292l- remained ro be paid at the t,me of rcgistry or possession whichever ea.lier. 'Ihat rn respect ofthe said allotmenr, the comptajnant formally enterc(l 1r)to a plot buyeis agreenrenrdated 27.11.2012 wirh th. rcspondcnr. s per clause 8 olrhe plot buyer's agreement, rhe possession for the said plot was supposed to be Celivcred within 24 months from the ,l:r. .i execulion ofthe plot buyor's agrccmenr i.e. on 27 11.2t)t 4 'Ihat rI Novenrber,2019, rhe.onrp]ainant on conring ro know thar thc .2012 was allofted plot bearing no. tjvt) sq. yds.l (hereinarter - Plot at Emerald Hills (7s8 respondent had initiated delivery ofpossession oirhe plors to the other plot buyers, approached the respondenr ror possession of the said plor HAREN,\ GURUGRAIV but the respondent started dillydaliying on rhe issue ofpossession ol That in spite ofthe fact that rhe allorment of rhe said Dlor in favour of the complainanr is fully paid, the ptot ofthe comptainant still remains undeve'oped due to the negligence ofthe respondenrwhereas the other plots in vicinityhave been fullydeveloped.

There has been a hugedelay in handing over the possession of the plot.

The respondent despite continuous follow-ups on the partofth€ complainant, is yet to deliv.r lhepossrssio ofrhesa plortorheconrptarnillrr.

Relicfsought by the comptainant 'lhe conrplainant is seeking the lollowrnq reltel c. reltel c.

8 I)ircct the respondc,ri ro pr.vide possession ot ptot no.

EVlr^rtr 169 iD its project Enrcrrl.i iilla Plols at t)ncrrld Hils, Secror6S ij.

Dj.ect the respondent company to pay interest on the deliy in handing over $e possession w[h eflecr trom 27.1t.2A)4 d) realization olthe same in vi.w ofthe violation ol sectron 18 otthe iii.

Direct the respondent to pay an amount ot litigation expenses.

D, R€ply Rled by the respond€nt 9.

The respondent had contesred the co mplainr on the foltowinggroundsl That the complainant has filed the prescnt complaint seeki.g possessioo, interest on delay ofpossession, and costs rn respect ofplot Rs.2.50,000/-rs HARERA GURUGRA[I no.

EVP A '1,169 admeasuring 757.78 sq. yds. [,Subject plot,,) a otred by the respondent in favour of the complainant jn its Emeral.l lrtoors project locared arSector 65, Gurugram, Haryana. 'Ihat the complainant is not a genuine consumer/alotree and seeks to nrislead this Ilon'ble Authoriry. the complainaDt company is a .clared entity ol MCI, Developmcnts Limired ( MCID l which acts rs rh. controlliDg mind ofthe conlplainanr.

Allactions and steps underraking undertaken by rhe comptainant company are ar the behcst and inslruction of MGFD.

The dirccrors ofthe complainant are Mr. llistrnu Kumar SiDgh and Mr.

I4artand Sawa.nik, horh ot whom arc atnj directors rn scveral companres that a.e atso fult).conrrol.d by ]4(;irD. 'these companies are moreover disclosed in I,tG!-D,s financirt statcnrents ended 31.03.2019 as entiries overwhich IvGFD (or throush 1ts holding/ subsidiary) is able to exercise a signiiicirnr influence 'I'hat the respondent and I.4CFD are currenrly engagcd in disputos rcross sevrral foraand accordingly, this comptaint js nreretya cog in rhe whecl of I4GFD'r mala fide campaign to browbcar lhe respondeilt into conc.dingto jts unlawful andillegal d.mands iD rhosr disputes .o r\rr end, th. r end, th. conrplainant has filed the present conrptirinr !!ith obtrquc purposrs in manilest abuse of the process of this Hon bte Authortry. liu.ther, when rhe subject ptot was alorted to thc conrplarnanr, iUCFt) e\errisc.l .ontrol over borh the respoDdent and rh(,Lom arnaIr.

1r s thus evidenr that the entire rransaction was actually unde.takcn nor between d rstinct entities but berrvecn drfterenranns otrhe same.nrity, ic, NlCl'D.

In that 1ight, rhe comptainant cannotbc said to be a gcnuinc buyerorconsurnerhavjnqthek)cusroavailrher.mcdyurrderlhel\cr lrHARERA S- GURUGRAI/ the complaintis ComplaintNo.3lSSand 3189 That the present complaint is not maintainable in view of the proceedings before Hon'ble National Company Law Trjbunal, New Delhi.

One ofthe disputes between rhe respondentand MCFD arises out offraudulent related,party transactions (such as the one in the present caseJ undertaken by MCFD wh ile in controt of the respondenr company.

That th,s dispute is pending adjudication befor€ Hon'ble NCLT where the respondent has prayed for an investigation inro theaffairs of TVCFD and its related entities {suc mplainant hereinl.

As such, it is likely that the allotment ol ot, beingan illegal related-party transaction, will b€ a subi estigation direded by Hon'ble NCLT.

1n fact, the Ho er for cancellation of the , the subjecFmatter of ngent on the subject' llowing the present rhe maRers awaiting onat,on oi the unlawful t and MCFD.

These events are elaborated ahead.

Therefore, until the Hon ble NCI.T s proceedings are concluded, th e p resent complainr is not ma inrainable and oughr not vi.

That the complaint is not maintainable under the Act.

The comptainr is not maintainable because: (i) there is no violation ofsection 18 ofthe Actj and (ii) the complainanthas failed to tulffl its duhes under section 19 of the Act.

As admitted in the complaint ,tseli the complainant is required to pay an amounr of tNR 2a,46,292/- for the subiect plot. iect plot.

However, this obligation has not been discharged by the complainanr.

As elaborated furtherahead, since the possession ofthe subjectplot has *HARERA _'&- eunucnlv been otrered in luly 2016, amounts in respect ofthe principal payment and delayed payment charges are outstandingand due to be paid by the complainant. ln view of the amount ofconsideration shll remaining to be paid, rhe conplainantt averment that "the allotment ofthe sa,d plot in favour of the complainant is fuUy paid." is entirely untrue. ln the present case, there is no violation or contravention of the Act and as such complai.tis liable to be dismissed.

