ROSY RALHAN AND ANUPAM RALHAN vs SAI AAINA FARMS PVT. LTD

OUl?UGI?AM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.

F'?::;:lJTi"""#'',]i'"' Order pronounced on Ms.

Rosy Ralhan and Anupam Ralhan Resident oft House no.

C-322A, Ground Floor, Sushant Lok Phase-1, Gurugram- 722002 HAl?TtlA M/s Sai Aaina Farms Private Limited Regd. office: 302A, Global Foyer, Golf Course Road, Sector 43, Gurugram- 1,22009 CORAM: Shri Ashok Sangwan APPEARANCE: Sh.

Garvit Gupta (Advocate) None Complaint No.

1183 of 2024 1183 of2O24 02.04.2024 L0.07.2024 02.07.2025 Complainants Respondent Member Complainants Respondent ORDER 1.

The present complaint has been filed by the complainants/allottees under Section 31 of the Real Estate (Regulation and Development) Act,2016 (in short, the Act) read with Rule 28 of the Haryana Real EstaIe fRegulation and Development) Rules, 2017 (in short, the Rules) for violation of Section 11[ )(a) of the Act wherein it is inter a/ia prescribed that the promotcr shall be responsible for all obligations, responsibilities and functions under the provisions of the Act or the Rules and regulations made thereunder or to the allottees as per the agreement for sale executed inter se. [)age 1 of 2O t/ HARTRA Complaint No.

1183 of 2024 GURUOl?AM A.

Unit and proiect related details: 2.

The particulars of unit details, sale consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Sr.

No.

Particulars Details L.

Name and location of the project "Mahira Homes" at Sector 68, Gurugram, Haryana 2.

Nature of the proiect Affordable group housing colony 3.

Proiect area 9.96875 acres 4.

DTCP license no.

L06 of 2017 dated 22.12.201,7 5.

Name of licensee Mohan investment and properties pvt.

Ltd. and others.

6.

Date of cancellation of license no.

106 of 201.7 09.05.2022 (Taken from another case of the same project i.e., CR/3322/2023 decided on 11.03 2025') 7.

2025') 7.

RERA Registered/ not registered Registration revoked by the Authority vide order dated 11,.03.2024 B.

Allotment letter dated 11.08.2018 (page ?9 of complaint) 9.

Unit no.

H-702, tower H, Seventh floor (page 34 of complainr) 10.

Unit area admeasuring 535.65 sq. ft. (carpet area) 99.94 sq. ft. (balcony area) fpase 34 of comolaint'l L7.

Date of building plan approval 23.02.20L8 (As per information provided by planning EIAlltr of the Authoriry) t2.

Environmental clearance dated 05.06.2018 (As per information provided by planning Branch of thq Authority) 13.

Execution of BBA 13.08.2018 fpage 3t of complaint) 14.

Possession clause as per BBA 8.

Possession "8.1 Subject to force majeure circumstonces, intervention of statutory authorities, receipt of occupation certificate and Allottee having timely complied with all its obligotions, formolities or documentation, as prescribed by PromotellDeveloper and not beina in )_eJn,L!

Page?of20 1 HARERA GURUGRAM Complaint No, 1183 of 2024 default under qny port hereof and ApartmenL Buyer's Agreement including but not limited to the timely pqyment of instalments of the other charges as per the payment plan, Stomp Duty and registration charges, the Promoter/Developer proposes to offer possession of the Said Apartment to the Allottee within a period of 4 year from the date of approval of building plans or grant of environment clearance, (hereinafier referred to as the "Commencement Dote"), whichever is later." (Emphosis supplied) paee 40 of comolaintl 15.

Possession clause as per Affordable Housing Policy, 201,3 1(ry) of the Affordable Housing policy, 20L3 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 rs later.

This date shall be referred to as the "date of commencement of project" for the purpose of this policy. is policy.

The licenses sholl not be renewed beyond the soid 4 years period from the date of commencement of proiect.

