MRS DARSHANA HOODA vs OCEAN SEVEN BUILDTECH PVT. LTD.

THARERA dS. cLrnrcnnur Compl.intno.S55of 2024 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTIIIORITY, GURUGRAM ComplalDtno. : 555of2024 DateofcomplaiDt | 16.02.2024 Dateoforder | 21.04.2025 Darshana Hooda, R/o: - 2107136, Dhanwapur Road, SuratNagar, Phase'z, Gurugram.

Complaln.rt Versus M/s Ocen Seven Bulldt€ch PvL Lrd, Resd.

Omce At: - S05-S06, Tou4:rb,{, Spaze l-Tech Park Sechr-le, Crrr'lrarn.

Respondenr CORAM: APPEARANCE: Gaurav Rawat (Advocare) Arun Yadav (Advocatel ORDER 1.

The present complaint has been filed by the cornplainant/allottee under section 3l of the Real Estate [Regulation and Development) Act, 2016 (in short rhe Act) read wlth rule 28 ofqhe Heryane Real Esrate (Regulation and Development) Rules, 2017 (in short, the Rules) for violation of section 11(4Xa) oftheActwher:in it is inte. ol,o prescribed that the promotershall be responsible for all obligations, responsibilities and functions under the provisions ofthe Act or the Rules and regulations nade there under or to the allottee as per the agreement for sale executed irters?. *HARERA iF-eunLrenm,l Proiect and unlt relatcd detalls The particulars of the project, the details of sale consideraEon, the amount paid by the complainantG), date ofproposed handlng over the possession, delay period, ifany, have b€en detalled in the following tabular form: Particulars RERA Registered/ n 2. /al it Date of environmental Date of approval of buildine olans Details "Expressway Tow€rs", sedor 109, 2016 dated 16.06.2016 017 dated 13.10.2017 valid upto laint area), 99 sq.rt balcony plaint) I such proiects shall be requ,red to be necessarily completed within 4 years from the date ofapproval of butldlng plans or grant of envlronmental cl€arance, whichever i5 later.

This date shall be referred to as the "date of comm€ncement of Project' for ihe 30.712017 [as per lnformation obtained fiom the 26.09.2076 As Der Droiect details 30_05_2022 (calcutated 6 4 years from the date of rant of environmental clearanc€ i.e. ranc€ i.e., Due date of possession s.

N.

B.

3. ffHARERA S-ernuemur racts ofthe complaint l.

That th€ complai 2502,tower-3, mention here that the a r. *".." "fo{ i Mth the Authoriry but t ne agreement that has been executed is not as p€r the prescribed format provided under the RERA Ac!2016 and I|.ARERA Rules,201 7.

Il.

That as per poss€sslon dause in affordable houslnS policy 1 (iv) all such projects shall be rrquired to be n€cessarib conpleted within 4 years fiom the date of.pproval of building platts or grant of environment l clearanoe whlcheler is later.

This date shall b€ referr€d to as the 'daE o[ commencement of proiect' for the purpose ofthe policy. asunng 545 sq. ft. , Haryana vide 2017 kis Dertinent to ibeen executed after coming and the project is registered 13.

15_ t7.

30.11.2017 as per policy of 2013 + 6 months as per HAREM notification no.

913-2020 dared 26.05.2020 for the projects having completion date on or after 25.03.2020 Rs.

26,29,500l- As oer EBAon Dape 45 ofcomDlaint Rs.19,10,340/- [As per page ledgeraccount at page 30 of l.

THARERA S.GURUGRAM That as per the d€mands ritsed by the respondent, based on the paym€nt plaB the comFlainant to buy the captioned unit already paid a total sum of Rs.19.10,340/- tow:rd! the said unit against th€ total sale consideration )f Rs.26,29,500/'.

That the payment plan was designed iD such a way to extract maximum payment from the buyers vtz a viz or done/completed.

The complainant contaded the r€spond€nt on several occasions and the respondents rvas nev€r able to give :ny satish.tory response to the comphh{g.t*ardins the status of the construction and \ras l ,boxt the delivetu of the possession.

