MR SAMUNDER SINGH DHANKAR vs MS SAVYASACHI INFRASTRUCTURE PVT LTD

Complaint No.

7078 of 2022 HARERA ffiGURUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ComDlaint no.; 7078 of 2022 Date of filins 03.77.2022 Date of decision: 04.03.202 5 Complainant Versus M/s Savyasachi lnfrastructure Pvt.

Ltd.

Regd. office at: - M-166,2"d floor, South City- 1, Gurugram- 122001 Res ondent Com lainant ondent ORDER This complaint has been filed by the complainant/allottee under Section 31 of the Real Estate [Regulation and Development) Act,2016 (in short, theAco read with Rule 28 ofthe Haryana Real Estate (Regulation and Development) Rules, 2017 (in short, the RulesJ for violation of Section 11[4)(aJ of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the Rules and regulations made thereunder or to the allottee as per the allotment letter.

Proiect and unit related details Samunder Singh Dhankar - 2 /7, Devilal Colonv.

G oi- z I /, Devtlal lolonv. uurusra CORAM: Shri Arun Kumar Chairman Member Shri Ashok Sangwan Member APPEARANCE: Sh.

Sushil Yadav fAdvocate L, A.

Page 1 of 13 Complaint No.

7078 of2022 HARERA S*GURUGRAM 2.

The particulars ofthe project, the details ofsale consideration, the amount paid by the complainant date ofproposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: S.

N.

Particulars Details 1-.

Name ofthe proiect "Amaya Greens", Sector 3, Gurugram 2.

Proiect area 9.0375 acres 3.

Nature of the project Affordable Plotted Housing Colony under Deen Daval Ian Awaas Yoina 4.

DTCP license no. and validity status 37 of 2017 dated 28.06.2077 valid upto 27.06.2022 5.

Name of licensee Sharma Confectioners Pvt.

6.

RERA Registered/ not registered 272 of 20L7 dated 18.09.2017 valid upto 1.6.03.2023 (including 6 months grace period of COVID) 7.

Completion Certificate 7t.0t.2021 (Taken from already decided complaint case no.

7 497 of 2022 decided on 30. ded on 30.01.2024) B, Plot no.

C-7 4 (oas.e no.

12 of complaint') 9.

Area admeasuring 117.1 sq.yards (page no.

12 of complaint') 10.

Date of booking 08.08.2019 (page no.7 of complaint) 11.

Date of allotment 08.08.2019 (page no.

7 of complaint) L2.

MoU entered into between the complainant and the respondent dated 22.08.2019 (page 11 of complaintJ 13.

Possession clause Clause 5 "5) That the First Party assures the Second Party that the possession of the said SC) shall be handed over within a period of twelve months from the date of signing of this MOU." (Page no.11 of the complaint) 74.

Due date of possession 22.02.2027 Page 2 of 13 Complaint No.

7078 of 2022 B.

HARERA cffi er lDr raDAt\/ (12 months from the agreement + 6 months grace period of COVIDI 15.

Total Basic Sale Price Rs.

17,56,950 /- (15,000 * 71.7.L3 sq.vardsl (page 12 of comPlaint) t6.

Amount paid by the complainant Rs.

14,05,560/- (page 12 of complaint) Facts ofthe complaint The complainant has made the following submissions in the complaint: - l.

That the respondent gave adteltiseinent in various leading newspapers about their forthcoming proiect named "pro,ect- "Affordable Plotted Housing Colony under The Deen Dayal lan Awaas Yoina" Project, Sector 3 , Farukhnagar, District Gurgaon promising various advantages, like world class amenities and timely completion/execution ofthe proiect etc.

Relying on the promise and undertakings given by the respondent in the aforementioned advertisements the complainant, booked an unit admeasuring area 117.L3 Sq yards in aforesaid project of the respondent for total sale consideration of Rs 17,56,950/- which includes BSP, car parking, IFMS, club membership, PLC etc. including taxes, out of the total sale consideration amount, the complainant made payment of Rs.

14,05,560/- to the respondent vide different cheques on different dates, the details of which are as annexed with the complaint.

That the respondent had allotted a unit bearing no.

