MR SITANSHU RANJAN KAR AND MRS ESTHER SAKUNTHALA KAR vs CHINTELS INDIA PVT LTD

Compla'nt No.c45 of 2024 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM 945 ol2024 22.03.2024 20.o5,2Q25 L tiF, Complaint no.: Date of nling ot complai nt: Date ofde(ision: 1.

Mr S'tanshu Ranian Xa.

2.

N,1rs.

Esther Saku nthala Kar Both RR/o: 'C'604, Tower C, Chintels Pa.adiso, Sector 10.r, Gurugram Versus L.

Iqls Chintels tndia Private Limtted 2.

Irrashant Solomon All having Regd. oflice : A-11, (ailash Colony, New l)clhi 110048 Corporate Ofnce ae -Chintels Corporate.Park, Near {llrintcls Chowk, Sector-114, Gurugram- 122017 CORAM: Shri Vijay Kunrirr Goy.rl ShriAshok Sangwan APPEARANCEI Sh. vivek Tanwer (Advocatel sh. carvit cupta IAdvocate] Chairman ORDER lhis complaint has been f,led by the complainants/allottees under section 3l olthe Real titate (Regulation and Development) Act, 2016 [in short, the Actl read wirh rule 28 ot the llr.yana Real [state (Regulation and llevelopmentl Rules, 2017 [in short, the Rules) for violation of section 11(,1)(al ofthe Act wherein it is rrteralia prescribed that the promoter shall be responsible for all obligations, responsib,lities and iunctions under the *HARERI -d{b- euruennur Compl.rnt No.

945 oi?0Za provisions ofthe Actorthe Rules and regulations made there allottees as per the agreement for sale executed in,er se.

Unlt and pro,ect details The particulars of unit, sale consideration, rhe amount paid by the complainants, date ofproposed handing overthe possession, delay period, if any, have been detailed in rhe following tabular form: 1.

PrulcLt name and locatLon RIjR Registe.ed/ S.

No. lluilder buyer agreement "Chrntels Paradiso" stiuated 109, Gurugranr 2.

Nature ofthe protect Residential G roup HousingColony 1.2007 2,1 t7 01 t8 1.

1 oi 2007 darcd 02 lid up to 0r.11.201 of2008dated 17.( lid up ro 16.01.201 5 9 2 0 L 200i1 Chintel Exports Pvt.

Ltd.

24.02.20t2 lPase no.

72 orcomplaintl 03.05.2012 lPnse no.

74 3150 (Pase {1.

0. ,, a U nrt admeasunng Due date ofpossession sq. ft. on sq. ft. tsuper area) 104 of the complaint) tl Rs.1,68,58,275l lPase no.

104 of Rs.1,6A,sA,27s/- lPase no.

104 ofcomplaintl c 604, 6,i floor, Tower C t4 4 5 llARERi GURUGRA[/ ComplarntNo 945 of2024 15.

OrLupation c.rtificate 20.06.2017 12.05.2074 fPaee no.

135 05.07.2018 lPase no.146 B, 3 Fact ofthe complaint 1'he complainants h.vc nradc thc iollowiDE subn)issroDs: I l'hat the respondent initiated the development of the project as a residential group housing bearing ljcense no.

251 of2007 and 09 of2008 dated 02112007 and 17.01.2008, respectively, g.anted under the llrryana Development and Itegulation oi Urban Areas Act, 1976 by the Departnrent of Town and Country Planning, (DTCPI Government ol Hrryana, and the €ombined zoning plan of the project area measu.ing 12.306 acres was approved vide office letter dated 27.07.2010 The buildin8 plan lor the combined.'re. of 12.:106 acres was approved on 01.03.2011 by D'lCP.

The protecr comprised of9 towers, nursery school, shoppins complex, EWS, children's play area, club house, badminton and basketball courts, Cym, etc., and aU were spread over 12.306 acres olland in Sector - 109 at Gurugranr.

The proiect was being developed in nlro phases: (i) Phase - I, compris,ng otlive [5) towers being Tower D, E, F, C and Hj and (ii) Phase - II comprisins offour (4) towers being Tower A, B, a and I. llegardrng the project, the respondent/developer had floated brochurc nlak,ng t.rll and bold.liinN rcgarding the'Best Construction PractiseJ and American project management supervising the .onstruction ofbuildings in the p.oject adhering to NBC and ISlstandards lor the slructLrril snfety olthe bu'ldings for 50-75 years.

I HARERA ComplarotNo.94S of 2024 IT G .omplrrndnl5 vrde dppll.duon rorm dated 22.12.201L appled dllotment oid re\rdenfidl Jnrl bednng no.

C.604 hav,nga <uper RAl\4 GURU( That th tTl area oa 3150 sq. feet for a total consideration of Rs. ion of Rs.1,51,96,750/ [exc]usive ol taxes and addition:l chargesl payable in a construction linked manner.

Pursuant to the application lorm, respondent provisionally allotted the said unrt iD favour of the compla,nants vide allotment letter dated 24.02.2012.

Thereafter, the parries executed the ,rp.rrtment buyefs agreement dated 03.05.2012 in respect of rhe urrit.

Th:tt the buyers agreements'as a single sided document, which the respondent made the complainants to execute given respondenfs better bargain ingllinancial position.

N eedless to mentio n that .ertain .1au ses of the buyefs agreement are against the prov,sions ofAct,2016 and Rules of20lT lormulated thereunder as we11as the public policy ofour country That as per th. buyert agrcemcnt, the respondent was liable to give possession olthe unit, complete in allrespectsand withoutany structural defects,within 36 + 6 months fron 03.05.2012.

