ARCHANA CHANDRA AND ANOTHER vs ANSAL HOUSING LIMITED

HARERA GURUGRA[/ BEFORE THE complainr No 781of2023 HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM 7a1of2023 03,o7.2024 Complalntno.: o.d€rPronourced on: 1.

I\4rs.

Archana Chandra 2.

Mr.

SushilChandra Both R/o: - G-29A, GF, South City-2, Sohna Road, Gurugram.

Versus at: ' 606,6th floor,lndra Prakash 21, New Delhi- 110001 CORAM: ShriAshok Sangwan APPEARANCE: Sh.San)eevKumar Bhardwaj (Advocate) Sh.

Amandeep Kadyan {Advocatel Registered Omce OR'D6R 1.

The present complaint has been dledlby the complainants/allotees under sertion 3l ofthe Real Estate lRegulation and Deve]opmentl Act, 2016 [,n short, the Act) read with rule 28 of th€ Haryana Real Estate (Regulation and Development) Rules, 2017 (in short, the Rulesl for violation ofsection 11[4](a) ofthe Actwherein it is,n.erdlia prescribed that the promoter shall be responsible for all obligations, responsib,litiesandfunctionsasprovidedunde.theprovisionof theAct or the Rules and regulations made there under or to the allottees as per the agreement lor sale executed inter se.

THARERA Lis- eunrenntt complarnt No.78l ot2023 A. unitand prolect related details 2.

The particulars ofunit details, sale consideration, the amount paid by the complainant, date ofproposed handing over the possession, delay period, ifany, havebeen deta,led in the following tabular torm: Sr.

Derails l "Ansal Heights 86",Sector'86, curugram, Haryana.

2 3 Licence No.48 of2011 Dated 29.05.2011 1 RERA registered Not regrstered 5 A-1202 (As per payment rec€ipt on Page 4l ofcomplaint) 0t.03 2014 Date of execution of buyer's Notavailable 8.

Clause 34 The Company shall offer possession of the tinit any time, within a period of 42 months from the date of €xecution of Agreement or withln 42 months from the dat€ of obtaining all the required sanctions and approval necessary for commencement of construction, whicheveris later subiectto timely Davnrent of all the dues by *HARERA *db- crnrcnnrtr (omplarnt No 781 of202l B.

Facts of the complaint 3. mplaint 3.

The compla,nants have pleaded the follow,ng facts: I.

That the compla,nants booked a flat Inthe projed viz. "AnsalHeights 86' at Gurgaon, Haryana on 03.03.2014 under construction linked Applicant/Buyer and subject to force-majeure cncumstatrces as describ€d in clause 35.

Furthe., there shallbe a grace perlod of6 months allowed to the Developer over and above the period ol 42 months as above in offering the possession ofthe Unit. (As on pase 34 ofcomplaintl 1l Date of commencement of 01.10.2013 12 Due date olbosression 01.10.2017 [Calculated 42 months from date ol commencement of 13 'Iot.l sales.onsideration Rs.1,51,29,898.63 /- (As per customer ledger dated 04-02-2023 on page 68 ol complaint) 14 Amount paad by the complainant k.96,2A,2621- (As per customer ledger dated 04.02.2023 ol page 68 of complain0 t5 Occupation certificate HARERA GURI.]GRA[/] plan.

At the time ofbooking the flal the complainants paid an amount of Rs.7,00,000/- vide cheques no.570646 dated 07.03.2014.

IL On 03.03.2014 the complainants were allotted unit no A'1202 admeasu.ing 2786 sq. ft. for total consideration of Rs.1,42,61,300/_ Thatthe sale consideration ofthe flat was Rs.1,42,61,300/'.

However, subsequently consideration for the flat was arbitrarily increased on accountofaddition ofother charges which included labor cess etc.

The same was accepted by the complainants under protest.

The compla,nants have tilldate made a total payme[t of Rs.9? ,74,262/' to therespoIdent, Iu.

That the complainants have duly honoured the demands raised bythe respondent.

The construction at the site of the project has not progressed since the last demand was mised by the respondent and consequently the responden failed to offer the possession of the flat till date.

IV.

That as perthe application, the respondentwas required to handover the possession ofthe flat to the complainant within 42 months trom the date of execution of the Agreement with a further grace period of 6 nonths.

6 nonths.

Accordingly, after considering grace period also, phvsical possession of ihe flat must have been hand€d over on or before 03.03.2018.

However, the proiect has not been consiructed so far and also no occupancy certificate is received.

V.

That the respondent has failed to abide by the terms stipulated,n the Application/Agreement.