C-74 admeasuring 117. uring 117.13 sq yards. to the complainant on dated 09.08.2019.

That the complainant had requested many time to respondent to sign builder buyer agreement with him but respondent always put the request of complaint to his deaf ears and turn the matter from one pretext to another.

II, III, Page 3 of 13 Complaint No.

7078 of 2022 VI. ffiHARERA ffieunuennlvr IV.

VII.

VII I, That as per clause 5 of the MoU beBveen complainant and respondent, the respondent had agreed to deliver the possession of the unit within 12 months from the date of MOU between complainant and respondent i.e., unit was to be deliver till 21.08.2020.

That some ofthe clauses in the MoU that the complainant/buyer were made to sign by the respondent are one sided.

The complainant had signed already prepared documents and that some ofthe clauses contained therein were totally unreasonable and in favors ofthe respondent only.

Thatthe complainant regularly Yisited the site butwas surprised to saw that construction was very slow. lt appears that respondent has played fraud upon the complainant.

Even the respondent themselves were not aware that by what time possession would be granted.

However, subsequent to this there has been very little progress in construction of the project.

Ihc only intention of the respondent was to take payments for the unit without completing the work.

This shows that respondent mala-fide and dishonest motives and intention to cheat and defraud the complainant That despite receiving of all payment of all the demands raised by the respondent for the said unit and despite repeated requests and reminders over phone calls and personal visits of the complainant, the respondent has failed to deliver the possession ofthe allotted plot to the complainant within stipulated period.

That this omission on the part of the respondent the complainant suffcrcd from disruption on their living arrangement, mental torture, agony and also continues to incur severe financial losses. al losses.

This could be avoided if the respondent had given possession of the unit on time.

Page 4 of 13 Complaint No.

7078 of 2022 C.

4.

HARERA #*GURUGRAM Relief sought by the complainant: - i.

Direct the respondent to refund the entire amount paid by the complainant along with prescribed rate of interest as per provisions of section 18 of the Real Estate (Regulation & Developmentl Act, 2015.

The Authority issued a notice dated 10.12.2022 @ rhe respondent by speed post and also sent it to the provided email addresses, Sandeep kumar0686 (oyahoo.in.vijayrajan([email protected],saryasachi@gmail. com, Delivery reports have been placed on record.

Despite this, a public noticc for the appearance of respondent and for filing a reply was published on 19.04.2023 in the newspapers, namely Dainik Bhaskar and Hindustan Times.

The respondent failed to appear before the Airthority o n 14.03.2023,37.08.2023, 05.70.2023, 12.t2.2023, 06.02.2024, 20.02.2024, 28.05.2024, 24.09.2024, 07 .07.2025 and 04.03.2025.

None has appeared on behalf of the respondent despite being given sufficient & multiple opportunities , in view of the same, the defense of the respondent was struck off and matter was proceeded ex-parte vide order dated 72.12.2023 and is being decided on basis of facts and documents submitted with the complaint which are undisputed. furisdiction of the Authority The Authority observes that it has territorial as well as subject mattcr jurisdiction to adjudicate the present complaint for the reasons given below.

E.l Territorialiurisdiction D, 5.

As per notification no.

7/92/2077-1TCP dated 74.72.2017 isstedby Town and Country Planning Department, the Authority, Gurugram shall be entire offices situated in Gurugram.

In the jurisdiction of Real Estate Regulatory Gurugram District for all purpose with present case, the project in question is Page 5 of 13 Complaint No.

7078 of 2022 HARERA ffiGURUGRA|,I situated within the planning area ofGurugram District.

District.

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

E.II Subiect matter iurisdiction 7.

Section 11[4J (aJ ofthe Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11.(4)(aJ is reproduced as hereunder: Section 71 (4) The promoter shall- 9. (a) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the qllottee as per the ogreement for sale, or to the association of ollotteg, os the case may be, till the conveyance ofoll the apartments, plots or buildings, os the case moy be, to the allottee, or the common oreos to the ossociqtion ofqllottee or the competent authority, as the case may be; Section 34-Functions of the Authorw: 34A of the Act provides to ensure complionce of the obligotions cost upon the promoters,,the ollottee and the reol estate ogents under this Act ond the rules and regulotionsmode thereunder, So, in view of the provisions of the Act quoted above, the Authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainant at a later stage.

