MRS SWEEKEOW YAP RAHMAN vs RAHEJA DEVELOPERS LTD.

MHARERA SQ eunuenRvr BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint No.

5055 of 2023 Complaint no. : Date of complaint : Date oforder : 5055 of 2023 31.10.2023 04.t2.2024 Sweekeow Yap Rahman, R/o: - N-266, New Palam Vihar, Phase-1, Gurugram-122017.

Complainant M/s Raheja Developers Lim Regd, office at: W4D, 20 Western Avenue, New Delhi- 110062.

Respondent CORAM: Ashok Sangwan APPEAMNCE: Member Gaurav Rawat (Advo Complainant Respondent Garvit Gupta (Advocate) 1.

The present comp ainant/allottee under section 31 of the opment) Act,2016 [in short, the Act] read with rule 28 of the Haryana Real Estate [Regulation and DevelopmentJ Rules,2017 (in short, the Rules) for violation of section 11[4] (a) ofthe Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions to the allottee as per the agreement for sale executed inter se them.

Page 1 of 11 ffiHAREBA #* eunuennvr Complaint No.

5055 of2023 A.

Unit and proiect related details 2.

The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: S.

No.

Particulars Details 7.

Name ofthe project "Raheja Trinif', Sector 84, Gurusram, 2.

Proiect area 2.28L acres 3.

Nature of the proiect ..l.Commercial colony 4.

DTCP license no. validity status and 126 i ur i:iif 2013 dated 17.05.2013 valid ito to.os.zotg 5.

Name o[ Iicensee I Sh.

Bhoop Sinsh and 0thers 6.

RERA Registered/ n, registered -lI;)gistered vide no.

24 of 2Ol7 fied25.07.2017 7. up to salid 1.1 ana peiiod commencing from 017 to 5 years from the revised Environment rae + 6 months orece nprind I -19 8.

Shop/Commercial space no. ffiXror.omDlaintt 9.

Date of booki ng {afr3.2016 fiH#?6 o&omplaintl 10.

Allotment Ietter Not provided 7L.

Date of execution of buyer's agreement Not executed L2, Possession clause Not Provided 13. ovided 13.

Due date of possession 0 5.0 3.2 019 [Calculated as per Fortune Infrastructure and Ors. ys.

Trevor D'Lima and Ors. (12.0s.2018 - SC); MANU/SC/025s/20181 74.

Total sale consideration Cannot be ascertained Page 2 of ll L2.

Amount paid by the complainant Rs.4,47,573/- [as per payment receipt/acknowledgement at page 16 and 19 of complaintl t2 Completion Certificate Not Received 74.

Offer ofpossession Not offered ffiHARERA #- aIRUGRAN/ B.

3.

Complaint No.

5055 of 2023 Facts ofthe complaint The complainant has made the submissions: - .

I.

That the complainant ercial space/unit in the project of the respondent nam Trinity" situated at Sector-84, Gurugram by acknowledged t6.

79 /- and the same was no.

RDTRI/00677l51- That the com e respondent, paid a sum of Rs.2,7 owledged by the respondent vide unit no.

406 was III.

That due to the malafide rt. the respondent and non- ant has accrued huge t letter no.

280 and fi1:T:::'frHls*ffiffiHffi l*I:::::::::TL;: planning with which the complainant invested her hard-earned monies have resulted in sub-zero results and borne thorns instead of bearing fruits.

IV.

That the respondent to dupe the complainant in their nefarious net did not even execute any space buyer agreement in the name of the complainant which is unilateral, arbitrary and illegal.

The respondent Page 3 of 11 ffiHARERA ffi.eunuenlll the reason for inordin respondent didn't di Complaint No.

5055 of2023 didn't even bother to care about the development ofthe proiect till date.

It has been 7 years, but the builder is yet to complete the project.

V.

Thatthe complainanthas visited the respondent's office several times but to no avail.

Even during year 2016 to 2023, lhe builder/respondent has not yet completed the project.

That as ofnow, the registration license of the respondent stands expired and t}Ie project status is reflected as "lapsed project'' on the website of Authority.

The complai oach the builder for knowing I.

Direct the with prescribed rate of interest. interest.

D.

Reply by the respondents: 5.

The respondent/promoter put in appearance through Advocate and marked attendan ce on 08.02.2024, L0.0 4.202 4, 22.0 5.2024, 77 .07 .2 024 and 09.10.2024.

Despite specific directions for filing of reply, it failed to comply with the orders of the Authority. lt shows that the respondent was intentionally delaying the procedure of the court by avoiding filing complainants possession.

VI.

That the res complainant in however, even allotment letter abandoned his project.

C.

