SHEELA DEVI vs OCEAN SEVEN BUILDTECH PVT LTD

HARERA GURUGRAIV BEFORE THE Complaint No.

1678of 2023 HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision: 17.09.2024 NAMEOFTHEBUILDER o.e.n seven auildte.h Pvt.

Ltl PROIECT NAME The V€netian, Sector 70, Cu.ugram, Haryana cR/ t6'74 /2423 M/s 0cean Seven Buildtech Adv.

Akhand Partap SLngh cR/16',7612A23 cB/1644/2023 CORAM: ShriVijay Kumar Goyal Shri Ash ok Sangwnn M/s o.ern seven Buildte.h Adv.Akhand Panap Si!gh Adv.

Akhand Partap srnsh M/s ocetrnSeven Euildte.h M/s o.ern sPven Ituildte.h ORDER 1.

This order shall dispose of 4 cornplaints titled above ffled before rhis authority under section 31 of the Real Estate (Regulation and Development) Act, z0r6 [hereinafter referred as "the Act"] read with rule 28 ofthe Haryana RealEstate fRegulation and Development) Rules,2017 , THARERA $-eunuemu 2 3. (hereinafter relerred as'the rules"l rorviolation ofsection 11(4)(a) ofthe Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, respo.sibilities and functions to the allottees as pertheagreement tor sale executed interse parties.

The core issues emanating irom them are similar in nature and the complainant(s) in the above referr€d matters are allottees ofthe project, namely, "The Venetian", SectoF 70, Gurugram, Haryana being developed by the respondent/promote Limited.

The terms and c ComplaintNo.

1678oi2023 , M/s Ocean Seven Buildtech Pnvate of the allotment leiter bLrye.t agreements, fulcrum of, t in all these cases pe.tains to failure on the part of mely possession ofthe units 3 of agreement, possession deration, total paid amount, Sector- 70, Curugram, Haryana.

Project Nameand Loca valid upto 04.09,2024 l,i.€nsee Sh.ee Ratan t,aland other 07,02.2020 Building plan approval Etrvironment clearance Regisre.Ed vide no.

39 oi 2020 deted 2? .70,2020 valid up to 02.09,2021 RERA Reqistered/ rot 5. ed/ rot 5.10&res occupation certifi(ate il HARERA GURUGRA[/ Possessior clause as per Afordable Housing Policy, 1(tt, of the AJlotdoble Eousing Potic!, 201j All such prcjecls shol) be requi.ed to be heceserilt canpleted within 4 yeors tom the opprovol of buikling pldns or grant ol envirohnental cleatuace, whichever is late.. fhis dote shatl be rekrred ta os the 'date aI canhencenent of projed fot the purpose of thk palicJ.

The licenses tholl not be runewed bqrohd the soid 4 yeors period ltan the dote of connencment of projecL Complaint No.

1678of 2023 cR/'6?1118l L0r.

HARERA GURUGRAI\4 ConplaintNo.

1678of 2023 H *,,,"-lopUJltJ( amolnt p.rd b, the .llo@/s The facts oiaU the compla,nts filed by the complainan(s)/allottee(sl are sim,lar.

Out of the above-mentioned case, the particulars of lead case CR/1678/2023 titled as Seema Raghav vs.

M/s ocean Seven Butldtech L {3 s- 5.

HARERA GURUGRAN/ Pve Ld. are being taken ,nto ComplaintNo.

1678 of 2023 consideration for determining the rights of IPaee l5oicomplaint] theallottee(s).

Proiectand unit r€lat€d d€tails The particulars ol the project, th€ details of sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay per,od, ifany, havebeen detailed in the following tabular iorm: CR/1678/2023 titled as Seemo Rashav Vs. t4/s Ocean Seven Buildtech 5,N The Venetian, Se.tor 70, Cu.ugrr.r, l Ailo.dable sroup housins colony 103 0f2019 datcd 05.09-2019 Li.ense valid jty status vaLd upto 04.09.2024 Shree Ratan Lal and otheA in collabo ratio n withM/sOcean Scvcn Buildtech Pvt.