Further, the Authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the )udgement passed by thc Hon'ble Apex Couftin Newtech Promoters and Developers Private Limited Vs State of U.P. and Ors.

2027-2022 (1) RCR (Civil), 357 and reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of lndia & others SLP (Civil) No.

13005 o12020 decided on 12.05.2022,wherein it has been laid down as under: 8.

Page 6 of 13 Complaint No.

7078 of2022 10.

E.

HARERA ffiGURUGRAII L1.

86.

II L1.

From the scheme oftheActofwhich adetoiled reference has been made ond taking note of power ofodjudicotion delineated with the regulotory outhority and adjudicating officer,whatlinally culls outis that olthoug h the Act indicotes the distinct expressions like 'refund', 'interest', 'penoly' ond 'compensotion', a conjoint reading ofSections 18 and 19 clearly monifests thot when it comes to relund of the amount, and interest on the refund amount, or directing poyment ofinterest for deloyed delivery of possession, or penolqt and interest thereon' it is the regulatoty authoriry which has the power to exomine and determine the outcome of a comploint.

At the same time, when it comes to a question of seeking the retief of adjudging compensation and interest thereon under Sections 12, 14, 18 ond 19, the odiudicoting olficer exclusively hos the power to determine, keeping in view the collective reading of Section 71 reod with Section 72 ofthe Act. ifthe adiudication under Sections 12, 14, 1B qnd 19 other thon compensotion as envisoged, if extended to the qdiudicating olficer os prayed thqt, in our view, moy intend to expand the qmbit ond scope of the powers and functions of the odiudicating oflcer under Section 71 ond thot would be agqinst the mondate of the Act 2076.

Hence, in view of the authoritative pronouncement of the Hon'ble Supreme Court in the cases mentioned above, the Authority has the iurisdiction to entertain a complaint seeiing refund of the amount and interest on the refund amount.

Findings on the relief sought by the complainanL E.l Direct the respondent to refund the entire amount paid by the complainant along with prescribed rate of lnterest as per provisions of section 18 ofthe Real Estate (Regulation & Development) Act,2016; The complainant has booked a plot no.C-74 admeasuring 117.1 sq.yds.

A MoU with regard to the subject uiritwas executed on 22.08.2019 between the parties, The complainant has paid Rs. s paid Rs.

14,05,560/- against the basic sale consideration of Rs.

17,56,950/-.

As per clause 5 ofthe MoU dated 22.08.2019, it was agreed by the promoter-respondent that the plot shall be handed over within 12 months from the date of MoU.

12.

Although the completion certificate for the project in which the complainant's unit is situated has been granted by the competent authority, the respondent has failed to offer possession to the complainant in accordance with the Page 7 of 13 Complaint No.

7078 of 2022 HARERA S*GURUGRAII Memorandum ofUnderstanding dated22.08.2019.There is nothing on record to show that the respondent/promoter has offered possession of the plot to the complainant/allottee.

The complainant/allottee now wishes to withdraw from the project and is seeking a refund ofthe amount paid to the promoter in respect ofthe said unit, along with interest, due to the promoter's failure to complete or inability to hand over possession ofthe unit in accordance with the terms ofthe agreement for sale.

The matter is, therefore, covered under Section 18(1J of the Act.The provisions of Section 18[1) of the Act,2076 are reproduced below for ready reference: - Section 7B: - Return of qmount ond compensation 18(1).

Il the promoter fails to complete or is unable to give possession of an aportment, plot or building, - (o) in accordance with the terms of the agreementor, os the cose may be, duly completed by the date specilied therein; or (b)due to discontinuance oI his busiress os a developer on account of suspension or revocotion of the registration under this Act or for qny other reoson, he shqll be liable on demqnd to the allottee, in cqse the qllottee wishes to withdrqw from the project, without prejudice to ony other remedy qvqilable, to return the amount received by him in respect oJ that aportment, plot, building, os the cose mqy be, with interest at such rote as moy be prescribed in this beholf including compensation in th:e manner as provided under this Act. this Act.

