RAJIV GARG AND MANISHA SHARAD UPASANI vs IREO RESIDENCES COMPANY PRIVATE LIMITED

1.

1' Sr sl D 1. br HABER*, GURUGRAM BEFORE !

HE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM L.

2.

Rajiv Garg Manisha Shr Both R/o: Singapore-2 rad Upasani i1, Grange Road, 1,3-02 Beverly Hill, +t)570 Complainants Versus M/s Ireo Re Regd. offic 1,1,0017. iclencies Company Pvt.

Ltd. :z C-4, Malviya Nagar, New Delhi- Respondent CORAM: Dr.

KK Khandelr rul Chairman Shri Vijay Kuma 'Goyal Member APPEARANCE: Sh, Pawan Bhus an [Advocate) Complainant None Respondent 'he present comtr ection 31 of the hort, the Act) rea tevelopment) Ru 1(a)(a) of the Ac e responsible fo, ORDER laint has been filed by the complainants/allottees unde leral Estate [Regulation and Development) Act, Z016 [ir l'with rule 29 of the Haryana Real Estate (Regulation anr es, 201,7 [in short, the Rules) for violation of sectior rnrherein it is inter alia prescribed that the promoter shal all obligations, responsibilities and functions under thr Page 1 of2 Complai nt N o.

3242 / 20 L9 )r n d n ll e (; Complaint no.

3242 of 2Ot9 Date of filing complaint 02.08.20t9 First date of hearing LL,LO.ZOLg Date of decision 30.08.2022 2 ffiHARERA ffi- GURUGRAM provision of the A allottee as per the A.

Unit and proj The particulars of paid by the compli delay period, if an :t or the rules and regulations made there under or to the agreement for sale executed inter se. :ct related details ttre project, the details of sale consideration, the amount .inants, date of proposed handing over the possession and ,, have been detailed in the following tabular form: S.

No.

Particula s Details 1.. ,- Name an proiect location of the "Grand Hyatt Gurgaon Residencies,, situated at Sectqr-58, Gurgaon.

Nature of re proiect Lq4ury Residential 3.

Proiect arr a 77.224 acres 4.

DTCP licer se no, Not mentioned 5.

Name of li ensee Not mentioned 6.

RERA registered Legistered/ not Not mentioned 7.

Unit no.

T1-19-NS, 19th Floor, Tower 1 fpage no.

55 of comolaint) B.

Unit area e lmeasuring 4625 sq. ft. [page no.55 of complaint) 9. plaint) 9.

Booking di te 02.02.201.3 (page no,46 of complaint) 10.

11.

Date of a plan proval of building 03.07.201.3 falrnexure R-7 on page no.

65 of reply'l Date ofenr ronment clearance 25.1,t.201"3 r t3.01..201,4 fannexure C-4 on paqe no, B0 of comnlain 1.2.

Date of r agreement :sidence purchase 13, Date of fire scheme approval 08.01.2015 (annexure R-9 on paqe no.

Bl of reolvl 14.

Due date o p0ssesslon 03.07.201.7 (calculated from the date of approval of building plans; inadvertently mentioned as 03.0L.201,7 in proceedings clated 30.08.2022) Note: Grace Period is not allowed.

15.

Possession :lause 14.3 Possession and Holding Charges - The company, proposes to offer the possession of the said residence unit to tbq ellqttee within a period of 48 monrhs Page 2 of 26 Complaint No.

3242 / 20t9 e L. a CI C( 2.1.

2t 1' ffiHARER* ffi* GmuGRAM from the date of approval of building plans and/or fulfillment of the preconditions imposed thereunder(Commitment period).

The Allottee further agrees and understands that the company shall additionally be entitled to a period of i.B0 days (Grace Period), after the expiry of the said commitment period to allow for unforeseen delays beyond the reasonable control ofthe Company. (Emphasis supplied) 16.

Total sale :onsideration Rs.

11,45,47,375/- [as per payment plan on page no.

79 of complaintl 1.7.

Amount complaina paid by the rt Rs.

8,93,15,855/- (as per statement of account dated 23.07.201,8 annexed on page no.

130 of complaint) 18.

0ccupatio certificate Not obtained 19.

Offer of pc sesslon Not offered B.

Facts of the 'l'hat the respond Gurgaon Residenc for luxury resid, agreement had rep Corporation had l brochure also sho and architect wer contributor to the complainants in th I'hat the present cr admeasuring an ap II 19 NS on 04.( mplaint: :nt launched the project in the name of "Grand Hyail: )s" in 201,2-2013 and invited the public at large to apply, rntial units. ial units.

The brochure and residence purchaser rersented to the complainants that the Hyatt Interna[ional ent its brand name - Grand Hyatt to this project. the rued that an internationally acclaimed interior designer. : also part of the project.

The existence of Hyatt as a project was another reason for the confidence of the s project of luxury residences. rrnplainants had applied for booking an independent unit proximate super area of 4625 sq. ft bearing unit no.

GHGR 1,,201,3 and had received a booking confirmation on Page 3 of26 Complaint No.

3242 / 201,9 ffiH #.e ARIR,*' Ul?UGI?AM 02.02.2013 from L Crore for the U first payment lett 3.

That a residen between the com - 19 - NS.

