DEEPAK BALWADA vs OCEAN SEVEN BUILDTECH PVT. LTD.

HARERA M GURUGRAII BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of Order: 17-72-2024 Complaint no.

360 of2024 and 14 others Name ofthe Builder Ocean Seven Buildtech Pvt.

Ltd.

Proiect Name Expressway Towers S.no.

Complaint No, Complaint title Attendance 1. cR/360/2024 Dhruv Mangal V/s Ocean Seven Buildlech Pvt.

B.L Jangra (Complainant) Arun Yadav fRespondentl 2. cR/367/2024 Avinash Choudhary V/s M/s Ocean Seven Buildtech Pvt.

B.L Jangra (Complainant) Arun Yadav fResDondentl 3. cR/362/2024 o',l B.L Jangra (Complainant) Arun Yadav fRespondentl 4. cR/363/2024 Harshul Makkar V/s Ocean Seven Buildtech Pvr.

B.L Jangra (Complainant) Arun Yadav (Respondentl 5. cR/36412024 Shenanshu Gandhi & Shilpa Jain V/s Ocean Seven Buildtech Pvt.

B.L Jangra (Complainantl Arun Yadav IResDondent] 6. cR/36s/2024 Neenu Verma V/s 0cean Seven Buildtech Pvt.

I 8.1Jangra [ComplainantJ Arun Yadav (ResDondentl 7. cR/366/2024 Deepak Kumar'N:iutiyal Vls 0cean Seven Buildtech Pvt.

B.L Jangra (Complainant] Arun Yadav IResDondentl B. cR/374/2024 Deepak Balwada V/s Ocean Seven Buildtech Pvt.

B.L langra (Complainantl Arun Yadav fResDondentl 9. cR/376/2024 Sharwan Kumar V/s Ocean Seven Buildtech Pvt.

B.L Jangra [ComplainantJ Arun Yadav IResDondent) Page 1of 25 Lokesh Mehlawat V/s 0cean Seven ffiHARERA #- eunueRRHl Complaint no.

360 of2024 and 14 others ORDER 1.

This order shall dispose ofall the 15 complaints titled as above filed before this authority in form CRA under section 31 of the Real Estate (Regulation and Developmentl Act, 2016 (hereinafter referred as "the Act") read with rule 28 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017 [hereinafter referred as "the rules") for violation of section 11[aJ Ia) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parti ween parties.

10. cR/377 /2024 Sanjay Saini V/s Ocean Seven Buildtech Pvt.

B.L Jangra (ComplainantJ Arun Yadav fResDondentl 11. cR/388/2024 Mohit Chauhan & Ekta Mittal V/s ocean Seven Buildtech Pvt.

B.L Jangra (Complainant) Arun Yadav [ResDondentl 12. cR/844/2024 Neetu Prakash V/s Ocean Seven Buildtech Pvt.

B.L Jangra (Complainant) Arun Yadav IResDondentl 13. cR/B4s/2024 Harpal Singh V/s Ocean Seven Buildtech Pvt.

Lld.

B.L Jangra (Complainantl Arun Yadav fResDondent) 14. cR/848/2024 Buildtech B.L Jangra (Complainant) Arun Yadav (ResDondentl 15. cR/849 /2024 Himanshu Srivastava V/s Ocean Seven Buildtech Pvt.

B.L Jangra IComplainantJ Arun Yadav fResDondentl Page2of2s ,1,/ CORAM: Ashok Sangwan Member ffiHARERA S- eunuennvr Complaint no.360 of2024and l4 others 2.

The core issues emanating from them are similar in nature and the complainant(sl in the above referred matters are allottees of the proiect, namely, "Expressway Towers" at Sector 109, Gurugram being developed by the respondent/promoter i.e., Ocean Seven Buildtech Private Limited.

The terms and conditions ofthe builder buyer's agreements fulcrum ofthe issue involved in all these cases pertains to failure on the part ofthe promoter to deliver timely possession of the units in question, seeking award of possession and delayed possessi arges etc.

3.

The details o[ the complai possession clause, due date consideration, amount below: unit no., date of agreement, offer of possession, total sale ught are given in the table Proiect " leted within 4 years from I clearance, whichever is t of project" for the Possession clause in I (iv) All such projects the date of qpproval of bu later.

This date shall be 7, Date of sanction of bui ng plans is 26.09.2016 as per information obtained fr 2.

Date of grant of grant of environmental clearance is 30.11.2017 planning branctL 3.

Due dote ofhanding over ofpossession- 30.05. on- 30.05.2022 [The due date has been calculated as 4 years from date of grant of environmental clearance i.e., 3 0.11.2 017 as per policy of 20.13 + 6 months as per HARERA notification no.9/3-2020 dated 26.05.2020 for the projects having completion date on or after 25.03.2020).

4.

Occupation certificate- Not obtained 5.

DTCP License no.

6 o12076 dated 16.06'2016' Shree Bhagwan is the licensee for the project as mentioned in land schedule ofthe proiect.

6.