The com rng the matter with the their office regulady to complete the constru,: ject sit€ within stipulated being aggr, nduc-t, fraudulent activiti€s, defici€ncy and hilure in service of the respondents is filing the vl. ng the vl.

That the complalnant is entid€d to get delay possession charges with int€rest at the prescribed rate from date of application/paynent t0 till the realization of money under Se.tion 18 & 19(41 of AcL The complalnant is also entided for any other relief which sh€ ,s found entltled by this Authority. ffHARERA 9t- eunuennv Dired the respo Drredtheresp eyenc€ deed in favour of the rce the complainants maintenance charges for ctual possession of the irrelevant which has not the respondent/ promoter ve been committed in relation to to sign any signing the ,ii. c.

D.

6. a per,od of 1 act to plead guilty ornot to plead guilry. on the following grounds: i.

Th.t this Authority 1a.1(s jurisdicdon to adludlcate upon the present complaint as vlde clauso 16.2 of the build€r buyer .Sreement, both the parties have unequivo€Iy agreed to rcsolve any disputes 6rou8h VIL That the complainant affer losing all the hope ftom the respondent company, having her dre ams shattered of owning an unit & having basic necessary hcilitiei in the vicinlty of project and also losing consid€mbleamounl is constmin€d to approach this Authority for rcdressal of her grievanoe, Reltef sought by the complalmtru The complainant has sough r following relie{s): i.

Direct the respondent to pay delay possesslon charges, to handover possession and to ex Direct the .espondent I 5. onthedate ofhearinB about the contraventions as section 11(41(a) o Reply by the y dared20.112024 has contest€d the complaint *HARERA S,eunuenqv Proiecl comoletion Date ii.

That the cohplainant has failed to pay the required installment on tim€ despite sev€ral attempli through telephonic calls, emails and r.arious iii.

That the ffnal EC is C-IE/CTO which has been received by the relpond€nt in February 2018 and the covid and NCT stay relaxatlon and other unforese€n conditions that comes under force majeure clause in the agreemenL Hencethe sELrtdate otprojectis Feb 2018a rest details are Covrd lock down waiver NGT stay (3 morths a 3 morths a.li.e.5'3 for the compledon of are unfreezed by the competent authority on the date of filing this reply.

From Feb 2023, the license has been suspen jed and accounts have been freszed by the DTCP Chandigarh and HRERA Curugram. iv.

That owing to th€ complainant's consistent failure to meet their financial commiEnent, the unit of the complalmnt is cancelled as per the norms and conditions laid dovrn in afrordable gmup housing policy 2013 and agreement to sale.

18+ 181 month 2023 till 2023 (10 month Frnal project comp project is unfieezed) Feb-22 HARERA D- GURUGRAM Copies of all the relevant documents have been filed .nd plac€d on the record.

Their authentlcity is not in dispute.

Hence, the complaint can be decid€d on the basis ofthere llrldispud doclments and submlssion made by the parties. lurlsdlctlon of the authorlty The authority observes that it has territorid as L,ell as subject fiatter iurisdiclion to adiudicate the pr€sent complaint for the reasons Siven below.

E.l Terrltorlal,udsdlctlot As per nonficahon no.

1/92 P dated 14.12.2017 issued by Town and Country Planning I)e th€ iunsdiction of Real Estate Regulatory Authoriry, G ntire Gurugram District for all e pr€sent case, th€ project of Gurugram Districl urisdiction to deal with E.ll subiectna E. a 10. sedion 11(4)[a) or responsible io the allo se€tion 11[4Xa) is reproduced as he.eunder: functions under.he ptovkions ofthit A.r ot the ru16 ond rcAulotions nad. thflundet ot to the allod@s as pq the ogrcmntht le, o to th.

B@i,ti@ o|olorEa, as th. @* noy be, till t\. cqveyonce oldll th. opofnnen4 PloLt u buiwihgs, 6 $e coe a! ba, ro the olbtta, ot the the @cidtion ol aloru6 or the co P.tefi durho4a, os th. co* kar ber S.ctim 31-run.tions oJ th.