Rega.dless, the stipulated time frame, the respondent secured occupation certiiicate by playing a haud upon the authoritles ibr phase-l in 2016 and possession was oilered in 2017 whereas, the occupation certificate lor phaseil was granted on 20.06.2017 and the possession wrs otilred iD 2018- Thus .lie. s.oss delay of over nvo ycars, the respondent ofiered NoC for possessioD of the said unit to the complainants vide communication dated 27.04.2018.

Accordingly, vide possession letter dated 12.05.2018, the respondent handed over the possession ol the unit to the conrplainants.

Thereafter, in tcrnrs ol the provision of the Haryana ApartmeDt Owncrship Act, 19U3, a dccd oi apartmcnt dated 03.07.2018 alons with a conveyance deed bearins no.5231 dated 05.07.2018 was HARERA GURUGRA[I Complarnr No 945 of2024 executed betwecn the pa.tics a.d re8istered at Sub-Registrar Omce, Gurugram, and Haryana.

Even certain clauses oithese deeds are against the provisions of the Act and Rules formulated thereunderas wellas the public policy olour country. r country. lV Ihat thc complainants, for purchasinE the unit, have not only exhausted their entire liie savings, but also availed a home loan lor a sum ot Rs.60,00,000/- rrorn Stare Bank ol India, wherein they have borne an interest of Rs.32,02,316/- for purchasing the said unit.

The complainants hdve also borne an additional cost of Rs.5,89,500/- as stamp duty towards the registration ofthe unit.

Further, in order to the make the unit habit:ble for the complainants and their iamily, the complainants spent ar additional imount of Rs.20,37,203/- towards renovation and operations manager ofthe project.

At the time oibooking of the unrt,lhe inarket ratc ofthe said unjtwas Rs.4,320/ sq. feet. and the present market rnte ior units in the adioining projects are Rs.13,000/sq. feet, thus the respondent is also liable to pay a comp.nsation of the difference in amount beins Rs.2,73,42,000/- (Rs.8,680/- x 3150 sq. feet), towards the !nflation of the unit's rate as per the currentmarket rate.

Structural Delects v At this stago, th.

Lomplainanls srek |berty to highlight the following relevant provrsion oi the Rules, 2017 which are germane tbr effective xdjudjcation of the present Complaint.

Since in the year 2019, the complainants started experienci,rg delects in the unit, such as chip in th. tloor tilc cracks in the walls and no running watcr in kitchen and guest bathroom and the same was communicated to the respondentvide email dated 11.09.2019 to which the respondent .ever acted upon.

Such woodwork rfter July \eruInB permrsron lrom lhe faciliry and VT \ ComDlaintNo.94Sof 2024 Ei FIARER GURUGRA[4 defects rvere nothing comparcd to the actual structural deiects which came to light and were faced by the complainants since 2021 thereby putting the safety oi unit in jeopardy as well as their lives- Within 2-3 years of the possession ol the unit, the complainants noticed cracks in their unil and tower. l'he said cracks were instantly reported to the . d to the .espondcnt for the first time nlonts with the picture by the complainants on 04.04.2021 to whi.h the respondent had assu.ed to Iook into the Natter and !ake co..ectivc mcasures. ln 2021. long cracks were exponentially occurring at the outer walls of 6lh and 7th floor ofthe Towe.-C and jn the ceiling ofthe un,t's balcony, which raised an alarm concerning the l,ves and safety of the complainants lhus, once again or 28.09.2022 they reachcd out to the Respondent and demanded itrstant repairs ofthe samc.

N otably, all these cndeavors and requests made by the complaints fell oD the dearears or the Respondent and they did not take any corrective measures.

Events ol structural deliciency in tlrc project 'Ihat the phase - 1 rllottees took possession of their respective units in 2017 and iion the very initialyears oataking possession they obseNed .ertainstructuralissues in their .espective flats, such as cracks in ceilings ,rnd balconres, poor installation of floor tiles, deftection in balconies damp patchcs ctc.

Several cmails wc.e sent by the al)ottees oI the r.spective buildings and the RWA to the respondent in this regard. llowevcr, the Rcspond.nt iail.d to take any effective action despite numcrous rcqu.sts thcr.by putting thc lives olhund.eds ofallottees at risk.

On 21.07.2021. a portion of thc cciling icllin iront olthe lift lobby oi the lourth floor in Tower H.

Even though there was no casualty, a young *HARERA S-arnuennu child narrowly escaped f.om vtT I L\ x took no corrective measures to dealwith such grave structural defects. ln view of alore'stated serious struciural deficiencies and the non, responsive approach ofthe Responden!, the Secreta.y of the Residents' Weliare Association ("RWA") raised the issue ol structural saaety as an agendainameetingheld on02.09.2020withthe respondent.

Furtherthe RWA conducted a structural stability audit by 'Structure n Design ior Tower D and l.:.

D and l.:.'l'he findings ol thc said audit clearly stated that rhe buildings were unsaie ior residentjal purpose.

The findings ofthe report were brought to the notice ot the respondent and even then, the , r .polld ,nl Lr,leJ lu rakr dn, aclion on rhe sdme '1hat owing to th. lackadaisical approach of the respondent, a fatal rragedy occurred in Tower-D of the project on 10.02.2022.

An allottee of the u.it no.

D-603 was carrying out repairwork, undertaken by the sub- contractor of the respondent, then suddenly the said unit caved-in, .esuking in furdrercollapseorthc livrngroom ceilings of unrt nos.

D 503 D-403, D 303, D 203 and D-103.

