VIRENDRA KUMAR GUPTA vs SUPOSHAA REALCON PRIVATE LIMITED

HARERA MGURUGRAI/ BEFORE THE HARYANA REAL ESTATE REGUTATORY AUTHORITY, GURUGRAM CORAM: Shri Sanieev Kumar Arora Member APPEARANCE: Mr.

Vivek Singh fAdvocate) Complainant Ms.

Shriya Takkar (Advocatel Respondent ORDER 1.

The present complaint has been filed by the complainant/allottee in Form CRA under section 31 ofthe Real Estate (Regulation and Development) Act, 2076 (in shor! the Act) read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 [in short, the rulesJ for violation of section 11(41(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, respo ns ib ilities and functions to the allottee as per the agreement for sale executed inter se them.

Complaint No.

2453 of 2023 Complaint no.; 2453 of 2023 Date oflilins: 30.05.2023 Date ofdecision: 02,oa.2024 Virendra Kumar Gupta R/o: O - 28,2"a floor, South City - 2, Gurugram, Haryana - 72200L Complainant Versus Suposha Realcon Private Limited.

Regd.

Office: Unit no.

SB/C/21/Ofhce/017 A, M3M Urbana Sector - 67, Gurugram, Haryana- 1"22102 Respondent Page I of 12 HARERA ffiGURUGRAII Complaint No.

2453 of 2023 A.

Proiect and unit related details 2.

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

No.

Heads Information 1.

Proiect name and location 'Smart World Orchard, Sector-61, Gurugram 2.

Nature of the project Residential 3.

DTCP license no. and validity status 68 of 2021 dated 16.09.2021va|id up to 75.09.2026 4.

REM registered/ not registered Registered dated 03.11.2021 vide no.

74 of 2021valid up to 31.12.2024 5.

Allotment letter 73.r2.2021 IPage no.

44 of complaint] 6.

Unit no.

Independent floor K-11A IPage no.

44 of complaint] Admeasuring area of 1150 sq. ft.

7.

Date of agreement for sale Not executed 8.

Total sale consideration Rs.1,28,28,375 /- [Page no. [Page no.

6B ofreply] 9.

Total amount paid by the complainant Rs.

18,00,000/- [Page no.

9 of complaint and the same wa admitted by respondent on page 1] 10.

Due date of delivery of possession 31,.L2.2024 (taken from another file from the date of rera registration) 11.

0ccupation certificate Not obtained 72.

Offer of possession Not offered 13.

Demand letter 06.08.2022 Page 2 of 12 HARERA MGURUGRAIV Complaint No.

2453 of 2023 (Page 80 of reply) (vide which respondent asked complainant to pay and amount of Rs.

52,55,609/-l t4.

Final opp ortu nity/f re-- Cancellation letter dated 09.o4.2022 (Page 81 ofreplyJ (Vide which he was called upon to pay the outstanding dues within a week) 15.

Cancellation letter dated L6.04.2022 (Page 82 ofreply) 16.

Welcome letter in the name of radhika 70.1.0.2022 (page 84 of repty.) 30.LL.2022 (wherein complainant asked the respondent to either reinstate the unit or refund the amount) L7.

Letter by complainant Facts ofthe complaint The complainant has made the following submissions in the complaint: i.

That around May and June 2021, respondent advertised and promoted their project through different_different mode of communication.

The respondent,s executive has told complainant that the total cost of flat/apartment would be Rs.

1,20,17,500/_ inclusive of all and no other cost but respondent,s executive has said the aforesaid amount only orally and did not provide any documents of this effect. ii.

That once complainant has paid an amount of Rs.

18,00,000/_ then respondent issued an allotment letter vide allotment letter dated 73.L2.2027 and allotted residential independent floor K-114, 2.5 BHK in Block No.

K-11 Having carpet area of 621.22 Sq.

F.eet, in "SMART WORLD ORCHARD" project situated at Sector-61.

B.

3.

PaEe 3 of 12 HARERA P*GURUGI?AM Gurugram, Haryana.

In allotment lefte the cost of the Rrt7"p".tmunt ,,'t letter respondent have increased Rs. j 2R 7a ?.78 t : , the total cost of the flat become Rs. become Rs.

1'28,28,37s/- inch ur tne flat becom€ other charges in p,,." ";t-rj;:.,10,;. **,,", chargesr and iii.