Autho.itt: 34A ol the Act p@id6 to ensute conpllonce oI $e obligotions cost @on the prc orett the ollota46 ontl the real estaE ogenb Lnder lhx Act and the rules ond rcglIotions hotL rhercuutet. '1i1 rt" p,o^*r stttrt- [a) b. rt- [a) b. responstbh lor all obligotiont responsibilitiet ond ffHARERA {l- eunuennur 11.

So, in view of the provisi(ns of th€ Act quoted above the authonty has r. complete iurisdiction to decide the mmplaint regarding non-corhpliance of obligations by the promoter.

Flndtngs otr th€ obieclionr ralied by the respond€nt r.l Obiections regardlng force Ee,eure.

The respondent/promoter has raised the contention that the constru.tion ofthe project has been del:Lyed due to force maieure cirormstances such as ban on construction due to orders pass€d by NCT, maior spre.d ofcovid-19 12. by the DTCP, Chandigarh and etc. whi6h is beyond the control freezing of accounts by HRE claus€ 5.5 of th€ agreement. has been received bv the ofproject is Feb 2018. clause l(iv) ofth€ devoid of ments.

As per it is prescribed that :AIl using whicheve t is late r- T h is da plete d with i n 4 yeo B lron oI e n v no n mento I tleo runce, hos rhq dotc of.ommPn..mcnt Ii,:"{I"f :"#r#Iffi ffi 'Irffi ':J::ill,":::i p.l"a o, :o.l.z(rl{d fQt}6ERAM. r',"*ror€, th€ du€date ofpossession is being calfl ated from the dat€ of environmental clearance, being later further, an extension of 6 months is granted to the respondent in view of notiflcation no.

913-?020 datd 26-05-2020, on account of outbreak of Covid'19 pandemic.

Therefore, the due dat€ ofpossession was 30.05.2022.

As fur as oth(lr contentions of the respondent w.r.t dehy in construdion of th€ proi€d is concemed, the same are disallowed as ffrsdy the orders passed by NGT l,anniDg construction ir the NCR region was for a veryshortperiod oftime arld thus, cannot be said to impact the respondent- builder l€ading to such a (lelay in the completion.

S€.ondl, the licence of the project of the responde nt w"s suspended by mCB Haryana vide memo dated 23.02.2023, dueto grave violations made by it in making compliance of the terms and condiions of th€ llcence and thereafter due to several continuing liolatlons of the provisions ofthe Act, 2015 by the responden respondenf in view to proted the inter€n of the allotteer rhe bank account of the respondent related to th€ proiect was frozen by thls Authority vide order person (annot take ben ch of agreement for non. invocation of arhitEtlo The respondent hassubmitted thatthecomplaintls not maintainable for the reason that the asrement :ontains anarbitratio. clause which relers to the dispute resolution mechanism to be adopted by the parties in the event of any dispute.

Th€ aurhoriq/ is of the ppiDlon thar the jurisdiction of rhe dated 24.02.2023.

Thus, the Fomoter/respondent cannot be given any leniency on based ofafore!aid reasoqand it is well settled principle that a *HARERA !$- eunLrcnnvr "***',r*-'*)ilti 13. buy€r's agreement as it may fan arbitration clause ih the at section 79 of rhe Act bars the jurisdiction ofcivilcourts lbout anymatterwhich falls within the puruew ofthis authority, orthe Real Estate Appellate Tribunal- Thus, the intention to rendersuch disputes as noo.arbitrable seems to be clear Also, secnona8 of the Act says that the provisions of this Ad shall be in addition to and not in derogation of the provisions ofany other law for the time being in force.

Furth€r, th€ authority puBi rellance on catena of iudgments of $e Hon'ble Supreme Court, particularty in Natlonal Seeds Cot@mtlon Llmlted u LL Madhusudhan Reddy & Anr. (2012) 2 SCC 506, wherein it has been held that the r€m€dies provided under the Consumer Protection Ad are in addition to and not in de.oUation ofthe other laws in force, .onsequently the *HARERA S-eunuemnt builde.s could not .ircun : the ildsdiction of a consumer.

Further, authority would not be b,)und to refer parties to arbitmtion even if the agreement between the parties had an arbitration clause.

Therefore, by appllng same analos' the preserce of arbitration clause could not be construed to take away the iurisdiction of the authority.