Sorrowfully, the allottees ol un,t nos.

D 203 (l.4rs.

Ekta Bha.adwaj) and D-103 (Mrs.

Sunita Srivastaval were the victim to $rch structural deficienry and bu ilding instabihty and they lost Thaton 13.02.2022, the DistrictTown Planner IEnlorcement], Gurugram took cognizance ofthe matter and vide N,lemo No.

CN /D'IP-E /2022 / 676 dated 13.02.2022 has f,led an IIR No.

28at tsajghera policestation under Sections 120 B, .117, 420, 465, 467,46t) and 47 \ of the IPC along with Section 10 ol the Haryana Developmcnt and Regulation ol Urban Areas Act, 1975 against e Respondent and several others.

In the said FIR, it lvas nored drat the incident dated 10 02.2022 proves that the certificale ComplarntNo'r45 of 2024 the rncrdent srte Even then the respondent L]A&ERA GURUGRA[/ ComflJ'r rNo q45of2024 xl oistructure engineer and proolconsultant and work of the contractor is not credrt worthy and is rather iraudulent for the concerned project and the same shall be invest'galed into.

The respondent in the present case has obtaiDed the occu patio n ccrt ilicate/ completio n ce rtificate by playing a lraud upofl the authority and such occupation certificate/ completjon certificatearenon estintheeyesollawandhence,thepossessionoflered on the basis ofthese documenls is no possession jn the eyes of law. further, in viewofthe incidenr dated 10.02. ted 10.02.2022 at theproject,the DTP vide letter dnted 14.02.2022, appointed lndian lnstitute of Technolofv, Delhi, to provide their technical consultancy services for structural nability audjt ol the buildirgs jn the project and the causes of the incidents. lhus. ll'l' was app.inted to conduct the required tests and to send clenr recommendations as to; whether th€se building structures are safi for habitation, and il not, whether reparable along with indications of ihe methodology to be adoptcd lor such necessa.y repairs.

The DIP vrde ordcr dared 24.02.2022 appointed a SIT Committee inter-alia to supervise the resettlement of families residing in Tower D and to supervise the shifting of the lanilies in Towers E, F, G and H till the tlnalization ofthc auditgiven the trcithatthese towem were not sale for 'lhatthc I1T, vide its preliminary reportdated 12.03.2022,submitted that the burlding structures given the age were deteriorating rapidly than usual rate And in order to idcntiiy drc root cause nmongst issues relatcd to structural design, mate rial quility, aDd construction qualjiy, a detarled structural audit ol the siructures of the Project be carried out. lccordingly, on 20.9.2022 the IIT submitted its first report regardin8 Towcr D aDd subsequently on 25.10.2022.

Acting upon the tindings ofthe ltT *,HARERI. #"eunuennH,l )il XTV llT report on the unsafe structures of the project, the SIT commi$ee released a report on 08.11.2022, wherein the committee recommended to the DC to direct the Respondent to immediately resettle all the residents/allottees olthe Towers A, 8, C, E, F, C, H, and J as these towers were not safe for habitation, thereby puttingthe lives ofhundreds ofthe .rllottees in jeopardy.

Tower - C report on structunl condition date.l 26.06.2023 lhe followjng are the recommendations hom thc llT Delhi in its Structural Condition Repo.t dated 26.06.2023 on the Tower - C of the Project. e Project. lhe Structural Report of Tower - C clearly indicates that compronises were made by the respondentby using low gradeconcrete and untreated waterto construct the structures in the project in absolure violations of the provisions oi the Haryana Scheduled Roads and Controlled Areas Restrict'oD of Unregulated DevelopmeDt Act, 1953 as well as the licenscs granted to thr r.spoDdentby the authorit,es. l'hus, iI is evident drat the unit allottcd in the prolect is unsafe lor habitation as tbeappearances in case oicorrosion are deceptive- Further, the repair of project's siructurc lor safe usage is not technically and economically feasrble Accordingly, based on this rcport, the D'l'P vide Memo No GN/oTP-E/11914/2023 dated 21.07.2023 communicated to the District N.lagistrate, Gurugram for assessment ofthe project followed by annual That th. rcspondel! ha! nriscral)ly failed to develop the Project in accordance with the approvals granted, thereby.ompromising the structural stability of the building and making dre building uDsafe for hrbrtatio n i n cluding towerC.

Th e responden t has used th e same material rDd same processes/stnndards rn the construction ol Tower C .rs Complarnt No.

945 of 2024 HARER GURUGRAI\I ComplaintNo.94S of 2024 respondent did jn lowerD.

Hcncc, the Towerc is also unsaie for habitation and is bound to meet the same tate as Tower-D.

Needless to state that thc poor quality olconstruction of the buildings/towers of the project ar. uniform as the construction was done at the same time and the foundation for all the towers !!ere laid at the same time.

Thus, in no manner can thc rcspondcnt wrggle out from lhe present liability ol misrepresentinE and playing a fraud upon the innocent complainants.

It is only a matter of time in which the complainants Towerc may also .ollrpse Lhereby putting the lives olthe complainants at grave risk.

Miscel loneous problems lacecl by the.omplainants That apart tion) the slructur. slructur.rl delects, (he Complainants are also facing .

The complainants unit being located just a few meters from the TowerD, whc.ein activitics ol d.molition will takc place followed br re'construction worL makes the unit unfit ior peacefulhabitation as reprrsented in the brochurc and by the represenhtives ol the respondent at the time ofbookingthe unit, .