Provided that where an ollottee does not intend to withdraw Irom the project, he shall be poid, by the promoter, interest for every month of deloy, till the handing over of the possession, ot such rote os moy be prescribed. (Emphosis supplied) 13.

Clause 5 of the memorandum of understanding dated 22.08.201,9 provides for the time period for handing over of possession and is reproduced below: 5) Thot the First Party ossures the Second Party thot the possession of the said Plot shall be handed over within o period oI Twelve months from the date ol signing of this MOU PaBe I of 13 complaint No.

7078 of 2022 HARERA GB cr lDt tnDA[i1 14.

Due date of handing over possession: As per clause 5 of the MOU, the possession of the allotted plot was supposed to be offered within a stipulated timeframe of 12 months from the date of signing of the MOU.

In the present matter, the MoU was executed on 22.08 2019 and hence the respondent was liable to handover possession by 2 2.08.2020 in terms ofthe agreement' Further the Authority in view of noti.,tc ation no.

9/3'2020 dated 26.05.2020, allows grace period of 6 months on account of force maieure conditions due to outbreak of Covid-19 pandemic.

Therefore, the due date of handing over of possession comes out to be 22.02.2021.

15.

Admissibility of refund along with prescribed rate of interest: 'l.hc complainant is seeking refund the amount paid by her at the prescribed rate of interest and intends to withdraw from the project.

The prescribed ratc of interest as provided under Rule 15 of the Rules, ibid Rule 15 has becn reproduced as under: Rule 75' Prescribed rote of interest- [Proviso to section 72' section 18 ond sub-section (4) and subsection (7) of section 191 For the purpose ofproviso to section 12; section 18; ond sub'sections (4) ond (7) ofsection 19' the"interest at the rote prescribed" sholl be the State Bank of Indio highest marginol cost oI lending rqte +20k': Provided that in cose the Stote Bank oltndia morginal c morginal cost of lending rote {MCLR) is not in use, it shoU be reploced by such benchmork lending rotes which the State Bank of lndio moy fx from time to time t'or lending to the generol Public.

The legislature in its wisdom in the subordinate legislation under the provision ofRule 15 ofthe Rules, ibid, has determined the prescribed rate ofinterest l'hc rate ofinterest so determined by the legislature, is reasonable and if the said rulc is followed to award the interest, it will ensure uniform practice in all the cases 16.

Page 9 of 13 Complaint No.

7078 of 2022 18.

19.

HARERA GB cr rDr rcDAt\,1 17.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLRI as on date i.e., 04.03.2025 is 9.1070, Accordingly, the prescribed rate of interest will be marginal cost of lending rate t27o i.e.,lL,\Oo/o.

Keeping in view the fact that the allottee/complainant wishes to withdraw from the project and seeking refund of the amount received by the promoter in respect of the plot with interest on failure of the promoter to complete or inability to hand over the possession ofthe unit in accordance with the terms of MoU.

The matter is covered under Section 18[L] of the Act of 2016.

Additionally, in the present matter the builder buyer's agreement has not been executed inter-se parties.

As per Section 13 of the Ac!2016 the promoter shall not accept more than ten percent ofthe cost ofthe unit from the allottee without first executing the agreement to sale with the allottee which is reproduce as under for ready reference: 73, No deposit or advance to be taken by promoter without first entering into agreement for sale. - (7) A promoter shall not occept o sum more than ten per cent. of the cost of the apartment, plot, or building as the cose may be, as on odvonce payment or on application fee, from o person without frrst entering into a written ogreement for sale with such person and register the said agreement for ement for sale, under ony low for the time being in force.

In the present complaint the MoU was executed between the parties on 22.08.2079 for the subiect unit which is after the enactment of the Act, 2016.

Herein, the complainant has paid an amount of Rs.

14,05,560/- out of the total sale consideration of Rs.

17,56,950/- to the respondent before entering into the Builder buyer agreement.

The said amount collected by the respondent is not only more than 10% of the sale consideration of the subiect unit but rather U0% of the sale consideration and the respondent has clearly violated Section 13(11 20.