Thar the complainr has de to circumvent contra.tuel obligations.ln any cas€, iti (' PBA") dated 27.11.20r2 i and subjcct to a scttl Complaint No.

3188 and3189 hat the plot buyer s agreement e subjectplo( rs (o be read wrth brm ofa Memoranduh ol nis parent comprny - MCFD and its a 21.08.2017 (the viii.

That under this complainant is nt Entities") and the ondent Entit,es"l on the all ngent ot the PBA alone, that ant and the respondent in respect of the subje obligations by the Complainant En!ities.

Un-less these prjor obUgations are performed, the complainant does not have any int€rest or claim over the subjectplot, and accordingly, cannotcla,m possession (orany interest for delay) thereot As a consequence, the present complaint is merely an attempt to circumvent the contractual obligations undertaken by the Compla,nant Entities.

Alternatively, if it is considered that the MOU does not apply to the subject plot, the complainant is still not entitled to maintain the present complaint in sociate companies ( ilso) terms of the PBA.

As set out in precise terms ahead, as of date, the complainant is liable to pay amounts outstanding on accoult of inter alia balance of principal amount due and DPC.

Unless suchamounts are paid, the complainant is not entitled to the rel,efs claimed in the lx. in the lx.

Thatthe existence oft],e MOU and th€ aforementioned events and facts, concealed and withheld from this Hon'bl€ Author,ry.

These clea.ly *HARERA S-clr?uGRA[/ Complaint No.

3188and 3189 demonstrate that the complai initiated the presen t proceed inss w,th oblique and ulterior r circumv€nting,ts contractual obligrtions.

Ir rs submrtte plainant is not entitled to the reliefs cla,med in th A must be read with the MOU, in terms of g the consideration for I and (i) even in the s and remaining to be ust iulfil its contractual oblisations before clai d in the present complainl Limited having i ls Emaar MCF Land , 17B, Asaf Ali Road, New Delhi 110002, as a joint venture company pursuant to a loint Venture Agreement executed between Emaar Properties PISC, MCFD and one other partyon 18.12.2004 ("Original IVA'I.

Under the terms of theOriginalJVA, and in all practical terms, MCFD [through its promoter Mr.

Shravan Gupta, acting as Managing Director) ran and operated the respondent company since its incorporation until 23.05.2016 ('MGF Control Period").

In 2016, a decision was taken to restructur€ the respondent's business through a demerg€r by nling a scheme of I}HARERA S- GURUGRATT/ MGFD and Mr.

S Emaar Properties P Following the c ComplaiDt No.

3188and 3189 of202). arrangemen!

Various agreements were also agreed and executed betlveen the respondent, MCFD and Mr. cupta (amongst others) on 13.04.2016 to record the terms of restructuring.

The partjes are currentlyengaged in proceedings before the Hon'ble Narional Company Law Tribunal, Principal Bench, New Delhi ('NCLT) (Company Application Nos.

1811 ot 2019, 728 ot 2OZO and 159 of 2020 in Company Pehhon 689 of 2016) and in arbitrat,on proceedjnss (rCC Case No.

25000/HTG) for disputes that have arisen in relation to the restructuring of the respondent company.

Thar there wds chrnge and discoverv of unlawful transact,ons.

As per ng, the management and ll od, tt ldlng III on 23.05.2016.

3.05.2016.

Group discovered that during the MCF C several qu esriona b le related party transactront 'lhese transactions were to the derriment of the respondent and had .esulted in unlawtul gains to MGFD and Mr.

Cupra.

The a otment and snle ofthe subjectplotwas one amon That some of these unlawful transactions a.e a subj€ct matter of proceedings beforethe Hon'ble NCLT under sect,on 2+1and242olthe Companies Act, 2013 [Company Petition (ND] 173 of 2019), where adjudication is awaited ("NCLT Proceedings").

The allotment of inter alia the subject plot itselfcannot be said to be Rnal and crysralised untit such adjudication is completed.

In the NCLT Proceedings, the respondent has prayed for an investigat,on into the affairs ofMGFD and *HARERA # arftrcRArt/ Complaint No.

3188 and 3189 its related entities (such as thecomplainant hereinl.

As such, itislikely tbat the allotment ofthe subject plot, being an untawful relared party kansa€tion, will be a subjed of the investigation directed by Hon'ble NCLT. ln fact, the Hon'ble NCLT may also order for cancellarion oithe allotment ofinter aUa the subject plot.

The M0U imposes cerrain prior obligations on the Compla,nant Enriries, failing which the allotment of inter alia the subject plot does not subsist.

Those obligations have not been compled with and accor , the claims of the complainant are xiii Thar the sublecr plot wis a complainant, who executed rhe PEAdated 27.11.201 ess,on was also issued bv ay in taking poss€ssion of the subject date, the followins e PBA in respect ofthe I Brlance olPrincipal lnount 2.

DPc /-l lDl ir:Dn N k.12,97 ,096 /- lloldrnE charses (in.ludnrgcsT) Rs.23,00,371 4 Rs,60,09,2rrl Accord,ngty, since all amounts due and payableunderthe PBA have not been paid in time to the respondent, the complainant is not entitled to the reliefs claimed in the present compla,nt. xiv. a,nt. xiv.

That considering the fad that MGFD exerc,sed control over rhe respondent as well as the complainant at the time ot allotment, the mount thereon, the t charges and holding subjectplot. rain ro be pard under and paying necess liable to Dav delav Da gHARERA *di-atngo,uN/ ComplaintNo.3188and3189 complainant cannot be said to be a genuine buyer or consumer having the locus to avail the remedy under the AcL Allowing th€ same would constitute a manitest abuse ofprocess of this Hon'ble Authority.

The entire transaction ofthe subje.t plot was given effect durjng the MCF Control Period.

The allotment letter was issued,n favour of [4CFD,s related entity while MGFD controlled the respondenrcompany.As such, the Companies Act, 1956/ 2013 required rhis transaction to be:(i) duty disrlosed to and approved by ard of drrectors oithe respondenti and (,il condu(ed farrly ngth basis.