Iurther, the respondent has barricaded the Central Park, half ot the play nrea, hali basement, children's play area, badminton and basketball courts interal'a, scver.l in the guisc oi ensuring the salely of the residcDts and evcn barricaded half Ax appro.rch ro.rd ivithout thc .onseDt ol the allottees in absolute violation oithe provision underSection 14 (2) [ii) oitheActand othe] laws ofthe land.lnteresringly, the Responde.t is tilldate compelling the allottees inter'alia the Complainants to pay the entire CANl chnrges !vithout a ny proportion ate reduction in the sanre despite th. redu.hon in comnron arc. agrinst thcABA aDd lalvs ofthe land; .

Importantly, nfter the 1lT Report, the ComplaiDants are unable k, ca.ry out any rcpai. works in their unit as the same shall hinder the monitoring process ofthe rate olcorrosion, thus in such a situation, the Complainants are compelled to .eside in such unsafe structuftl without carryins out anv |epair workr and L1ARERA GURUGRA[/ Complaint No c45 of2024 puttinS the lives of the compla,nants at risk. lt is to be Doted that complainants are respected senior citizens of the society who I\'l \vll .

Complainants are living,n constant mental and emotional stress after the unfo.tunat. incidenr ol 10.02.2022, followed by IIT Report declaring the Com plainan ts' 1'oilcrC unsafe lor habitat. .

Whenever the Complainants rre pointing out Respondent's illegal conduct/ steps taken in the garb ofsafety ofallottees while inrer-alia illegnlly barricading the. ading the.ommon areas in thegarb of redevelopment, Respondcnfs stalland representatives are not only misbehavingwith the Complainants but also cxtcnding them ljfe threats ol physical injury, thercby crcanng d.ep fi'ar lor the salcty of their lives in thcx minds.

Ihe Complainants rcs.Ne their right to initiate appropriate legalproceedings against the Respondents, both civiland criminalin Itom the aforesaid, it is clear that the respondent despite being well aware olthc poor.nd subpar qu.lj!y otmaterial causjnB the structu.al dcfects, oiiered possession of the unjts in the project to the allottees including the present complainants.

At this juncture, it is noteworthy to highlight that the grave structural defects in tbe project are a matter of common knowlcd8e.

This Authority has acknolvledged that the units situated in the project are unsaie for habitatovring to structuraldeaects. ln these peculiar circumstances, wherein repeated requests, and rcpresentations for curing structural defects have beeD made by the complainnnts, the.espon(lent has f:ri1ed to carryout the necessarytimel) r.pairs olthe unit.

Now the Towerc is rendered inhabitable as reported by llT Delhi and the same is extrenely unsafe ior residential purposes, thereby have only after relying upon the brochur€ of the project and the advertisements made and the representation ofthe respondent, opted to book a unit in the project.

Thereafter, the complainants paid a huge consid€ration amountin a timely manneras perthe opted payment plan by inter - al,a availinghome loan from SBI Bank towards the Uniq which Compla nlNo.945of2O24 HARER GURUGRA[/ was supposed to be inherently structural stable and safe for habitation.

However, the respondent has played a fraud upon the complainants by fraudulently allotting a delective unit in the project.

The respondent has also grossly violated the agreed ierms ofthe buyer's agreement and the provisions of the Act, 2016 and other laws of the land. the land.

Under rhese circumstanccs, the complanr.Dls without prejudice to rheir rights aDd contentions inter alia seek refund ofthe amount paid from 22.12-2011 date oiactual payment with interest @18% p.a. lrom 22.12.2011 trll the date of actual payment.

Thus, considering the foregoing, the complainarts having left with no other option, on 12.02.2024, served a legal notice upon the respondents.

That the respondents responded tothe said legal notice vide reply dated 17.02.2023.

It is submitted that a hoUstic reaaling ol the reply rece,ved irom thc respon(lcnls amounts to admission to thc €xtent that the project rn question is structurally deficieDt and it iswithin their knowledge. ln light of the atoresaid, it may be pertinenL to refer to the relevanl provisions ofthc A.t, under which the remedy of the complainants'lies. 'lhe follolvrng provisions ofthe Acl deah with thc situation wherein, (il the promoter deceives the allottees to buy poor constructed units by inaking false statements/advertisements aDd misrepresentationsr and {iil allottee intends to withdraiv due to the failure of the developer to deliverto an auottec possession oi thc unilwhich is sale and habitable in .rccordance !1,th the terms olthe agreenrent aDd the section of 12, 14[3], l Lr(1) and [3), and 19(a) orthe Act oi 2016.

Thus, by the law of the land xDd the delinition as described Lrnder the Act, the Conplainants arc cntitled to re.civc inte.esr (r1Uo/o p.a. on the refund and other compensation as soughtin the present complaini. xv t \t\ ,\x Il.

Directthe rcspondent to pay the difference complainrnts torvards the diflerence rn the 2011 till liling of the present complaint.

Complarot No.945of 2024 c.

4. to Rs.2,73,42,000/' ro pay rhe inflation rate oithe unit irom IIl.

Direct dre respondent to pay Rs.32,03,316/- along with interest @ 18% per anDum hom the date of respective payments till actual payment to the complainants paid by thenr as interest towards the SBI home loan ,'vailed for pur. d for pur.hnsing thc unit; lV Direct the respondefll to pay Rs.5,U9,500/- along with interest @ 180/0 per annunr hom the date ofrespective pa).rnents nl1 actual payment to d1e complairants towards the stamp dury/regiEtration cost ofthe unit.

V Direct the respondcnt to pay Rs.20,37,203/ to the complainants to the renovalion lrork done b), the uDit.