The cause of action to file the present complaint is €ontinuing as the respondent has not delivered the possession of the flat for occupancy till date The complainant has dilis€ndy discharged all his obligations as per the Application/ ComplaintNo.

781 of 2023 HARERA GURUGRAN,I compl.rnt No 781ofl02l vI Agreement, whereas, the respondent has failed to perform its obligations- That the respondent tailed to abide by the rules and reSulations ofthe Authority.

The respondent has noteven applied lor registration in the Authority so far.

That the application/agreement stipulates for 24qo interest p.a. compounded quarterly for the delay in payment/installments and therefore, in terms of seclion 2(zal ofthe Real Estate (Regulation & Dev€lopmentl Act, 2016 , the complainants are also entitled tothe same rateofinterestfor delavperiod in handing overofphysical possession ofthe flat.ln case the respondentis unable to develop the project within the agreed period of 48 months, it is liable to paya noninal compensation ofRs S/-per sq. ft. per month for the delayed period.

The atoresaid condition is unilateral and arbitrary' The respondent has charged Rs 1,50,000/- lrom the complainants as interest on account ofdelay in payment ofinstallments.

That the complainants have visited otrice of the respondent many times to complain about delay in the projecl however no plausible reply has ever been received Sioce the respondent is unable to develop the project and handov€r physical possession olthe flat for occupancy, the complainants are entitled to refund the ent're amount paid alongwith interestasapplicable in RERAActand Regulation trom the date ofres date ofrespective Payments.

That the complainants are facing Rnancial hardship due to delav 'n possession ofthe flat as heaw amouot is stuck with the respond€nt' Relief sought by the complalnants: The complainants have sought lollowing reliefs: vtl vl c.

4. ease 5 ot 2{ *HARERA #- cunircnlvr \.

CoDDlai!I No.

781 of 2023 D.

6. a.

Direct the respondent to reiund the entire:mount paid by the complainants along with interest- On the date ol hearing, th. authority explarned to the respondent /pronroter about the contravention as alleged to have been commilted iD relation to sectio.

11(4) [a) of the Act to plead guilty or not to plead guilty.

Reply by the respondent.

The respondent has contested thecomplaint on the following grounds: l.

That the complainants approached the respondent for booking a Uat no.

A-0503 in the project Ansal Heights, Sector 86,Curugram.

Upon satisfaction oi the complainants an agreement to sell was executed bctwecn the parties on 13.05.2014.

I1.

That the cu rrent dispute cannot begoverned bytheAct,2016 because olthe iact that the application form signed berween the complainants and th. rcspondent was iD 2013.

It is submitted that lhe regulations at the concerned time period would regulate the project and not a subsequent legislation i.e.

RERAAct,2016.It is further submitted that the ope.ation ofa statute is not retrospective in effect.

Ill. lhat the complainants specifically admitted not paying the necessary dues or ihe tull payment as agreed upon under the builder buyer rgreement.

It is submitted that the compla,nant cannot be allowed to take advantage oltheir own wrong.

IV. ]'har even iflor the sake ofargumcnt, the averments rnd the pleadings in the complaint are taken to be true, the said complajnt has been preferred by the complainants belatedly. 'lhe complainants have admittedly liled the complarnt in theyear 2023 a.d the cause ofactron accrued on 03.03.2017 as per the complaint itselt Therefore, it is HARER,i GURUGRAN/ complaintNo. mplaintNo.

781 of 2023 submitted that the complaint cannot be filed before the Authority as the same is barred by limitation.

That even jlthe complaint is admitted to be true and correct, the agreement which was signed in theyear 2013 without coercion or any duress cannot be called in question today.

It is submitted that the agreement prov,des for a penalty in the event oa a delay in givinE possession.

It is subDitted drat clausc 37 of thc said agrecmcnt provides for Rs.s sq.ft. per rnonth on super area fo. any delay in offering possession oi the unit as mentioned in Clause 31 ol the aqrcement Therefore, the complain:nts will be ent,tled to invoke the sard clause and is barred from approaching the Authority in order to altcr the penalty clause by virtue ofthis complaint after more than 9 years as agreed upon by both parties.

Vl. ]'hat the complaint itself discloses that the proiect does not have a llIRA apprcval and is not regrstered.

1t is submitted that if the sa'd avernrent in the conrplairt is taken to be true, the Authority does not have thejuisdiction to d€cide the complaint.

VII ]'hat the respondent had in due course oftime obtained all necessnry .pprovals trom the concerned authorities. lt is submiiied that the permit lor environmental clearances tor proposed group housing project lor Sector 103, Curugram, Harfana on 20.02.2015.