REP.I. registration - 301 of 2017 dated 13.10.2017 valid upto 12.10.2021, Page 3 of25 Sr.

No Complaint no./title/ date of complaint Reply status Unit No. and area admeasur ing ICarpet area) Date of execution of apartrnent buyer's agreement Due date of Possession & offer possession Total sale consideration and amount paid by the Complainant (s) Relief Sought 1. cR/360 /2024 DhruvMangal V/s Ocean Seven Buildtech h/t Ltd.

DOF.

19.O2.2024 Reply received on 10.07.20 24 2706, Tower 3, 27s Floor (Page 38 of complaint) t 27.09.2017 ,:, ' 30.0s.2022 offer of Not offered rsc: Rs.

26,29,5001 - (As per BBA on pace 38 of complaint) Rs.

243a344 / - [As per ledger account on page Tl of complaint) DPC and N, CD 2. cR/361/2024 Avinash Choudharyv/s M/s ocean Seven Buildtech Pvt Lrd.

19.02.2024 Reply 10.07.20 z4 1606, Tower 5 (Page 28 of complaint) HW rdld trTn J 30.05.2022 rof d TSC: Rs.

27 ,1A,251 / - (As per CRA on page 22 of complaint) Rs.

27 ,18,251/ - (As per ledger account on page 31 ofcomplaint) )PC and 1, CD 3 cR/362/2024 Lokesh MehlawatV/s Ocean Seven Buildtech Plt Ltd.

DOF- 22.02.2024 Reply received on 10.07.20 24 tPakstd complaiql]i KA 29_08_2017 RA TSC: Rs.

12,62,500/' (As per BBA on page 36 of complaintl Rs.13,16,156/- [As per ledger account on page Tl ofcomplaint) DPC and Possessio n, CD cR/363 /2024 Harshul MakkarV/s ocean seven Buildtech PvL Ltd.

22.02.2024 Reply received 10.07.20 z4 004, Tower 5 lPage 27 ol complain0 Notexecuted 30_o5_2022 0ffer ot Not offered TSC: Rs. d TSC: Rs.

26,26,00o / - [As per CRA on page 27 of complaint) Rs.

27 ,7 7 ,650 / - (As per ledger account on page 29 ofcomDlaint) DPC and Possessio n, CD HARERA GURUGI]AM Page 4 of25 t/ 5. cR/364/2024 Snehanshu candhi & Shilpa lain V/s ocean Seven Buildtech PvL Ltd.

22.02.2024 Reply received on 70.07.20 24 201, Tower 5,2nd Floor (Page 34 of complaint) 29.12.201?

30.05.2022 0tferof possession' Notoflered Rs.26,26,000 / - [As per BBA on page 38 of comPlaint) AP: k.27 ,14,626 /- [As per ledger account on page Tl of comDlaintl DPC and Possession, CD 6. cR/36s 12024 NeenuVerma seven Buildtech Plt Ltd.

22.02.2024 Reply 10.07.20 ( 708, Tower 4, 7th Floor [Page 34 of complaint) .d' 28.11.2018 .-mrt 30.os.2022 offer of possession- Not offered L.

TSC: k.26,26,OOO/- (As per BBA on page 38 of complaint) Rs.30,9A,67a/ - (As per payment receipts on page 73-80 of comDlaint) DPC and Possession, CD 0a,0t,O1?

7. cR/366/2024 Deepak Kumar Nautiyal V/s 0cean Seven Buildtech Pv!

22.02.2024 Reply received 10.07.20 : 21 , I 8 rf TSCI Rs.

26,26,000 / - [As per BBA on page 38 ol complaint) Rs.

27 ,14,626 / - (As per CRA on page 24-25 of comDlaint) CD DPC K 8. cRl374/ZOZ4 Deepak Balwada V/s Ocean Seven Buildtech h,t Lrd.

19.02.2024 Reply received 10.07.20 24 1101, Tower 5 (Page 27 of complaint) &Kxsu KE i tr;!" 30.05-2022 A I 'M TSC: Rs.

26,26,000 / - (As per CRA on page 21 of complaintl Rs.26,77 ,A9S / - (As per ledger account on page 28 ofcomplaint) DPC and Possession, CD 9. cR/376/2024 Sharwan Kumar seven Buildtech Art Ltd.

19.02.2024 Reply received 10.07 -20 z4 303, Tower 3,3d Floor [Page 35 of complaint) 26.07 -2017 30.05.2022 offerof possession- Notoffered TSC: Rs.

26,29,5OO I - (As per BBA on page 35 of complain0 Rs.

27 ,7A,246 / [As per ledger account on page 75 ofcomplaint) DPC and Possession, CD HARERA GURUGRAM Page 5 of25 v 300 ,2022 10. cR/377 /2024 SanjaySainiV/s 0cean Seven Buildtech PvL Lrd.

19.02.2024 Reply received on 70.07. on 70.07.20 24 1502, Tower 6, 15s Floor (Page 36 of complaint) 10.06.2017 30.05.2022 otrer of possession- Notoffered TSC: k.26,29,5O0/- (As per BBA on paSe 36 of complaint) AP: Rs.