In ter respondents wer of 48 months fi fulfilment of the p follows: *Subject to Fr Allottee ha conditions provision(s, payment o_ registratio the Allotte, prescribed possession 48 (Forty E and/or fu ("Commitm that the Co Hundred a Commitme reasonable ntrol of the Company." Page 4 of26 Complaint No.

3242 / 201.9 e promoter company upon an initial first payment of Ils it.

That a booking confirmation and acknowledgment of r dated 02.02.2013 was issued to the complainants. prurchase agreement dated 1,3.01,.2014 was executed lainants and respondent with respect to unit No.

GHGR T1 r o,f clause 1,4.3 of the residence purchase agreement, the to flslivgr possession of the aforesaid unit within a trleriod mL the date of approval of the building plans andf or econditions imposed thereunder. clause 14.3 provides as rce Majeure, as defined herein and further subject to the 'ing complied with all its obligations under the terms ancl tl this Agreement and not having defaulted under an)/ 6tf this Agreement including but not limited to the timellt ll dues and charges including the total sale consideration, charges, stamp duty and other charges and also subject tct h'aving complied with all formalities or documentation a:; b), the Company, the Company proposes to offer thet tf the said Residence-Ilnit to -Ilnit to the Allottee within a period of ht) months from the date of approval of the Buirding plans lfi,!lment of the preconditions imposed thereunder nt Period"), The Allottee further agrees ond understands: p,,ony shall odditionally be entitled to a period of 180 ()ne, ,gighty) days ("Grace Period"), after the expiry of the said t Period to allow for unforeseen delays beyont) the HARER& W- GURUGI?AM 4..

That the due dat comes out to be 0 5.

That the complai the payment pla agreement.

In to three lakhs fiftee only) out of the forty five lakhs fo has already been 6.

It is pertinent to n allottees in the sa the promoter com with the progress period contempla also specified th payments.

7.

It was submitted unit to the complai agreement.

It is su the complainants stage of skeletal st launch of the proj the price of the d respondent and th C.

Relief sought 9.

The complainants Complaint No.

3242 / 201,9 of possession after taking into account the grace period i.01.2018. ant made timely payments perfectly in accordance with provided in annexure - iv to the residence purchase seven thousand , a sum of Rs.

8,93,15,8 55.17 /- fRupees eight crore ninety thousand eight hundred and fifty five point one seven a[ sale price of Rs.

11,45,47,37 5 / - (Rupees eleven crores three hundred and seventy five only) te that the complainants herein along with certain other e project had even written to the Board of Directors of any on 23.1'0.20L7 expressing their deep disappointment f the project as well as the delay beyond the commitment in the residence purchase agreement.

Alr the allottees t they had honoured their commitments of timely, at the respondent has failed to deliver possession of the nts herern, in violation of the terms of the builder-buyer. mitted that the date for giving possession has expired for rein.

The dwelling units in the project are still at the ctures even after expiration of 6 and a half years r:f the t. r:f the t. the complainant has already paid up more than zso/o of elling unit pursuant to the representations made by the s, the present complaint. y the complainants: ave sought following relief(s): Page 5 of26 id.

HAl?ER& W- GURUGRAM Direct the complainant payment till Direct the r Reply by The respondents 10.

The respondent i allottee in the gi is not mainataina 11.

That the complai 'Grand Hyatt, Gur booking applicati terms and conditi 1,2.

That based on complainants unit a total sale consi complainants sign 1,3.01.2014 and th therein.

It is perti booked the unit Development) Act, ii.

D. cannot be applied trospectively.

Page 6 of26 spondents to refund n project but an investor and e Complaint No.

3242 / 201,9 the entire amount paid by the prescribed rate from the date of the complainant is not an that the present complaint long with interest at er date of refund. ondent to pay the litigation cost. ndents: way of written reply made following submissions: its reply has submitted that nts, after checking the veracity of the project namely, 'am had applied for allotment of an apartment vide their n form.

The complainants agreed to be bound by the ns; of the booking application form. hre said application, the respondent allotted to the o.

T1-L9-NS having tentative super area of 462s sq,ft for eration of Rs. l'J.,22,48,375/-.

It is submitted that the d and executed the residence purchase agreeme.t on complainants agreed to be bound by the terms contained ent to mention herein that when the complainants had il.h the respondent, the Real Estate fRegulation and 20L6 was not in force and the provisions of the same ffiHARERp #- eunuennM L3.

That the respon accordance with t as well as of the certain instalmen certain instalme payment demand the net payable a remitted by the c 0L07.2013 were 14.

That vide paymen second instalmen FIowever, the co dated 09.04.2014 15.

That the complai consideration an sale consideratio stamp duty, servi applicable stage. t6. stage. t6.

That the possessi in accordance Agreement.

It is clause 56 of the PageT of26 Complai nt N o.

3242 I 20 19 nt raised payment demands from the complainants irr mutually agreed terms and conditions of the allotment ent plan and the complainants made the payment of amount of time and committed default with respect to It is submitted that the respondent had raised the ted 15.03.2013 towards the first instalment amount for ount of Rs.

1,25,03,941/-.

However, the due amount was mplainants only after reminders dated 31.05.2013 and sued by the respondent to the complainants. request dated 22.11.2013, the respondent had raised the clemand for the net payable amount of Rs.