However, none of these requirements were Nerther was this transaction disdosed to the hoa it conducted at an .rms' length basis.ln fa atgrossly underualued complainant at the Though this fact has negligible amou allotment ofthe subje discovered afte. the .ontro itted by the PBA and complainant itsell The such u nlawful transaction subject plot nnds clear mention communication.

These were the sought to be settled by in S.

No.

73 of Annexure A oa the issues (among others) that were the Complainant Entit,es and Enr.ar Group aftcr thc MGF Contr Properties PISC highlighied these issues in a communication ro 14r.

Gupta, the promoter of MGFD, on 22.11.2016.

The allotment ol the the Respondent Entities through the execution of rhe aforenrentioned t\,lou. *HARERA S-arRuGRAr/ ComplaintNo,3lSSand 3189 er into these initial agreements was xv- That in addition to the plots/ units allotted to McFD-related entities at enormous discounts illegally and without requisite approvals (that included the subiect ploo, certain other allotments were made to the Complainant Entities completely jiee o/ cost for entering in ntering into the agreements ident,fied as Couaboration Agreements l, Landowners Agreements I, Collaboration Agreements Il, and Landowners Agreements II in the MOU ("lnitial Agreeme.ts").

It is subm,tted that ctiviry.

As was revealed to the respondent larer, the exe he ,nitial agreements and the gratuitous allotment eto we.e elements of an assets and funds away t Entities.

Pertinently, om the board of the taken.

Thirty-n,ne (391 plors were allotted ro pursuant ro Collaboranon ASreements- I and Lrndowne ments- l.

They are listed under S.

Nos 33 71 ol lnnexure A plots were allotted to Complainant EDtities pursuant to Collaboration Agreements' I I and Landowners ABreements- ILThese are listed unde.

S.

Nos.

1-32, 72, a\d 75-7a of Annexure A of the communication.

Collectively, these plots/ un,ts are hereinaft€r r€ferred to as the "Free Plots".

To resolve the issues arising out oftheir multiple illegal related- party transactions as described above, that included the allotment of the free plots and inter alia the subiect plot the Complainant Entities agreed to surrender and ass,gn the r,ghts acqu,red under the lnitial itselfand the Comp *HARERA S!- cLrnlcnal,r ComphintNo.3188and 3189 favourofthe Respondent Entities under the MOU. xvi.

That the MOU required the Complainatrt Entities to assign their rights under the lnitial Agreements (including rights over the free plots) in aavour ol the Respondent Entities through execution of various additional agreements, deeds and documents ("Supplementary Agreementsl.ln considerat,on thereof, the respondent agreed to not to Agre€ments (including those over the Free Plots) through MGFD in further pursue the foregoing i ising out ofMGFD s mist€asance.

The parties agreed that su xecution of the Supplementary Agreements, the complain ve the libertv to deal with the ry Agreements have not t does not exist. not exist.

The ed the consideration tor the respond loss on the allotment ghts over the lublect gentonthe Complainant Entities tulfillins the ecute the Supplementary OU rould be given complete munication.

Further, stands pending against Emaar entities in any manner whatsoever subject to tulfilment of the terms and conditions of this MoU".

Therefore, (il the terms ofthe PBA applicabl€ to the complainantwere made subiect to and have to be read with the MOU o^ 2f.O4.2017, i.e., the date of execution of the MOUi and (ii) the MOU imposed certain preconditions forthe allotment ofinteralia the subiect plot, thatremain ffiHARERA S- GURUGRAI/ ComplaintNo.3lSSand 3139 pe.din& in ierms ofthe MOU, obligations ofthe Comptainanr Entities remain unfulfilled.

Consequendy, the allorme.tofthe subj€ct plofto the complainant remains in abeyance.

As a result, rhe complainant is not entitled to raiseanyclaim tor interest orpossession in lieu thereot 10. on 28-10.2021, the complainanthas nled rejoinderto the reply filed by the respondent wherein the complaina.r has reiured the assertions of the respondent stating tha ondent has failed to delive. the possession oisubject unit h mplaint deserues ro be allowed and the relieis under ct cannot be denied to the ,s,n litigation wrth a untulnlled.

Since the ex€cution oftheSupplementary Agreements is still CompanyMCFD MCF Developm tes betlveen them and e compla,nant.

The n favour oithe subject villa plot@ Rs.1/-.

B cts. the complainant also averred rn us retoinder tha disputed propert,es filed by the .espondent:tlongwith its petirion belore NCLT jncludcs th. subtect unrt much less the.e is any stay of any court/tribunal pertainrng to rhe subjectunit. written arguments by complalnant The miBen arguments were filed by the complainafi on 1A.02.2022 wherein it is submltted as follows: Thatthe complainantbeing an alloftee is entitled to possession as there is no stay / legal embargo from any court of law and is also entitled ror Page la of,t3 nt Li ll nt Li ll PHARERA S- crnLtcnlttt ConplaintNo, 3188and3189 paymentofdelayed possession charges as the possession ofthe subject plot/unit has deliberately not been given by the respondent to the complainant.

As such the allotment ofthe present unit is of mor€ than l0 years and the same were allott€d on the price agreed in line with rhe plots/units sold to any other parties of the project.

The completion certificate has not been re.eived. ii.

Thatthe respondent argued lotment is fraudulent transaction and is not a genurne allotme bject villa plot was allotted ata grossly undervalued rat a.ds does not hold water as t at above rate in favour respondent is blowing ho settlemenr. whereby ettlement otdisputes e respondent entities er submitted thrt the 3ame time, as on one side they alLeged the .rllotment to be not genuine and terms of ihe buyer's agreement.

The above fact proves that transaction and consequently the allotment in favour of complainant is genuine having.o iota ofillegality. ii,.

That the existence of arbitration clause and pendency of alleged litigation before NCLT and other Forums are not binding upon the allotment was @ Rs.