16.

Due date of possession 05.12.2022 (calculated from the date of approval of building plans)[an extension of 6 months provided in view of HARERA notification no, 9 /3-2020) 1,7.

Basic sale consideration Rs.21,96,572/- (As per payment plan at page SS of complaintl 18.

Amount paid by the complainant Rs.18,07,613 /- (as per S0A dated 1.1.08.2021 ar page 66 of complaintl 19.

Publication in newspaper "Punjab Kesari" 2L.08.2021. (page 40 of complaint) 20.

Cancellation Letter 2L.08.202r (page 67 of complaint) 2t.

Occupation certificate Not obtained 22.

Offer of possession Not offered 23.

E-mail sent by complainant to respondent asking for refund 09.06.2023 (page 72 of complainr) Page 3 of 20 ,/ ffi ffi 24.

E-mail by respondent to complainant informing that their accounts are on hold by HRERA and they will updated cheque collection date once matter related to accounts is resolved 09.06.2023 and 20.07 .2023 (page 73 and74 of complainr) 25.

E-mail by complainant to respondent asking for refund of amount paid by them 03.02.2024 (page 69-70 of complaint) 25.

E-mail by respondent to complainant informing that it will take 120 days to refund the amount as per BBA entered between them 03.02.2024 (page 70 of complaint) wir cqdffi ffi HARERA GURUGIIAM Compf aint No.

1183 of 2024 Facts of the complaint: The complainant has made the following submissions: - That the respondent offered for sale units in a group housing project known as 'Mahira Homes' which claimed to comprise of multi-storied apartments, residential units, car parking spaces, recreational facilities, gardens etc. on a piece and parcel of land situated in Sector 68, Village Badshahpur, Gurugram, Haryana, t220t\.

The respondent had also clajmed that thc DTCP, Haryana had granted license bearing no.

106 of 2017 dated 22.1,2.201.

2.1,2.201.7 in accordance with the provisions of Affordable Ilousing policy, 2013 for development of Affordable Group Housing Colony. 'l'his project was later on registered vide registration certificate No.

21. of ZO1B with the Authority.

However, the registration of the project in question has been lapsed.

That the complainants, induced by the assurances and representations made by the respondent, decided to book a residential unit in the project of the respondent in the month of February,20lB.

The complainants made a B.

3. a) b) Page 4 of 20, HARERA Complaint No.

1183 of 2024 ffiGUI?UGRAM payment of Rs.

L,12,000/- at the time of booking and the respondent accordingly issued a receipt dated 23.02.2018 acknowledging rhe said payment. c) That after draw of lots conducted by the respondent on 27.04.2018, the respondent allotted a 2BHK unit type- B bearing no.

H-702 in tower-tl admeasuring carpet area of 536.65 sq. ft. in the said project ro thc complainants.

The respondent intimated the complainants about the said allotment vide allotment letter dated 11.04.201,8. d) That a copy of the buyer's t was shared by the respondent with e) the complainants.

The complainants made it clear to the respondent that the complainants required the unit in a time bound manner for their own use and occupation and of their family members.

This fact was also specifically brought to the knowledge of the officials of the respondent who confirmed that the possession of the apartment would be positively handed over to the complainants within the agreed time frame.

That the respondent was in a completely dominant positron and wanted to deliberately exploit the same at the cost of the innocent purchasers including the complainants and the same is evident from a bare perusal of clause 2.1,1, and 2.1"4 of the said agreement.

That prior to the signing of the said agreement, complainants had madc payment of a significant amount. nt amount.

Since the complainants had already parted with a considerable amount, they were left with no other option but to accept the lopsided and one-sided terms of the agreement.

Ilcncc thc buyer's agreement dated 13.08.2018 was executed between the parties.