97,08,,+80/-. plainants remitted the due amount only after a reminder issued by the respondent. ants have made the part-payment out of the total sale are bound to pay the remaining amount towards the total of the unit along with applicable registration charges;, tax as well as other charges payable along with it at the n of the unit is supposed to be offered to the complainants th the agreed terms and conditions of the Buyer's tlmitted that Clause 14.3 of the buyer's agreement and eldule - I of the booking application form states that I ffiHARERAI #.-GuRUGRntvI '..'...., the Comlany proposes to offer the possession of the said residence- unit to the alloltee within a period of 48 months from the date of approval of the Buildinp Plans and/or fulfitlment of the precondition's i'ntposed thereunder. ($ommitment Period).

The allottee further agrees and understands tlat the company shall be additionally be entitledlo a period of 1B0 days (G[ace Period) after the expiry of the iaid Commitment periotj to allow ,for lnforeseen delays beyond the reasonable control of the compony r I Furthermore, the fomplainants have agreed for an extended delay period of 12 months from r{,.

Ar,. of expiry of the grace period as per Clause 1.4.4 of the residence or.{nrr. agreement.

17. ement.

17.

That from the afofersaid terms of the agreement, it is evident that the timr: was to be compur{O norn the date of receipt of all requisite approvals.

Everr otherwise constrJ.,,on can't be raised in the absence of the necessar), I approvals.

It is plrtinent to mention here that it has been specified in sub- clause [iv) of .frr].

17 ofthe approval of building plan date d03.07.2013 of I the said project th{t the clearance issued by the Ministry of Environment and Forest, couurrr]nt of India has to be obtained before starting ther I construction of thf Rroject.

It is submitted that the Environment clearancer for construction ot]rn. said project was granted on 2 5.1 l.2Ol3.Furthermore,, in clause 39 of nr.{-h of the Environment Clearance dated ZS.I,..ZO13 it wasr stated that Fire ,uf.,y Plan was to be duly approved by rhe fire deparl.ment before the start or f ny construction work at site.

That it is submitted that the last of the statu,o.[ ,pp.ovals which forms a part of the pre-conditions was the Fire Scheme a[p,rouut which was obtained on 08.01.2015 ancl rh.r r]rc time period for. offf ring the possession, according to the agreed terms r:f the I I I I I page B of}6 I I ffiLIARE!& ffi- GURUGRAM Complaint No.

3242 / 2019 HAI?ERe, W- GURUGRAM Buyer's Agreem complainants hav date of possessi complainants a baseless, false a completed the co complainants is lo 18.

All other avermen L9.

Copies of all the Their authenticity the basis of th parties.

E. |urisdiction 20.

The plea of the jurisdiction stand well as subject m the reasons given E.

I Territorial 21.

As per notificatio and Country Plann Authority, Guru offices situated in situated within t Complaint No.

3242 / 20 1.9 t, will expired only on 0B.0T.Z0ZO.

However, the filed the present complaint prematurely prior to the dur: n and no cause of action had accrued till date.

The trying to mislead this Hon'ble Authority by making frivolous averments. averments.

The respondent has already truction of the tower in which the unit alrotted to the ated. were denied in toto. lelvant documents have been filed and praced on record. is not in dispute.

Hence, the complaint can be decided on undisputed documents and submission made by ther the authority: pondents regarding rejection of complaint on ground of rejected.

I'he authority observes that it has territorial as tter jurisdiction to adjudicate the present complaint for elow. urisdiction no.

1,/92/201,7-ITCP dared 1,4.12.2017 issued by,Iown ng Department, the jurisdiction of Real Estate Regulatory m shall be entire Gurugram District for all purpose with urugram.

In the present case, the project in question is e planning area of Gurugram district.

Therefore, this Page 9 of 26 HARERE ffi- GURUGI?AM authority has co complaint.

E.

II Subject ma 2 2.

Section 1 1 [ ) (a) responsible to th reproduced as he Section 11(4 Be responsib under the p thereunder o, association o the apartme allottees, or competent au Section 34- s4(fl of the A upon the pro this Act and t 23.

So, in view of th complete jurisdict obligations by th decided by the adj stage.

F.

Findings on F.I Objections Complaint N o.

3242 / 201.9 plete territorial jurisdiction to dear with the presenr r jurisdiction of the Act, 2016 provides that the promoter shall be, allottee as per agreement for sale.

Section 11[a)(a) is eunder: (a) e for all obligations, responsibilities and functions vi,sions of this Act or the rules and regulations made tct the allottees as per the agreementfor sale, or to the allottees, as the case may be, till the conveyance of ail ts, plots or buildings, qs the case may be, to the e common QreQS to the association of allottees or the hority, as the case may be; nLctions of the Authority: provides to ensure compliance of the obtigations cast oters, the allottees ond the real estate agents under e ,rules and regulations made thereunder. hereunder. provisions of the Act quoted above, the authority has on to decide the complaint regarding non-compliance of' prromoter leaving aside compensation which is to be dicating officer if pursued by the complainants at a later e objections raised by the respondents: rding the complainants being investors: Page 10 of26 ffiHARERE ffi* eunl;GRAM 24.lt is pleaded on b not consumers.

S the complaint fil maintainable.