Similarly, the approval ior digging foundation and basement was obtained and sanctions from the department oI mines and gcology were obtarned 'n 2012 'lhus, the respondent has in a timely and prompt manner ensured that the requisjte compliances be obtained and cannot be iaultcd on givine delayed posscssion to the complainants. *HARERA #- crrnrcnru Complaint No.

TSl of2023 VIII. lhat the respondent has adequately explained th€ delay.

It is submitted that the delay has been occasioned on account oi things beyond the control ofthe respondent. espondent.lt is further submitted that the b uilde r buyer agreem ent provides for such eve ntualities and thecause lor delay is completely covered in the said clause.

The respondent ought to have complied widr the orders of the Hon'ble High Court ot Puntab and Haryana at Chandigarh in CWP No.20032 of2008, daled 16.07.2012, 31.A7.2072, 21.08.2012- The said orders banned the extraction olwater which is the backbone ofthe construction process.

Sinrilarly, the complaint itself reveals that the correspondence from the rcspondent specifies iorce maieure, demonetiz.rtion and the orders of the Hon'ble NGT prohibiting construction in and around Delhiand the COVID -19 pandemicamong others as the causes which contributed to the stalling of the project at crucial junctures for consjderable speUs.

IX.

That the respondent and the complainants admittedly have entered into a builder buyer agreement which p.ovides for the event of delayed possession.lt,s submitted that clause 32 ofthe builder buver agr.cmcnt is clear that there is no compensation to be sought by the conrplarnants/prospective owners in lhe event ofdelay in possession.

X. 'lhat admittedly, the complainants have signed and agreed on the Agreement dated 03.03 2013.

That perusal of the said agrecment would show that it \s atriportite Agreenenr wherejn M/s Samvak Projccts Pvt. l,td is also a party.

That, while tiling the present complaint, the complainants havenotarrayed M/s Samyak Project Irvt Ltd. havingits Re8istered Officc at 153,Okhla lndustrialEstate, Phase Ill, Ncw Delhi 110020 as a p.rrtt, to the complarnt.'Ihat [4/s Sdmyak ta",d.;u"j!!ro,3-.] Projects Pvt.

Ltd is a necessary and proper party to be arrayed to the complaint forproper, fair and transparent disposal ofthe case. xl.

The said M/s Samyak Project Pvt.

Ltd. in terms of its arrangement w,th the respondentcould not develop the proiectwell within time as was agre€d and given to the respondenl the delay, if any, is on the part of [4/s Samyak Project Pvt. oject Pvt.

Ltd. not on th€ part of respondent, because the construction and development ofthe said proiect was undertaken by M/s Samyak Project Pvt.

Ltd.

7.

Copies ofall the documents have been filed and placed on record.

The authenticily is not in dispute.

Hence, the complaint can be dec,ded on the basis oftheses urdisputed documents. [.

8.

E.l.

Territorial iurisdlctlon 9.

As per notificatioD no.

L/92/2017-7TCP dated 14.12.2017 issued by Town and Country Planning Department, theiurisdiction ofReal Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with omces situated in Curugram.

In the present case, the project in question is situated within the planning area of Gurugram Dislrict, therelore this autho.ity has complete territorial jurisdiction to deal with thc present comPlanrt, E.ll.

Subje.t matter iurisdi.tion 10.

Section 11(41(a) of the Act, 2016 provides that the promoter shall be rcsponsible to the allottee as per agreement for sale Section 1 1 [4] (al 's reproduced as hereunder: lurisdiction of the authority Thc Authority observed that it has territorial as well as subject nra(ler lunsdiction to adjudicate the present complaint tor the reasons given (1) the prcnater sholl (al be rcspon:ible lot !ll oblilatiohs rcspansibtliLies ohti luh.tio.! uhder the pravbians aJ tl)i\ A.t at the rule. on.l rcguldnons nad. e.eunder or to the allottees a5 pe. the oqreehent l.t sote, .r to the a*ociation ololtottees, os the cose nay be, till the convelance ofollthe apottncnts, ploEatbutldings, os the cosenoy be, ta the allotteet a. the conhan ureostothe ostucnrloh olottottees or nte..nPetent autha.it! as thc casc nlay be; 11.

So, in view of the p.ovisions olthe Acl quoted above, the Authority h.rs conrpLet. jurisdiction to decide the complaint regardlng non conrpliance olobligations by the promoter leaving aside compensat'on which is ro be decided by rhe adjudicating ofticer il pursued by the complainants at a later stage. ter stage.