That the complainants believing the assurances and representations of thc respondent continued to make the payments against the said allotted unit as and when demanded by the respondent and as per the payment plan s) Page 5 of20 , HAREt?E Complaint No, 1183 of 2024 GURUOl?AM annexed with the agreement dated 13.08,2018.

The complainants have made all the payments without any delay or defaults in making the said payments. h) That as per clause 8 of the agreement, the possession of the unit was to be handed over by the respondent within four years from the date of approval of building plans or receipt of environment clearance, whichever was later .

The building plans of the project in question was approved on 23.02.201,8 and thus, the due date to handover the possession of the allotted unit elapsed on23.02.2022. i) That, the respondent failed to intimate the complainants about thc construction status of the tower in which the unit allotted to the complainants was located.

However, the respondent in order to somehow create false evidence issued payment demands which were time linked as per the payment plan laid down in the Affordable Housing Policy, 201,3.

When the complainants confronted the respondent, no proper reply was received nor any latest status of the construction was given to thc complainants.

The complainants were left with no other option but to themselves visit the site in the month of f une, 2021, to check the status of the construction on site.

Upon reaching the site, the complainants werc shocked and appalled as they saw no construction was going on in respect of the tower wherein the unit of the complainants was situated and thereby giving the impression that the respondent had abandoned the pro ed the project. j) That since the respondent had not even started with the construction of thc tower in which the unit allotted to the complainants was located, the complainants requested the respondent telephonically, and by visiting the office of the respondent to update them about the date of handing over of the possession.

The representatives of the respondent assured the Page 6 of2O w ffi HARERA ffiGURUGI?AM complainants that the possession of the unit would be handed over to them shortly and that the construction of tower 'H' in question would commence very soon.

The respondent continuously misled the allottees including the complainants by giving incorrect information and timelines within which it was to hand over the possession of the unit to the complainants.

The complainants informed the respondent that on account of the said lapse on the part of the respondent, the complainants would not make any further payment till the time, the respondent completes the super structure of the Complaint No.

1183 of 2024 payment demands against time linked tower in question. k) That the respondent kept on payment plan even when the construction was not even happening.

One of the payment demand dated 27.03.2021 was sent by the respondent to thc complainants during the Covid 19 pandemic period when the said pandemic was at its peak.

When the complainants yet again enquired from the respondent about its modus operandi of issuing payment demands without any corresponding construction, it was informed that the same was being done by the respondent in order to comply with the provisions of thc Affordable Housing Policy, 2013 and that no coercive measure would be taken by the respondent if the complainants make the payment only aftcr completion of the structure of the tower by the respondent.

I{owever, the respondent requested the complainants to make payments, if it was possible to help the respondent maintain its cash flow during the Covid time period. me period.

Although, the complainants had no trust but yet in orcler to prove its bonafide that the complainants were very much interested in the unit in question, made part-payment of Rs.

3,00,000/- on 1 1,.06.2021. l) That the complainants have made a payment of Rs.

1,8,07,613/- out of thc total sale consideration of Rs.

21,96,572/- as per the payment plan shared PageT of20 ,/ HARER& Complaint No.

1183 of 2024 GUl?UGRAM by the respondent without any delay or default on the part of the complainants.

The said fact is evident from the Statement of Account sharcd by the respondent dated II.OB.ZOZI. m) That when the complainants confronted the respondent, it was assured by the respondent that additional benefits in the form of delayed interest as per the provisions laid down by RERA Act, 2OL6 would be given to the complainants on account of the number of days of delay of the respondent.

However, yet again, the assurances turned out to be false.

Despite receipt of payment by the complainants and despite being aware of its own defaults to even commence the construction of the tower, the respondent took a complete U turn and issued a cancellation notice dated 21,.OB.ZOZ1 stated to be as per the provisions of the Haryana Affordable Housing policy, ZO7:1.

The fear of the complainants turned out to be a reality wherein it now became evident that the respondent has throughout been trying to mislead the complainants by asserting false assurances and representations.