That respondent,s sales single flat is avaiiable ,, ""utu"u" convinced complainant that only first serve Uasts in f S,,] booking and availabie on first come and sub-vention paym*, # :;il,H;:rrffi;i:,::H:,; amount [i.e., 15% of tota time of booking "n, ,n"' o"'t tonsideration amount offlatl at the had to be paid on the or, t"'"'n'nt 75o/o of consideration amount payment pran uy torn tt , of the status of construction as per the comprainant rrua to pay rellai:,":ffj.n::::::T::::t r.t iv.

That complainant immedi their concern about pLC Lately approached respondent and raised pLC charges * -rr,,,""ll nl,#"J;,'flT;H:ff ,:; even though respondent hi .

He has also ,rou,uua."r" t'posed PLC charges ofRs.

2,00,000/- pLC charges but .ompr,in,lnT:1""#lT":' J,:::T:",:r,:; respondent did not remove the pLC charges.

That respondent,s raised og.oL.Z[22demanding an , o"t'no letter on 25'02 z0z2 and orthe nat, which is totary ffi'JJ:#::::::il:jx:; the flaL The complainant ha 150/o oftotar consideration rd paid an amount ofRs 18'00',000/- as pay as per th" sur-uenti.' he flat and remaining amount had to ,n scheme, however in respondent,s PaEe 4 of lz HABEM ffi GURUGRAM demand letter payment deman( ::::::::Tr{ ;ff; }it,,,:J ilj,.il,#Tj: demanding iregar amountfrom como*,"""a ""-' I c)purroent wa: He received a cancellatior respondent depicting that his dated 16082022 from respondent without giving ,n'"ot'"nt has been terminated by resolving issue of complainant. y appropriate reason and without The complainant being aggrieved by respondent,s conduct, wrote an e-mail dated 29.08.2022 however respondent neither re redressal of his grievances, issues ofcomprainant. plied satisfactory nor resolved the vi. vii. viii.

That respondent sold th allotted to .r.pt"rn"nl flat to another person which has been resolving the issue or. issue or.o' t"no" any intimation and without respondent to resorve mplainant' as complainant has requested payment as per subvent e aforesaid issues and consider the during booking of the flat. scheme as promised by respondent ix.

That even after requesting several times for reinstate of allotment of the apartment, the respondent didn,t reinstate the allotment of the apartment of complainant, then complainant was compelled to serve a legal noHce dated Respondent for reinstatir 74 02'2023' through his counsel to the the legar notice was no, .lu tnu allotment of the apartment rhat address was not found ,, "tu'uuo because as per tracking report prima-facie shows that,n.ttt'o'unt has shifted their office which garb the hard_ear,"o ,","rl"iln""'j"",1:,::il:,, .r" intention to Page 5 oflZ ffiHARERA S-eunuennH,r 4.

The complainant has filed the present compliant for seeking following relief: a) Direct the respondent to reinstate the cancelled flat/apartment with subvention payment plan and also wave-off the pLC charges included in the cost of flat; b) Direct the respondent to pay a sum of Rs.

10,00,000/- as damages for causing mental agony, harassment and loss ofvaluable time; c) Direct the respondent to pay to the complainant a sum of Rs.

1,00,000/- as litigation expenses; dJ Penalise and punish the respondent for accepting the booking amount before registration of project.

5.

On the date of hearing, the authority explained to the respondent/promoter about the contravention as alleged to have been committed in relation to section 11(4)(a) ofthe Act to plead guilty or not to plead guilty.

Reply by the respondent The respondent has contested the present grounds: complaint on the following Complaint No.

2453 of 2023 That the cause of action of the present complaint arose at the time of booking i.e., 24.06.2027 and further arose on l3.lZ.ZOZt i.e. date of issuance of the allotment letter of the apartment by the respondent. espondent.

The cause of action for the present complaint is still in existence between the parties till the reinstatement of the allotment of apartment to the complainant by the respondent.

C.

Relief sought by the complainant D.

6.

Page 6 of 72 ffiHARERA #crJRrJcRA[/ ll.

2453 of 2023 Admittedly, the amount paid by the complainant towards the unit was Rs.18,00,000/- and the same was refunded on his request.

As a goodwill gesture, the Respondent has already refunded the entire amount of Rs.18,00,000/- to the complainant without any deductions vide RTGS UTR No.

KKBKR5202 30415008510 5 5 r_rn 1.5.04.2023.