1/- per sq. yards and on the other hand says that there is an outsta.ding of amounr against the allotted plor/unit, in a fraudulent one as *HARERA S- eunuoqAv ComplaintNo.318aand3189 oa2021 complainant as complainant is not a party to the same nor the said proce€ding have any consequence upon the right/entitlement ot the complainant to the subject plot.

Further it is relevant to bring into the notice ofthis Hon'ble Authority that there is no stay operating in any form on the present proceedingr which prevents the respondent to handover the possession of the unit/plot in terms oibuyerrs agreemenr.

Since, the NCLT proceedinghave been nled with incorrect facts, so, the same are liableto be dismi That the respondenfs mplarnant is not ent,tled to t oloutstand,ngdues is ued any such alle8ed larnant received the ny postal receipi nor on record on record.

Further the balance amount was to ot regist.y or possession, which.vcr is ea.lier, and the complainant is stillready to pay the same ;ession charges under section 18 ourt while allouing the present and same be adjusted in the delay possession charg of the Act assessed by rhis Ho! ble court while al That the respondent's argument that the complainant is not a genuine buyerand subiect plot is subiectto tulfilment ofMOU, is also wrorg and without any basis and is liableto be discarded from the fact that reither the complainant is a party to the said MOU nor the atlotmenr ofsubject #HAREIIA S-eunuennu plot is the subject matter in the NCLT Petition filed in year 2019.

Also the buyer agreement executed, account ledger/statement maintained, letters/correspondence issued by the respondentproves the relation ot the complainant with the respondent as of allottee with the promoter as per the Act and as such the genuine allottee ol the subject property.

The MOU is notrelevantin the presentmatteras thesameis aseparate CofrplarntNo.3188and 3189 rndependent document betwee parties and has its own resolution mechanism and as such have r That as regard the arding th€ issuanc€ of tted that the same has neither beeD rereive receipt has been place ent f.om which it can salely be presumed that bricated and has been created falselv t. the e plainant defaulted in taking rn with regard to the present possession.

Thc said fact can bc iortiiied tionr the i.ct th.t no rennnder lctter has been attached by the respondent, tho the developer issues repeated reminder letters. v,i- That in view ofthe above, it is prayed that the respondent deliberately did not handover the possession of the unit to the complainant, no unconscionable "holding charges" and/or any other charges on the misconceived pretext of delay ,n taking over possession by the *HARERA $- eunuennur ComplaintNo,3lSSand 3189 t.

12.

189 t.

Written arguments by respondent The wriiten argum€nts w€re filed by the respondent on 7A-02-2022 wherein besides reiterating facts of the complaint and reply already filed by the respondent, it is submitted as follows' complainant, be imposed on the complainant, as sought flor by the That the tehse.tioh of void.

Reliance in this regard has been placed on s( Contract Act, 1872 and the lollowing citations: 1 2001 SC 1197r [2018] 2 LW 930.

In regard to the plea or Lack ol Consideration', it must be proved by an individual who alleges it as decided in Ranganayakamrna Vs.

K.S/ Prakash, AIR 2009 SC (Supp) 1218.

Apart from thal a consideration is to be real and not illusory one, although the adequacy of consideration being an issue for the respectiv€ contracting parties to agree in this r€gard.In Law, when the respective consenting parties had entered into an agreement, the the said plot setup by the is a hatter ol re.ord that the complainant is obviously fr basrc rale pr)ce otthe to be only Rs.1/' I Esquareyards is,nd,cated allorhent letter dered 16_7t-2072 tha been paid by the ansactions constitute repeatedly held by c legitima.y. lt has been without coDsideration is Iacedon sect,on 25 ofthe lndian 997 [9] SCC 651;AIR l}HARERA $-arnuennrr,r Understanding da executed berween the ted earUer, aforesaid .2017 required the ComplainantEnti the I n itial Agreements Iincluding rights o our of the Respondenr Entitjes through executro it,onal agreemen ts deeds and makes it evident that t freedom to deal with ,t were contingent on the Complainant Enrities fulfilling their obligation to execute the Supplemenrary Agreements.

It has been comprehensively established by the respondent that between September and December 2017, drafts of the supplemenrary agreementswere negotiated berween MCFD and the respondent.

Compl.int No. pl.int No.

3188 and 3189 emcacy of the same can be gone into by a Court olLaw with a view to find out as to whether the consideration was a r€al and notan illusory one yet, want of considerarion is to b€ esrablished by a person, who alleges the same.

Therefore, the question whether a particular agreement is a'cratuitous one'or there is,Lack of Considerat,on, can very well be enquired/gone inro bya Court of Law and especially when the agreenent in issue is claim be an unenforceable one for want That the complainan ed that Memorandum of Agreements").

The threadbar of Understanding dated 21.08.201? ffiIAIERA S- eunuennvr Complaint No.

3188 and 3189 iii.

That at no point did MCFD deny or objecr ro: [1] its obligatiol of executing the Supplemenrary Agreementsi and (ji) the understanding that the execution of the Supplementary Agreements formed a necessary condition for the settlement ofall the plots in the said MOU.

Therefore, it would be jusr fair, proper and legjumare on the part of respondent to contend that since, in terms of MOU 21.08.2017, the ex€cut,on of the suppl€menta eements is stiu pend,ng it srands complerely established rha ons of the Complaioant Entities remain uniulfrlled.

On this spondent has lairlyand lesally claimed that the all vour ofthecomplarnanr should be kept i e complainant is not dared 21.08_2017, the lerm, and Lordrtrons in.orporared in plot buy"r's 3grss6pn1 1o1"6 27 I1.2012 lvere altered.

The to and fro exchaDge olconrra.ts bcttleen the respo ndent and M Cl-D cannor be disregarded r culminate in executionthe.eoi The aforesaid exchange establishesthat rded even rhoughrtdrd not MCFD had accepted that supplementary agreements would be €xecuted.

The sa,d plot figures at serial number 41 on page 103 of Annexure D forming part ofMOU dated 21.08.2017.

In this regard, rhe respondent place reliance on section 62 and 63 oltndian ContractAct, 1872 as acceptance of mod,ncation of terms of contract has been construed under law to constitute novation ofco ation ofcontract.

Moreover, rhe PaCe 24of43 dim for comDentano *HARERA S- crrnrrcnlrtr CodplaintNo.