27 ,fi,244 / - (As per ledger account on page 70 ofcomDlaint) DPC anc Possession, CD 11. cR/388/2024 Manish Chauhan & Ekta Mittal V/s 0cean Seven Buildtech P\,'t.

Lrd.

19.02.2024 Reply 10.07.20 24 A 2308, Tower 3, 23d Floor (Page 37 of complaintJ 08.10.2018 30.05.2022 offerof possession- Notoffered : TSC: Rs.26,26,o00 / - (As per BBA on page 37 of complaint) Rs.27,14,fi4/- (As per ledger account on paSe 74 ofcomDlaintl DPC an( Possession, CD 72_ cR/aM/2024 Neetu Pral.,ash seven Buildtech PvL Ltd.

07.03.2024 Reply 10.07.20 24 806, Tower 3,8$ Floor lPage 36 ol complainl) D T ?\ 30 05-2022 0ilcr of Not offered ffi I TSC: Rs.

26,29,ooo / - (As per BBA on page 36 of complaint) AP: Rs.

23,86,276 / - [As per iedger account on page 67 ofcomDlaintl DPC anr Possession, CD 13. cR/845/2024 Harpal Singh SevenBuildtech Pvt Ltd.

07.03.2024 Reply received 10.07.20 24 904, Tower 3,9,h Floor (Page 31 of complainr) 20_46_2017 30.o5.2022 offer of TSC: Rs.

26,26,000 / - (As per BBA on page 34 of complaint) Rs.23,83,094/- (As per ledger account on page 72 ofcomplaint) DPC andl Possession, CD 14. cR/848/2024 Pratap Singh seven Buildtech Pvt Ltd.

07.o3.zoz4 Reply received 10.07.20 24 804, Tower 3,8d Floor (Page 36 of complaint) 03.10.2017 30.05.2022 Offerof possession- Notoffered TSC: Rs.26,26,000 / - [As per BBA on page 36 of complain0 Rs.

27 ,01,929 / - (As per ledger account on page 70 ofcomDlaintl DPC Possession, CD ffiHARERA # eunuennl,r Page 6 of25 ./ HARERA ffi GURUGRANI Complaint no.

360 of2024 and 14 others 4.

The aforesaid complaints were filed by the complainant(sJ against the 5. promoter on account ofviolation ofthe builder buyer's agreement executed between the parties inter se in respect of said unit for seeking award of possession and delayed possession charges etc. arges etc.

It has been decided to treat the said complaints as an application for non- compliance ofstatutory obligations on the part ofthe promoter/respondent in terms of section 34(0 of the Act which mandates the authority to ensure compliance of the obligations cast upon the promoter, the allottee(s) and the real estate agents under the Act, the rules and the regulations made thereunder.

The facts of all the complaints filed by the complainant(s)/allottee(sJ are also similar.

Out of the above-mentioned case, the particulars of lead case CR/360/2024 titled as Dhruv Mangalv/s Ocean Seven Buildtech Pvt.

Ltd' are being taken into consideratir:n for determining the rights of the allottee(s) qua possession and delayed possession charges.

15. cR/a49 /2024 Himanshu SrivastavaV/s ocean Seven Buildtech PvL Ltd.

0?.03.2024 Reply received 0n 10.0?.20 24 12O6, Tower 6, 12d Floor (Page 34 of complaint) o7.06.2017 | 30.05.2022 I or". or I possession- I ttototrered TSC: k.26,29,s00/- [As per BBA on page 34 of complaint) AP: Rs.

20,54,299 /- (As per ledger account on page 69 of comDlaint) DPC anc Possession, CD Noter tn the table referred above certain abbreviations have been used.

They are elaborated as follows: Abbreviations Full form PaEe 7 of 25 ffiHARERA s- eunuennll Complaint no.

360 of2024 and 14 others A.

Proiectand unit related details 7.

The particulars ofthe project, the details of sale consideration, the amount paid by the complainantfs), date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: CR/360/2024 titled as Dhruv Mangal V/s Ocean Seven Bulldtech PvL Ltd. s.

N.

Particulars Details 7.

Name of the project "Expressway Towers", Sector 109, eorQsram 2.

Nature ofthe proiect Affordable Housing DTCP license no. validiW status and 6 0f 2016 dated 1,6.06.2016 4.

RERA Registered/ not resistered 307 ot 2017 dated 13,10,2017 valid upto L2.L0.2021 Allotment Letter 2L.09.201,7 [DaPe 30 of comDlaintl 6.

Dlaintl 6.

Unit no, 2706, Tower 3, 27 ' Floor fPase 3B of complaintl 7.

Unit area admeasuring 645 sq. ft. (carpet area), 99 sq.ft balcony area fPase 3B of comDlaintl B.

Date of execDtitlil'..81 Apartment B\tr€ Acreement 27.09.2017 9.

Possession clause in Affordable Housing Policy 1 (iv) All such projects shall be required to be necessarily completed within 4years from the date ofapproval ofbuilding plans or grant of environmental clearance, I whichever is later.

