DESHDEEP vs LOTUS REALTECH PVT. LTD

HARERA GURUGRAM Deshdeep, R/o: - Flat No.

3, 2"a Floor, Deepak Desu Road, Ward no. l, Mehrouli, M/s Lotus Realtech private Limi Regd.

Office at: BU-S, SFS Pitampura, Delhi-1100 Also at: 501, Nirvana Nirvana Country, CORAM: Ashok Sangwan APPEARANCE: Parshant Vaxish (Advo Jagbir Singh (AdvocateJ 1.

The present responsibilities and functions PaEe I of 74 ,r' Complaint No.

206 of 2023 BEFORE THE HARYANA ESTATE REGULATORY AUTHO ; GURUGMM Complaint no. : Date of complaint : Date oforder : 206 of 2023 16.ot.2023 75.05.2024 partment, ew Delhi-110030.

Complainant 0 Respondent Member Complainant Respondent mplainant/allottee under section 31 of the Real Estate ( on and Development) Act,2016 complaint has (in short, the ActJ read with (Regulation and Development) violation ofsectlon 11(4)(a) of Act wherein it is lnteralia prescribed responsible for all obligations, that the promoter shall b the provisions of the Act or the rule 28 of the Haryana Real Estate Rules, 2017 (in short, the Rules) for W9 ORDER HARERA SM GURUGRAI/ Complaint No.

206 of 2023 Rules and regulations made there under or to the allottee as per the agreement for sale executed inferse.

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, if any, have been detailed in the following tabular form: S.No Particulars Details 1.

Name of the project "Lotus Homz", Sector- 111, Gurusram 2.

Nature of proiect Affordable Group Housing Colony 3.

RERA registered/not registered 214 /2077 dated 18.09.201 7 Valid upto 30.72.202I 4.

DTPC License no.

47 0f 20L4 d.ated L8.06.2074 Validity status 3L.05.?021.

Name of licensee AshokKumar& 1 Orher Licensed area 05.09 acres 5.

Unit no.

803, Tower/Block- A (1J, 8tt floor fas per buyer's agreement on page 51 of complaintl 6.

Unit measuring 605.55 sq. ft. (carpet area) 90.35 sq. ft. (balcony areals [as per buyer's agreement on page 51 of complaintl 7. plaintl 7.

Date of execution of Apartment buyer's agreement 28.09.2018 (page 45 of complaintl 8.

Possession clause 7.L The Promoter assures to hand over possession of the Unit/Apartment for Residential usage along with one two wheeler parking site as per agreed terms and conditions i.e. within a period of 4(Four) years Irom the date of approval of building plans or grant oi environment clearance (hear in after referred to as the "Communication Date" whichever is later, unless there is delay due to "force majeure,,, Court orders, Government policy/guidelines, PaEe Z of 14 t/ HARERA W* GURUGRAM Complaint No.

206 of 2023 decisions alfecting the regular development of the real estate project If, the completion of the Project is delayed due to the above conditions, then the Allottee agrees that the Promoter sholl be entitled to the extension of time for delivery of possession of the l)nit rtment for Residential u Approval of Building Plan 22.10.2074 (as per information obtained from lanning branch Environment clearance 0t.07.2016 (as per information obtained from Due date of possession (Calculated as 4 years from the date of grant oI environment c]earance i.e., 01.07.2016 as per policy, of 2013 + 6 months as per HARERA notification no.

9 /3-2020 dared 26.05.2020 for the proiects having completion date on or after 25.03.2020.

Total Sale Consideration Rs.24,67,375/- + applicable taxes [as per buyer's agreement on page 52 of Total amount paid by the complainant no.

10 ofrepl ,868 /- Occupation ce Offer of possession 07 .06.2021, B.

3.

I.

Facts ofthe complaint The complainant has made the following submissions: _ That, the present complaint has been preferred by the complainant seeking possession and occupanry certificate of the unit bearing no.

803, Eighth Floor, Tower A in project of the respondent named Lotus Homz at Sector 111, Village-Choma, Gurugram, booked by the Page 3 of 14 9.

10.

7t.

1.2.

13.

14.

0'J..06.2027 HARERA ffi.

GUI?UGRAM IV. complaint No.

206 of 2023 II. f 2023 II.

III, complainant, for which the complainant has already paid the initial considered amount.