Ltd 5 Buildins plan approel o -enui*i- .t""in* r TRERA R"eirt*d/ -t o7 ti12a20 Registered vide no.

39 ol 2020 dated 27.10.20?0 Valid up to 02.09.2024 09J)320rr Burlderbuyer rSreement t ARERA URUGRAI\/ ComplaintNo.

1678of 2023 10 808, tower 1 lPase 1.6 orcomplaintl 556.280 sq. ft- oicarpet area.nd 90 sq. h.

90 sq. h. (Pase 15 of the complaint) Possession clause as per Aarordable housing policy, 2013 1(Iv) oJ the AJlotdobte Housiag Policy, 201 3 All such proje.ts sholl bc rcqurcd b b. neccsonl! canpleted within 4 reots tion the dpprowl al butldtn! plans ot grant ol envifonmental clearonce, whi.hevt t\ loter This date shott be .efe.rett ta os the dote ol .dnnencement oJ project fot thc putposc ol' this poltc!

Thc licehses sholl not he .ehewed belond the soid 4 reo.s perio.l hon the dote of connencenent al Prctect Du€ drte ofpossession aJnnut b!

J\Lertrrn!Ll Total salepriceolthe flat Rs.23,00,000/- lAs aueged by the complainant at pase 14 15.

Amount paid by the l".ii"a*Zc,n."tt"ti"n ty the conplajnant thrcugh Rs.1,13,506/- lAs alles€d b) the mmplaihint rt prsc l4 1L.,02022 lpase 18 olrchplaintl Facts ofthe complaint The complainanthas made the following submissions in the complaint;- L That the complainant is a law-abiding citizen.

The complainant hav,ng the need for residence, was desirous ofbuying an apartment for him and his familyand therefore applied for an apartment in a project "The venetian" at Sector-70, Gurusram being developed by the respondent.

That it is B, I u HARERA Codplaint No.

1678 of2023 T GURUGRAIU pertinent to mention that the deiendant applied for the apartmenfth rough an advertisement by the respondent.

That the respondent company are,nvolved in Real estate activities with own or leased property which includes buyin& selling, renting and operat,ng ofself-owned or leased realestate such as apartment building and dwell,ngs, non-residential buildings, developing and subd,vid,ng real That as the respondent was developinga project namely "The venetjan" at Sector-7o, Gurugram, in which .oiplainants here,n made an application for the allotment olflat. subsequqiitly, the payment ol Rs.1,13,s06/-were made by the complainantto the retpondent.

That the complainantev€n after paying theapplication iee had to wait till 09.03. ill 09.03.2021 to receive the letter ofallotment.

Moreover, the respondents did not execute the buyer's agreement.

That vide letter ofallotment, the complainants was informed that the flat no. a08 in tower no.

1, 2 BHK (Type 1), having a carpetarea of approx.

5 56.280 sq. ft. a.d havingbalcony area 90 sq. ft. has been alldtted to im.

Thataftermak,ng$einstslments,thecomplaihantsmadefollow-upcalls and enquired as to how & by when the respondents will complete the project.

Thatthe respondents neither repli€d tothe said enquiry made by the complainants nor intimated the complainants about tbe progress oa construction.

That the .espondents have not even executed the BBA despite ofreceiving the sale consideration.

That haviDg received no updates and tacing mentalagony and harassment due to the acts and conduct of the respondent and having left with no remedy, the complainant through their counsel sent a leCal notice dated t\' V] * 4t HARERA GUl?UGRAIT,4 Complaint No.

1678of 2023 t1-10.2022 wherein the complainants sought a refund oi the entire amount pa,d along w,th interest @ 12% Per annum from th€ date oi payment to the date oirefund.

Even till date, the project is far away from its completion as the construction has notyet started.

VIL That the complainant seeks the liberry to rely on the pronouncement by the Hon'ble Supreme Court of India in the cases ot Newtech Promoters and Developers I\ivate Limited Vs Stote oJ U.P. ond Ors. (supto) reiterated in case ol M/s Sona Realto$ Private Limited & other Vs Union oflndia & others SLP (dvq No.