Thc complainants are nothing but victims of misrepresentation on the part of the respondent. n) That the complainants visited the office of the respondent to seek refund of the total amount of Rs.

18,07,61.3/- alreadv paid by the complainants,.l.hc respondent vide its mail dated 28.02.2022 informed the complainants that the complainants can follow up with its representatives and accordingly the refund would be initiated.

Subsequently, the respondent vide its mail datcd 07. datcd 07.032022 informed the complainants that the complainants would require to deposit the hard copies of certain documents and thereafter, the refund process would be initiated. o) That the complainants subsequently based on the aforesaid mail of thc respondent dated 07.03.2022 arranged the documents as stated by thc Page 8 of20 / ffi& svlq q[a HARERA GURUGI?AM Complaint No.

1183 of 2024 p) respondent and vide its email dated 08.07.2022 requested the timeline and the process for submission of the documents for the purpose of processing the refund.

It is pertinent to mention herein that the representative of the respondent had informed the complainants that the respondent had, after the cancellation of the unit has already created third party rights over it by selling the same to some other allottee.

The complainants reminded the respondent vide the said email dated 08.07.2022 that it is the complainants who have suffered on account of illegalities and defaults of the respondent, The respondent vide its email dated 1,1,.07.2022 admitted the fact that refund of the amount is to be given to the complainants but at the samc time, the respondent informed the complainants that the refund of thc amount would take 120 days.

That the respondent despite evidently admitting that the full amount would be refunded to the complainants miserably failed to do the same, and thc complainants were again constrained to visit the office of the respondent to inquire about the same.

On 08.0 9.2022, the complainants provided the entire set of documents that were demanded by the respondent and thc same is evident from the checklist of refund duly signed and acknowledgcd by the respondent.

The complainants through several meeting and telephonic conversations inquired about the status of the process of refund and vide their mail dated 09.06. ted 09.06.2023 requested the respondent to refund the amount paid by the complainants at the earliest as the documents as demanded by the respondent have been submitted by them duly as and when demanded.

That despite specific admission, the respondent has till clate failed to remit the amount to the complainants.

The complainants have been chasing thc respondent and requesting the respondent to inform them about thc q) Page 9 of20 ffiHARERA ffieunuennH,r current status of the refund process and to refund the entire paid amount as soon as possible as the complainants are continuously suffering on account of the withholding of money on the part of the respondent.

It is submitted that vide email dated og.06.2023, the respondent informed the complainants that the bank accounts of the project in question have been kept on hold by this Hon'ble Authority and that the respondent would update the complainants about the cheque collection date soon.

A similar email dated 20.07.2023 was again sent by the respondent to thc complainants.

That the respondent had failed to keep pace with process of refund and the said project is far from completion and thus, the respondent will not be able to deliver the possession.

It is abundantly clear that the respondent has played a fraud upon the complainants and has cheated them fraudulently and dishonestly with a false promise to complete the construction of the project within the stipulated period.

That due to the fault of the respondent, the complainants have been deprived of a roof over their head for a long time and have suffered very badly.

The respondent has violated several provisions of RERA 20,16 and Haryana RERA Rules, 2Ot7 and is liable for the same.

As per section 1B of RERA 2016 and Rules 15(1) and 15(3) of Haryana RERA Rules, 2017, respondent is liable to pay interest for every month of delay till handing over of possession. ossession.

That as per Section 1'2 of the RERA Act,2016, the promoter/respondent is liable to return the entire investment along with interest to the complainants for giving incorrect, false statement.

That it is submitted that the project is an ongoing project and hence falls under the first proviso to Section 3[1J of RERA 201.6.

The complainants Complaint No.

1183 of 2024 r) s) tl u) Page 10 of2O ffi ffi w{s oad HARERA Complaint No.

1 183 of 2024 GUl?UGRAM believe that no occupation and completion certificate has been issued for the project in question till date and hence this project falls clearly under the jurisdiction of this Hon'ble Authority.