Relief sought by 4.

The complainant but builder didn't reply.

The ssession but assured the at the time of offer of monies of the ial space in her name, not even issued any e respondent has even rrdqtq qqi tire paid-up amount along Page 4 of11 ffiHARERA # arnuennt'l Complaint No.

5055 of 2023 of written reply.

Therefore, in view of above, vide proceedings dated 09.10.2024, the defence ofthe respondent was struck off However, in the interest of iustice, the respondent was given a liberty to file written submissions within a period of two weeks, but the same has not been submitted by it rill date.

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 th made by the complainant.

E. furisdiction ofthe The authoritv ohs well as subject matter jurisdiction to ad for the reasons given below.

E.I T 7.

As per notificatio -J.4.12.20L7 issued by Town and Country urisdiction of Real Estate Regulatory Authority, c entire Gurugram District for District.

Therefore, this authority has complete territorial jurisdiction to deal with the present complaint.

E.lI Subiect matter iurisdiction B.

Section 11(4)(a) of the Act,2016 provides that the promoter shall be responsible to the allottees as per agreement for sale. for sale.

Section 11(41(a) is reprod uced as hereunder: Section 11(4)(a) Be responsible Jar olt abligations, responsibilities oncl functions under the provisions of this Act 1r the rules and regulations made thereunder or to the documents and submission Page 5 of 11 6.

MHARERA Hb* eunuenRvr Complaint No.

5055 of 2023 allottees as per the agreement fot sale, or to tie association of allottees, as the case ma! be, till the conveyance of all the apartments, plots or buildings, as the case may bq to the allottces, or the common areas to the ossociotion of allottees or the competent outhoriu, as the case may be; Sectlon 3 4-Func ons of the Authori, : 344 of the Act provides tt edsure compliance ofthe obligations cast upon the promotert the ollottees and the real estote ogents uniler this Act and the rules and regulations made thereukder- 9.

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

F.

Findings on the relief F, I Direct the respo with prescribed 10.

The complainant space/unit in the situated at Secto the same was d RDTRT/00677 /S demand of the was acknowledged 28.06.20L6 vtde allotted to her.

H inant the entire paid.up amount along booked a commercial amed "Raheja Trinity" of Rs.1,68,579l- and dent vide receipt no.

Iainant further, on ,78,994/- and the same ndent has neither even issued any allotment Ietter to her nor has executed any space buyer agreement for the same, The complainant due to the neglectful behaviour of the respondent fi]ed the present complaint pleading for refund along with interest before this authority.

11.

Before coming to the facts of the case, it is to be seen as to the receipt issued by the respondent/promoter falls within the definition of agreement, as per section z(eJ of the contract Act, 1872 and which provides that: urugri Page 6 of 11 | ffiHARERA ffi aiRirGRAM Complaint No. plaint No.

5055 of2023 "Every promise ond every setofpromiseJorming the considerationfor each other ison agreemenL" 12.

Further, section 10 of the act defines the conditions under which the agreement made fall with the definition of contract and the same provides as under: "A agreenents are contracts if they are made by the free consent of parties competent ta contracl Jor a lawful consideration and with o lavlul object ond are not herb! expressly declared to bevoid." 13.

There are a large number of cases coming to the notice of the authority wherein the builder had and only issued receipt le or partial amount of money exiting or in its upcomi am.

Neither it issued anv allotment letter n uyer's agreement.

The holders ofthose a lotto act on the basis ofthe d to run here and there to initiate any ci Ider.

This position existed in Pre- t ofthe Act of 2016, a promoter is ob isions of the Act and follow the same while ey against allotment of unit and execution of L4.

The document/ n can be termed as an asreement t"$i.ffii@Pftffire nrna Authority, compelling it to fulfil its obligations against the holder ofthat document.

The promoter is duty bound to explain the reasons for which it has kept such a huge amount for so long considering the fact that the promoter company is not a bank or non- banking financial company (NBFCJ.

In case offailure on the part ofpromoter to give an explanation, it shall be liable to refund the principal amount deposited by the allotee. otment of a unit either in the Page 7 of11 HARERA GURUGRAM Complaint No.

5055 of 2023 15.

In the present complaint, the complainant intends to withdraw from the project and is seeking return of the amount paid by her along with interest at the prescribed rate as provided under section 18(1) of the Act.

Sec.