14.

Further in Aftab Singh and ols. v Emaar MGf Land Ltd and ors., Consumer case no. r case no.

701 of 2015 d€cld€d on 13.07.2017, the National Consumer Disputes Redressrl Commission, New Delhi (NCDRC) h.s held that the arbiE?hon clause in agreements between rh€ complainants and while considenns the issue nabiliry of a complarnr before a :t ofan elisting arbitmtion clause in ,e Swreme Court in case ait ed os 6 ision petition no.

2629- 30/2018incivil decided on 10.12.2018 hasupheld the afo ofNC )des provided in Article 141 I e Supreme Court shall be bindins on all cou India and accordingly, the au$ority is bound by the Therefor€, in view of the above , the authonty is of the t to s€ek a spe0al rem€dy available in a ben€hciol "AS1: snqh ar dl,i6r6|nrer Frotection Act and RERA AcL 2016 instead of going in for an arbitration.

Henc€, we have no hesitation in holding rhat this au&ority has the requisite jurisdidion to entertain the complaint and that the disrrute does not require to be referred to arbitration G.

Findings on the reli€fs sought by th. complalnan!

G.l Di.ect th€ respond€nt to pay dehy possesslon charges, to haDdover posslotr and to exe.ut! @Dveyance deed ln favoor of the complalmnt lrHARERA S-eLrnrcnnv 15.

The complainani intends t) continu€ with th€ proiect and is seeking delay possession charges as pro,/ided under the proviso to !€ction 18(f) of the Act.

Sec.

18(1) proviso reads as under "Seirion 1A: - Retam ol anouht ond eonpensdtion 18[1). f the prcaoter loib to conpteE ot is u@ble ro sive pos$ion ofon apannent plol ot building, - Provide.lthatwh{eonallotE d@tnot intend t withdqw Iron the pmE.l t. tholl be pnkl, by the ,mnot t, it*rest Iot ev.rr Nnk ol detdt, tit de hondins owr ol d. po'sior" attucl1rat os at be p@ibed." 15.

Clause 1(rv) ofrhe Atrordahle Ho ohcy,2013 prondes for completion of all su.h projects hcencel the sam€ ,s reproduced as under 1(tt) 17.

1(tt) 17. per clause r(iv) of the at'All such projects shall 4 years lion he date ol approvot oI butldtng plans t'r grunt ol entol tleorunce, whichever B e "dare oJconnencenent ol ptotect obtained environment la@L ThE dare sholl be reie p,*" ***alfilrl, clearance and building plan approval in respect of the said proiect on 30.11.20u and 26.09.2016 respectively.

Therelore, th€ du€ date of posression is being calorlrted from the dat€ being later.

Further, an extension of 6 months in view of notiflcatior no.

9/3-2020 dated outbreak of Covid-19 pandemic.

Th€r€fore, comes out to be 30.05.202:1.

18.

Admissibility of delay possession charyes at prescribed rate of lnteresl Proviso to section 18 provirles that where an allotte€ does not of environmental clearance. is grant€d to the respotrdent 26.05.2020, on account of the due date of possession trffi intend to withdraw fiom th€ proiect, he sha be paid, by the promoter, inter€st for every month of delay, ttll the handing over ofpossessioD, at such rat€ as may be prescribed and it has b€€n prescnbed under rute 15 of the rul€s.

Rule 15 has been reproduc€das under: Rut 15, Pr*nhn nt ol tal!6t iPtoete to ectbn t2, setton 13 ditt ttb-t < on (1) .nd subtunon 0) ot *.,toa (1) Fot tte puae oJ provie b @ion 14 sqtio. ta: dhd tub sdions t1) ond t7) ol e.tio le, the .inlte ot th. tub pt$nibcn' sholl b? th. *oe Bnnk ol tndio htth* nargtnol c@ oft.^dihp tu@ t2%,: PHARERA d5-eunlcnm,r and if the said rul practice in all the 19.

The l€gislature in its StoE Bonk ollndio noryinol inate lesislation under rhe €d the prescnbed rate of legislature, is reasonable 20 the marginal costofle it willensure uniform ndia i.e., https:4sbi..o.in.