Further, the complainant has also accepted the said amount without raising any objection whatsoever.

Although, as per terms of the application form and allotment letter the respondent was entitled and well within its rights to deduct the earnest money (1.0o/o of total sale consideration) along with non-refundable amounts as stated the application form and allotment letter.

Thus, the complaint has become infructuous, and deserves to be dismissed.

That in due consideration of the complainant's commitment to make timely payments, the respondent allotted Unit No.

K- 11A vide allotment Ietter dated 1,3.L2.2027 along with welcome letter dated 13.72.2021.

The cost of the said Unit was Rs.1,28,28,3 75/- plus taxes and other charges.

Since the complainant did not come forward to make payment of outstanding dues nor returned the duly executed copy of the buyer's agreement.

Therefore, the respondent was constrained to issue pre-cancellation notice dated 25.02.2022 but to no avail.

Thereafter, the respondent herein issued cancellation notice dated 20.03.2022 thereby cancelling the allotment of the complainant.

That thereafter, since the complainant was neither coming forward to execute the agreement nor was clearing his dues, the respondent ll1. lv.

PaEe 7 of 12 E.

7. ffiHAnrnn S* eunuennll was constrained to issue pre_cancellation notice dated 09.08. ted 09.08.2022, thereby finary caring upon the comprainant to crear the outstanding dues of Rs 52,SS,609/_ along with interest within 7 days from the receipt of the letter.

That vide the said pre_ cancellation notice, the complainant was notified that if he failed to make the said payments, then lt shall be presumed that he was not interested in the allotment of the unit, and thus the allotment would be cancelled. v.

As a consequence, the respondent was constrained to terminate the allotment of the complainant vide cancellation notice dated L6.08.2022 and forfeited an amount ot Rs 1Z,B2,I3B/_ towards booking amount and other chdrges as per the terms of application form and allotment letter. vi.

The complainant had paid an amount of Rs.18,00,000/_ against rhe totar consideration of Rs.1,2g,2g,375/- .

It is pertinent to reiterate that as a goodwill gesture, the respondent has already refunded the entire amount paid by the comprainant amounting to Rs.18,00,000/- to him without any deductions vide RTGS UTR No.

KKBKR520230415008510S5 on 1.5.04.2023.

The amount was refunded on the specific request of the comprainant made vide email dated 30.7i,.2022.

Copies of all the relevant docun rheir authenticity,. n",,r o,rr,liltil:: l::"lil:::::i;: :;:: the basis of these undisputed documents and submissions made by the parties. ,urisdiction of the authority PaEe I of lz HARERA GURUGl?AM B.

The authority observes that it has territorial as well jurisdiction to adiudicate the present complaint for below.

E.I Territorial iurisdiction E.IL Subject_matter iurisdiction 10.

Section 11(aJ(aJ of the Act, 2016 provides rhat the responsible to the allottee as per agreement for sale. reproduced as hereunder: Section 17 if1rh" ,roro*r rho,t. as subject matter the reasons given 9.

As per notification no. l/gL/2017_1TCp dated 1,4.12. ed 1,4.12.2017 issued by Town and Country planning Department, Haryana the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the proiect in question is situated withi thererore this authority .", .:Jl,:,:':Iff.:ff;:::'j::Til; the present complainL (o) be responsible .for oll oblgotions, responsibitities and functions under:he. prorisions" o1 tnis erir*"ili! ,r,u ora resulations ml!:,:here!nd:r ,,, r" ,ii ")n"""r. os per the agreement for.,sqle, or to the orsociotion oj_r,tiiri"r, o, tn" case may be, till the conveyance of ott ti" oforr,i)nx, ptox o, buitdins, as the cos" ,ry or, *-lii ,ii"ri!"i,,"1i.r|0," *rr* ::;;,fr, ::ir:::::,illl,,u"or,uon""' oi' tn"-,o^p"t",t Section 3 4-Functions of the Authority: 344 ofthe Act provides to ensure .omplio nce oflhe obligoltons cast upon the promoters, the a ond the rutes and resr^r;::;':::;r,rr:::,reot estote isents uider this Act 11.

So, in view ofthe provisions ofthe Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of promoter shall be Section 11(4J(a) is Page 9 of 72 F.