It is enacted to protec Authority observ enacted to prot settled principle statute and states same time, the p the Act.

Furtherm file a complaint ag any provisions of careful perusal of revealed that the towards purchase the definition of t below for ready re "Z(d)'allot to whom a been allotte transferred subsequentl. otherwise b apartment o 25.1n view of above- conditions of the crystal clear that to them by the Page 11 of26 Complaint No.

3242 / 2019 half of respondents that complainants are investors ancj trhey are not entitled to any protection under the Act and by them under Section 3i- of the Act, 201.6 is not pleaded that the preamble of the Act, states that the Act is the interest of consumers of the real estate sector. 'fhe: t.hat the respondents is correct in stating that the Act is t,he interest of consumers of the real estate sector.

It is f interpretation that preamble is an introduction of zr he main aims and objects of enacting a statute but at thc: .nnble cannot be used to defeat the enacting provisions of rr:, it is pertinent to note that any aggrieved person can inst the promoter if the promoter contravenes or violates the Act or rules or regulations made thereunder.

Upon rll the terms and conditions of the buyer's agreement, it is mplainants are buyers and paid considerable amount f subject unit.

At this stage, it is important to stress upon rrn allottee under the Act, and the same is reproduced 'erence: z' in relation to a real estate project meons the person lol apartment or building, as the case may be, has , sold(whether as freehol as freehold or leasehotd) or otherwise by the promoter, and includes the person who acquires the said allotment through sale, transfer or t does not include a person to whom such plot, building, as the case moy be, is given on rent.', entioned definition of allottee as welr as the terms and Lt buyer's agreement executed between the parties, it is e complainants are allottees as the subject unit allotted prondents/promoters.

The concept of investor is not HARERE W- GUI?UGI?AM defined or refe the Act, there wil having a status of in its order dated Srushti Sangam anr. has also held the Act.

Thus, the are not entitled to F.ll Obiection presence of parties: 26.The responde reason that t to the disput event of any reference: "All or a terms o interpre rights an mutual d, reference Board of binding u have no o the perso or is oth accepts a challenge Arbitrato Complaint No.

3242 / 2019 d in the Act of 2016.

As per definition under section 2 of be 'promoter' and 'allottee' and there cannot be a party investor'.

The Maharashtra I{ear Estate Appellate Tribunal 9.01.2019 in appeal No.0006000000010s57 rirled as M/s evelopers PW Ltd.

Vs Sarvapriya Leasing (p) Ltd. and that the concept of investor is not defined or referred in trtention of promoter that the allottees being an investor protection of this Act also stands rejected. rding complaint not being maintainable due tcr in the Agreement between the: arbitration clause t submitted that the complaint is not maintainable for the e agreement contains an arbitration clause which refers; resolution mechanism to be adopted by the parties in ther ispute and the same is reproduced below for the ready ,disputes arising out or touching upon in reration to the, this Agreement or lts termination including the tion and validity of the terms thQreof and the respective I obligations of the parties shall be settred amicabty by scussrons failing which the same shall be settled through to a sole Arbitrator to be appointed by a resolution of th tion of the lrectors of the company, whose decision shail be ftnal and on the parties, The allottee hereby confirms that it shoil tjection to the appointment of such sole Arbitrator even if so appointed, is an employee or Advocate of the Company 'wise connected to the company and the Ailottee hereby d agrees that this alone shall not constitute a ground for trt the independence or importiatity of the said sole to conduct the arbitration.

The arbitration proceedings rned by the Arbitration and conciliation Act, 1"996 or any shall be g Page 12 of 26 HAl?ER& W- GURUGRAM stTtuto the Com Arbitra and the share th 27.The authority is o be fettered by agreement as it of civil courts a authority, or the render such disp of the Act says th in derogation of t Further, the auth Supreme Court, Madhusudhan that the remedi addition to and the authority wo agreement betw 2B.Further, in Afta Consumer case Consumer Dispu that the arbitrat Complaint N o.

3242 / 20tc) amendments/ modifications thereto and shall be held at eny's offices or at a location designated by the said sole r in Gurgaon.

The language of the arbitration proceedings ward shall be in English.

The company and the allottee will fees of the Arbitrator in equal proportion". the opinion that the jurisdiction of the authority cannot he existence of an arbitration clause in the buyer's y'be noted that section 79 of the Act bars the jurisdiction out any matter which falls within the purview of this Ileal Estate Appellate Tribunal.

Thus, the intention to tes as non-arbitrable seems to be clear.

Also, section BB t the provisions of this Act shall be in addition to and not e provisions of any other law for the time being in force. rity puts reliance on catena of judgments of the l-lon'ble: rticularly in National Seeds Corporation Limited v.

M. dy & Anr. dy & Anr. (20t2) 2 SCC 506, wherein it has been held rs provided under the Consumer Protection Act are irt ot in derogation of the other laws in force, consequcntllr ld not be bound to refer parties to arbitration even if the n the parties had an arbitration clause.

Singh and ors. v.

Emaar MGF Land Ltd and ors., no.

701 of 2015 decided on 13.07.20t7, the National Redressal Commission, New Delhi (NCDRC) has held on clause in agreements between the complainant and Page 13 of26 ffiffi HARER,\ ffi" GURUGRAM builder could not paras are reprod "49.