That the respondent has not only failed to adhere to the terms and conditions of builder buyer's agreement dated 2g.09.201g but also illegally demanded additional charges from the complainant by making false promises and assurance.

The complainant kept pursuing the concerns with the representatives of the respondent as to when they will deliver the pro.iect.

The complainant after many requests and emails, received the offer of possession on 07.06.2021.

Shockingly, the respondent raised a demand for the delay payment charges and other frivolous charges amounting to an exorbitant sum of Rs.5,02,062/_ after which the respondent affirmed to give the possession and failing which another charge of holding will be applied on the complainant.

That, as per the demands raised by the respondent, based on the payment plan, the complainant paid a sum of Rs.Z5,g0,86g/_ towards the said apartment, whereas in the builder buyer agreement under clause 1.2 the total price of the said apartment was mentioned as Rs.24,67,375 /-.Notably, the respondent without any substantiating or stand or reasoning hiked the total consldered amount towards the allotted apartment in absolute arbitrary manner.

That the respondent still has not given the complainant, the interest, that he is eligible for in the intimation of possession letter dated 07.06.2021which was already delayed for a long time.

VI.

That offering possession by the respondent on payment of charges which the flat buyer is not contractually bound to pay, cannot be considered to be a valid offer ofpossession.

The arbitrary demand that 'r' Page 4 of14 HARERA M"GURUGRAM Complaint No, 206 of 2023 has been put forth in the conditional offer of possession letter is another attempt to extort money.

VII.

That under clause 1. clause 1.9(aJ of the buyer,s agreement, upon delay of payment by the allottee, the respondent can charge 1S0lo interest per annum on account ofdelayed payments, however, on account ofdelay in handing over possession by the respondent in case of delay by the promoter no equal leyy is put which is against the REITA prescribed law.

The respondent has charged frivolous interest in the final statement of accounts, such respondent indicate illegal strategies to gain benefits al money from the complainant who has already put forth more than the initial quoted amount towards the apartment.

VIIL That the respondent company while granting the offer for possession have put un;ustified demands and costs, which have never been intimated by the respondent to the complaint anytime ever.

IX.

That after losing all hope from the respondent company and having shattered and scattered dreams of owning a flat and also losing considerable amount oF money, the complainant is constrained to approach this Authority for redressal ofhis grievances.

X.

That the respondent has failed to offer possession by the due date to the complainant, which is in violation of obligation of the company under Section 11(aJ(al of the RERA 2016, rhus, the Respondent is liable to pay interest at the prescribed rate.

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

To direct the respondent to handover possession of the unit and to pay delay possession charges at prescribed rate to the comprainant.

C.

4.

Page 5 of14 4r' HARERA ffiGURUGRAM 5.

11. t.

D.

6.

On the date of hearin& the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11[4J (a) of the Act to plead guilty or not to plead guilty.

Reply by the respondent.

The respondent has contested the complaint vide its reply dated 37.07.2024 on following grounds: - That no additional charges were..$emanded from the complainant at any time as alleged. s alleged.

Furiher, the complainant did not pay the instalments on time and ha$,committed default in the payment of installments as per the payment plan mentioned in BBA.

That the complainant had puJ.chased the flat vide agreement to sell dated 28.09.2018.,at the sal! considerarion of Rs.24,67,375/_ plus Rs.1,29,705 being taxes (Tothl N.s.25,97,080/_), out of which he had paid the total sum. of Rs.25,g0,g6g/- till date and now the balance amount of Rs.16,212/- is payable by him on account ofthe balance sale complaint No.

206 of 2023 price of the flat.

That the complainant is bound to pay the sum of Rs.16,212/_ being balance sale price and Rs.2,15,029/- being interest till 31.12.2 02 3 fbr delayed payment of installments.

Apart from this amount, the complainant is liable to pay the possession charges of Rs.1,67,394/- as shown in the offer of possession letter.

Thus, the sum of Rs.3,9g,635/_ is outstanding amount payable by the complainant at the time of taking the possession ofthe allotted flat.

That the complainant is bound to pay the afore-said interest amount as per clause 1.9(b) of the BBA.

It is worthwhile to mention here that as per the BBA,the respondent was entitled to charge @15% p.a for the period ofdelay , but the respondent, being a law-abiding company, l . l/ lv.

Page 6 of 14 vi. ffi HARERA S- eunuernM Complaint No.