12 lirrther, ihe Authority has no hrtch in proceeding with thc complaint and to grant a relief of refund in the present matter in view ol the iudsement passed by the Iroa'ble Apex court in Neartech Promoters and Developers Private Limited Vs State ofU.P, ond Ors (Supra) and reiteroted in case ol n4/s Sona Realtors mvate Limited & other Vs union ol India & o.rerc sLP (civil) No.

13005 of 2020 decided on *HARERA -&- cLrnrcnllrt Complarnr No.

78Iof 2023 I2 05 202zwherein it has been laiddown as under: "36.

Fton thescheme oI the Actofwhicn o detailed releren.e has beeh tno.le and toking nate oJ power ol adiudicotlan delin@ted wth the rcsulotorr outhority ahd odjudicaLins olfel whot fnotl! cutb out is thot olthough the Act indi.otes the distinct exptusons like'refund, 'inte rest , 'pe ndlty ont) con pe nsauon', a cohjoint reading ol Sections 13 ond19cleorltnonilestsrhatwhenitco es ro relund ofthe amouht ond intercst on the l.fund oftount, or direding payneht oI interest fat deloyed delive.y olpossesion, or penalty and intetest ther.on tt Ethe rcgulotory outhonry ||hrch hos the power to examine ond dcternhe the autcane ofa conploinL At the sane tine,wheh itcones to o question of eekihg the relieloladjudgng conpensotion and interest thereoh undet Sections 12, 14 18 ahd 19, the odjudkoting olfcer exclusitelt hos the power to deternine, keepins in vie\| the collective reoding al Section 71 teadvith Sectian 72 al the AcL ilthe odjudXatian under Sections 12,14, 1a ond 19 other than conpensotian os envkosed, iI ettended to the * HARERJ I, 14 .

GURUGRA]V odtudnonng oficeras proled that, ih aur eiew, ho! inten.l to expand the onbit ond yope ol thc powe\ dnd lunctnns ofthe odjudicatins allcer untlet SecttunTl ohd thot||autd be ogainstthe n.nddtc altheld2A16." Itcnce, in view ol the authoritativ€ pronouncement ol lhe Hon ble Suprcmc Court in the cases mentioned above, the Authority has the lurisdiction to entertain a complaint seeking refund ofthe amount and interest on terest on the refund amount. rindings on the obiectionsraisedby the respondent: F.l Obiection regarding jurisdiction of the .omplaint w,r.t thc .partment buyeis agreemetrt exe.uted prior to comirS into force otthe Act, 'lhe respondent submitted that the complaint is neither maintainable nor tcnable and is ljable to be out rightly dismissed as lhe buy.rt ag.ecnrent was exe.uted between the parties prior to the cnactment of thc Act and the provision of the said Act cannot bc applied retrospectively.

The Authority is oithe view that the p.ovisions olthe Act arc quasi retroactive to some extent in operation and will be applicable to the agreements for sale entered into even prior to coming into operation ofthe Act where the transaction a.e still in the process of completjon.

The Act nowhere provides, nor can it be so construed, that all previous agreements would b€ re_written alter coming into lorcc ol the Act.

Therefore, the provisions ol the Act, .ules and ,rgreenrent have to be read and int€rpreted harmoniously.

Howevcr, il the Act has provided lor dealing with ce.tain specific provisions/situation in a sp€cific/particula. nlanner. drcn drai situJtion Nould be dealt with in accordance with the Act and the rules altcr the date of coming into torce of the Act and the rules.

The numerotrs provisions ol the Acl save the provjsions of the agreements made between th c buyers and sellers The said co ntention has bee n upheld in ComDlalnt No.

TSl of2023 SIARER GURUGRAIV 2,d"", ^,";8, "Iror3'.J Juogmpnr ur lveetkoma, trcaltors Suburban Pvt Ltd. v\. llot dnil others. (W.P 2737 ol2017) deckted ot 06.12,2017 which provides as under: '119 Undet fie prcvisions ol Section 18, th. dela! in honding over the possqsion would be @unted lron the dote nentioned jn the ag.eenentlor sole entercd into by the pronotet an. onotet an.l the ollottee Priot to its rcgistration undet REF-A, Undet the proviians of REP"A, the prcnoter is given o focilitv to rcvise the dote of conpletion ol Ptokct dnd declore the tuhe under scction 4.The REF.4 aaes notcontehPtote rewtinns al contoct berween the llat pu.chasetond the ptamote.....

