HIMANI KHARE AND BHARAT KHARE vs OCEAN SEVEN BUILDTECH PVT. LTD.

Order pronounced.   The counsel for the respondent states that  the construction of the project was delayed due to force majeure conditions  which were beyond the control of the company and while calculating the delayed possession charges, the zero period  on account of force majeure circumstances may be allowed as given in the  case of Shri Vardhman Buildcon Pvt. Ltd.  Further states that the DTCP has allowed 9 months grace period on account of Covid-19 which may  also be allowed. The Authority observes that the facts of the above mentioned case do not relate to the present matter and no such zero period on account of force majeure circumstances is allowed by the DTCP Haryana. In view of the above, the  respondent/promoter is directed to pay interest to the complainant(s) against the paid-up amount at the prescribed rate of 11.10% p.a. for every month of delay from the due date of possession i.e., 30.05.2022 till valid offer of possession plus 2 months after obtaining occupation certificate from the competent authority or actual handing over of possession, whichever is earlier, as per section 18(1) of the Act of 2016 read with rule 15 of the rules. Other reliefs shall be part of the main order. Detailed order will follow. Matter stands disposed off.

The present complaint was filed on 20.01.2023 and the reply on behalf of the respondent was received on 06.02.2024. On 28.05.2024, the respondent was directed to not to create any third party rights against the allotted unit of the complainants till further order was restrained. The succinct facts of the case are as under: Sr. No. Particulars Details 1. Name of the project Expressway Towers, Sector 109, Gurugram, Haryana. 2. Project area 7.5 Acres 3. Nature of the project Affordable housing project 4. DTCP license no. 06 of 2016 dated 16.06.2016 License valid till 15.06.2021 Licensed area 7.5 acres License holder Sh. Shree Bhagwan C/o M/s Ocean Seven Buildtech Pvt. Ltd. 5. HRERA registered/ not registered Registered vide no. 301 of 2017 dated 13.10.2017 HRERA registration valid up to 12.04.2022 (Including 6 months COVID extension) 6. Building plan approval dated 26.09.2016 7. Environment clearance dated 30.11.2017 8. Allotment letter issued in favour of complainant on 21.09.2017 [Page 17 of complaint] 9. Unit no. 1707, 17th floor, Tower 4 (Page 24 of complaint)  10. Unit admeasuring 645 sq. ft. of carpet area along with 99 sq. ft. of balcony area [Page 24 of the complaint] 11. Builder buyer agreement 28.09.2017 [Page 19 of complaint] 12. Possession clause as per clause 5.2 of the agreement The Company shall sincerely endeavour to complete the construction and offer the possession of the said unit within five years from the date of the receiving of license (“Commitment Period”), but subject to force majeure clause of this Agreement and timely payment of installments by the Allottee(s), However In case the Company completes the construction prior to the period of 5 years the Allottee shall not raise any objection in taking the possession after payment of remaining sale price and other charges stipulated in the Agreement to Sell. The Company, on obtaining certificate for occupation and use by the Competent Authorities shall hand over the said unit to the Allottee for his/her/their occupation and use, subject to the Allottee having complied with all the terms and conditions of the said Policy and Agreement to Sell and payments made as per Payment Plan. It is further agreed by the Allottee that the Developer shall not be liable for delay in completion of construction, in case of force majeure condition and/or the delay is caused due to non-completion of construction of said Complex/building/unit. In the event if a number Allottee(s) are not paying due installments on time or a number of Allottee(s) has withdrawn their application after allotment of unit or a number of units has been cancelled due to nonpayment of due installments or otherwise… [Page 31 of complaint] 13. Possession clause 1(IV) of the Affordable Housing Policy, 2013 All such projects shall be required to be necessarily completed within 4 years from the approval of building plans or grant of environmental clearance, whichever is later. This date shall be referred to as the “date of commencement of project” for the purpose of this policy. The licenses shall not be renewed beyond the said 4 years period from the date of commencement of project. 14. Due date of possession 30.05.2022 (calculated from the date of environment clearance dated 30.11.2017 being later + 6 months as per HARERA notification no. 9/3-2020 dated 26.05.2020 for the projects having completion date on or after 25.03.2020) 15. Total consideration  Rs.26,29,500/- [As per clause 4.1 of the BBA at page 24 of complaint] 16. Amount paid by the complainant Rs.27,60,325/- [As alleged by the complainant at page 15 of complaint]    17. Occupation certificate Not obtained 18. Offer of possession Not offered   The due date for handing over of possession was 30.05.2022 including 6 months  grace period on account of Covid – 19 pandemic.  However,  OC for the project has not been received till date. Therefore,   the complainant is seeking delayed possession charges with direction to hand over possession after obtaining OC.  The counsel for the respondent states that the project was delayed due to force majeure causes including Covid – 19 pandemic and orders of various authorities. Further,  the licence of the respondent has been suspended w.e.f  25.03.2023.  Therefore,  the period beyond 25.03.2023 may be considered as a zero period.  Further four years period for completion of project may be counted from date of consent to establish which was granted only on 18.02.2018.  The counsel for the complainant  is seeking relief  in terms of detailed order already passed by the Authority in CR No.7964/2022  and 14 others. Arguments heard. Both the parties may file brief written submissions within 15 days with an advance copy to each other. Order reserved. Matter to come up on 19.11.2024 for pronouncement of order.

The present complaint was filed on 20.01.2023 and the reply on behalf of the respondent was received on 06.02.2024. The proxy counsel for the respondent requests for an adjournment due to non availability of the main arguing counsel. Request is allowed. The counsel for the complainant requests for directions to not create any third party rights in respect of the unit as more than 80%  of the total consideration amount as per BBA has been paid. In view of the same,  creation of any third party rights till further order is hereby restrained. Matter to come up on 17.09.2024 for further proceedings.