206 of 2023 had charged interest @10.75%o for the period of delay after considering the requests of allottee due to Covid 19 sufferings and thus, the complainant is Iegally bound to pay the outstanding interest amount at the time oftaking the possession ofthe allotted flat. v' That as per clause 7.1 0fthe BBA, the possession ofthe auotted flat was to be given to the allottees after a period of 4 years from the date of approval of building plan or grant of environment clearance whichever is later.

The elyironment clearance was given on 0L.07.2076 and thus the Slasqession was to be offered after 31.12. ter 31.12.2020 after getting extension of 6 months by this authority due to COVID 2019.

That the respondent had already completed the project within a period of 48 months to be calculated from 01..02.201,6, the clare on which environment clearance letter was issued by the competent authority, which fact had been clearly mentioned in the BBA. vii.

That the respondent had already issued the offer of possession letter dated 07 .06-202L containing the balance outstanding amount payable by the complainant at the time oftaking the possession ofthe alotted flat, but the complainant is not taking the possession ofthe allotted flat on payment of the outstanding amount payable by him.

There is no delay in the completion of the proiect and thus the complainant is not entitled to get any compensation in this regard.

7.

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 submissions made by the parties. / Page 7 of 74 ffiHARERA ffi aIRUGRAM 9.

Complaint No.

206 of 2023 E, 8. ,urisdiction of the authority The authority has complete territorial and subject matter iurisdiction to adjudicate the present complaint for the reasons given below.

E.I Territorialiurisdiction As per notification no. l/92/20t7_1TCp dated 74.12.20L7 issued by Town and Country planning Department, Haryana the .lurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes.

In the present case, the proiect in question is situated within the planning area of Gurugram district.

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

E.lI Subiect-matterjurisdiction l0 secrion 11(41(a) ofthe Act,2076 provides that the promoter shar be responsible to the allottee as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section 71..... on 71..... (4) The promoter sha - (a) be responsibte for oll obligations, responsibilities and functions under the provisions oI this A,ct or the rules "na i"iitriil)r'^oa" thereunder or to the allottees as per tt " ogr"".iit f.r'rr'ti,'o, to the ossociation of allottees, o, tni ,or" ,oi, ti, titi;;; r;;';;;rr" of .oll the apartments, plots or buildings, ,i lni iiri iii'i",i "" allottees, or the common areas to theissociation oJottoTtees or tne compelent oulhority, os the cose moy be; Section 34_Functions of the Auth;riqE 344 of the Act provides to ensure cimpliance of the obligations cast upon the promoters, the o ottees ona tn" ,iot "riiiiiirnt, . uncler this Act ond the rules ond regulotions nide ,n"rir)a"i" 11. so, in view of the provisions of the,{ct qu;J;;;;;, ;h; ;uthority has complete jurisdiction to decide the complaint regarding non_ compliance of obligations by the promoter leaving aside compensation which is to be decided by the adiudicating officer if pursued by the complainant at a later stage.

1/ Page B of14 ffiHARERA ffi ct.lRUGRAr,/ L2.

F.

74.

Findings on the reliefsought by the complainant.

I Direct the respondent to handover possession ofthe unit and to pay delay possession charges at prescribed "utu io tn" complainanL In the present complaint, the complainant intends to continue with the project and is seeking delay possession charges as provided under the proviso to section 18[1) ofthe Act.

Sec.

1g(1J proviso reads as under. "Sec.tion lB: - Retufn ofomount ond compensation 18-(1).

Ifthe promoterfoils to complete or is;noble to give Dossession ofon oportment, plot, or building, _ Provided thot where qn dllottee does not intend to withdraw from '!: :i" f: :,h "' ! : t t. b".

P,o i!' aY tn' P'o i i ti'' ;;''; ;; ;;' ;; ;;",v monlh ol detay, till the htnding over of the possession, ol'such rate as may be prescribed.,, (Emphasis supplied) Clause 7.1 of the agreement to sell dated Zg.Og. ted Zg.Og.2OlB provides for handing over of possession and is reproduced below.

7,l"The Promoter ossures to hdnd over possession oI the LJnit/Apartment for Residential usage olong with one two wh""i", p";ii;;';;;;; p", agreed terms ond conditions i.e. within o pedoi of 4fFoiii""r" from the dote of approwt oJ buitding ptri" ii siii ,1 environment clearance (hear in oftei ieyerrea ti i-*e "communication Date" whi*iever ii nt"r, iAu, tnii i- aaoy d.ue to "force majeure., Court orders, Gove_r"rt potiri)iriajin, decisions alfecting the regular developmenr of tn" i"ot ilit"irii"rt.