122 Wehave olreodydiscussed thotabove snred provkionsofthe REP.r'- orc not rctrospective in ^ature, Thc/ nay to sane extent be hoving o retrooctive or quasi rctrcactive eleq b denonthatgroundthevolidiE of the pravisions of REP./- @nDot be challenged The Potliamat is conpetent enoush to legislote low having retospective or rctrooctive elfect A |a|9 con be qen lrane.t to de.t subtisttns / existins contro.tuat nshts bet\|een the pomes in the loget public ilteresL We do not hare on! doubt in aD nihd thot the RERA hds been haded in the larger public inte.e* ofter a thorcqh nudy dnd ditcustion hade ot the highest level b'/ the Standing Cohniiee ond seleca Comnia@, which subnitted its detailed rcporB.' 15.

Also,ln appeal no.173of2Ol9titledas aglc Eye Develoryr PvL Ltd. vs. tshwer singh Dahiya, in order dated 17 12.2019 the Harvana Real [state Appellate Tribunal has observed. ''34.

ThLs, keeping in vitu out oJbQsaid discu$ion, we ate ol the consideted apinion thot the ptoeisions ol the Act ore quasi rettooctive ro nne extent in operution atu1 wil be applbahk to the agreenents lor sdle enteted into ewn priot to @nins lnro opemtion of the Act whete the ttonsochon are still in the prc.4s of @nPletbh, Herce in case ol delo! in the offet/detiery of Pos.*sion os pet the tems ond conditiont oI the ogreenent Jot tule the a ottee shall be entitted to the inte.est/deloted pisasion chotges on the rca nable rute oI interest as p.otided in Rule 15 of the rules ahd one sided, tnfan o%l uhr@sonoble tae ol compensohon hntionen in the ogreenent lof sole k liable to be iqnore.l." 16'Iheasreementsaresacrosanctsaveandexceptfortheprovisionswhich have been abrogated by the Act itself.

Furthe. f.

Furthe., it is noted that the agreements have been executed in the mannerthatthere is no scope left to the allottee to negotiate any of the clauses contained the.ejn. 'lhercfo.e, the Authority is oilhe view that the charges payable unde.

HARERA GURUGRA]V] various heads shall be payable as per the agreed terms and conditions of the agreement subject to the condition that the same are in accordance with the plans/permissions approved by the respective departments /competent authorities and are not in contravention of any otherAct, rules statutes, instructions, directions issued thereunder and are not unreasonable or exorbitant ln nature r.ll oblection regarding m.intaimbtllty of comPlalnt 17.

The counsel for the respondent has raised an obiection that the complaint is barred by limitation as the complainants have admittedly filed the complaint in the year 2023 and the cause of action accrue on 03.03.2017 as perthe complaint itsell Theretore, it is submitted that the complaint cannot be filed before the HREM Gurugram as the same is barred by limitation.

18.

On €onsideration ofthedocuments available on record and submissions madeby the party, the Authority observes thatthe allotmentletterw r't' the unit was issued on 03.03.2017. (Note: 'date mentioned in the buyer's agreement annexed with the complaint is not executed inter_se)' As perclause 34 ofthe buy€r's agreemen! the possession of the subject plot was to be offered with in a period of42 months lrom the date of execution of buyer's agreement or from the date of obtaining all the required sanctions and approval necessary for commencement o[ constructions whichever is later.

The due date of possession can be .rl.ulated from the date ofcommencem€nt of construction being later i.e..

01.10.2013, and also the grace period of6 months is allowed to the respondent thut the due date comes out to be 01-10 2017' 19.

2017' 19.

However, the said Proiect of the allotted unit is an ongoing proiect' and the respondent/promoter has faited to applv and obtaining the 0'C till complainr No.

TSl of2023 HARERlI GURUGRA[/ ComplaintNo.

781 of 2023 date.As perprov,so to section 3 ofAct of2016, ongolng proiecis on the date oftiis Act i.e.,28.07.2017 for which completion certiffcate has not b€en issued, the promoter shall make an application to theAuthority for registration ofthe said projectwithin a period ofthree months Fom the date of commencement of this Act aod the relevant part of the Act is reproduced hereunder: - Prcvided rhot projects that ate ohgoing on the dote of connen@nent ol this Act ond fot which the cadpletion ceftAcare hos not been isued, the prcnod thall noke an application to the Authority ht t gistotion olthe eid project within a period ol thtee nonths lron the date ol con nencehent oI rhis Act 20.

Th€ legislation is very clear in this aspect that a project shall be regarded as an "ongoing project" until receipt ofcompletion certificate. since no completion certificate has yet been obtained by the promoter_builder with regards to the concerned proiecL 2 1 .

Moreover, it is obser.i/ed that despite passing a benchmark of due date on 01.10.2017, till date it has failed to handover the possession ofthe allotted unit to the complainants and thuq the cause of action is conlinuing tilt date and recurring in nature.