HARERA GURUGRAM obligations by the promoter as p leaving aside ."rr""r"r,""ller provisions ofsection 11(4)[aJ ofthe Act officer if pursued n".r. ^^*-,-,l"h.is to be decided by the adiudicaring officer ifpursued by the complainant at a later stage.

Findings on the reliefsought by the complainant I.

Direct the resl wirh sub-venti::L1:nt ^l-o reinslate the cancelled flarlapdrtment ir.rra"a in;r.""Jolt ylent ptan and also wave-off the F;A;;;.g* ll.

Direct the resor ;; :;;':;; ;"J;if enr I o.p'av a sum ot Rs r 0,00,000/' as damases ur.

Direct the .".."o''*on'n"t"ssment and loss o['aiuable time] i,6;;di:;i,ifi1,:ll&J;l"j: the comprainant a sum or Rs IV. penalize and pr ,,n o, n, u"ro.u .[i,.lLiHr':""'.:[?: for a ccep ti ns th e b o o ki n8 12. ki n8 12.

The above_mentioned reli tosether as the n ndings,, ::i::;I fl ,:",r:il:;::: ;T :il: i:I: other reliefand the same being interconnected 13.

In the present complaint, the complainant intends to continue with the project and is seeking resto 14.

The respondent sent ,u,,t"'o' ottn" originally allotted unit notice dated Og.Og.2,22,,rnr,"r,u. dated 06.0}.2022, pre_cancellation However, the comprainant I make payment of the outstanding amount' payment even aft er .".",;::;j :::,:::::3": Tl;,:i ;: Tj; leading to cancellation of uni 15. vide proceeding dated , r.o.l"'ou '"tt"r o ated L6,08.2022. the counser stated that they li:'r1j[j:T:i:';lT:Tj], il',;#: sum of Rs.1g Lakhs against further agrees during the a total consideration of Rs 1'28'28 '375/- and arguments that they had sent a mail on Page 10 of 12 HAB-ERA ffiGURUGRAM 30.1,1,.2022 which is Anne comprainanr has s,,rn,.;:;i:n::T;',.'n'* crearrv stated that the 16.

On the contrary, the cour complainant was not wriJ for the respondent stated that since the the amount demanded," il#I::::,:T:JT:ili:::J,:r:i 76.08.2022 and further refund was processed ancl sent to the complainant through RTGS on 1S.04.2C comprainanr posr receipt #":i:J:: :ilil;T"::: T:ff:,';J:; firing the compraint, the complainant had no claim ofthe said unit.

17.

As per documents on record, the complainant sent a mail to respondent on 30.77.2022 w.r.t mentioning the status ofsubject unit and payment details.

In the said mail the complainant has alternatively opted for the relief of refund.

Further it is also obs, the comprainant h* o""n ,r,"*"0 during proceedings that amount paid by through RTGS tha, i. b"fo." riy tufunded to the complainant on L5 04 2023 rh e co nre n t o r the *, 0,",,, :;:It" ;:;no""li;: " " "' o' "' "' 18.

The complainant is seeking rerief w.r.t. compensation in the above_ mentioned relief.

Hon,ble Supreme Court of India in civil appeal titled as M/s Newtech promoters at ors. rs at ors.(supra),hasherd*,,,J:,,:;:'J::TJ;:::,r^Y;,:::';"::^ri:,: litigation charges under sections 12,14,1g and section 19 which is to be PaEe lt of tz ffiHARERA S eunuemM decided by the adjudicating officer as per section 71 and the quantum of :il::lT::: i,,""::::: expense shari be adjudged uv the aovuoicating under section 31read with s - -"- 'ru.,qqrLdulrg unl 1e Keeping in view the "r"""::'.::,:::j'::::::"0.,,"re orrherures .,rc auove_me[tioned facts the promoter has already refunded the amount Daid ip R" la r^r,L^ ,r . officer having due regard to the factors ,";;;;;;;';;:T: adjudicating officer has exclusiv respect of compensation & e iurisdiction to deal with the complaints in compensanon under sections lil l_,"I"lil':"lllli"i";,Ti" i::-;: ::::j::::::r"ll", " ::r**" compraint before the Adj udicating offi cer caseJ to the compl (before the pendency of the accepted by him.

23 and the same has been LarrLc,duun rs deemed to have been accepted by the complainant.

20.

Complaint stands 21.

File be consigned HARE Dateih 02.08.2024 Member Estate Regulatory -ity, Gurugram PaEe 12 of t2