Il the completion of the project is delayed ar" ti ti[ olor" conditions, then the Allottee agrees that the promoter shilt be e,ntitled to the extension oftime for delivery oypossession oftn" Unit - AportmentforResidentiolusoge.,, Due date ofhanding over possesiion: The respondent_promoter has proposed to handover the possession of the unit within a period of within 4 years from approval ofbuilding plans (22.10.2014) or from the date of environment clearance OL.O7.201.6, whichever is later, unless there is delay due to ,,force maieure,, conditions.

The due date of possession has been calculated from date of approval of environment clearance i.e., 01.07.2016, as per policy, of 2013.

Further, vide HAREM notification no.9/3-2020 dated 26.05.2020, rhe extension of 6 months Complaint No.

206 of 2023 Page 9 ot 14 ,t/ HARERA ffiGURUGRAM is granted for the projects having compretion date on or after 25.03.2020.

The completion date of the aforesaid proiect in which the sub,ect unit is being allotted to the complainant is 01.07.2020 i.e., after 25.03.2020.

Thus, an extension of 6 months is to be given over and above the due date of handing over possession in view of notification no.9 /3-2020 dated 26.05.2020, on account offorce maieure conditions due to outbreak of Covid_19 pandemic.

Therefore, the due date of handing over possession comes out to be 01.01.2021.

1.01.2021. (inadvertently grace period of 6 month as perllAREM notification dated Z6.05.2020 was left to be added on proceedings da ted 7O.O4.ZOZ4).

15.

Admissibility of delay pqsqglslqn. charges at prescribed rate of interesE proviso to section fa froilidls tnatwtrere an allottee does not intend to withdraw from the pJoieci, he shall be paid, by the promoter, interest for every month ofdeley, till the handing over ofpossession, at such rate as may be prescribed and it has been prescribed under rure 15 ofthe rules.

Rule 15 has been reproduced as under.

Rule 15-, Prescribed rote oI interest- lproviso to section 12, secaion 1B ond sub-section (4) and subsection i7) ofsection ,g] (1) For .the pu.ipose of provisi ti i"ilir'1'zi *il,"n 1s; and sub- section.s (4) .on.d (z) of section 79, the ,,interest i, lni *-r" ,^i:::!:!' :!,t,^2:fre stote Bank of tndiq n,sh"r, ."',si,,i,"i oflending rate +20k.: provided that in cose)the Stote Bonk of tndio marginol cost of fndie ra e tMcLR) is h .in ,rr, il,i;i;;;;;;""'"i'ty ,rrn benchmdrk tending ro-tes.which tn" Smt" eii* dliiiL'.oy yir from time to time for lending to the g"nu."t prUti..

16.

The legistature in its wisdom in the suiordina't;i;;;;ir;; 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 if the said rule is followed to award the interest, it will ensure uniform practice in all the cases.

Page 10 of 14 u HARERA MGURUGRAM 17.

Consequently, as per website of the Complaint No.

206 of 2023 State Bank of India i.e., on date i.e., 75.05.2024 is g.8S%.

Accordingly, the prescribed rate of interest will be marginal cost oflending rate +2yo i.e. ,i:O.gSo/o.

18.

The definition ofterm ,interest, as defined under section 2 [za) ofthe Act provides that the rate of interest chargeable from the allottee by the promoter, in case of defaulg shall be equal to the rate of interest which the promoter shall be liable to pay the all ay the allottee, in case of default.

The relevant section is reproduced below: hUps://sbi.co.in. the marginal cost of lending rate (in short, MCLRJ as "(zal "interest means the rotes of interesL poyoble by he promo! er ot t he ollottee, os the case mov hp Exptonation. -For the purpose of this clause- (i) the rote of tnterest chargbable from the allottee by the promoter, in cosc ol d.eloult. sholtLe equol to tn" rot" o1 iiir"i "*iir:i't n" promoter sholl be llable to pay the o ottee, in ese oldeloult: (tt| lhe interest paydble bv the Dromotpr tn tho nltnnoD ct ^u a^ 79. (i0 the interest paydble by the promoter to the altottei sholl be from the dote the promoter received the amount or any port therelJtill the date the omount or port thereof and inirest theriin'is refunded, and the interest poyqble by the allottee to the promoter sholt be from the date the qllottee defaults in payne:nt to the promoter till the d\te it is poid;,' Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., 10.g50/o by the respondent /promoter which is the same as is being granted to the complainant in case of delayed possession charges.