The respondent in utter disregard of its responsibilities has left the complainants in the lurch and the complainants have been forced to chase the respondent for seeking relief.

That the cause of action for the present complaint is recurring one on account of the failure of the respondent to perform its obligations within the agreed time frame.

The cause of action again arose when thc respondent failed to hand over the possession and finally about a week ago when the respondent refused to refund the amount paid with interest amount and compensation.

The complainants reserve their right to approach the appropriate forum to seek compensation.

Relief sought by the complainants: The complainant has sought following relief(sJ: I.

Direct the respondent to refund the total amount paid by thc complainants along with interest at the prescribed under RIIRA Act, 201,6 and Haryana RERA Rules, 20L7 to be calculated from date of each payment till the date of realization of the amount.

II.

Direct the respondent not to terminate the allotment and create third party rights till the time the principal amount along with interest is paid to the complainants.

III. ants.

III.

Pass an order imposing penalty on the builder on account of various defaults and illegalities under RERA Act,201,6 and the same be ordercd to be paid to the complainants, The present complaint was filed on 02.04.2024 and registered as complaint no.

1183 /2024.

Notice sent to the respondent through e-mail ([email protected]) was duly served on 03.04.2024.

Notice sent to the v) C.

4.

5.

Page 11 ofh} y' HARERA ffiGURUGRAM respondent through post [EH0760899701N) was duly served on 09.04.2024.

As per the registry, the complainants sent a copy of thc complaint along with annexures via speed post as well as email.

The tracking report for the same was submitted by the complainants along with the complaint. on 10.07.2024, the respondent was directed to file a reply within the stipulated time period subject to cost o Rs.5,000/_. on 09'10.2024, the respondent was given another opportunity to file a reply subject to additional cost of Rs.

5,000/-; however, the reply was still not filed.

However, despite specific directions, the respondent failed to file a written reply and did not comply with the order of the Authority.

This indicates that the respondent is intentionally delaying the proceedings of the Authority by failing to file a written reply.

Therefore, the defence of thc respondent is struck off for non-filing of the reply vide order dated 02'07.2025, and the matter is being decided based on the facts and documents submitted with the complaint, which remain undisputed.

Copies of all the relevant documents have been filed and placed on thc record' Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission madc by the complainants. furisdiction of the authority The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

D.I Territorial iurisdiction As per notification no. l/gz/2017-1TCp dated 14.1,2. ed 14.1,2.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estatc Regulatory Authority, Gurugram shall be entire Gurugram District for all Complaint No.

1183 of 2024 6.

D.

7.

B.

Page l z orz{ HAl?ERA Complaint No, 1183 of Z0Z4 GURUGl?AM purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram District.

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

D.II Subject matter jurisdiction 9' Section 11(a)(a) of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 1I(4)(a) is reproduced as hereunder: Section 11 (4) The promater shall- (a) be responsible for atl obligations, responsibilities and functions under the provisions of this Act otr the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to th,e association of allottees, as the case may be, til the convq/ance of alt the apartments, prots or buildings, as the cose may be, to ihe artottees, or the common areas to the assoclati,on of allottees or the competent authority, as the case may be; Section S4-Functions of the Authority: 3a(fl of the Act provide.s to ensure compliance of the obligations cast upon.the promoters, the allottees and the reaf estate olgrnt, under this Act ond the rules and regulations made thereunder.

10' 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 bc decided by the adjudicating officer if pursued by the complainant at a larer stage.

L1' Furtherl the Authority has no hitch in proceeding with the complaint ancl to grant a relief of refund in the present matter in view of the judgement passed by the Hon'ble Apex Court in "Newtech Promoters and Developers Private Limited vs stat ed vs state of u.P. and ors." (supra) and reiteroted in case of 'M/s Sana Realtors Private Limited & other vs llnion of India & others,, SLP (Civil) No.