Support to th enacted Real Esta "the Real Estate A "79.

Bar o to enterta which th Appellate determine other au tn pursua It can thu jurisdictio, Real Esta (1) of Sec Sub-sectio 'fribunal empowe the Hon', matters/d are empo Arbitratio which, to resolution 56.

Con behalf of afore-sta the Builde Fora, no Complaint No.

3242 / Z0L9 ircumscribe the jurisdiction of a consumer.

The relevant cerd below: above view rs a/so lent by Section 79 of the recently e (Regulation and Development) Acl 2016 (for short t").

Section 79 of the said Act reads as follows:- ' jurisdiction - No civil court shall have jurisdiction n any suit or proceeding in respect of any matter Authority or the adjudicating officer or the Tribunal is empowered by or under this Act to and no injunction shall be granted by any court or ority in respect of any action taken or to be taken ce of any power conferred by or under this Act." be seen that the said provision expressly ousts the of the Civil Court in respect of any matter which the Regulatory Authority, established under Sub-section ion 20 or the Adjudicating )fficer, appointed under (1) of Section 71 or the Real Estate Appellant tablished under Section a3 of the Real Estate Act, is to determine.

Hence, in view of the binding dictum of le Supreme Court in A, Ayyaswamy (supra), the 'sp,utes, which the Authorities under the Real Estate Act ered to decide, are non-arbitrable, nohwithstanding an . nding an .Agreement between the parties to such matter,s, ,!arge extent, are similar to the disputes folling for nder the Consumer Act.... uently, we unhesitatingly reject the arguments on Builder and hold that an Arbitration Clause in the kind of Agreements between the Complainants and cannot circumscribe the jurisdiction of a Consumer tt\standing the amendments made to Section B of the llct." Arbitratio Page 14 of26 29. ffiHARER,..1, #,eunucRAM @ While consideri,lg tf,e issue of maintainability of a complaint before a consumer forum/[o.rirrion in the fact of an existing arbitration clause in the builder buyer agreement, the Hon'ble Supreme Court in case titled as M/s Emaar MGF f,rnA Ltd.

V.

Aftab Singh in revision perition no.

2629- 30 /2018 in civif appeal no. z3stz-23 s 13 of z0L7 decided on !0.L2.2018 has ,!n.,0 the aforesaid judgement of NCDRC and as providecl in Article 141 oftlr.

Conrtitution of India, the law declared by the Supreme Court shall be bincling on all courts within the territory of India ancl accordingly, the a{thority is bound by the aforesaid view.

The relevant parzr of the judgement Jassed by the Supreme court is reproduced below: "25. rnil c'ourt in the series of iudgments as noticed above considerld the provisions of Consumer Protection Act, 1986 as well as ,Jrbitration Act, L996 and laid down that complaint under colsumer Protection Act being a speciol remedy, despite there beilts, an arbitration agreement the proceedings before consumel ,torum have to go on and no error committed by consumel l;orum on rejecting the application.

There is reason for not inlgeriecting proceedings under Consumer Protection Act on the strength an arbitration agreement by Act, 1996. 'l'he remedy unc{er Consumer Protection Act is a remedy provided to a consurler when there is a defect in any goods or services.'fhe complaint meons any allegation in writing made by (t complainant has also been explained in Section 2(c) of the Act. f the Act.

The rem!d), under the Consumer Protection Act is confined to complaint by consumer as defined under the Act for defect or deficiencles caused by a service provider, the cheap and a quick remedy has been provided to the consumer which is the object and purppse of the Act as noticed above." Page 15 of26 . .tii.ir. ,ffi lJt[" E\ld;/ GURUGRAM HARER& 30.

Therefore, in vi of the Act, the aut to seek a special Protection Act a ['lence, we have n jurisdiction to en to be referred to reasons, the auth stands rejected.

G.

Entitlement G.l Direct the the complai date of paym 31,.

That the compla respondent nam Haryana for a tot purchase agreem 32.

The respondent executed inter se subject apartmen building plans an plus 1B0 days gra company i.e., the respondent that t Page 16 of26 Complaint No.

3242 I 2019 of the above judgements and considering the provisions ority is of the view that complainants are well within right rnedy available in a beneficial Act such as the Consumer RERA Act, 2016 instead of going in for an arbitration. hresitation in holding that this authority has the requisite rtain the complaint and that the dispute does not require rbitration necessarily.

In the light of the above-mentioned is of the view that the objection of the respondent f the complainants for refund: pondents to refund a sum of Rs.

39,18,27 5/- paid by prescribed rate from the nt along with interest at nt till the date of refund. nant booked a luxury residential in the project of the as "Grand Hyatt Gurgaon" situated at sector 58, Gurgaon, I sale consideration of Rs.

1,1,,45,47,375/-.

The residence nt was executed between the parties on 13.0i,.2014. promoter vide clause 1,4.3 of the buyer's agreement arties, had proposed to handover the possession of the w'ithin a period of 48 months from the date of approval of l/or fulfilment of the preconditions imposed thereunder e period for unforeseen delay beyond the control of the pondents/promoters. promoters.

It was contended on behalf of the e due date for delivery of possession of the allotted unit ffi,HARERE ffi- eunuenAtil should be calcula regard, the couns Grace Realtech Hon'ble Sup 33.