20.

0n consideration ofthe documents available on record and submissions made by both the parties, the authority is satisfied that the respondent is in contravention ofthe section 11(4] (a) ofthe Act by not handing over possession by the due date as per the agreement.

By virtue ofclause 7.1 of the agreement to sell executed between the parties on 2g.O9.ZOlg, the possession of the subject unit was to be delivered by 0L.01.202l.

The occupation certificate was granted by the concerned authority on 01,.06.2021, and thereafter, the possession of the subject unit was Page ll of lEL/ ffiHAnenn ffi eunue-qAM- offered to the complainant vide letter dated 07 .06.202L.Coples of tle same have been placed on record. on record.

The authority is of the considered view that there is delay on the part of the respondent to offer physical possession ofthe subiect unit and it is failure on part ofthe promoter to fulfil its obligations and responsibilities as per the buyer,s agreement dated 28.09.2018 to hand over the possession within the stipulated period.

21. section 19(101 ofthe Act obrigates the alrottee to take possession ofthe subject unit within 2 months from the date of receipt of occupation certificate.

In the present complaint, the occupation certificate was granted by the competent authority on 0.1,.06.2027.

The respondent offered the possession of the unit in question to the complainant oniy on 07.06.2021, so it can be said that the complainants came to know about the occupation certificate only upon the date of offer of possession.

Therefore, in the interest of natural justice, the complainants should be given Z months time from the date of offer of possession.

These 2 months of reasonable time is being given to the comprainants keeping in mind that even after intimation of possession practicaily they have to arrange a lot of logistics and requisite documents including but not limited to inspectlon of the completely finished unit but this is subject to that the unit being handed over at the time oftaking possession is in habitable conditlon.

It is further clarified that the delay possession charges shall be payable from the due date of possession till the expiry of 2 months from the date of offer of possession (07 .06.2021) which comes out to be 07.08.2021.

22.

Accordingty, the non-compliance of the mandate contained in section 1 1(4) (a) read with section 1B(1) ofthe Act on the part ofthe respondent is established.

As such, the complainant is entitled to delay possession Paee 12 of t4 HARERA ffiGURUGRAM Complaint No.

205 of2023 charges at rate of the prescribed interest @10.g50lo p.a. we.f.

0L.01.2021 till the expiry of 2 months from the date of offer of possession (07. ssion (07.06.202t) which comes out to be O7.Og.20Zl as per provisions ofsection 1g(1J of tle Act read with rure 15 0fthe rures and section 19[10J of the Act.

G.

Directions ofthe authority 23 Hence, the authority hereby passes this order and issues the following directions under section 37 of...the Act to ensure compliance of obligations cast upon the p the function entrusted to the authority under section 34( i.

The respondent is di to'pfr interest to the complainant against the paid-up amount at the 01.01.2021, till the expiry of 2 months from the date of offer of possession [07.06.2027) i.e., upto 07.08.2021 only. ii.

The respondent is directed to supply a copy of the updated statement of account after adiusting the delayed possession charges within a period of l5 days to the complainant.

The complainant is to pay outstanding dues, if any, after adjustment of delay possession charges within a period of 30 davs from the date of receipt of.{pdated statement ofaccount.

The respondent is directed to handover possession ofthe unit/flat in question to the complainant in terms of the agreement to sell dared 28.09.2018.

The respondent shall not charge anything from the complainant which is not the part ofthe agreement to sell dated 2g.09.201g or provided under Affordable Housing policy, Z0 13. lv.

Page 13 of14 ffi|]AREXA ffi eunuennvr 24.

25. vii.

A period of 90 days is would follow.

File be consigned to Haryana Real Dated: 15.05.202 Complaint No.

206 of 2023 vi.

The rate of interest ch ble from the allottee by the promoter, in case of default shall charged at the prescribed rate i.e., 10.85%o by the respo which is the same rate of interest which the prom shall be liable to pay the allottee, in case of default i.e., the 2(za) of the Act. possession charges as per section to the respondent to comply with the directions given in this o failing which legal consequences Complaint stands disposed HA ERA GUR GRAM Page 14 of t4 I