13005 of 2020 decided on 72.05.2022 wherein ft has been laid down as under: Page 13 ,f 2{ w iA*lS& 8d[t&J wlq qcd ffiHARERA ffiGuRUottAM Complaint No.

1183 of 2024 "86.

From the scheme of the Act of which a detailed reference hos been made and taking note of power of adjudication delineated with the regulatory authority and adjudicating officer, what finally culls out is that although the Act indicates the distinct expressions tike 'refund', 'interest', 'penolty' ond 'compensotion', a conjoint reading of sections 18 and 19 clearly manifests that when it comes to refund of the amount, and interest on the refund omount, or directing payment of interest for delayed delivery of possession, or penalty and interest thereon, it is the regulatory authority which has the power to examine and determine the outcome of a complaint.

At the same time, when it comes to a question of seeking the retief of adjudging compensation and interest thereon under Sections 1.2, 1.4, 1.8 and 19, the adiudicating officer exclusively has the power to determine, keeping in view the collectlve reading of Section 71. read with Section 72 of the Act. if the adjudication under Sections 12, L4, 18 and 19 other than compensationt qi envisaged, if extended to the adiudicating officer as praJtCd that, tn our view, may intend to expand the ambit and scop1e of 9ne p,oweg and functions oy the odjudic'ating officer under Section 71 and that would be against the mandate of the Act 20L6." 12.

Hence, in view of l.herauthoritd66,pronouncement of the Hon'ble Supreme Court in the case{meptioned above, the authority has the jurisdiction to entertain a complrifitliseelring refund of the amount and interest on the $ refund amount.

E' Findings on the relicf.sought,bylthe complainants.

E. inants.

E.I Direct the respondent to refund the total amount paid by the complainants along with interest at the prescribed under RERA Act, 2016 and Harfrtq RFRA Rtrles.; '17 to be calculated from date of each payment till the date of realization of the amount.

E.II Direct the reffgrihent not ttite'iriiinrtO the allotment and create third party rights till the time the principal amount along with interest is paid to the complainants.

E.III Pass an order imposing penalty on the builder on account of various defaults and illegalities under RERA Act,20L6 and the same be ordered to be paid to the complainants.

L3.

The above-mentioned reliefs sought by the complainants are being taken together as the findings in one relief will definitely affect the result of thc other relief and the same being interconnected.

L4.

The factual matrix of case reveals that the complainants had booked a residential unit in the Affordable Group Housing project of the respondent Page 14 orzo/ ffi ffi HARERA Complaint No.

1 183 ol ZO24 GURUGI?AM named "Mahira Homes-68" at Sector-68, Gurugram and was allotted a unit bearing no.702,7th floor; tower H, having carpet area of s35.65 sq. ft. vide allotment letter dated 1,1.08.201,8.

A buyer's agreement dated 13.08.2018 was executed between the parties.

The complainants have paid an amount of Rs.

1,8,07,61-3l- against the total sale consideration of Rs.2 I,96,S7Z /-.

15' Clause 1[iv) of the Affordable Housing Policy, 201,3 provides for complerion of all such projects licensed under it and the same is reproduced as under for ready reference: 1(iv) "All such proiects shall be required to be necessarily completecl within 4 years from the date of approvar of building prans or grant of environmental clearance, whichever is tatei. i'hi, dot, sholl be referred to as the "date of commencement of project,, Jbr the purpose of the policy. he policy.,, 16'Due date of handing over of possession: As per clause 1[iv) of the Affordable Housing Policy, 201,3 it is prescribed that'All such projects shall be required to be necessarily completed within 4 years from the date of 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 respondent has obtained building plan approval and environment clearance in respect of the said project on23.02.201,8 and 05.06.2078respectively.

Therefore, rhe due dare of possession is being calculated from the date of environmental clcarancc, being later.

Further; an extension of 6 months is granted to the respondent in view of notification no.

9/3-2020 dated 26.05.2020, on account of outbreak of Covid-19 pandemic.