Vl Direct the respondent to pay I1s.50,00,000/- to the complainants towards the mental agonyi 11ll.

Direct the respondent to pay Rs.1,00,000/- to the complainants towards the litigation cost 5. on th. datc olhca.ing, the authorily e!plarned to the r.spondent /promoter irbout the contr.rventions as alleged to have been cornmitted in relation to section 11[4) [a] ofthe Act to plead suilty or not to plead guilty.

That the structural strength and stability of the To\rer-C has been compromised by the presence oi excess chloride resulting in rapid corros,on and deterioration of the tower/building and the units therein- Atthisstage,itistobenotedthattheprojectpremisesfall underaSeismic Zone IVwhich is highly vulnerable to €arthquakes and residing in such a skucturally unsaie unit is a matteroigrave concern and putsthe lives of the complainants at grave risk.

Rcliefsought by the complainantsl 'l'he complainanls h.ve sought following relief(s): l.

Drrect th. rcspond.nt to relirnd thc entir. amount oi Rs 1,68,54,275l- along uith intcrcst @ 18% per annum from the date of .espective paynrents tillactualpayment to the complainants in terms ofapartment buyer's asree ent dated 03.05.2012.

D, 6.

Reply bythe respondent The respondent contested the complaint on the following grounds.

The submission made therein, in briefis as under - hstant complaintba.red by secdon 14(3) ofthe Act i.

That the complainant no.l was offered possession ofthe unit by way of P.

GURUGRAIT4 ComplaintNo.945of 2024 letter dated 29.06.2017.

9.06.2017. ln hght thereof the structural defect (if any] oushtto have been raised within 5 (five) years from thedate ofofferoi possessjon as per section 14(31 of th.

Act, which period expired on 29.06.2023.

Till date no grievance has been raised by the complainants in respecl ot any 'structu ral detect'as provided unde. the Act.

That clause 27 olthe buyer's agreement provides the mannerand form ot notices which would be deemed as proper notice in respect of matters related to thc blLycr's .rgreement.

Admittedly, no co.respondence was ever carried out by the complainants on the address provided by the respondents to the complainants to ra,se its grievance under the buyer's agreement.

That in Iight olthe foregoingfacts, it is most hunlbly submitted thatthe claim of the Complainants is barred under section 14t3) oi the Act, 2016.

I nstant .om plai nt b.r.ed in lightofclaus.lS ofthe buyer's agreement 'lhat clausc 15 of thc ADA rcads thus: ''15 force Mojeure Ewnts T he co nt bo nv sh d I I not be he I d ha b le ar res.nn\t hle f.r n n n. ne i.t h ino on! of its ablioatn,n\ ot thdefrokitgs lrovided in thk Agrcenent tf s ch @ sudt as non ovatlabilitu orat tntlet"ort \Lhnt! otsLeel ond/or cen tar ather buldng tnot.tiok o. wate.at dtecrric power ot labour,slow down, st.tke ot du. b .listute wxh th. .anntucton noencv ennlovPd hv the canrtanr la.k aut or ctvn.amnlat@, wur or ehen! dcrioh or b! rcoson aJ eanhquake, notot fp, oct ol Cod, tetrotirt octjon or b!reasonalchohse of law, oct hati]icoti.n, pr.hibitarJ, ardeL tule ol Covernment and/or dn! ir, :IARER GURUGRA]V Complarnt No q45 of2024 othet public at conpetenr outhotu! at due to delay n the gmnt of conpletion/occupan.t cettitaz by onr conpetent authotiy ot tJ .ohp.tent authony refutet delays, \|ithholds, denies the gtunt of neceserJ apprc@ts ol the soid Apartnenr/Building for ont aherid6, facilities intended to be neated therein or {on!

Dotte$, issues relating to such opptuvalz pmisiont notice by the conpereft authority authority bqone subject nottetolanr stit/w tlitisation behre o conpetent court orJor ohy teason betond the control ol the Conpah!, tn \rch "vent the CohMU sholl h.r he ljohle fnt onv conpensotion or donooes in dh! ndnnzt vhsll4ElcL (Emphasis supplied) v- That a perusal ot the above'quoted clause of the mutually rgreed buyer's agreement would revealthat no claim against the respoDdent no. l would bc nraintainable $rhere the same related to buildine materials and/or relating to the issues betlveen the respondent No.

1 and jts construction agcncy, i.e., Nl/s Bhayana Builders Pvt.

Ltd., which rs per thc .harge sheet filed by the Clll is responsible for the lapses in PhaseJ ol the protect. 'lhat iD I'ght ofthe foregoing iacts, 't is most humbly submitted thatthe darm of the .on)plainants is barred by claus€ 15 of the buye.s No privity of cohtract between the respondent nos.

2 & 3 and the 'lhat it is Dost humbly subrnitted, admittedly, the ABA came to be the respondent nos.2 and 3 under the complaint, without specitying their role in the alleged grievances raised by the complainants.

Instead without spccilfing exact facts and events that rcveal assign the role of cach olthc sard rcspondcnrs, an onrnibus statenrent has been made by the complainants against all respondents to seek reliel under the executed bctween the Complainants and the Respondent No.

1only. !ii i.

Ihat it is inconccivable that the .o nr plainants have sought .elief against HARERI, GURUGRA|V the reasons given below.

Co'nplaint No 'r45 of2024 ll, ( That in ligh t of the fo regoing facts, it is most hunr bly submitted that ex, /a.ie the insrant complaint is non maintainable qua the respondentno.

2 and 3 Copies of all the rel.vant documents have been filed and placed on the record.

The authenticity is not in dispute.