3188and3189 terms and conditions contained in subsequent MoU dated 21.08.2017 modify the terms and conditions incorporated in plot buyer,s agreemenr dated 27.11.2012. tt is seBled proposition oflaw that such modified terms and conditions incoryorared in a subsequent contract become a part of the original contract itsell That the transaction is in respondent has produced MCF Development, Emaar Annexure R/3.

Clause 7 (Pase 121) clearly been set up bythecompla v,olation of joint,venture agreement.

The int Venture agreement berween and Emaar Properties PJSC as id JoinaVenture Agreement ture Company shall noi h bosis ond not a notnol nt the transaction as hrs ,bited.

Thus. the transa.ti.n is llowing matters: bad both on account ofbeing violative olcontracrual covcnanrs .nd :rlso being in infringement oiappLicable starurory provisions.

A rran*ction which is bad in the eye of law should nor be permitred to be entorced especially when illegal,t,es relating therero are brough t to the aftention otthe honourable court.

That in order ro establish the complainant, the respondent has management petition (without dishonesty and misconduct of the produced copy of operation and mis- annexuresl nled berore the Hon'ble ffiu\RERA S.eunuennn ComplaintNo.3lSSand 3189 National Company Law Tribunal, Principal Bench New Delhi as Annexure R/10 at page 178.

In the said petition, the respondent had been inpleaded as respondent number 1, M/s MCF Developments Ltd. as respondent number 2, Mr.

Shravan Cupta as respondent number 3 and Emaar Properties PISC as respondent number 9. rt had been emphasised in the pet,tion referr€d ro above that based on rhe rep resentatio ns o f responden r ber 2 (MCF Developments Lrmitedl rnd respondent number 3 Gupta) respondent number 9 through the petitioner h ear 2005 and 2009 invested t Rs- 4,137 ,09,71,125 / .

71,125 / .

That the rrregul ctices relahng ro the the contractwhi.h is ore the honorable court aor enlorcement, the sam e at the instance ofthe erring paty.

Reli.rnce in this regard js placed on the lollowint citation: "241A(1) CtVt ,t to ell - Arol Suit for id bt ||oy olblack haney possed noney denee asonstdefendonr Nos.1 to3 as it wos in violation olprovision ofs.23 olcontrcct An - Coutt do nat osist the pereh whose oc\ orc kot in coBohonce with the provisions ol Low. (Specifc Reliel Act, 1963, 5.

14, Con|act Act, 1872, 5.23). [Porc 9)" That in l,ght oflegal and iactual pos,t,on submitted hereinbefore, it is manifest thatthe complaint preferred by rhe complainant is legally and factually unsustainable and warrants dismissal. *HARERA &,cLrnrnnarr,r ComplaintNo.

3188and 3189 G, lurisdiction of the authority 13.

The authority obsewed that it has t€rritorial as well as subject matter jurisdiction to adiudicare the present complaint for the reasons given G.I Terdtorlal lurlsdlctioo 14.

As per notification no. \/92/2O77-ITCP dated 14.12.2017 issued by Town and Country Planni nt, Haryana the turisd,.lron of Real Estate Regulatory Auth gram shall be entire Curugram District tor al1 purpo Gurugram.

In th€ present Curugram Distri the planning area of complete territorial 15.

Section 11i4)tal the promoter shall be responslble to theallotteeas per agreement for salc sechon I 1{al[., is reproduccd as hereunderl GURUGRAM (a) be rcsponnble Ior all obligationt rcsponsibiliti$ ond functions Lndq the prcisions oI this Act ot rhe rul.s ond rcgulations nade thseunder or to the ollottees os pet the ogremat fot sle ot to the o&ciation ofollotted, as the case na! be, till the conveyonce olol rhe apartnen\ plott or buildingt os the cose nay be, b be ollottes, or the confton oreas b rhe associdtion oldllonees or the conpetent outhotiu, os the cose na! be; lhe Act provides that *HARERA S- eunuennur CofrplaintNo.3188and 3189 Section 34-Ftn rions oJ the Authority: 34(t oI the A. oI the A.t pmvid$ to ensue conplion@ ol the obtigo1oas cast Lpon rhe pmnote6, the olottees ond the eal estote agehts hdet ds Act oad thetulesond pgulonoas dodp thercLndet.

16.

So, in view ofthe provis,ons ofthe Act quoted above, the authority has complete jurisdiction to decide the compta,nr regardine non- compliance of obligations by th€ promoter as per provisions ofsection 11[4)(a) oftheAct leaving aside compensat,on which js ro be decided bytheadJudicat,ng oifi cer if the compla,nant ata laterstage.

H, AIIidavit filed by the respo The authoriry, vid 17 021, had directed the ent/BBA, receipt of Cclpart CC, bal 06.12.2021 clarifoing matter being sub-judi rI y.ln pursuance ofthe l€d an amdav,t dated ofthe complainant. ompldLnant, and rhe 18. with respect to the aforesaid clarification, rhe respondent submitred thatthe unitinquestion is subject matter of the MOU dated2LOA.2O77 and was allotted to the complainan! who executed the buyer's a$eement ot 27-71.2072.

The allotment was made during the MCF Control Period, i.e.,the period since incorporation and till23 May 2016 (when MGFD through irs promoterwas in control of Emaar McF Land Limitedl.

Also, it is submitted that despit€ issuance of the allotment PaSeZAol,i3 SHARERA S-eunuennv ComplaintNo,3lSSand 3189 letter, the complaiflant does not qualify to be an allottee as comprehended under the REPaAct, 2016.

19.

A letter ot offer of possession wasalso issued by the Respondent on 19 luly 2016.

Considering rhe fad rhat MCFD exercised control over the respondent as well as the comptainant at the rime of a otment, the complainant cannot be said to be a genu,ne buyer or consumer having the locrs to avail the remedv u RERA 20.

The autho.itv is of the viPv lea of the respondent that the 11',X:,:::ffiFl1ruffiP.d#f::#;;;:::tr rose nqr be, is Aiw on rat'.