The authority relied upon the section 22 ofthe Limitation Act, 1963, continuing breaches and torts and the relevant portion are reproduced as under for readv referenc€: - 22. continuing breoch.s on.l torts' tn the core ol o @ntituins br@ch ol cohtroct or in the cas ol o continuing ron o lreth Peiod of linitotion bzgins to run at every nonent olthe tine during which the breach or tlle tolt, os $e cose not be,conrihu4.

22.

Keeping in view the aloresaid facts and legal position, the objection with regard to the complaintbeing barred by limitation is herebv rejected.

F. jected.

F.llI Oblectlon regardlnS d€lay ln complerlon of construclloD of pmi€ct due to force ma,eur€ condluoDs. *HARER' -&- eunuennu complaint No.

781 of 2023 23.

The respondent-promoter alleged that grace period on accountofforce majeure conditions be allowed to it. lt raised the contention that the construction ofthe projectwas delayed due to force majeure corditions such as demonetization, and the orders ofthe Hon'ble NCT prohibiting construction in and around Delhi and the Covid'lg pandemic among others, but all the pteas advanced in this regard are devoid ofmerit.

As per terms and conditions ofthe said buyer's agreement lhe due date of handing over ofpossess,on comes outtobe01.10 2017.The events such as and various orders by NGT in view ofweather condition ofDelhi NCR region, were fora shorter duration oftime and were not continuous as there is a delay ofmore than three yearsand even some happening after due date of handing over of possession There is nothing on record that the respondent has even made an application for grant of occupation certificate.

Hence, in view ofaforesaid circumstances, no further grace period can be allowed to the respondent/b'lilder on account of force- majeLrre.

Though some allottees may not be regular in paying the amount due but whetherthe interest ofall the stakeholders concerned with the said project cannot be put on hold due to fault otsome oithe allottees.

Thus, the promoter_respondent cannot be granted any leniency for aforesaid reasons.

It is well seBled principle that a person cannot take benefit of his own wrongs 24.

As iar as delay in construction due to outbreak ofCovid'19 is concerned, Hon'ble Delhi High Court in case titled as M/s Holliburton Oflshore servlces lnc. v/s veilonto Ltil. & Anr. beoring no, o.M' P (l) (conm.) no.88/ z02o ond LAs 3696-3697/2020 dated 29.05.2020 has *HAR *&- crnLrGRAI\I ERA ComplarntNo 781 o1202:l 69.

1202:l 69. lhe past non-pe4atnance ol the Connqcb/ cannot be condoned due to the COVTD-79 lockdown in Morch 2020 in lndio The Conttucior was in brcoch since Seprenber 2a19.

Oppotrunities ||ere given to the Connocbr tu cute rhe sane repeazdl, Despite the nne, the cohtoctor could not coflptete the PraiecL fhe outbreak ofa pohdenic connat be used os on excuse lor non-perlomonce of o contrcct lot whtch the deadtines werc hu.h behre the outbreak itselt 25.

The respondent was liable to cornplete lhe construction olthe project and the possession of the said unit was to be handed over bv 01.10.2017 and the respondent is claiming benefit oilockdowD which came into eff€ct on 23.03.2020 whereas the due date othanding over oi possession was much prior to the event of outbreak of Covid'19 pandemic.

Therefore, the Authority is of the view that outbreak of a pandemic cannot be used as an excuse ior non- perfo.mance or a contract for which the deadl,nes w€re much before the outbreak,tself and tor the said reason, the said time period is not excluded while rdlculdling the delay in handing over possession.

G.

Findings on the reli€fsoughtby the complaluaDL G.l.

Dir€.t the r.sPond+nt to rGtuDd tb€ ertlre amount aloDS with interest 26.

In th€ present complaint, the complainants intends to withdraw from theprojectand are seekingreiurn oftheamountpaid bythem in respect ofsubiect uDit along with interest.

Se€.