Therefore, the due date of possession comes out to be 05.12.2022.

17' Perusal of case file reveals that the unit of the complainants was cancelled by the respondents vide termination letter dated 21082021 0n account failure of the complainants to make payment of the outstanding dues.

Thc Page 1 sorzo/ HARERA Complaint No.

1183 of 2024 GUl?UGl?AM foremost question which arises before the authority for the purpose of adjudication is that "whether the said cancellation is a valid or not in the eyes of law?" 18.

Clause 5[iii)(i) of the Affordable Group Housing Policy, 2013 talks about rhc cancellation.

The relevant part of the clause is reproduced below:- "lf any successful applicant fails to deposit the instalments within the time period as prescribed in the allotment letter issued by the colonizer, a reminder moy be issued to him for depositing the due instalments within a period of 75 days from the date of issue of such notice.

If the allottee still defaults in making the payment, the list of such defaulters may be published in one regionat Hindi newspaper having circulation of more than ten thousand in the State for payment of due amo of due amount within 15 days from the date of publication of such notice, failing which allotment may be cancelled.

In such cases olso an amount of Rs 25,000/- may be deducted by the coloniser and the balance omount shall be refunded to the opplicant.

Such ftats may be considered by the committee for offer to those applicants falling in the waiting list".

19.

In the instant case, the cancellation notice was issued by the respondent on 21.08.2021 and publication of the defaulters list in the newspaper "Punjab Kesari" was published on the same date i.e., on Zt.o}.zoz1.

Howeve[ no formal cancellation letter was issued after publication of the list of defaulters.

It is to be noted that in clause s(iii)[i) of the Policy,2O13, it is specified that in case the allottee fails to clear the outstanding dues within 15 days of publication in the newspape4 then his allotment may be cancelled by the promoter.

The word 'mry' here does not mean that post 15 days of publication, the allotment shall deemed to be cancelled rather it means that some action is required to be taken by the promoter towards cancellation of the allotment.

Moreove[ post cancellation of the unit, thc respondent has failed to refund of the monies paid by the complainant till date.

Seeing, various illegalities on part of the respondent in this particular case, the Authority is of view that the respondent should not be allowed to Page 16 of 2O ^/ HARERA Complaint No, 1183 of 2024 ffiOUI?UGI?AM get unfair advantage of its own wrong.

In view of the above, the said cancellation is bad in law.

20' In the present complaint, the complainants intends to withdraw from the project and are seeking return of the amount paid by him in respect of subject unit along with interest as per Section 1B[1) of the Act and the same is reproduced below for ready reference:_ "Section 78: - Return of amount and compensation 18(1). ion 18(1).

If the promoter fails to comprete or is unabre to give possession of an apartment, plot, or building, _ (a) in accordance with the terms of the agreement for sale or, as the case may be, duly compreted by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for ony other reason, he shall be tiable on demand to the allottees, in case the allottee wishes to withdraw from the projecl without prejudice to any other remedy available, to return the amount received by him in respect of that aportment, prot, building, as the case may be, with interest at suc.h rate as may be prescribed in this behalf including compensation in the manner as provided under this Act.

Provfded that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of deroy, tilr the handing over of the possession, at such rate as may be prescribed.,, 21'The authority considering the above facts opines that the due date of possession (05.12.2022) has lapsed much before the time of filing of the present complaint on 02.0 4.2024.

Furthet Section 1B of the Act is invoked if the promoter is unable to handover possession of the unit due to discontinuance of business as developer on account of suspension or revocation of registration under this Act or any other reason then the allottee shall be entitled to refund of the entire amount paid to the respondent along with prescribed rate of interest.

22'lt is further observed that the Authority on 27.05.2022 initiated Suo-Moru action against the promoter under section 35 of the Act,2016 based upon the site visit report submitted on L8.05.2022 wherein it is clearly stated Page1_T of20 / HAREl?A Complaint No. plaint No.