IEnDhosts subDtiedt ,,. r,o., 0u." r",,@lgfttdG'[?&Jlr*""uy"r. lr*""uy"r.", rr,,t tr,e person to whom an apartment, plot or buildin& as the case may be, has been allotted, sold or otherwise tra$fer is an altottee and this issue has been comprehensively dealt with by the authority in complainr bearing no.

4031 of 2019 titled as yann cupta VeIsus Emoot McF tand Ltd. (cR/1O31/2019). complainant does nor q tronsferred by the prcnater, allottee as per the Act is not term allottee'has been ame is reproduced as @s.hol.l) or otheNne the pe6an who \ubyquentlt *HARERA $-cLrnrnnlnr ComplaintNo.3lSSand 3189 22.

From a bare perusal ofthe definihon ofthe term allottee', it becomes ev,dently clear that the complainant very well fa[s wthin the defi nition ofthe term "allottee" as defined in section 2[d) of the Act.

The subject unit was alloned to the complainant vide allotment letter dated 16.11.2012 and thereafter, a buyer's agreement has been executed int€r se parties on 27.11.2012.

Even, if the complainant is an arm to MGF, it does not make him a less .ll Therefore, the complainant is an allottee as per section 2(d nd the rights and obligarion ol the complainant and th ill be governed by the said ii i.

Whether CC rt of the proiect has been r€cei 23.

With respect to olthe subject unit is ful spondent submitted has been duly applied n, the proj€ct in respect iv.

Whether there is any balance amount as per BBA required to be paid by the complainanr 24.

The respondent submitted rhat as oi Augusr/September 2021, the complainant is liable to pay Rs.60,09,212 under the pBA in .espect ot the subtect unit, rn the tollowing manner: Balabce oI P.inciDal Anount 24,1t,745 l With respect to the abov€, rhe complainant is outstandingduesasperprovisionsof section 19(61 & (7) oftheActand ffIARERA S-Gunrnnav buyer's agreement as per la!

Hon ble Supreme Courr rn Civil appeal nos.

3 864-3 889/2 \4.12.2020. stay order ofany court in giving pos complainant and also €s as per stator e Act,2016.

Act,2016.

26 al disputes between MGFD and the res efore the hon'ble NCLT, where the responden stigrtion lnto tr.nsachons New Delhihas in MCFD and therebydeclared a moratorium.

27.

The authority,s ofthe view that this submissioo ofthe respondent has no legs to stand.lt is a matter ol fact that the jurisdiction ofNCLT and this authority are independent in nature.

Moreover, rhe complainant is nota party to those proceedings which are pending adjudication before Hon'ble NCLT.

Also, it is olgrave importance ro menrion over here rhat no order has been passed by any competent court which prevents this CoDplaintNo.3lSSand 3189 the rare of interest chargeabte ftom the complainant/allottee by the promoter, in case ofdefault shall be charged at the prescribed rate i.e., 10.75y0 by the respondent/promorer which is rhe same rate ofinterest which the promoter shallbe liable to pay the a ottee, in case ofdefaulr i.e., the delay possession charges as per section 2(zal ofthe Act.

Atso, the respondent is not enhtled to claim hotding charges Fom the complainant/allonee at any poj f time even after being part of the viso to section I8( *HARERA S-eunuencrv it is a delaying tacnca follo espondent.

Further, under the guise ofthe pendency of T proceedings, the respondent th,s Act.

As noted, the ntities with rheir.wn Th€ complainant has o enforce its statutow subject to proceedrngs pendins before the Ho oriry holds that it cannot submission of the respondent, stands rejected.

28.

The respondent furtheralleged rhat the buyer's agreement in quesnon is a fraudulent transaction and therefore, needs to be ignored.

In this regard, the authority observes that the respondent has chosen to nte voluminous records, however, there is not a s,ngte piece of paper showing that the respondeot has ever disputed the existence of the ComplaintNo.

3188and 3189 authorityto proceed with thecomplaintunderthe provisions of the Act. f the Act.

The respondent has not shown any provision or law under any srarute which requires the present proceedings to be deferred or stayed sjnce the proceedings before the hon'ble NCLT is pending at the instance of another company and rhe present proceedings are under the Act of 2016.

The issues which are raised here can.ot be part of the proceedings betore rhe Hon bi T.

The authority is of the view that n before the H authority is corners of the Act.

ID vie$ ITHARERA S- eunucRarv buyer's agreemenL Further, the respondent has not brought on record upon in the buyer's agreemr ondent is, thereiore, estopped from denying the exrsren enforceabrlrry ol rhe contra . nant chose ro enforce its nght before (his s or the Act, that the ion to defeat the right ith in the realm ofthe ecution of the buver's agreementisnotdispu e entire consideration also iling in its statutory duty if hionsoitheAct.The hearing both the parries is of the opiniofl that rhe submission of the respondent is liable ro be rejected.

Ilndlngs of the authorlty ComplaintNo.3lSSand 3189 anythingto showthat a police complaint was filed alleging fraud being played with respect to the executjon of the buyer,s agreemenr.

A contract between the parties is sac.osancr and cannot bewashed away by a party ar their whims and fancies.

It is undjsputed that the respondent has received rhe enrir€ considerarion amount, except EDC & IDC which are payable ar th e of offer of possession, as asreed l. iss ue ot fraudulent tr Ll D.lay porscssion charges it does not proceed wirh t ffir-laRERA 9-cunuennl,l ComplaintNo.3lSSand 3189 29.

Reli€f sought by the comptatnant In rhe followi[g complaints, the complainant is seeking possession ofthe subject unjt/plot atong wfth delay possess,on charges for the delay in handing over possession ofthe subject unit as perproviso to section 18(1) ofrheAct.

B A UR 30.

In the present complaint, the complainant intends to continuewirh the project and is seeking delay possession charges as provided under the proviso to section 18(1) oftheAct.

Sec.18[1) proviso reads as urd€r. "Sstion 7A: .