13005 o12020 has observed that i lhe unqudhlred nght ol the alloltee to seek reiund rererred Under Section 18(1)(al and Section 19[4] of the A€t is not dependent on any contingencies or stipulations thereof It appears that the legislatu.e has consciously provided this right ofretund on demand as an unconditional absolute right to the allottee, ifthe promoter fails to give poss€ssion ofthe apartment, plot or buildingwithin the time stipu time stipulated under the terms ot the agreement regardless of unfareseen events or stay orders of the cou.t/tribunal, which is in ei[her way not attributab]e to the allottee/home buyer, the iromoter is under an obligation to refund the amount on demand with interesi at the rate prescribed by the State Covernment including compensatlon in the manner provided under the Actwith the proviso that ifthe allottee does.otwish to withdrawfrom the project, he shall be entitled for interest tor the period ofdelay till handing over possession at the rate prescribed.

VIll.

That, theretore, the promoter is responsible for all obligations, responsibilities, and functions under th€ provisions of the A€t of 2016, or the ru)es and regulations made thereunder or to the allottee as per Complaint No.

167a of2023 *HARERA S-arRUcRA[/ agreement for sale under Section 11(al(a).

The promoter has failed to complete or unable to give possession ofthe unit in accordance with the te.ms of agreement for sale or duly completed by the date specitled therein.

Acco.dingly, the promoter js liable to the allottee, as the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the arnount received by him in .espect of the unitwith interestatsuch rate as may be prescribed That ,n view of delay in constructlon and lailure to deliver the properry, the complninant rs entitled to withdraw and accordingly is withdrawiDg from the allotment and further seeks the refund of an amount of Rs.1,13,506/- along with interest irnd compensation as per section 18 of the Real Estate (Regulatlon and Development) Act,2016.

Reliefsought by the complainanh - The complainaDt has soughl following relief(s): l.

Direct the respondent to retund the entire paid_up amount along wjth inte.est@ 180/o p.a. from the dale ofeach payment. ll.

Direct the respondent to pay an amount of Rs.50,000/_ as litigation tx c.

7.

5-2023- On 27.02.2024 i Arun Yadav Advocate.

Advocate. appeared on behalf of the respondent and requests for a sought sho( adjournment ior nling of reply.

The said request was allowed, and the respondent was d,rected to 6le the reply within stipulated time perjod.

Despite specific direction it has failed to comply with the orders of the authority.

It shows that the respondent is intentionally delaying the procedure ofthe Authority by avoiding Rling written reply.

In view olthe and 26.

The present complaint 19.12.2023, 2t t1 -2023, 8. conduct of the respondent, on 17-09-2024, the a\thority is left with no option but to striking otrthe defence ofthe respondent.

9.

Copies of all the relevant documents have been nled and placed on the record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis ofthese undisputed documents and submission made 1rHARERA S,eunuenntr D.I by the co mplainant.

D. lurisdiction ofthe authority 10.

The authoriry observes that it has telritorial as well as jurisdiction to adjudicate the presi:lt complajnt ior the ComplaintNo.1678ot2023 Territorial jurisdiction 11.

As pe. norification no.

1/92/2017-1rCP dated 74.72.2077 issrtd by Town and Country Planning Departme.L the jurisdiction oa Real Estate Regulatory Authority, Curugram shall be entire Gurugram District ibr all purpose wirh otficessituated in Curugram.ln the presentcase, the project in question is situated within the planning area of Gurugram District.

Therefore, this authority has complete rerritorial jurisdiction to deal wrth the presen t complaint.

D.ll Sub,ect natter ,urisdlcdon 12. section 11[4][a) of the Act, 2016 provides that the pronoter shau b. responsible to the allottee as per agreement fo. sale.

Section 11(a)(.) 's reproduced as hereunder: iit ro" p,..",",,n.rr (a) be responebk lor ull abligotinhs, t sp.nlbiljties ond lLn.tbns rnder the ptavisions ol thk Act at thc .ules cnd resulottons nade thcreundcra. to the allottees as per the osreenentlot sote ot tothe osso. othe osso.iotnn aJ otlattees, as the cose no! he, oll the.anvelonce al all the o po.t n e nts, ptats or bu i ldt n o s, o s th e co se n ay ba, to th e d I lattee s, ar t h e HARERA GURUGRAl\/ "86.