R) as on date i.e., 2 3.04.2025 ? c 21. promoter, in case of defaul[, shrll be equal to the rate of interest which the promoter shall be liable to pay the allottee, in (ase of default- Th€ rele,rant sedion is reproduced belorrl "(n) "intett" @ns d. rut6 of kaatr parabtc 4 the panow N rheallotE ,athe@no!b. athe@no!b.

Exdonod . - tbt dL puqae ol kn dare- [i rn tuE oliatqEst dtuanbt.ltud rh. o oi..wrh.ptutut. tn @s qd{tuh ndl h.qurt b h. @ oltnEc$ *ntdt dt [email protected] w th. ollotE , in @ oft|hull is 9.10%.

Accordingly, the prescribed lare ofint€restwill be ma.ginalcosr lrHARERA S- eunuennv 23. (, th. indar N,Nd.b,6e ptuNb b ttg ett,@ dtott b.Inn th. thu dt. pNnaa @tu 1 6. ownt u on! pan aiaf d d. tuE th. otunt o Fn tha.of Md kt ...t tt.@n is Efu"d.n, and dt in'Est porabt h, rlE oto.D. ro rhe |to@Er thot b.lnD th. dat th. atbtb. dalaul5 k parmnt to th.panot t.ill rh. ddtz it k Nldi 22.

Therefore, interesr on the delay payments fron the complainant shall b€ charged at the pr€scribed rate i.e., lt.to% by the relpondent/pmmoter which i! the same as is b€tng granted to th€ complainanr in case of detay possession charSes. on co.siderat,on or the drcuments available on record and submissions mad€ by borh rhepanies, rh satisfied that the relpondent is in contravention of the Sectio of the A.t by not handing over possession bythe due d rr By virtue of clause r(iv)of ndent/promot€r shall be efindingsgiven above, 0.05.2022.

However, the respondent has farled of th€ subject apartment to thecomplainant till the dats .

Accordingly, it is the failure ofthe of the proiect within 4 grant of environmental respo.dent/promoterto fulRlits obligattoos and responsibitities as per the agreement to hand over ttLe possession witlin the stipulated period.

The respondent vide its repl, dared 20.77_2024 has contended that rhe complainant has not paid rl€ outstanding installments with interesL For that reason, the r€spondert has cancelled her unit and altotted to some other buyer.

However, as per rccord, the complainant is not at dehutt and has paid a considerabl€ am )unt of money towards the sal€ consideration of th€ uniL Furth€r, there is no docunent availabl€ on record to subsrantiate the claim of the respondenl Accordingly, rhe claim of the respondent is rejected being devoid of merits More erits Moreover, the authority obseryes that there is no document on record iiom which it can be ascertained as to whether the respondent has appliel for occuparion certiffcate or what is the slatus of construction ofrhe proje cL Hen6e, this proiect is to be Feated a! on-going project and the pror{sions of the Act shall be af,plicable equally to the builder as well a! alloBees 24.

Accordlngly, the noo-corLpti:nce of the mandate cootained in s€.tion 11(4Xa) read with provisr to secrion 18(1) ofthe Act on rhe part of rhe respondent is established. & such, rhe alottee shall b€ paid, by the y from due dateofpossession i.e., 30.05.2022 till valid ofier n plus 2 months after obtaining o.cupation celtlfi (are fro uthority or actual handing over n 18(11 ofthe Act of2016 read with Rule 15 25.

Furti€r, as per 1t.4 ! *HARERA (S eunucnnur prohoter is unde\ t on 170) of the Acr of 2016, the nce deed executed in 1l ofthe Act of2016, the wards regisEahon of rhe owever. there ls nothing on rh€ s bli allottee is also obli conveyance deed of the un record to show that the respo what is the status of the dpv applied for occupation certificate or of the above'mention€d project.

In view ofthe above, the respDndent is direcred ro handover possession of the Rat/unit and exeote conveyance de€d ln hvour ofth€ complainant in terms of Section 17(r) of the /lct of 2016 on paymenr of stamp duty and registrat,on charges as afplicablq wirhin rhree monrhs after obtaining occupation certlffcate from the compeient authority.