This date shall be referred to as the "date of commencement r of Droiect" for the nuroose of the oolicv.

10.

Date of environmental clearance 30.1L.2017 (as per information obtained from the olannins branchl tt.

Date of approval of building plans 26.09.20L6 (as per information obtained from the olanning branchl Page I of25 ./ B.

8.

HARERA (lE cr rDl raDAr\t Complaint no.

360 of2024 and 14 others 1,2.

Due date of possession 30.05.2022 (Calculated as 4 years from date of $ant of environmental clearance i.e., 30.11.2017 as per policy of 2013 + 6 months as per HAREM notification no.

9/3-2020 dated 26.05.2020 for the projects having completion date on or after 25.03.2020..) 13.

Total sale consideration Rs.26,295OO / - [As per BBA on pase 38 of comDlaint] 14.

Amount paid by the complainant Rs.243a344/- (As per ledger account on page 71 of complaint) 15.

Occupation certificate /Completion certificate Not obtained t6.

0ffer ofpossession Not offered Facts ofthe complaint The complainant has made the following submissions; - L That the complainant was allotted a unit/flat bearing no.

2706 in Tower 03 on 27th Floor admeasuring 645 sq. ft. carpet area and 99 sq. ft. balcony area in the project of the respondent named "Expressway Towers" at Sector-109, Gurugram vide allotment letter dated 21.09.2017.

Thereafter, an agreement to sell dated 27.09.2017 was executed betlveen the parties regarding the said allotment for a total sale consideration of Rs.26,29,500 /-.

29,500 /-.

IL That the respondent mischievously did not mention specific date of handing over the physical possession ofthe flat/unit.

It was mentioned in the clause no.

5.2 ofthe agreement to sell that the company shall sincerely endeavour to complete the construction and offer the possession of the said unit within five years from date of receiving oflicence.

That the respondent obtained building plan approval on 26.09.2016 and received environmental clearance on 30.71.20-J.7, II I.

Page 9 of25 ffiHARERA #- eunuennvr Complaintno,360 of2024 and 14 others That the respondent cannot override clause 1(iv) of Affordable Housing Policy, 2013 relatingto completion of construction and possession.

Hence the due date of possession is to be reckoned from environmental clearance that is 30.11.2017 which comes to 30.11.2021.

That the complainant had availed a home loan of Rs.20,23,000/-against mortgage of the said flat @8.35/- percent p.a. from State Bank of India with EMI of Rs.Z5,000/-.

In this regard State Bank of India had issued a sanctioned letter dated 10.N.?017.

It is submitted that as the understating among the c spondent and State Bank of lndia a tri-partite agreement da 17 had been entered.

IV, VIII.

VI.

That the complain pursuance to the e no.

55/2019, case titled as "Shri Hardev n Buildtech Pvt.

Ltdl' passed by the ority.

Howeve4 despite of the above in the cost repeated requ and other payabl spondent refused to give the same hence e said judgment.

VII.

That the respondent under J and (iv) ofthe agreement to sell Contract Tax, Power Backup charges.

The s has been noted by this Authoritv in Ti , CR No.

35 of 2021. and Varun vs Emaar MGF Land ltd.

CR.

No.

4031 of 2019.

That the complainant had paid sum of Rs.24,28,344/- which is around 90%o of the total price of the flat by 1A.07.2020 as per the payment plan of the agreement to sell, but the respondent had neglected to complete the project till date and no construction activity is going on. going on.

The complainant visited several times in the office of the respondent calling upon to complete the project and handing over the possession, but ed to seek Input Tax Credit of GST IX.

Page 10 of25 'v' C. ffi HARERA #h eunuenntrl Complaint no.350 of2024 and 14 others it gave evasive reply and demands illegitimate money under the pretext the construction cost has gone above but were refused by the complainant.

However, the complainant is ready to pay the legitimate balance demand as may be directed by this Authority at the time of possesslon.

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

Direct the respondent to h possession of the unit, to execute conveyance deed and to session charges as per the Act. ll.

To restrain the responde ding Labour Cess, VAT, Work Contract Tax and Power 10.

0n the date ofhearing, to the respondent/ promoter about the contrave committed in relation to section 11(41 (a) o plead guilty.

Reply by the The respondentvi contested the complaint on the following i.

That this Authority dicate upon the present arbitration. ii.

That the complainant is a willful defaulter and deliberately, intentionally and knowingly have not paid timely installments. iii.

That starting from February Z0Z3,lhe construction activities have been severely impacted due to the suspension ofthe license and the freezing of accounts by the DTCP Chandigarh and HREM Gurugram, respectively.

This suspension and freezing ofaccounts represent a force majeure event beyond the control of the respondent.

The suspension of the license and freezing ofaccounts, starting from Feb 2023 till date, have created a zero- D.

11.

Page 11of25 HARERA MGURUGI?AM time scenario for the respondent.

Furthel there is no delay on the part of the respondent project as it is covered under clause number 5.5 force Majeure, which is beyond control ofthe respondent.