The apartment b ensure that the buyers/allottee a lays down the ter residentials, com interest of both agreement which buyer in the unfr drafted in the sim by a common m contain a provisi of the apartment, buyer/allottee in it was a general draft the terms benefited only th unclear clauses th gave them the be the matter.

34.

The authority has the outset, it is rel agreement where and conditions of Complaint No.

3242 / 2019 d from the date of fire approval i.e., 08.01,201,5 and in this I for the respondent placed reliance on case titled as lreo Ltd, Versus Abhishek Khanna and ors. passed by the Caurt of India in Civil Appeal no.

STBS of 2019. er's agreement is a pivotal legal document which should rights and liabilities of both builders/promoters and protected candidly.

The apartment buyer's agreement that govern the sale of different kinds of properties likc. ercials etc. between the buyer and builder.

It is in the the parties to have a well-drafted apartment buyer's would thereby protect the rights of both the buirder anri rtunate event of a dispute that may arise.

It should be le and unambiguous language which may be understoorl n with an ordinary educational background.

It shoulcl with regard to stipulated time of delivery of possession plot or building, as the case may be and the right of the e of delay in possession of the unit.

In pre-RERA period ractice among the promoters/developers to invariably f the apartment buyer's agreement in a manner that prromoters/developers.

It had arbitrary, unilateral, ancl t either blatantly favoured the promoters/deveropers or efit of doubt because of the total absence of crarity over gone through the possession clause of the agreement. agreement.

At ant to comment on the pre-set possession clause of the n the possession has been subjected to all kinds of terms his agreement and the complainant not being in default Page1-T of26 HAI?ERE ffi- GURUGI?AM under any provisions of this agreements and in compliance with all provisions, formalities and documentation as prescribed by the promoter. 'l'he drafting of this r:lause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promoter anri against the allottee that even a single default by the allottee in fulfilling formalities and documentations etc. as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottee ancl thr: commitment date fbr handing over possession loses its meaning. 'fhr: incorporation of sur:h clause in the apartment buyer's agreement by thr: promoter is just to e'rade the liability towards timely delivery of subject unit and to deprive the allottee of his right accruing after delay in possession. 'l'his is just to comment not as to how the builder has misused his dominant position and drafted such mischievous clause in the agreement and ther allottee is left with no option but to sign on the dotted lines.

35.

I'he respondent prornoters have proposed to handover the possession of ther subject apartment within a period of 42 months from the date of approval ol building plans andf <tr fulfilment of the preconditions imposed thereundcr plus 1-80 days grace period for unforeseen delays beyond the reasonable control of the company i.e., the respondents/promoters. .16.

Further, in the present case, itwas submitted by the respondent promoters that the due date of possession should be calculated from the date of fire scheme approval which was obtained on 08.01.2015, as it is the last of thc statutory approvals larhich forms a part of the preconditions. onditions.

The authority in the present case observed that, the respondents have not kept the reasonable balance between his own rights and the rights of the complainants/allottees.

The respondents have acted in a pre-determined and preordained manner.

The respondents have acted in a highly Complaint No.

32a2 / 20 1.9 Page 1B of26 TffiF{ARER . ,lirL r/ti;"u. ffi, GURUGRAM fiffiL{ARER . #- eunuennu discriminatory and arbitrary manner.

The unit in question was booked by the complainants on 02.02.201,3.

The date of approval of building plan was 03.07.2013.

It will lead to a logical conclusion that the respondents would have certainly started the construction of the project.

On a bare reading of the claus e 1,4.3 of thr: agreement reproduced above, it becomes clear that the possession in the present case is linked to the "fulfilment of the preconditions which is so vague and ambiguous in itself.

Nowhere in the agreement it has been defined that fulfilment of which conditions forms a part of the pre-conditions, to which the due date of possession is subjected to in the said possr:ssion clause.

If the said possession clause is read in entirety, the time period of handing over possession is only a tentative period for completion of the construction of the flat In question and the promoters are aimLing to extend this time period indefinitely on one eventuality or the other.

Moreover, the said clause is an inclusive clause wherein the "fulfilment of the preconditions" has been mentioned for the timely delivery of thre subject apartment.

It seems to be just a way to evade the liability towards the timely delivery of the subject apartment.

According to the established principles of law and the principles of naturaljustice when a certain glaring illegality or irregularity comes to the notice of the adjudicator, the adjudicator can take cogn izance of the same and adjudicate upon it. e upon it.

The inclusion of such vague and ambiguous lypes of clauses in the agreement which are totally arbitrary, one sided and totally against the interests of allottee:; must be ignored and discarded in their totality.

In the light of the above-mentioned reasons, the authority is of the view that the date of sanction of building plans ought to be taken as the date for determining the due date of possession of the unit in question to the complainant.

Complaint N o.

3242 / 20 1,9 Page 19 of26 ffiHARERT:, ffi"- eunuennrv complaint No.

3242 / 201,9 37.Here, the authorit$ is diverging from its earlier view i.e., earlier the authority was calculating/af sessing the due date of possession from date approval of firefighting schen'ie (as it the last of the statutory approval which forms a part of the pre conditions) i.e., 27.1,1.201,4 and the same was also considered/obser]ved by the Hon'ble Supreme Court in CivilAppeal no.