G.II DiEct the rcspotrdEDt lo to not to lbrr. the comptatnana to itSr eDy lnd€mDlty cum undcrt klDg .r a prEcondtdoD fo. rlSninS the coDveyance d€ed ffHARERA €l- eunuenevr Th€ Authonty observes the said issu€ has alrcady been decided by this Authority in complaint be rnng no.

4031 oJ 2019 nied as yann cuqtu y.

Emoar MGF Land Ld.

F Land Ld. whe rein it is held rhat the respondent shal nor place any condition or ask the complainants to sign an indemnity of:ny nature whatsoever, which is preiudicial ro their rights.

Ordered accordingly.

G.lll Dlrect the Espondclt to povide the elact tayort pl.n of the unl!

As per Section 19(1) of the Act, the allottee is €nritted to obtain information relatingto sanctioned planr layout plan along with specifications, appmved by the competent authoritrand such olher information as provided in this Act or Rules and Regulatn) under or the agreement for sale signed with the promoten T ew of th€ same, the respondent t plan ofthe unit in question onth ftom the date ofthis 26 27 24. 'lhe issue ofmaintenance (.harges has already been clarified by the office of ly maintenaDce charges ng adual Dossesslon of DTCB Harlana vide oftce ords dated 31.01.2024 wherein it has catesoricrlly cla SFq, coronizer/deveropfil to be provided by th€ Colonies and seM.es for which maintenanc!

Gltarfp aall bo ctlsrged fi6m the allottees as per consumption.

Accofthng, fie promoter can only charg€ maintenance/use/utility charges from the complainant,allotree as per consumption as prescribed in Cat€gory-ll of the omce order dared 3t.01.2024.

H.

DLecdons ofthe authorl ty 29.

Hence, the authority hereby passes this order and issue the following diredions under section 37 of the Adto ensure compliance of obligations #HARERA 9l eunuennur cast upon the promoter as per the tunction ertrusied to the authortty under sedion3at0: i.

The respondent/pomot r is dir€cted to pay interest to the complainant against lhe paid,up amount at th€ prescribed rate of 11.10% p.a. for every honth of delzy fiom the due date of possesslon i€., 30.03.2022 till yalld ofrer of possesslon plus 2 months after obtaining occupation certificat€ hom rhe comperent authority or actual handing over ofpossession, whichever is earller as per Section 18[1] ofthe Act of 2016 read wirh Rule 1s of the Rules,2017. iiL. n. rn 30.05. rn 30.05.2022 tillthe date the allottee b ffi* "" r", -,",.1ry l\e I to supply a copy of the updated statement o adjusting delay possession rhargeswrthi plainant.

The compl g dues, if any, after adjustment ofdelay possesslon charges withiD a p€riod ol60 days from the date of receipt of updated statem€nt o[ account The respondent/promoter shall handover possession of th€ flat/unit and execut€ oonvEyance deed in favour of the complainant in tenns of Section 1;,(1) of the Act of 2015 on payment of stamp duty and registmtion cha4es as applicable, within three months after obtaining occupation certificate fiom the competelt authority.

HARERA GURUGRAIV charSes fron \eJ The respond€nt/pro The rate of interest chargeable from rh€ allottee by th€ pmmoter in case ofdefuult shallbe charged at the prescribed rar€ i.e., t1.10% by the respondent/promoter which is the same rare of inrerest which the pmmot€r shall be liable to pay the a otte€, in case of default i.e., the delay€d possession charges as per Section Z(za) of The respondent/promoter i! tur$er dir€.ted not to ptace any condition or ask the complainant to sign an indemnity ofany nature er Igh(s as has been decided by the author,ty in com ng no.

4031 oJ 2019 nied as Yotun Gupta Y.

Em viii phn of rhe u period or I mlft The respond per consumption as dated 31.01.2024. charge anlthing hom the 30.

31. complainant which t not the parr of the buyer's agreement or provided under the Afiordable Housing Policy, 2013.

Files be consigned to r€gistry. (As Haryana Real [state Regulatory Authorit, Gurugram Dared: 23.04.202 5 'lhe complaints stand disposed ot