That the final EC is CTE/CTO which has been received by the respondent in February 2018. uary 2018.

Hence the start date of project is Feb 2018 and rest details are as follows: Covid and NGT Restrictictions Proiect completion Date Feb-22 Covid Iock down waiver 18 months NGT stay (3 months approx. for every year)i.e.6*3 18 months Total Time extended [18+1.8) months to be extended 36 months Accounts freezed & license suspended Feb 202 3 till date further time to be extended tillthe unfreezing of the accounts i.e.

Peb- Nov 2023 (10 months) Nov-23 Final project completion date (in case proiect is unfreezed) further time would be added ti11 unfreezing the accounts Nov-25 As per the table given above, the final date for the completion of construction is Feb 25 in case the accounts are unfreezed by the competent authority on the date of filing this reply.

From Feb 2023, the license has been suspended and accounts have been freezed by the DTCP Chandigarh and HRERA Gurugram. v.

That the complainant has claimed relief for restraining it from demanding Iabour cess, VAT, lvork contract tax and power backup charges.

However, the project has not been completed yet and no cause of action has arisen for the complainant to file a complaint based on false, fabricated and erroneous grounds.

The complainant has not paid the Complaintno.360 of2024 and 14 others PaEe 12 of25 ffiHARERA #, eunuennvr Complaint no.360 of2024 and 14 others outstanding installments with interest.

For that reason, the respondent has cancelled his unit and allotted to some other buyer.

12.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission made E.

13. by the parties. f urisdiction of the authority The authoritv observes that it territorial as well as subiect matter jurisdiction to adjudicate th plaint for the reasons given below.

E.

I Territorial iurisdiction 14.

As per notification no. d 74.L2. . d 74.L2.2017 issued by Town and Country P Regulatory Auth urugram District for all purpose with offi sent case, the project in question is of Gurugram District.

Therefore, this au jurisdiction to deal with the present complaint.

REO.

II Subiect matter iurisdi Section 77 (4) The promoter shall- (a) be responsible for all obligqtions, responsibilities and functions under the provisions of this Act or the rules ond regulations mode thereunder or to the allottees as per the agreement for sale, or to the association of allotteet as the case may be, till the conveyonce ofall the aportments, plots or buildings, as the case moy be, to the allotteet or the common areqs to the associqtion oJ allottees or the competent outhorig, as the case moy be; Section 34-Functions oJthe Authorilyt 15, Section 11(a)(a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11[,tJ[a] is reproduced as hereunder: ction of Real Estate Page 13 of 25 ffiHARERA ffieuRuenRlr Complaint no.360 0f2024 and 14 others 76.

F. t7.

34A of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees ond the real estate agents under this Act and the rules and r eg ulation s m ade the r e unde r.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter.

Findings on the obiections raised by the respondent: F.l Obiections regarding force maieure.

The respondent/promoter has raised the contention that the construction of the project has been delayed due to force majeure circumstances such as ban on construction due to orders passed by NGT, major spread ofCovid-19 across worldwide, suspension ii ti."nr" by the DTCP, Chandigarh and freezing of accounts by HRERA Gurugram etc. which is beyond the control of the respondent and are covered under clause 5.5 of the agreement. agreement.

The respondent has further submitted that suspension of the license and freezing of accounts, starting from Feb 2023 till date have created a zero- time scenario for the respondent.

Furthermore, the final EC is CTE/CTO which has been received by the respondent in February 2018, hence the start date of project is Feb 2018.

However, all the pleas advanced in this regard are devoid of merits.

As per clause 1(iv) of the Affordable Housing Policy, 2013 it is prescribed that',l1ll such projects shall be required to be necessarily completed within 4 years from the date of approval of building plans or grant of environmental clearance, whichever is later.

This date shall be referred to as the "date of commencement ofproject" for the purpose ofthis policy.

The respondent has obtained environment clearance and building plan approval in respect of the said project on 30.71.2017 and 26.09.2016 respectively.

Therefore, the due date of possession is being calculated from the date of environmental clearance, being later.

Further, an extension of 6 Page 14 of2s ffiHARERA ffi euRuenRll Complaint no.

360 of 2024 and 14 others months is granted to the respondent in view of notification no.

9 /3-2020 dated 26.05.2020, on account ofoutbreak of Covid-19 pandemic.

Therefore, the due date of possession was 30.05.2022.

As far as other contentions of the respondent w.r.t delay in construction of the project is concerned, the same are disallowed as firstly the orders passed by NGT banning construction in the NCR region was for a very short period of time and thus, cannot be said to impact the respondent-builder leading to such a delay in promoter/respondent cannot be given any Ieniency on based of aforesaid reasons and it is well settled principle that a person cannot take benefit of his own wrong.

F.

Il Obiection regarding complainant is in breach of agreement for non- 18rh".':J;fi :',n,hf,sffi ffi.&JE&td&"otmaintainabreforthe reason that the as. at the as.fqfl f?ftffgl9int?fl ause which refers to the dispute resolution indcHeiisrtr'ld bYadofted'by'tfie parties in the event of any dispute.