Retum oJ Mount dnil @mp tunon i trHARERA S- eunuenaur 13(1). tf the pronotet Ioits to @hptete or is unable to give posession oJ ah apoftnenl plot, or building, - "8. rhe Subject to Iorce no)eure.canditions aruJ reosahs beyontl the can,ot oJ the conpan , the con&M!frlgrieke e'ety endea,out to detivet poession ol the Ptot to the lkiffi:*iithin a period oI 2a k|'qLy hut) nuntht lron th. dote ol pte.utton ol thi\ Buvpr't Ag,?popnt. ,- tjp pvent thot the pdseso,j,fina4&hfitutta be detorpd tor reoson oton, hchdtng gavernncntstrikeordue to civil cannaton at b! rra:an afwot.r .

1"n\ o tiat t. a,thota\e o, anr ot t ot.,tl at,J 40, 1. t.,. -) t, _ ",p,. otatl! -, t ra t p, ordpt t Lb naLtt. ot na ot t\?

Cove.aa"a- o\d at !, t' - ptbl.. ?t .-noaed ALrao,t,y o. tot an' t oson beyn ,t. .,-,o, I a- '- tnoa 1 t\.

I n on, ot th- rtorc\a,o t t..L . ho. ano p r .40., L I o,,"t,, / ctomnglarce najeute to theAtlo ee(s) be entitkd ta surh exteuon aJhn?

Canpon! exkts.ln the event thot the Conport foik to detiwr pa$6,;n af the Plot withaut cxjstence al an!

Iarce hajcLrc ewnt ot rea\an bevond the .ohtot afthe campon! \9irhin 27 (twehot seven) nanths ltoln the .tate at executlon af this Agree shdll be lioble ta po! to the ComplaintNo,3lSEand 3189 ol202t Provided that where on ollottee do$ nor inznd to withdtow hon the prciect. he :holl be potd, b!

Oe p,onoe,_ ,nte,est to, i,e,y nonth oI delar, ttt rhe hoNling over ol 6e po*ssion, ot stch mte as no! be ptenbed., 31.

Clause a of the buyer's agreement provjdes time period for handing over the possession and the same is reproduced betow: 41ta',p"- t d D- \otD ar op,r4 otk \A tRbp"?.tt,) "_h o- ,q )d p_, ' ar"t h lnt - L h Det.ad ar delov b, taad -' aonta\ r@ t r. aaLe, I p\.,,,, - olthtt AgreenenL h is node. h is node.lcor to the AUottee(s) and Lndernaod by ttle Attottee[s) thot undet o .irLunstohces the pasyssian at the ptd w,]t h? handed aver to the Allottee(s) pdot to the qecLtion of the sote Deed/ cohvelonce Deed," Onphasisrupplied) 32.

Due date of handtng over possesston and adhtssibitity of grace period: The promoter has proposed to hand over rhe possession of the said unit within a per,od of24 months from the dare ofexecution ofthe buyer's agreement, and it is further provided in the said clause ofthe agreement that the said tim€ period is subject to the force majeure condit,ons.

In the present complainr, the buyer's agreement was *HARERA -&- ounuoqnM ComplainrNo.

3188and3189 executed on 27.11.2012.

Hence, the due date of handing over possession comes ourro be 27.11.2014asperthe ctauseg ofthe buyer,s 33.

Admtssibility of delay possesslon charges at prescribed rat€ of interest The complainant is seeking detay possession charges at rhe prescribed rate.

Proviso to secrion 18 provides that where an allottee does not intend to withdraw irom the project, he shalt be paid, by rhe promoteri interesr for even delay, till the hand,ng over of possessjon,atsuchrateas rbed and rthas been prescribed under rule 15 oithe :r rne reeisrarure i{ffi$pp+li?t hcisrario" under ruh 1s or$e rules hald€\erm\ed lhr{rF{r,tei rare orinrerest. rhe raLe orinteresrso dete*dEd bf*J,i#lf r";il,"*""abre and irrhe sdjd all be reploced by such te Rohk of ln.lio na! lx to award the interest, irwill ensure uniform practice in As per website of the State Eank of tndra r.e., the marginal cost oflending rate (in short, MCLR) as on date i.e., 10.10.2023 is 8.7570.

Accordingty, the prescribed rate of interestwillbe MCLR + 2% i.e..

10.75%.

PHARERA #- euuGRAv ComplaintNo.

3188and3189 35.

Rat€ of interest to be paid by the complalnant in case ofdelay in making payments- The definition of term ,interest, as defined under section 2[za) of the Act provides thar the rare of inrerest chargeabl€ from the allottee b allottee by the promoter, in case ofdefault, shall be equal ro therateof interestwhichthepromotershallbeliabletopaytheallottee, in case ofdefault.

Therefore, interest on the delay payments from the conrplainant shallbe charged a prescribed rate i.e.,10.75Y0 by the respondent/p.omoter whi e as is being g.anted to the complainant in case ofde charges 36.

During the course o d 04.07.2023 toliowing ii ii ion ofthe subject plot 016? ertently made by the as withdrawn the same, till plots.

Possession of the subject plot was offered to the complainant ,nadvertently on 19.07.2 016.

However the said ofier of possessjon has since been rendered inconsequential and infructuous and stood superseded upon the execution of rhe Moll dated2f.Oa.2\t7 hence the complainant has no righrorinterest in the subjectplot.

The offer of possession of the plor had not been withdrawn.

However, as stated above, t had in any event been rendered inconsequential and infructuous upon the execution of MoU dated 21.08.2017.

Without prejudice to the position that the offer oi iii :,:il::.:H 3) it on 08.08.2023 statinsas under PHARERA S- aLnueaqri,r ComplaintNo.

3138 and 3139 possession was made inadvertently and that it has been rendered i.consequential, the said offer ofpossession is hereby withdrawn.

38.

0n the other hand, the counset for the complainant has also fited the information w.r.L issue no.1 and states that as per BBA dated 27-11.2012, a sum of Rs.

1/- out ofthe total sate price has been paid by the allottee with the appticat,on as bookjng amoun! at the rime of registration for allotment of the ptot.

He further has also given a reference to an order da 1.12.2016 io an appeal to the Commissioner of Incone T Moreover, he has also made a referen(e to the a.counr the respondent along wrth its reply at page rein it is categorically 39 The authority ob dared I6 r1.2012.