5785 of 2019 titled as'IREO Grace Realtech Pvt.

Ltd. v/s Abhishek Khanna ancl Ors.'by observing as under: "With the respect to the same project, on apartment buyer filed a complaint under Section 31 of the Raal Estate (Regulation & Development) Act.

2016 (RERA Act) reod with rule 28 of the Haryana Real Estote (Regulation & Development) rules, 2017 before the Haryana Real Estate Regulatory Authority, Gurugram (RERA).

In this case, the authority vide order dated 12,(t3.2019 held that since the environment clearance for the project contained o pr€'conrlition for obtaining fire safety plan duly approved by the fire department before the starting construction, the due date of possession woulcl be required to be cornputed from the date of fire approval granted on 27.11.2014, which would come to 27.11.2018.

Since the developer had failed to fulfil the obligation unde," Section 11ft)(a) of this Act, the developerwas liable under proviso to Section 1.8 to pay interest at the prescribed rate of 10. ate of 10.750/o per annum on the qmount deposited by the complainant, upto the dote when the possession wos offered.

However, keeping in vieut the status of the project, and the interest of other allottees, the authority was of the vievt that refund connot be' ollowed at this stage.

The developer was directed to handover the. possession of the apcrrtment by 30,06.2020 as per the registration certificate for tht: project." 38.

On 03.07.2013, the building plans of the project were sanctioned by the: Directorate of Town and Country Planning Haryana.

Clause 3 of the sanctioned plan stipulated that an NOC/ clearance from the fire authoritlz shall be submitted rvithin 90 days from the of issuance of the sanctionecl building plans.

Also, under section 15(2) and (3) of the Haryana Fire Servicer Act, 2009, it is the duty of the authority to grant a provisional NOC within a Page 20 of26 ffiHAR[Rri ffi, eunllGRAM complainr No.

3242 / 201,9 period of 60 days from the date submission of the application.

The delay/failure of the authority to grant a provisional NOC cannot be attributed to the developers.

But here the sanction building plans stipulaterl that the N0C for fire safety (provisional) was required to be obtainecl withip a period of 90 days from the date of approval of the building plans, whiclr expired on 03.10.2013.

But it is pertinent to mention over here that the developers applied fbr the provisional fire approval on 19.1,1,.2014 t.e., after the expiry of the mzrndatory 90 days period got over.

The application filefl was deficient and casual and did not provide the requisite.

The approval of the fire safety scheme took more than 18 months from the date of the building plan approval i.e., from 03.07.2013 ro 08.01.2015.

The builders failed to give any explanation for the inordinate delay in obtaining the fire N0C of the above, in complaints bearing nos. aring nos.

CR/4325 /2OI CR/3020IZOZO, cR/3361,/2020, cFL/s003 /2020, ct/2s49 /z0zo and cR/1091 /zoz1, authority had strucl< down the ambiguous possession clause of the buyer agreement and calculated the due date of handing over possession from thel date of approval of building plan.

39.

0n a bare reading oifl the said clause of the agreement reproduced above, ir[ becomes clear that the possession in the present case linked to the: "fulfilment of the preconditions which is so vague and ambiguous in itsclf.

Nowhere in the agreement it has been defined the fulfilment of whicl1 conditions forms a part of the pre-conditions, to which the due date of possession is subjected to in the said possession clause.

If the said possession clause is read in entirety, the time period of handing over possession is only, a tentative period for completion of the construction of t flat in question and the promoters are aiming to extend this time peri indefinitely on on€) eventuality or the other.

Moreover, the said clause is inclusive clauser Page2l of 26 Complaint N o.

3242 / 201,9 TWHARER;:I 'li,i ffi* GURUGRAM I complaint No.32a2l201e_ wherein the "fulfilment of the preconditions" has been mentioned for the timely delivery of the subject apartment, It seems to be just a way to evade. the liability towards the timely delivery of the subject apartment.

According to the established principles of law and the principal of natural justice when a certain glaring illegJality or irregularity comes to t notice of the adjudicator, the adjudicator can take cognizance of the same a adjudicate upon it.

The inclusion of such vague and ambiguous types of clause in the agreement which are totally arLritrary, one sided and totally against the interests of thr: allottees must be ignored and discarded in their totality. totality.

In t light of thel above-mentioned reasons, the authority is of the view that the da of sanction of building plans ought to be taken as the date for determining the due date: of possession of the unit in question to the complainant.

Accordingly, in thc: present matter the due date of possession is calculated from the dater approval of building plan i.e., 03.07 .2013 which comes out to be 03.07.

ZOIT .

Keeping in view the fact that the allottee complainant wishes to withdraw, from the project and demanding return of the amount received by ther promoter in respect of the unit with interest on failure of the promoter to complete or inabilit), to give possession of the unit in accordance with the: terms of agreement Ibr sale or duly completed by the date specified therein, The matter is covered under section 1B(1) of the Act of 201,6. 'fhe occupation certificate/completion certificate of the project where the unit is situated has still not been obtained by the respondent-promoter.'fhe authority is of the view that the allottee cannot be expected to wait endlessly for taking possession of the allotted unit and for which he has paid a considerable amount towards the sale consideration ancl as observecl by Flon'ble Supreme court of India in lreo Grace Realtech pvt, Ltd, vs.