The authority is of the opinion that the iurisdiction of the authority cannot be fettered by the existence of an arbitration clause in the buyer's agreement as it may be noted that section 79 of the Act bars the iurisdiction of civil courts about any matter which falls within the purview of this authority, or the Real Estate Appellate Tribunal.

Thus, the intention to render such disputes as non-arbitrable seems to be clear.

Also, section 88 the completion.

Secondly, the li of the project of the respondent was suspended by DTCP, H dated 23.02.2023, due to grave violations made by it in maki ce of the terms and conditions of the licence and th continuing violations of the provisions ofthe to protect the interest nt related to the proiect 24.02.2023.

Thus, the of the allottees, the bank account of the Page 15 of25 MHARERA S* eunuenRu Complaint no.360 of2024 and 14 others of the Act says that the provlsions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

Furtheq, the authority puts reliance on catena of judgments of the Hon'ble Supreme Court, particularly in National Seeds Corporation Limited v.

M.

Madhusudhan Reddy & Anr. (2012) 2 SCC 506, wherein it has been held that the remedies provided under the Consumer Protection Act are in addition to and not in derogation ofthe other laws in force, consequently the authority would not be bound agreement between the pa applying same analogy the construed to take away 79.

Further; in Aftab Consumer case Consumer Dispu that the arbitrati builders could not parties to arbitration even if the arbitration clause.

Therefore, by f arbitration clause could not be authority.

GF Land Ltd and ors., .O7.2017, the National elhi (NCDRCJ has held n the complainants and of a consumer.

Further, while considering the issue. the issue. :f ***r1lrb,t,ry of a complaint before a consumer forum/commission in the fact of an existing arbitration clause in :r r rr'ra:'b.

I the builder buyer agreement, the hon'ble Supreme Court in case tit ed os - t r,t t.r llJ rt-r ir M/s Emaar MGF Land Ltd.

U.

Aftob Singh in revision pe tion no.

2629- '| '11 !1 'l 30/2078 in civil appeal no.23572-23573 of2O77 decided on 70.72.2078 has upheld the aforesaid judgement ofNCDRC and as provided in Article 141 ofthe Constitution of lndia, the law declared by the Supreme Court shall be binding on all courts within the territory of India and accordingly, the authority is bound by the aforesaid view.

Therefore, in view of the above ,udgements and considering the provision of the Act, the autlority is of the view that complainant is well within his right to seek a special remedy available in a beneficial Act such as the Consumer Protection Act and RERA of 2015 decide Page L6 of Zs 1,' G.

20. ffiHARERA Heunuennn,l Complaint no.360 of2024and 14 others Act, 2016 instead of going in for an arbitration.

Hence, we have no hesitation in holding that this authority has the requisite iurisdiction to entertain the complaint and that the dispute does not require to be referred to arbitration necessarily.

Findings on the reliefs sought by the complainant: G.

I Direct the respondents to handover possession of the unit, to execute conveyance deed and to pay delay possession charges as per the Act.

The complainant intends to continue with the project and is seeking delay 27. possession charges as p Act.

Sec.

L8(1) proviso reads "Section 78: - 18(1). rf the possession Provid from th for the proviso to section 18(1J of the ond compensation or is unable to give !19, - towithdraw ter, interest over of the 27.09.2017 (in short, ssion and is reproduced construction of clouse of this the Allottee(s). to the period of Clause 5.

Clause 5.2 agreementl below: of th p 5,2 Possession Time "The the soid (commitm Agreement However 5 years the possession after payment ofremoining sale price and other charges stipulated in the to Sell.

The Company on obtaining certifcote for occupotion and use by the Competent Authority hond over the said unit to the Allottee for his/her/their occupotion ond use, subject to the All complied with all the terms and conditions of the said Policy and Agreement to Sell and payments made os per Payment Plon..-" (Emphasis supplied) 22.

At the outset, it is relevant to comment on the preset possession clause of the agreement wherein the possession has been subjected to all kinds of terms and conditions of this agreement and application, and the rct, he s nth of such ro PaEe 17 of 25 ffiHARERA #- eunuenRu Complaint no.360 of2024 and 14 others complainant not being in default under any provisions of these agreements and compliance with all provisions, formalities and documentation as prescribed by the promoter.

The drafting ofthis clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promoter and against the allottees that even a single default by the allottees in fulfilling formalities and documentations etc. as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottees and the commitment date for handing over possession loses its meani oration ofsuch clause in the buyer's agreement by the promoter i in grave violation of clause 1. (iv) of the Affordable Hou deprive the allottees of their right accruing after ust to comment as to how the builder has n and drafted such mischievous clau s are leftwith no option but to sign on the 23, Clause 1(ivJ ofthe 3 provides for completion of all such projects ame is reproduced as under from the date cleqronce, whichever is lqter.

This oate s*1,.!r,*Et:! to as the "dote of 24. commencement of project" Jor the purpose oJ the poncy. the poncy.' Due date of handing over of possession: As per clause 1(ivJ of the Affordable Housing Policy, 2013 it is prescribed that "/11 such proiec* shall be required to be necessarp completed within 4 years fiom the date of approvat of building plans or grdnt of envtronmental clearance, whichever is later.