Hence, the complaint can be d.cided on the basis of thos€ undisputed documents as well as writien subnrissioDs made by both the parties. lurisdiction oftho autho ty Thc respon. hc respon.lcnt has raised a preliminary submission/objection the authority has no jurisdiction to entertain the present complaint.

The obj.ction of the respondent regarding rejection oicomplaint on grouDd oi jurisdiction stands rejected. lhe authority observes that it has territorial as rlell is subject matter lurisdiction to adjudicate the present complaint lor E.l Territorialiurisdiction As per notilLcatjon no.

1/92/2017-\1t:.P dated 14.72.2017 issued by Town an d Country PlaDning Department the jurisdicnon of Real Estate Regulato ry r\uthority, Curugranr shall be entire Curugram District aor all purpose with oflices situated in Curugram In the present case, the project in quest,on is sitLrated within th. planning area ol Gurusmm District.

Therefore, this authority has complete territonal jurisdiction to deal with the present E, Il Subiectmatteriurisdiction 10.

S.ction 11[4)[a) of the Act, 2016 provides that the promoter shall be rcsponsible to the allottees as per agreement ror sale. section 11(4)(al is rcl)roduced as hereunder; HARERI GURUGRA[/ (4)Theprc oter sholl.

Com.l.rniNo g4S oI2024 ll (u) be responeble Ior oll ablisotians, rcsponsibilities ond functions undet the provkions ol this ict ar rhe rutes ohd regulotians tuode theteunder a. ta the ollottecs ds pcr the asrcenent fa. sole, atto the ass..iadoh alotto e.r..thtrrte nay be,tittthe.onreyunce ofall the rr)u tnenrJ, platsot buthlna., d\t)1t Luse ndl] b!,tonteollotees otth. .on an opo\ to the a\tottut nn al u Itouees ar thc.onpetent 0uthoriLt-, atthe.osc tnoy be.

Section 34 - tuncti on s oJ th e Authonty: 34(l) ofthc tct ptovides b en\Lre .onpliohce althe obligotiohs cost rpon tha pto ote6, the allattecs dnd the rcal elore ogents under thi\ lct and thc trles and reauk ntl.tnadethe.euhlet So, in view ol the provisions of thc Act quoted above, the authority has conrplete jurisdiction to decide the complaint regarding non-compliance of obligat'ons by the pronroter leaving aside compensatjon which is to be d. s to be d.cided by the adjudicatingoificer ilpursued bythe conrplainants at a later l.urther, the.ru onty has no hitch in proceeding with the compla,ntand to 8r.rrt a relielolrelund in the present matter in view ofthe judgement passed lrv thc Hon blc Apex Courtin Ne$ ech Promoters and Developers Private Litnited vs Stote ol U.P. ond o's.

2020-2021 (1) RCR (c), 357 and reite,ated in cose af M/s Sana Realtors Private Limited & other Vs Union of tndia &others SLP (Clvil) No.

13005 ol2020 decided on 72.05.2022, wh.,ein it hns heen l.id down as under: " . trcn the schene of the Act afwhnh a deqiled reference hos been hdde and roking note of powet ol odjudicotlon <lelineated with ,he resutotory outhotiryand adjudnotinso!trc.., whatfnatU cutk out is rhat althoush the Act indico@s rhe distinct expressons like'refund, tnterett', 'penokt ond conpensotion', o conjoint rea.ling aI Sections 18 and 19 cleo tly tndnifests that \|h.n it cohes to refund ofthe ohount, ond intercst oh thercJundonount or directi,tg poq.nt ofinte.est for deloyed delivcry of passe ssi on, ot p. na 1 q o nd i n te ra n the tdn, i t i s t he rcgu lotory outhoity whtch hds the power to eNonine ond deternine the outcone ofo conploilL At the sohe tine, when it con6 to a question ol eeking rhe relief ol od)udgng conpehetion ond interen dereon under Sectiont 12, 14 1A ohd 19, the odjudicarins oJlcer exclunvety has the powd to detemine, keeping in view the col{tive readingofse.lionTl.eod ehh Section 72 ol the Act. tthe adjudtcation unaer Sections 12,14, 18 ond 19 ather thon HARERA GURUGRAN/ a.dr.L:lntN.

94Sof 2024 conpentotion os qvisoged, il extended to the adjudicoting ofvq os p.oJed thoa in our view, moy inEnd to dpond the onbit ond rcope olthe powe6 ond lunctiors al the odjudicotins ollcer under section 71 dnd that would be agoinstthe nondotealthe A$ 2A16 13. $ 2A16 13.

Hence, inview oFthe authoritative pronouncement ofthe Hon'ble Supr€me Court in the cases mentioned above, the authority has the jurisdiction to entertain a complaint seeking retund oi the amount and interest on the [, Firdingson the relief souShtby the.omplainants E.l Direct th€ respondent to refund the cntire amount of Rs.1,68,58,275l- along with interest @ 18yo per annum f.om the d3te ot.espective paynenis till actual payment to the complalDants ln tefins of apartment buyer's agreement dated 03.05.2012.

E.u Directthe respondeDtto pay th. differen.e to Rs.2,73,42,000/- to pay the complainants towards the diffcrence iD the iDflation mte of the unit from 2011till filing of the prcsent complaiDt, E.lll Direct the respondcnt to pay Rs.32,03,316/- along with interest @ 18yo per aDrum from the date of respectlve payments tlll actul payment to the cohplainants paid by them as lnterest towards the SBI home loan availed for purchasing the uDit E.lv Direct the respondentto pay Rs.5,89,500/- along with interest @ 18% perannum from the date otrespcctive paymcntstill actual payDentto the complainants towards the stamp duty/reglstration cost of th€ uDit E.v Directthe respondeDtro pay Rs.20,37,203l- lo the complalnantitothe renovatloo work done bY the unit E.vl Direct the .espondeot to pay Rr.50,00,000/- to the complairants towards the mental agooyj E.vtl Dlrect the respondent to pay Rs,1,00,000/- to the complalnants towards the litiSation cost 1 4.