Fro the vhene of the A& oI \|hich a detoited tekrence hos been nade ond taking note ol poeer ol odjtdicdtion delineoted with the r esu I otott o uthot it! and odj ulicotinq oll 4 r, whot li no I l! cu I ls out ts thu t .tiholgh the Act indicdt s the dbtincr exprdsions like reiund , intercst , 'penoltt dhd '@npe6ation , o .onjoint rcadins oI Sections 13 ond 19 cteatty honiksL' thdt when it con$ to tefund oJ the onount ond in@ren on the ret'uhd anount, ar directing poynent of interest lot delated delirert of passslo^, or penoltt dnd interest thereon, it ts the regulator! authoritywhich hos the pow bexonine ond deternthe the outcaneaJ d conplonL At the sdne nne, vhen it cones to a question of eekihg the .elieJ ol odjudging conpe8otion ond mtetest thereon und't tp'ti'n\ 12 14, 1a and 19, the o,ljudicoting alJier exclusiveu hos the power to det mine, keeping in view th. colle.tive rcodng ol Sectian 71.eod wth Se.toh 72 ol$eAcL iJ the odiudicotrcn under Sections 12,14 13 ond 19 .thet thon conpensotion as ehvisoged, il extended to the odjudaotilq ot'licer os praled that in our view, ndj inteh.l to expand the ombtt ond {ope ofthe powe6 and fundiohs olthe o.liudnotins ollicer Ln.tt se.tion -1 a.d tho, iautd beagon\t t4e no1date at,h. $ t20)b.' ComplaintNo.

1678 of 2023 connon ot@t to the associotian oldllottees or rte cohpet t outhottly, as the case hay bej S e. tl on 3 4 - Fu n cti oa s of rh e Auth orlE : 34A oI the Act ptotides to ensrre conpliance of the obliqoions coe u pon the ptonote\, the ollottees and the reol estate ogentt undet this Act dnd the tules ond regulatiors node thereun.leL 13. un.leL 13.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the compla,nt regarding non-compliance of obligations by tbe promoter leav,ng aside compensation which ,s to be decided by the adjud,cat,ng officer il pursued by the complaina.t at a later l4 Further, thc autho.ity has no hitch in proceeding lrith the conrPlaint and to grant a reliefofreiund in the presentmattcr in view of the lLdBcmcnt passed by rhe Hon'bleApcx CourtinNewtecn Promotersdnd Developers Privdte Limited vs Stote ol U.P. and Ors.

2021-202 2 (1) RCR (Civil),3s7 ond rcjterated in case ol M/s Sana Realtots Privote Limited & other Vs Union of tndio & others SLP (Ctvil) No.73005 of 2ozo decided on 12.0s.2022 \\hercl|n itbas been laid down as under: i-,1 HARERA GURUGRA[/ Complaint No.

1678 of2023 Hence, in view ofthe authoritative pronouncement ofthe Hon'bleSupreme Court in the cases mentioned above, the authority has the jurisdiction to €nt€rtain a complaint seeking refund of the amount and interest on the E. tindings onthe reli€fsought bythe complainant.

E.l Direct the respondent to refund the paid-up amount along-with 16.

The complainant was allotted a unit bearing no.

808, in Towerl. having carpet area of 556.280 sq. ft. alongwith balcony w'th area oa90 sq. ft. in the proie.t ofrespondent named 'Venetian" at Sector 70, Gurugram under the Affordable HousiDg Policy,2013 vide booking application form dated 09.03.2021.

Thereafter, builder buyer agreement was not executed between the complainant and respond€nt in respect ofthe subject unit.

As per clause 1(iv] orthe policy o12013, allprojects under the said policy shnll be .equired to be necessarily completed within 4 years from th. date ol approval of building plans or grant ofenvironmental clearance, whichever is later.'l'hus, the possession ofthe unit was to be offered within 4 years iiom thc app.oval of building plans 107 02-2a20) or from the date of environment clearance [not obtain€d yer]. in€d yer].

Therefore, the due date of possession cannot be ascertained.