This date shall be referred to as the "date of commencement of project" for the purpose of this policy.

The respondent has obtained environment clearance and building plan approval in respect of the said proiect on K glPnt oI environmental 'W,i?! * os the "dotc ol Page 18 of25 v- S HARERA ffi arRucRA[/ Complaint no.360 of2024and l4 others 30.1L.2017 and, 26.09.2076 respectively.

Further, an extension of 6 months is granted to the respondent in view of notification no.9/3-2020 dated 26.05.2020, on account of outbreak of Covid-19 pandemic.

Therefore, the due date of possession comes out to be 3 0.05.2022.

25.

Admissibility of delay possession charges at prescribed rate of interest: Proviso to section 18 des that where an allottee does not intend to withdraw from interest for every month of shall be paid, by the promoter, handing over ofpossession, at such rate as may be prescri bed under rule 15 of the rules.

Rule 15 has to section (7) of '; section 1B; the "interest Bank of India 296.: Bank of lndio marginal shall be CLR) is not in use, it benchmork lending rates time to time interest.

The rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases.

27, Consequently, as per website of the State Bank of India i.e., httpsllsbieain, the marginal cost oflending rate (in short, MCLR) as on date i.e., 17.12.2024 is 9.10%0.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2o/o i.e., LL.lOo/o.

LL.lOo/o. tt ig q a h Rule 7 12, PaSe 19 of25 {tr HARERA g[crJRrJGRAr/ Complaint no.

360 of2024 and 14 others 28.

The definltion of term 'interest' as defined under section 2(za) of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay tle allottee, in case of default.

The relevant section is reproduced below: "(zo) "interest" means the rqtes of interest payable by the promoter or the ollottee, as the case may be.

Explanotion. -For the purpose ofthis clause- O the rate of interest chqrgeoble from the allottee by the promoter, in case shall be equal to the rate of interest which shall be liqble to pqy the qllottee, in csse (i0 the interest p(1yq oter to the allottee shall be from the the amount or any part t or part thereof qnd in payable by 29.

Therefore, inte charged at the p which is the same possession charges.

30.

On consideration of the d the date the till the date it complainant shall be e respondent/promoter lainant in case of delayed ailable on record and submissions al is made by both the parties, the authority is satisfled that the respondent is irl contravention of tlq Seclioll,11f1X4 of tk Apt by not handing over ' t ,: possession by the ddddate asper &o.dgreement By virtue ofclause 1(iv) of the Affordable Housing Policy, 2013, the respondent/promoter shall be necessarily required to complete the construction of the project within 4 years from the date of approval ofbuilding plans or grant ofenvironmental clearance, whichever is later.

Therefore, in view ofthe findings given above, the due date of handing over of possession was 30.05.2022.

However, the respondent has failed to handover possession of the subiect apartment to the complainant till the date ofthis order.

Accordingly, it is the failure of the Page 20 of25 ffiHARERA # eunuennM Complaint no. plaint no.

360 of2024 and 14 others respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

The respondent vide its reply dated 70.07.2024 has contended that the complainant has not paid the outstanding installments with interest.

However, as per record, the complainant is not at defaultand has paid a considerable amount ofmoney towards the sale consideration ofthe unit.

Further, there is no document le on record to substantiate the claim ofthe respondent.

Acco fthe tespondent is rejected being devoid of merits.

Moreover ority observes that there is no document on record fr ertained as to whether the respondent has app or what is the status of construction of th be treated as on-going project and the licable equally to the builder as well as 31.

Accordingly, the n ate contained in section 11(41(a) read with p of the Act on the part of the respondent is established. e allottee shall be paid, by the prornoter, interest for every month of delay from due date of possessiou i.e., 30.05.2022 till valid offer of possession plus 2 months after obtaining occupation certificate from the competent authority or actual handing over of possession whichever is earlier, as per section 18[1J of the Acl of 2016 read with rule 15 ofthe rules.

32.

Further, as per section 11(al(fl and section 17[1) of the Act of 2016, the promoter is under an obligation to get the conveyance deed executed in favour ofthe complainant.

Whereas as per section 19[11] ofthe Act of 2016, the allottee is also obligated to participate towards registration of the conveyance deed of the unit in question.

However, there is nothing on the Hence, this proj PaEe 2l of 25 ffiHARERA #*eunuennvr Complaintno. mplaintno.360 of2024 and 14 others record to show that the respondent has applied for occupation certificate or what is the status of the development of the above-mentioned project, In view ofthe above, the respondent is directed to handover possession ofthe flat/unit and execute conveyance deed in favour ofthe complainant in terms of section 77 {l) ot the Act of 20L6 on payment of stamp duty and registration charges as applicable, within three months after obtaining occupation certificate from the competent authority.

G.II To restrain the respondent demanding Labour Cess, VAT, Work Contract Tax and Power to restrain the respondent from 22 The complainant has sough demanding Labour Cess, VA ower backup charges.