1183 of 2024 GUI?UOl?AM that the physical progress of the project was approximately 15-ZOo/o and progress of construction works did not seem commensurate to the payments withdrawn from the bank accounts.

Moreove[ on 17.05.2022 the Director Town & Country Planning blacklisted the said developer from grant of license on account due to various grave violations by the promoter company which was subsequently withdrawn by the department on 21.07.2022 subject to fulfilment of certain conditions.

AIso, on 19.05 .2022, all the accounts were freezed by the Authority due to non-compliance of the provisions of the Act,201-6.

On 06.11.2023, the Authority initiated suo-moto revocation proceedings under Section 35 of the Act.

Thereafter; the Authority vide order dated L1.03.2024 revoked the registration certificate of the project under Section 7(1J of the Act, 2016 and accordingly rhe respondent company shall not be able to sell the unsold inventories in thc project and also, the accounts are freezed therefore, this amounts to discontinuation of business of the respondent.

23.The Authority is of the view that since vide order dated 11.03.2024, the registration certificate of the project stands revoked under section 7(1) of the Act, 201,6 and also due to the promoter's serious violations, there seems no possibility of completing the said project in near future.

Thus, the Authority is of the view that the complainants are entitled to his right undcr Section 1B(1)[b) read with Section 19(4) of the Act of ZOt6 to claim thc refund of amount paid along with interest at prescribed rate from the promoter.

24.

Admissibility of refund at prescribed rate of interest: The complainants are seeking refund of the paid-up amount as per provisions of the Act and rules framed thereunder.

Proviso to Section L8 of the Act provides that where an allottee(s) intends to withdraw from the project, the promoter Page 18 of2O ffi ffi HARERA ffiGUI?UGI?AM shall be liable to return the amount recei ount received by him in respect of that apartment' plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf and it has been prescribed under Rule 15 of the Rules, ibid.

Rule 15 is reproduced as under: "Rure 7s. prescribed rate of interest- [proviso to section 72, section 1g and sub-section (i) and subsection (z) of section 19 For the.lllnose of proviso to siction 12; section 1B; and sub_sections (4) and (7) of section L9, the "interettit tn, rate prescribed,,shal be the state Bank of India highest ^rrginoi cost of rending rate +20/0,: q,1:!::i,;ii::,X,'!:$':,'i::t'!;:;!",::;:,f t::;l;iilili;i:::; benchmark rending raies whicn tn, sl'oi Bank of India may fix from time to time for lending to the generot pubtic.,, 25' The legislature in its wisdom in the subordinate Iegisration under the Rure L5 of the Rules has determined the prescribed rate of interest.

The rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the CASCS.

26' consequently, as per website of the state Bank of India i.e., https :f f sbi.co.in, the marginar cost of lending rate (in short, MCLR) as on date i.e., 02.07.2025 is 9'10%' Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2o/o i.e., 1 1,.1,00/0.

27 ' Accordingly, the respondent is obligated to refund the paid-up amount of lls. 'l'B'07'613f - received by it along with interest at the rate prescribed under Rule 15 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017 from the date of each payment till the actuar realization of the amount.

F.

Directions of the Authority: 28' Hence' the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority undcr Section 3a$: Page 19 ofZl { Complaint No. plaint No.

1183 of ZO24 ffi ffi wl{ c.i HARTRA GURUGI?AM Complaint No.

1193 of 2024 I.

The respondent/promoter is directed to refund the paid_up amount of Rs.L8,07,61,3/- received by it arong with interest at the rate of L'r,.1.00/o p.a. as prescribed under rure 15 0f the l{aryana Real Estate (Regulation and Development) Rules, 2017 from the date of each payment till the actual realization of the 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.

29.

Complaint stands disposed of.

30.

File be consigned to the registry. il Dated: OZ.OZ.ZO (Me (r,rI',rrtYEl , Haryana Real Esth{e Regulatory Authority, Gurugram Page 2O of ZO