40.

4t.

Page22 of26 HARTRii ffi- GURUGRAM Abhishek Khan 11,01,2021 "" ,,,,T'he oc which clearly cannot be m apartments a opartments in 42.

Further in the jud of Newtech P and Ors. (supra) & other Vs Union on 72.05.2022 a 25.

The unqua Section 18(1) contingencies has conscious unconditional a possessron of th under the term stay orders o. attributable to obligation to rt prescribed by manner provi, does not wish to Page 23 of26 complainr No.

3242 I 201c) & Ors., civil appeal no, 57BS of 2019, decided on upation certificate is not available even es on date, amounts to deficiency of service. f service.

The allottees ale to wait indefinitely for possession of the otted to them, nor can they be bound to take the Phose 1 of the project......." ement of the Hon'ble Supreme Court of India in the cases oters and Developers Private Limited Vs State of U,p, iterated in case of M/s Sana Realtors Private Limited of India & others SLP (Civil) No.

73005 of 2020 decided observed that: 'rfied right of the allottee to seek refund referred LJnder 'a) and Section 19(4) of the Act is not dependent on ony :stipulations thereof.

It appears thot the legislature icrovided this right of refund on demand os an ute rightto the allottee, if the promoterfails to give apartment, plot or building within the time stipulated of the agreement regardless of unforeseen events or the Court/Tribunal, which is in either way not the ollottee/home buyer, the promoter is under an nd the amount on demand with interest at the rate e State Government including compensation in the under the Act with the proviso that if the allottee withdraw from the project, he shalt be entitled for HARERE ffi- GUI?UGRAM interest for the prescribed 4.3.The promoter is functions under regulations made under section 11 give possession o sale or duly co promoter is liable project, without amount received I may be prescribe 44.

This is without including compen adjudging compen read with section 45.

The authority her him i.e., Rs.

8,93,1 India highest ma +2o/o) as prescri DevelopmentJ Rul of refund of the a I{aryana Rules 201 G.lI Direct the complainants Complaint No.

3242 / 20 19 riod of delay till handing over possessio n at the rate responsible for all obligations, responsibilities, and he provisions of the Act of 201,6, or the rules anrl thereunder or to the allottee as per agreement for sale )(a).

The promoter has failed to complete or unable to the unit in accordance with the terms of agreement for pleted by the date specified therein. d therein.

Accordingly, the :o the allottee, as the allottee wishes to withdraw from thel rr:judice to any other remedy available, to return thel y him in respect of the unit with interest at such rate as; rejudice to any other remedy available to the allottee tion for which allottee may file an application for tion with the adjudicating officer under sections 71, &72 1(1) of the Act of 201.6. directs the promoter to return the amount received by ,855 / - with interest at the rate of L00/o (the Srate Bank of, inal cost of lending rate [MCLR) applicable as on date under rule 15 of the Haryana Real Estate (Regulation and 201,7 from the date of each payment till the actual date ount within the timelines provided in rule 16 of the ibid. respondent to pay legal costs incurred by the nd such reasonable and appropriate compensation.

Page 24 of 26 ffiHARERII #.- guRUGRAM 46. fhe complainant FIon'ble Supreme as M/s Newtech (decided on 11.1 compensation un decided by the a compensation regard to the fac exclusive jurisdi compensation.

T adjudicating offic H.

Directions of 47.Ylence, the auth directions under cast upon the p under Section 34( The respon 8,93,15,85 interest at t Haryana Re the date of ll.

A period of directions would follo The respon against the i. i ii.

Page 25 of26 Complaint No.

3242 I 2019 n the aforesaid relief is seeking relief w.r.t compensation. ourt of India in civil appeal nos.

67 45-67 49 of 2021 ritled oters and Developers Pvt.

Ltd, V/s State of Up & Ors.

1.2021), has held that an allottee is entitled to claim and section 19 which is to be section 7l and the quantum of r sections 1,2, 1,4, 18 judicating officer as per ll be adjudged by the adjudicating officer having due rs mentioned in section 72.

The adjudicating officer has ion to deal with the complaints in respect of erefore, the complainant is advised to approach the r for seeking the relief of compensation. pensation.

Authority: ity hereby passes this order and issue the following ion 37 of the Act to ensure compliance of obligations moters as per the functions entrusted to the Authority rrf the Act of 2016: ent/promoter are directed to refund the amount i.e.

Rs. f - received by them from the complainants along with e rate of 10.00% p.a. as prescribed under rule 15 of the I Estate fRegulation and Development) Rules, 2017 from ch payment till the actual date of refund of the amount, 90 days is given to the respondent to comply with the ven in this order and failing which legal consequences ent is further directed not to create any third-party rights ubject unit before full realization of the paid-up amount along with transfer is i first utiliz 48.

Complaint stands 49. tiile be consigned ffiHARER,,A #-CuRGRAM l,r.- fVijay Ku Mem Haryana interest thereon to the compl itiated with respect to subject un for clearing dues of allottee-comt isposed off. the registry.

Goyal) (Dr.

KK r Chai Estate Regulatory Authority, Dated: 30.08,2022 e;ll int No.

3242/201,9 nts, nd even if, any t, the r ivable shall be lainan nd man u Page 26 of 26