6 r1.2012.

Subs and is received bv the that the subjed unit e complainantvide letter r's agreement was execured berween both the parties on 27.It2072 by virtuc ot which rhe otbearing no.

EVP-A-T 169 having a super or a bas,c sale consideration of Rs.1/ (exclusive of EDC and IDC).

The aurhority observes that the buyer agreement in the presenr maBer is a speciffc agreement which atso makes the present matter a peculiar one wherein rhe subiect unit vras allo$ed to the complainant for a miniscule basic sale consideration of Rs.1/".

However, this Aurhoriry also cannot ignore th,s fad rhat there is pair *HARERA S,eunucrw signed the same and hav€ never disputed their signatures on the buyer's agreement which makes it binding on borh of th€m.

Also, the clause 1(b) ofthe buye/s agreemenr makes it amply ctear wherein ,t has been acknowledged by the respondent that sum ofRs.1/- out otthe totalsale price has been paid bythe complainant.

Moreover, it is also a matterolrecord that as Der.la of memorandum of undersranding dated 21.08.2017, the Enlaa ve allotted the subject plot to the complai.ant as part o ent whereby the complainant ing out of collaboration d owner lehwar Das Conplaint No.

3188 and3189 a contractual relationship amongstthe parties as both the parties have Eajaj.Detailsoi tionedatS.Do.

41and spondent is alleging cnon dnd not on arm s enge the same beaore the thoritv.

As discussed jectplotha5alsobee length basis, the re appropriate foru *n*,.' * **"GU[-iUGRA,NJ,".".i ry and existence of the buyer's agreemelt before the appropriate forum tilt date and tn absence of documents regarding the same, the authority is proceeding with the documents placed on record.

40.

On considerationof thedocumentsavailableon recordand submissaons made by the parties regading contraventlon as per provisions of the Act, the authoriry is sausned that the respondent is i, *XffilgXl.lt PHARERA S" ounuennv 19.07. nnv 19.07.2016 and has allege s offered the possession of the sub)ect unlt ro rhe co is letter ,tseli Thereafter. rhe , has also subrnitted on Complaint No.

3138and 3139 the section 11(4)[a] ofthe Act by not handing over possession by the due date as per the agreement.

Further, by virtue of clause 8 ot the buyer's agreemen! the possessior ot the subject unt/plot was to be delivered withina period of24 months from the date olexecution otthe buyer's agreement and hence, the due date oahanding over possession comes out to be 27.11.2014. +1.

It is a rnatter ofrecord thar dent has put forth a lefter dated ruth Unit, The Occupotion n 08lanudry 2018. tn has submitted that the nit is fully conplek. ents filed on 18.02.2022 either received anv letter of possession as alleged by the respondent nor any proot ot dispatch or attached by the respondent, though in every issues repeated reminder letters.

42.

Theauthority,s ofthe considered view that there is a delayon the part ofthe respondent to offer physical possession otthe subject unit to the complainant as per the terms and condirions ofrhe buyer,s agreement rd by th ffIAREIA S- eunrcnnv is established.

As such rh ntitled to delayed possession w.e.l the due date ol handing ov€r the possession as per the buyer's agreement i.e.

27.11.2014 ti11 the receipt ofoccupation certificare (08.01.2018) plus 2 months i.e.,08.03.2018 as perprovisions ofsections 18(1) and 19(10) of the Act read with rule 15 of the rules.

Further, the respondent is directed to handover the possession of the allotted unit to the complainant complete in all aspects as per specificarions of buyer,s agreementwithin one month from dateofthis order.

ComplaintNo.3lSSand 3189 dared 27.71.2012 executed between the parties.

The authority in plethora ofits judgements have given its view regarding validity offer of possession.

It is reasserted that completion certificate/occupation certificate is pre-requisite for valid ofer ofpossession. ossession. ln the present case, even if it is presumed thar the respondenr had made an otrer of possession vide letter dared 19.07.2015 to the complainanr, the same cannot be termed as val,d/la the respondent itsell rn vrew olthe affidavit dated 06.12.2021 ttated rhar rr lr! reLcived the uccupation certifi cate on is the failure on pa.t of the rlrfies as per the buyers ossession within thF contained in se.tion 11[a)(a) read with e partofthe respondenr 27 -1 ffHARERA S- cunlcnal,t Complaint No, 3188 and 3189 I.

Directions ofthe authority 44.

Hence, the autho ty hereby passes this order and issues the foltowing directions under secrion 37 of the Act to ensure comptiance of obligations cast upon the promoteras per rhe function entrusted to the authority under section 3a(0: The respondent is directed to pay inrerest at the prescr,bed rate i.e., 10.75% p.a. for ev of delay from the du€ date oi possession i.e., 27-11.2 e date of receipt of occupat,on ceroficate plus 2 3.2018 physicalpossession of tstanding dues ifany, due date of possession above shall be paid by the respoDdent to the.omplainant wlthin a period of90 davs from th. iv.

The rate of interest chargeable ftomthe allottees byrhe p.omoter, in case of default in making pa,'ment shall be charged at the prescribed rate i.e.,10.75 % by the respondenr/promoter whi€h is the same rate ofinterest which the promoter shall be liabte ro pay the allottees, in case ofdefault i.e., the delayed possession charges as per section 2(za) ofthe AcL tis dil {}HARERA S-Gunuctuq[,4 ComplaintNo.3188and3189 v.

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

The respondent is not entitled to claim holdingcharges ftom the comptainant/ allonee at any point oftime €ven afterbeingpart ofthe buyer,s agreement as per lawsettled by Hon'bleSupremeCourt in civit appeal nos.

3854- 3AA912020 decided on 14.12.2020.

46.

This decisio[ shall rnuratir apply to complaint beanng no. beanng no. cR/3189/2021 rirled as P rman Pvt.

Ltd.

Vs.

Emaar India 47.

Boththecomplain fied copy ofthis order R/31A9/2021.

48.

Filebe consign Arora) (viiay Kf-marcoyal) Haryana Dated:I0.10.20 Authority, Gurug.am GURUGRATVl '1.,