Although, as per record, no deman ds have been made by the respondent till and (iv) of the buyer's agreement dated ed that the allottee is liable to pay sep per the demands raised by the respondent ofjustice and to avoid further Iitigation, charges: findings on the above said o Labour Cess:- The issue, the authority in complai ready been dealt with by 2 019 titled Mr.

Sumit Kumar Gupta trimited wherein it was held that the respondent, as such no labour cess should be separately charged by the respondent.

The authority is of the view that the allottee is neither an employer nor a contractor and labour cess is not a tax but a fee.

Thus, the demand of labour cess is completely arbitrary and the complainant cannot be made liable to pay any labour cess to the respondent and it is the respondent- builder who is solely responsible for disbursement of the said amount. --rr- rr !

E nes97 Page 22 of 25 ffiHARERA #-eunuennnr Complaint no.360 0f2024 and 14 others VAT:- The promoter is entitled to charge VAT from the allottees where the same was leviable, at the applicable rate, if they have not opted for composition scheme.

However, if composition scheme has been availed, no VAT is leviable. leviable.

Further, the promoter shall charge actual VAT from the allottees/prospective buyers paid by the promoter to the concerned department/authority on pro-rata basis i.e. depending upon the area of the flat allotted to the complainant vis- e-vis the total area of the particular project.

However, plainant would also be entitled to ed department along with a computation proportiona otted unit, before making payment under the aforesai .

WTC (Work ainant is seeking mentioned demanding the respondent t is important to upon the Section 2(119J CGST Act, 2017 ow for ready reference: "(119) - works co n struction, fq b r icatio\ completion, erection, in i m p rove me nS mo difi co tio n, re p 0 i r, or commissioning of any immovable qs goods or in some i re above from stress ofthe maintenance, renovation, Pro\erb) wherein transfer . other form) is involved in thl After considering the complainant/al same is not applicable in the present complainant/allottee cannot be made liable to of the view that the a contractor and the case.

Thus, the pay the same to the respondent.

Power Backup Charges: - The lssue of power back-up charges has already been clarified by the office of DTCP, Haryana vide office order dated 31.01.2024 wherein it has categorically clarified the mandatory services to be provided by the colonizer/developer in affordable group Page23of25 ',,/' ffi HARERA #i eunuennnr Complaint n0.360 of2024 and 14 others housing colonies and services for which maintenance charges can be charged from the allottees as per consumption.

According, the promoter can only charge maintenance/use/utility charges from the complainant- allottee as per consumption as prescribed in category-ll of the office order dared 31.0i,.2024.

H.

Directions of the authority 34.

Hence, the authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per thg function entrusted to the authority under s ty under section 34(fl: i.

The respondent/promoter is directed to pay interest to the complainant against the paid-up amount at the prescribed rate of 7L.1,0o/o p.a. for every month of delay from the due date of possession i.e.,30.05.2022 till valid offer of possession plus 2 months after obtaining occupation certificate from the competent authorify or actual handing over of possession, whichever is earliet as per section 18(1.) of the Act of 2016 read with rule 15 ofthe rules. ii.

The arrears of such interest accrued from 30.05.2022 till the date of order by the authority shall be paid by the promoter to the allottee within a period of 90 days from date of this order and interest for every month of delay shall be paid by the promoter to the allottee before 1Oth of the subsequent month as per rule 16(2) ofthe rules. iii.

The respondent/promoter shall handover possession of the flat/unit and execute conveyance deed in favour of the complainant in terms of section 17(1) of the Act of 2016 on payment of stamp duty and registration charges as applicable, within three months after obtaining occupation certificate from the competent authoriry iv.

The complainant is directed to pay outstanding dues, if any, after adjustment of interest for the delayed period.

9.

Page 24 of ZS ffiHARERA S- eunuemHr Complaint no.360 of2024 and 14 others The rate of interest chargeable from the allottee by the promoter, in case of default shall be charged at the prescribed rate i.e., 11.10% by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottee, in case of default i.e., the delayed possession charges as per section 2[zal ofthe Act.

The respondent/promoter shall not charge labour cess as well as work contract tax from the complainant-allottee.

The respondent/promoter can charge VAT from the complainant where the same was leviable, at the applicable rate, if they have not opted for composition scheme. on scheme.

Further, the promoter shall chargg gitual VAT from the complainant paid by it to the concerned department/authority on pro-rata basis i.e. depending upon the.area of the flat allotted to the complainant vis- i-vis the total area of the particular project.

The complainant would also be entitled to proof of such payments to the concerned department along with a computation proportionate to the allotted unit, before making payment under the aforesaid head. viii.

Therespondent/promotercanchargemaintenance/use/utility charges from the complainant-allottee as per consumption as prescribed in category-lI ofthe office order dated 31.01,.2024. ix.

The respondent/promoter shall not charge anything from the complainant which is not the part of the buyer,s agreement or provided under the Affordable Housing policy, 2 013.

35.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order. vl. vll.

Datedi 11.72.2024 PaBe 25 of 25