18[1] of the Act is reproduced below for ready reference: 'Se.tion 7A: -Retnnofamountdn lcomp etion t3(1). tfthe pronoter loits to conptete ot is unable r. give poesrion olan opa.tnent, plot, at building.. (o)in o(ordonce |9irh the Erns oJ the asreetuent lor sote or, as the cose moJ be, dul! canpleted b! the date speciled thqetn) ot (b)due ta .tkcohtinuone of his busines as a develoPer oh account of suspension ar revoetion ol the regkudtion under this Act or for ohv he shdl be lidbte on demon ! h the ollotbes, in cdse the ollottee \|ishes to withdtow fron the pro@a |9ithout pteiudice pteiudice to on)' other renedv ovailable, to return the .nount re.eire.l by hin in resPect oJ that #HARERA S- GriR (,RAN/ Cofrolarnr No.73l of 2021 opartmena" plot, building, os the cose mdy be, $th inter.st at such rute os mo! be prescibed in this beholl including cohpehtution in the nannet as provided under this Act: Provided thot whet. on ollottee .loes not ihtend to withtltow fron the praieca he shatlbe paid, by rhe ptunoter, ihte.est fat everJ nonth ofdelov, titl the handing over of the passesean, ot such rote asmov be ptesctiben (Enphasissupptied) 27. clause 34 of the buyer's agreement provides for the handing over oi possession and is reproduced belowforthe relerence: ''31,lhe developer sholl alfet pnssessian ofthe untt on! tine' within o period of 42 nonths ftoh th. .tote ol e,ecution oI the asreeneat or within 42 months lr@ the ttot of obtoining o the required sancti@s ond aoprcwl necessory Jof conmenenfit oJ @nsttuctioa, whi.hever is lotet subiect ta tinely Poynent al oll dues bv bLte. and subj4t to fo.e ndjeure [email protected] os derribed n ctoue 32.

Further, thete sholl be o gtu e perlod of 6 nonfis dllnse.l to the developer over oni! above .he perto.t ol12 oonths os abole in olle.ins the pasesioh oftheurit 28.

Admissibllity of grac€ period: The promoter has proposed to hand over the poss€ssion ofthe apartmentw,thin a period ol42 months from date of agreement or hom the date of approvals required lor the .ommcncement of construction, whichever is later.'lhe due date of .al.ulated from the date of commencement of construction i.e., 01.10.2013 being later.

The period of 42 months expired on 01.04.2017.

In the present matter the 8BA incorporates unqualified grace period /extended period of 6 months in the possession clause.

Accordingly, the grace period of 6 nonths is allowed to the promoterbeing unqualified.

Therefore, the due date ofpossession comes outto be01.10.2017.

29. .2017.

29.

Admissibillty ofretund along wlth prescrlbed rate oflnteresi The complainants are seeking refund the amount pa,d by them along with interest prescribed rate of interest as provided under rule 15 of the rules.

Rule 15 has been reproduced as under HARERA GURUGRAN/ Rule 15, hescnbed ruaeofinter.sa- lPtwiito ectl 72, $cti@ 1A on l sub-section (4) ond sobsrlton O) ot ecrion ,91 (1) For the puqose of ptovitu to section 12; Qction 18; and sub-scttons (41ard 17) oI*ction 19, the "intetest ot the rate pre{rib.d shall be rhe stote Bonkollndia htgh.st narginalcost oflen.ling mte +2%: Provjded thot in cose the State Bank oI India ftorginol cost of tendins rote (MCLR) is not in ue, ir shall be replo.ed bt such bench\ork tendins rutes which the sra@ Bonk ol lndio nor lx Iron ti e ro rine lot lending b rhe generol public.

30.

The legislature in its wisdom in the subordinate leSislation under the provision ofrule 15 ofthe rules, has determined the prescribed rate of interest.

The rate of interest so determined by the legislature, is reasonable and ifthe said rule is followed to award the interesl it will ensure un,form practic€ in allthe cases.

31.

Consequently, as per website of the state Bank of India i.e., https://sbi.co.in, the marginal cost oflending rate (in short, MCLR) as on date i.e.,03.07.2024 is 8.95%.

Accordingly, the prescribed rate oa interestwill be marginal cost of lending rate +2% i.e.,10.95%.

32.

On consideration of the documents available on record and submissions made by both the parties regarding contravention ofprovisions ofthe Act, the Authorily is satisfied lhatthe respondent is in contravention of the section 11(4)(a) ol the Act by not handing over possession by the due date as perthe agreement.ln the pr€sent case, both the parties have stated that the terms and conditions mentioned in the unexecuted buyer's agreementare bindinguponthem and thesame may be treated as an executed documents. documents.

Therefore in view of the above, by virtue ol clause 34 ofthe buyer's agreem€nt (copy annexed but not executed but the same is admitted by both the parties), the possession ofthe subject unit was to be delivered within a period of42 months from the date ot execution oibuyer's agreement or within 42 months from the date of (ompla'nr No.

731 ol202J HARERA GURI]GRAIV Complaint No.

TSl oI2023 obtaining all the required sanctions and approval necessary for commencement ofconstruction, whichever is later.

Therefore, the due date of handing over possession is calculated trom the date of commencement of construction i.e., 01.10.2013 being later' The period oi42 months expired on 01.04.20r7.As farasgraceperiod is concerned, the same is allowed for the reasons quoted above.