18[1J ofthe Act is reproduced below for ready reference. "Sectlon 78: - Return of amount snd compensotion 18[1). ion 18[1). f the pronoterlails to complete or is unoble to give possession ofan apartment, plot, or building. - (a) in accordance with the terms of the agreement for sale oL as the cose may be, duly completed by the dote specifred thercin: or [b) due to discontinuonce of his developer on account of suspension or r lor any other reason, he shall be liable on demond to the ollottee wishes to withdraw Itom the project, without prejudice to any ble, to rcturn the amount received by him in respect ofthot apartment, plot, may be, with interest at such rote as moy be prescribed in this the manneras provided under this fron the project, he shall be over ofthe possession, 16.

Admissibility (1) For the complainant is s rate ofinterest as reproduced as under: Rule 75.

Prescribed rate ol (4) ond subsection Provided that where paid, by the promoter, at such rate os may be (Emphosis supplied. highest rate of interest: The her at the prescribed rules.

Rule 15 has been 72, section 18 and sub-section sub-sections (4) and (7) of the state Rank oJ lndia rute (MCLR) is not the Stote Rank of lndio 17.

The legislature in its wisdom in the subordinate legislation under the provision of rule 15 of the rules, has determined the prescribed rate of 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. ,/ Page 8 of11 MHARERA #*eunuenRH,t Complaint No.

5055 of 2023 18.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in. the marginal cost of lending rate (in short, MCLR) as on date i.e., 04.12.2024 is 9.100/0.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2% i.e. ,l1.l0o/o.

19.

In the instant matter even after lapse ofmore than 8 years from the date of payment till the filling of complaint, no buyer's agreement has been executed inter- se parties. e parties.

Therefore, the due date ofpossession cannot be ascertained, and the cannot be expected to wait endlessly for the unit/space by Hon'ble Supreme Court of lndia in lreo Grace Abhishek Khanna & Ors,, civil appeal no, 57, 7.2027 ich clearly amounts to deficiency ol 20.

That the authori e Act, 2016 ensures the allottee's righ ject and the unit.

That knowledge about the of possession forms an inseparable part of as the respondent is not communicating the same to the complainant/allottee.

Hence, it is violation of the 21.

Due date of Court in the case of Fortune Infrastructure and Ors. vs, Trevor D'Lima and Ors. (72.03.2018 - SC); MANU /SC /0253 /2078 observed that "a person cannot be made to wait indefnitely for the possession of the llats allotted to them ond they are entitled to seek the refund of the amount paid by them, along with compensation.

Although we are aware of the fact that when there was no delivery period stipulated in the agreement" a Page 9 of 11 ffiHARERA S*arnuennrr,r Complaint No.

5055 of2023 reasonable time has to be taken into consideration.

In the facts and circumstances of this case, a time period ol 3 years would have been reasonoble for completion of the contracL 22.

In view of the above-mentioned reasoning, the date of payment/booking i.e.

05.03.2016 is to be treated as provisional allotment letter and is ought to be taken as the date for calculating due date of possession.

Therefore, the due date of handing over of the possession of the unit/sp to be 05.03.2019.

23.

The Authority, after consi cts stated by the parties and the documents placed on at the complainant cannot be expected to wait ofunit/space and is well within her right 24.

The promoter i 18[1) ofthe Act, 2016. functions under responsibilities, and 16, or the rules and regulations made per agreement for sale under section 11(a)[a]. ras failed to complete or unable to give possession of rdance with the terms of provisional all therein. l therein.

Acco to withdraw fro to any other remedy available, to return the amount received by it in respect ofthe allotment of unit/space with interest at such rate as may be prescribed.

25.

Accordingly, the non-compliance of the mandate contained in section 11(4) (al read with section 18(1) ofthe Act on the part ofthe respondent is established.

As such, the complainant is entitled to refund of the entire amount paid by her at the prescribed rate of interest i.e., Page 10 of 11 ./ HARERA GURUGRAM Complaint No.

5055 of 2023 G. zo. @77.L0o/o p.a. (the State Bank of India highest marginal cost of lending rate (MCLRJ applicable as on d ate +2o/o) as prescribed under rule 15 of the Haryana Real Estate fRegulation and Development) Rules, 2017 from the date of each payment till the actual date of refund of the amount within the timelines provided in rule 16 of the Rules, 2017 ibid.

Directions of the authority Hence, the authority hereby passes this order and issues the following I obligations cast upon the pr per the function entrusted to the authority under sectioqpf(D:! ) fi i.

The respondent/promoter- is ' directed to refund the amount t.e., Rs.4,47,573 /- received by it from the complainant along with 11. the deposited amount.

A period of 90 days is giv respondent to comply with the dilections given irr this order and failing which legal cousequences would follow.

27.

Complaint stands disposed of.

28.

File be consigned to registry. (Ashok Sar\gwan) Member Haryana Real Estate Regulatory Authority, Gurugram Dated: 04.72.2024 Page 11 of 11