0n bare perusal ofthe documents available onrecord the Authority obserues that the complainants were allotted a unit bearing no.

C_604,6d floor, in 'lower C, of the project of the respondent company namely, "Chintels Paradiso" situaled in Sector- 109, Gurugram vide allotment letter dated 24.02-2012.

An apartment buyer's agreement was e*ecuted between the parties herein regarding the subject unit on 03.05.2012.

3.05.2012.

As per clause 11 or the buyer's agreement, the respondent company was under an obligat,on to l5 S HARER' S-qrnrnnnv handover the possession within 36 months with a grace period of6 months lronr the date ofstart of actual construction of a particular towe./building. 'l'he due datc ol posscssion is calculated lrom the date of execution ol ap.ilment buyer's agreement dated 03.05.2012.

Therelore, rhe due date oi possession comes outto be 03.11.2015 including 6 months grace period.

The respondent/promoter has obtained the occupation ce.rificate from the conrpetent authorit_v on 20.06.2017 and thc physical possession of the unir was handed over to the complainants/allottees vide possession letterdated 12.05 2018 Also, the conveyance deed of the subiect unit was executed bctlvccn the complainant and the respondent/p romoter on 05.07.2018.

At this laicr stage, Ihe complairaDts wish to withdras,hom the prolect oiling to the substandard quality of material used ior construction of building rn which unit ofthe complainants is situated.

Such a use ofinlerior mrterials by the respondent, have culminated in grave structural dciiciencies adversely aflecting the stability and salcty of the project.

Substantiating the same, Prol S.

Bishnoi, Prof.

D.R.

Sahoo and Prot V. i\lrisagar Department oi C,vil Engineering of the Indian lnstitute of 'll,chrolosy, Dclhi []lT Delhi) pr.pared a report on slruclural condition of th. project Chintels Pdradiso situated at Scctor 109, Curugram (Tower C) Thc lindnrgs of the said audit, highlighting signif,cant structural iDadequacies, we.e submitted to the District Town Planner (Enlorcemen0, Curugram, on 26.06.2023.

Pata 7 ol the report on structural condition of Chintels Paradrso Sector 109, cLrnrgr.rn ['l'o!ver C) ,s reproduced herein Alter peru lofthe ltl L)elhi repara .ttizen conplotnts, statenents ond records rt vi.ted b! voriaus nokehot.ters the c.nnitee k ol the latlowing opinions. t A\ Fct tt t Delht t epart, the stucture ol Towe. e ol Towe.

B and Towt c ore sot for ho b )totion o r p tese nt b u t d u. tn h kt h.h toride t on Le nt t n the eon crete thtu )ohart tlk,\trcttrt, th( atrLntt will deteriorote tn d pottern *HARERA S- eumtennvr uhb{bahs ol o *obte Rcc !tucture Pcoan.nds th.

Jot tow na_ b tt,,\", h_ t" nr d a" nl,a,, a.,rted oaav" h qo, 1., oqe .not I t I ip:it t ::,1: Lt:.tdh, \ " d. h .4t u, ^ Nud b ab4r 4, dfi ,n *,"t,.,,,,,", :n": ,,,""i,,i, ii,,;.:";:,;.:,::; ::",'.i,:;:;,::.,..i""; o q"u tower e\?t) t, ludt tt,a*t _. ., "" r,- "-**,"" 4,, ,"). duuq p,t h Rw4 6 wq o.

DTp "n. " n,. _ . _,,. * " ",., ",,i,, t!pn.t.thebuiltetrhatttu pensate.heowh ,ai a \ i, 4 40@ be. de. t t ed,",.,.,..;.:,:i: * * ^. - *, r',4? npa4t tap t h. britJpt o, tp * ; ^d-1,.

N.. ", _d. hr ".r, , . t,r,,btot,"pot \rhon t\4 perh.,on at the Ada_n-,r han atth? oD.4tor Lhat hnth,hp conrou.tioa ogcn.y ond l,"y::e,:,.t::t:! :r il,urc cuotitv rcn!rudton ,F", icaen\on i:;;:;, ";i1:i ;i:: :i;"f i; :o'l't'- ot "t"' ao''t' no'","'.' i" rau@d lructurol sofety ot thi bw?r e been vitot n ensurins the 16.

Furrher, the retiefoirefund cannor be soughtbythe cohplainants at su.h a belated staee wherein occnparion cenificare was obtained bv the rrsponoerl o1 2006.20t- Tterpdne.,pedceru, posrc\. ororthp unuwr\ also taken over by rhe complajnants on 12.0S.2018 wirhout any p.otesr. h is pertinent ro mention rhar the corveyance deed had ako been executed betlvee! rhe panies on 05 O7.2O1g 17.