Page 10 of 13 21,. ffi HARERA ffiGURuGRAM Complaint No.

7078 of 2022 of the Act, 2016 by accepting more than 100/o of the sale consideration before executing the builder buyer agreement.

The due date of possession as per MoU as mentioned in the table above is 22.02.2021-.

The Authority observes that although the completion certificate of the project in which the unit ofthe complainant is situated has been obtained by the respondent on 11.01.2021. but there is nothing on the record that offer of possession of the allotted plot has been made to the allottee by the respondent.

The Authority is ofthe view that the 4llgttqe cannot be expected to wait endlessly for taking possession ofthe unit which is allotted to it and for which he has paid more than 800/o of the sale consideration.

In view of the above-mentioned facts, the allottee is well within the right to seek refund ofthe paid up amount in terms ofSection l8( 1J of the Act, 2016.

In the iudgement of the Hon'ble Supreme Court of lndia in the cases o/.lvervtecrl Promoters and Developers Private.Limited vs State ol U.P. and Ors. (supra) reiterated in case of M/s Sana Redltars Privote Limited & other Vs Union ol lndia & others SLP (Civil) No.73005 of 2020 decided on 12.05.2022, it was observed that: 25. that: 25.The unquolified rightolthe ollottee to seek reJund rekrred Under Section 18(1)(q) aid Section 19(4) of the Act is notdependent on any contingencies or stlpulotions thereof. lt appeors thot the legisloture hos consciously provided this nght of refund on demond qs an unconditionql absolute right to the ollottee, if the promoter fails to give possession of the oportment, plot or building within the time stipulated under the terms of the ogreement regordless ofunforeseen events or stoyordersofthe Court/Tribunal, which is in eitherway not ottributable to the allottee/home buyer, the promoter is under an obligotion to refund the omount on demond with interest at the rate prescribed by the Stote Covernment including compensation in the manner provided under the Act with the proviso that if the ollottee does not wish to withdraw from the proiect, he sholl be entitled for 22.

Page 11 of 13 ffi HARERA ffieunuGRAN/ F.

Directions of the Authority 25.

Hence, the Authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of obligations casted upon the promoter as per the functions entrusted to the Authority under section 3a(f of the Act: i.

The respondent/promoter is directed to refund the entire paid-up amount received by it from the complainant i.e, Rs.

14,05,560/- along with inrerest Complaint No.

7078 of 2022 interestforthe period ofdelqy till handing over possession otthe rate prescribed.

23.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunder or to the allottee as per agreement under section 11(a)ta).

The promoter has failed to offer possession of the unit in accordance with the terms of agreement. agreement.

Accordingly, the promoter is liable to the allottee, as he wishes to withdraw from the proiect, without prejudice to any other remedy available, to return the amount received by the promoter in respect of the unit with interest at such rate as may be prescribed.

24.

Accordingly, the non-compliance ofthe mandate contained in Section 11(4J(a) read with Section 18(1) of the Act on the part of the respondent is established.

As such, the complainant is entitled to refund of the entire amount paid by them at the prescribed rate of interest i.e., @ 11.10% p.a. (the Srare Bank of India highest marginal cost of lending rate (MCLRI applicable as on date +2%) as prescribed under Rule 15 of the Haryana Real Estate (Regulation and Developmentl Rules, 2017 from the date of each payment till the actual date of refund of the amount within the timelines provided in Rule 16 of the Haryana Rules 2017 ibid.

Page 12 of13 ffi HARERA ffi eLrnue,ruM Complaint No.

7078 of 2022 26.

27. at the rate of 11.100/0 p.a. as prescribed under Rule 15 ofthe Haryana Real Estate (Regulation and Development) Rules, 2017 from the date of each payment till the actual realization ofthe amount. ii.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences would follow.

Complaint stands disposed of.

Files be consigned to registry.

Haryana v.l -------) (Viiay l6mar Goyal) Member Gurugram Page 13 ol13 o,,1r^ uembfl n 4u-u" (Arun Kumar) Chairman Dated: 04.03.202 5