As per record, the complainant has pirid an amount oiRs.1,13,506/- to respondent.

Due to aailure on the part ofthe respondent in obtaining environment clearance from the concerned authority and inordinate delay on part of the respondent to start construction of the project in question, the complainant has surrendered the unit/flat vide legal notice dated 11.10.2022.

17.

As per the clause 5 (,i,)(h) ol the Affordable Housing Policy, 2013 as amended by the State Gove.nment on 05.07.2019, the relevant provision iTHARERA S- eLrnrcnnu regardi.g surrender ofthe allotted unitby the allottee has been laid down andthe same is reproduced as under: Clause 5(iii) (h) oftheAffordable Houslns Pollcy,2013 "A waitins list lar o naxinun oJ 2 5% oI rhe totot ovaitabte nuhb.. ofltots ovailoble lor ollotnent, noy ole be prepored.lunng the drow ollots wha cah be oJleted the attothent in cae tune of the su@sslut attone4 are not able to rcnove the delcidcies in their application within the prenibed periodollSddts IOh sutendet ofllat by ohy succ*ful allottee the otuouht ComplaintNo.

1678of 2023 I Amountto beforf€ited ln.Jse otsurr.nde..f Rr .ommencementofproje.

NL Ibb] upto l year i.om the date oi rohh.nccmenr orthe projeci upto 2 year Lom the d3te oi cohncncemci ! of rhe proiecr (ddl thot con be loteited by the calanizet in addition to k.

25,a00/ shollnot to the \|oitlisted oppliconts, without anJ int.resL All non-successlul oppliconts sholl be efu^d.d back the booking onountwithin 15 days oJ holding the d.ow of lots".

18.

In the present matter, the subjectunitwas surrendered by the complainant_ allottee vide legal notice dated 11.10.2022 due to failure on the part olthe respondent in obtaining environment clearanc€ and has requested th€ tr db HARERA ComplaintNo.

1673 of 2023 GURUGRA[/ respondent to cancel the allotment and reiund the enti.e amount paid by him along with interest.

19. erest.

19.

However, ithas come to the notice oftheauthoriry thar the respondenthas ta,led to obtain environmental clearance from rhe competent authoriry till date.

It is pertinent to mention here rhat as per rhe clause 5 (iii)(b) ofthe Aifordable Housing Poliry, 2013 as amended by rhe State Government on 22.07.2015 provides that if the licensee fails to set environmental clearance even one year ofholding draw, the licercee is Iiable to .efund the amount deposited by the applicant along${ih an interesr of 12%, iathe allotree so desires.

The relevant provjsion is reproduced below fo. ready reference: "The lats in a specifc $oject shdtl b; o oued th ohe sa vnhin Iour onthsol the sohctioh oI buil.ling plahs. ln cdse, the nunbe. olopplicotions re.eir.d 6 /eis thon the nunbet ol snctioned lats, the allotnentcah be nade in two at norc phoses Howevet, the licencee will stort the consrruction onlt alet .eelpt al envnonhentol cl@ran e l.on the .tupetent outhonry- The licencee w l sttt receiinq fie lurThq instollments only oace the fieironmdtdl cleorde ls .eceive.l, Fu.ther, if Ae licencee, loil to Aet dvi.onmqtot c-le M.e .vq aFer one len oJ hotcting oJ drdw the li.encee is lioble to refund the omount deposited bt the opptico"t .longeith an interest oJ12%, ifthe ollotlze so.len es 20. ln this regard, the authoriti observes that as per clause s(iii)(bl of the Affordable Housing Policy, 2013, the licencee will start recejving the further installments onlyonce theenvironmental clearance is received.

As delineated hereinabove, the respondenthas failed to obtain environmental clearance till date, thus, are not entitled to receive any turther payments.

Hence, the objection raised by the respondent is devoid ofmerits.

21.

Further, as per amendmentdated 09.07.201a inAffordable Group Hosing Policy,2013, the rate ofinterest in case ofdefault shallbe as per rule 15 of the Haryana Real Estate (Regulation and Developmentl Rules,2017. ules,2017.