Moreover, clause 2 ot rhe conveyance deed dared 05.07.2018, specrficaly mentjon thar the .onsr.u.tion ot the said unir was as per the a8.eed spe.ifications ahd ro the satistacrion of the.omplainants/rendee and rhat the cohplainanrs/ven.tce shailnot.ajse any ctarm whatsoever againsr the respondenr/vendo. in .espect ofany detects or deticjency ih cohsrru.hnn o-dIlrt ot rne marp,rJt uspt L.,u\e 2 or rhe.onteyrn(e de.,j dared rherelar? rhe ehntke !,:i:!,:i,;,, :y:;,: ::!-.:twr c shat b. o$*kd. h tieht at the Ii::;:!. e Ii::;:!.::: ":!:: !: :,*, ", ;";;;:; ;L;;;;7; ;;'|:':,7"1:; ::::. !: : ::: ! ^ ": ;: " " ",^ ": i ; "k;;' ; f, ";7: ; ;',":,:i " ;: ii::x::'::::":i!.:!:, :,*:"," *,,;' ;; ;t"; ";;"' ;,;";,:";; stru.turot [email protected] this_i, re^iu", a* "" t,ii,il,iil i,l,,ji#.,l ro n ow t h e k s ru cti o 6 ot s ; c h op " ;;t ; ;; ; ;; ;' ; ; ;;;i. ::#;tr; "z *HARERA -s- eLrnrrcnnur 05.07.2018 is therefore retevant and reproduced herern for ready That the VENDAR hos hotued aver theva.ont ond phyr.alp\rerion oJ the p.apeny nentioned abare to the vendee ||ih ott ii "stt,, ",la p-rivi t esd tu lo t he t d a n d e njalet) br th e venda r k h atd o nd e nioi t h? so ne lotevet ffte lron att. rcunbron@, *no*.",", n " v",a"",,i".*t"ag", thot vendee h6 tokeh Net aJ po$esior ol the sad prcpe! ondias further.anlimted thot o the fixture\, fttinss ore n order ond furrher conltus and dck.owtedses thot the @neruction ofihe sai.t iar is 6 pe. osrad rpecilco ons ond ts to th. sdtisJaction olthe v.;dee ond that the vend@ sholt not rdise ony clain whdbo;ver ogoinst th. vendd n rcspnt ot aw deltB ot .t.li.hntvtn rcnnuai;n. q,arity olthe nat?ttor utedoton a.nunt ot ohyttptar,rn 18, The Authoriry obsetues rhar rhe ritle ofthe above propertv alorted to ihe complainants has been duly transferred ro the complaj.anis through the above.onvcyahce deed.

In view ot the above,no case for refurd is bade our under the provisions ofthe Se.tion 18 ofthe Act, 2015 as the same can only be invoked in case tle promore. fails to complete or is unabte to grve possession olan apartment or burtding,n accordance with the rerms oI aEreemenr of sale or, as rhe case may be, duly coopteted by the date spe.ified therein.

Nor is there any deiecrin rirle forwhrch ihe complajnants can be cohpensared.

Itowever, it rs retevantto.eferto Se.rion 1r[a) {a] read w'th Section 14(3) ol the Ac!

2016 in the present matter whrch srate as 141) (a) sho b. respm\ibt. kt dtt obttsati)ns.

Elponsibihhe! atd fundions lntter th. prtui\joh\ ot thn a. ot thn a.r at thp tut6 dnd rcsutad;ns nad. th*eund{ ar b rhe altatee\ os pet th? ageenem lat sot., ot ta the ^endbh ata otee,6the \e na, be,tilt.he.onvewn.eaJo the apoth?r6, pta6 ot bttkttnls, o, the eoy hor be, ta the d atu;s, ar rht ronnar e, r, the 6h! ior atolon.s arrhe.anpednt outhotit, as the .ase ,no, b.

Pra|]ded thot the re\pansibrir, oJ th? p.onotut, wnh respe n,$e itktoiQl delen t !n! hetd4tthr th Nriatl 6 ts rekned to n sub edian (3) at n.tar ll,,ho .anhhue cven dftt.te.or!?vanc? altod?e d..a, i?d ''section 14: Adherence to sohctioaed ptons and prcject speciJications hy the prcnotet il HARERA GUllUGRAIV (2 )............ _. _._._- {7t ta a.eoay(tu" at o?b"t or o, t othtt d?t"r.n wot4nanrhtD qLdhn at prot.\.aa dh", "hr,"",,"". :, ,:. pto4ak.a\ pe.rheoa..rne ra, *+ *t"*,. .i ii.,ne.),, n brourht to the notre at rhe;rmob b,,."-.u,,, ". r,:.: ; ;" d ;,;, l,; ;:;i:".i ;:i:.y;:: ;:: i [;; i;i;:, r'., ut ,nc Druhatrt ta t,.utu \b h 44( u ^ huut tb4n?t .harup. *,t_t,,n rt,r1 aoy, *a _ t " iun, q _ ".. *., n,t, ",, *"^,,i, ) dcte L ith,n.u.h 1te_ tN @a,,.*r.,,.,,""., ,;;.;;",,,,;":;,,; recewto,pprupriak anuuetkn in the nonher os provided under 19.

In ljgbt otthe above, the promoreris Ii.ble for srructural defect o. ahv other d-tecr ever afrerere._uon ot.onveyance deed tor,Jch ptrrud d. pro{n@d undersub.section [3) of secrioD t4 of theAct2016 Therefore, though rhe reliet of refuhd is not maihtainable before the AuthoriS,, bur the complainanrs are attibertyto approach the Adjudicaring Officerin terms of Sedion 14[3) ofrhe Ac!

2016.

OrderaccordjnAly.

Compl.intasweUasapptications,itany,sranddisposed offa.cordingly.

File be consigned to reg6try (Yllay l.umar coyat) HaryaDa Real Datedr 20.05.202r tArun xumar) Estate R€Butatory Authoriry, Curueram