Therefore, the due date ofhanding over possession is 01.10.2017.

33.

It is pert,nent to mention over here that even after a passage ot more than 11 years neither the construction is complete nor the offer ol possessjon of the allotted unit has been made to the allottees by the respondent/promoter.

The Authority is of the view that the allottees cannot be expected to wait endlessly lor taking possession of the unit which is allotted to them and for which they have pa,d a considerable amount ofmoneytowards the sale consideration Further the Authority observes that there is no document placed on record from which it can be ascerta,ned thatwhether the respondenthas applied for occupation certificate/part occupahon certificate or what is the status of €onstruction of the project.

In view ofthe above'mentioned facts, the allottee intends to withdraw from the project and are well within the right to do the same in viewolsection 18[1) oftheAst,2016.

34.

Further, the Hon'ble Supreme Couri of India in the cases o/ e*'aecn Pmmoters and Developers Prlvate Ltmited ys State ol u.P. and Ots (supru) reitemteil ln cose oJ M/s Sono Realtars Prlvate Llmited & other Vs Union ol Inilla & others SLP (Clv ) No. (Clv ) No.13OOS oJ2020 decided on 12.05.2022. observed as under:- ''2s.

The unqudtifi.d rishr ol the ottottee to seek refund telercd und section 18t11(ol ond section 19(4) ol the Act k rot dependent on ahv *HARERA S- eunuenev ComDlaintNo.TSl of 2023 contivqcies ot stipulotions thereof. tt oppq6 thdt the tegblature has coneiously ptovided thn ight oJ refund on.tenond ot an uh@ndiaionol abtuhte dght to the ollotbe, if the qonotet ldits to aive p.esioh ofthe aDonneal. plot or butlding w hn the dne *Dulot?d under the k;: oI the asr@nent resadttess of unfoBeen events or stdr oders of the Counnribunol, which is in eithet wo! rct attributabte to the ollott e/hone brtq, the ptunotet k urdet ah obligotion to refund the anouna on denond with interest ot the rdte prcyribed by rhe Stote eovemneht inctuding @npenetion in the nonnq provide.t undq the Act vith the prcviy that il th. dllottee does not wish to withdruw hon the prcject he shall b. entitted fot interesi Ior the pedod ol delot titl handing over p.esion ot the rote 35.

The promoter is responsible for all obligations, responsjbit,ties, and functions under the provisions of th€ Act of 2016, or rh€ rutes and regulations made ihereunder or to the allotrees as per agreement for sale under section 11(al(a).

The promoter has failed to comptete or is unable to g,ve possession of the unit in accordance with the rerms oi agreement for sale or duly complered by the date speciffed therein.

Accordingly, the promoter is liableto pay the allottees, as theywishes to withdraw from the proiect, w,thout prejudice to any other remedy available to return the amount received in .espect ol the unit wirh interesrat such rate as may be prescribed.

36.

Accordingly, the non-compliance of the mandate contained in section 11[a](a) read with section 18(1) oftheAct on the part ofthe respondent is established.

As such, the complainants are entided to refund of the entire amount paid by them at the prescribed rate of interest i.e., @ 10.95% p.a.

0.95% p.a. [the State Bankoflndia highest margina] cost oflending rate (MCLR) applicable as on date +2%) as prescribed under rule 15 ofthe Haryana Real Estate (Regulation and Development) Rules, 2017 from the date of each payment till the acrual date of refund of rhe amount within the timelines provided in rule l6ofthe Haryana Rules2017ibid.

II ii.

A period of90 days is Sjven to the respondents to comply with the directions given in this order and faiting whi.h tegat consequences iii. lhe authority observes that rhe project is not registered hence, the planning branch ofthe authority is direcred ro take necessary action under the provision of the Act of 2016 for violarion of proviso to Section 3 (1J oathe Act. t*,i*$r*",r Nler{be.

Harvan €,l Esr:rc Reg;atory Authoriiy, Curugram *HARERA *eunue,,uM 37 38.

Compla,nt stands disposed ot 39.

File be consigned to registry Date: 03-07 -2024 ComDlaintNo.

781 or202?

Directlons of the auihortty Hence, the Authority hereby pass€s rhis order and issues the folowing directions under section 37 of the Act to ensure comptiance of obligations casted upon the promoter as per rhe fundions enrrusted to the authority undersection 34(0 oftheAct: i.

The respondent/promoter is directed to refund rhe amount of Rs.96,2a,262/- paidby the complainants atong with prescribed rate ot,nterest @ 10.95% p.a. as prescribed under rule 15 ofthe rutes from the dare ofeach payment till the dare ofrefund ofthe deposned