Rule 15 oithe rules is reproduced as under: HARERA GURi]GRA]V ComplaintNo, 1678o12023 Rule 15.

Prevtibed rot olihterest [Prcvko to se.tion 12, vction 18 ond sub:ectioh (4) and subsectian (7) aJ *ctioi lel Fot the putpose oI proeiso to sectian 12) section 1q on.l sLb vctiohs (4) ond (7) olection 19, the'intercst at the rate ptesctibed" shott be the state Bonk oltndio highesttuorginolcostallending rote +2%.: Provided thot in cose the Stdte Bonk oI lnd io nargthol cost oI lending rate (MCLR) is hot in use, it shall be reploced by such benchnark lendino rutes which the Stote Bonk af lndio hoy lit ltoh tine b nne Ior tending to the p eralpublic.

22.

The legislature in its wisdom in the subordinate legislation under the rule 15 of the rules has determined the ptescribed rate ol interest.

The rate of interest so determined by the legislaNre, is reasonable and ifthe said rule is followed to award the interest,ilwiu ensure uniform practice in all the 23.

Thus, the complainant-allottee is entitled to refund of the entirc amount deposited along with interest at the prescribed rate as per afbresakl provisions laid do!vD under Affordable Housing Policy,2013.

24.

Hencc, the respondent/promoter is directed to refund thc entire pard up amountas perclause 5(iiil(b) ofthe ofAffordable Housing Policv,20l3 ns amended by the State Covernment oD 22.07 2015, along with prescribed rate oiinteresti.e., @11% p.a. [the State Bank oflndia highest marginal.ost ollending rate (i.{CLR) applicable as on date +2%) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Developmeno Rules 2017 trom the date of e:rch payment till the actual realization of the amount within the timelines provided in rule 16 ofthe Ha.yana Rules 2017 ibid E,ll Direct the respondentto payan amount ofRs 50,000/_ as litigation €xperses.

25 Th e co mp lainant is also seeking relief w...t. co mpensation.

Hon bl. supre me Court oilndia in cjvil appe al nos. pe al nos.

67 +5'67 49 of2021titled as M/s,Vewtech Promoters ancl Developers Pvt.

Ltd. vs.

State olUP & ors (supral has held I GURUGRAIV HARERA CohplaintNo.

1678of 2023 thatan allotteeis entitledto claim compensation & lit,gation charges under sections 12,14,18 and section 19 which is to bedecided bythe adjudicating ofncer as per section 71 and the quantum of compensation & litigat,on expense shall be adjudged by the adjudicating omcer having due regard ro the factors mentioned in s€ction 72.

The adjudicating officer has exclusive jurisdictio. to deal with the complaints in respect ofcompensation & legal Directions of the authority Hence, the authorjt_v hereby passes this order and issue directions uDder section 37 ofthe Act to ensure compliance casted upon the promoter as per the lunctions entrustcd to under section 34(, ofthe Act i.

The.espondentisdirectedtoretundtheentirepaid upamountdsper clause 5(iiil[b] ofthe Aifordable Hous,ng Policy,2013 as amended by the Stale Government on 22.07.2015, along with prescnbed rate ol nrterest i.e., @11.10olo p.a. as prescribed under.ule 15 olthe Rules, 2017 f.om the date of each payment till the actual realization ol the ij A period of 90 days is given to the respondent to comply with the drrectionsgiven in this order failing wh,ch legalconsequences would iii The respondent is further directed notto create anythird'pafty rights against the subject unit before the fullrealization ofpaid-up amount along with interest thereon to the complainant(sl, and even it any transler is initiated with respect to subject unit, the receivable shall be lirst utilized for clearing dues oiallottee/.omplainantIs]. t. rhe following ofobligations the author,ty HARERA GURUGRA[/ 'lhis decision shall mutatis mutandis apply to cases mentioned in p this order wherein details ofpaid up amount is mentioned in ea ra3of oithe 24.

29. complaints.

The complaints stand disposed ol Files be consigned to registry. registry. (viiay ority, Gurugram Dare 17-09-2024 HARERA GURUGRAM complaint No.

1673 of2 flt Jl-I I h,[< rt*6, )