AJAY JAIN vs BPTP LTD

HARER& GURUGRAM RE THE HARYA jay fain - House No.

GF-3 khamba Road, New l Pl'P Limited office: M-L1, Middl -110001 rate Office: Next na-122004 ijay Kumar Goyal RANCE: Manmohan Krisha dhant Yadav [A present complaint ion 31 of the Real rt, the Act) read wit elopment) Rules, 2 4)(a) of the Act responsible for all ob er the agreement it and Proiect re particulars of the d by the complainan REAL ESTATE REG GURUGRAM Complaint Order rese Order pron Indraprakash Building, hi (Advocate) Versus Circle, Connaught Circus, Door, Sector-76, Farida ) ORDER has been filed by the state (Regulation and rule 28 of the Haryana 1,7 [in short, the Rules in it is inter alia prescri igations, responsibilities a sale executed inter-se the details: ject, the details of sale , date ofproposed handi od, if any, have bee detailed in the following r form: ion, delay no, 1870 ORITY, L87 of2022 2L on: 23 0!1."1024 0!;."2024 plai dent Member lainant ndent nant/al under ent) A , 2016 (in I (R lation and of section fo violation t the pro ter shall nctions to allottee deration, amourrt t ons ove the ,ll A.

2.

HARER,,", GURUGI?AM Complaint no.

1870 o 2022 s '.

No.

Particul rrs Details 1 Name of he project 'Amstor Gurugra a', Sector 1,02 & n, Haryana. lOZA, 2 Nature o the project Residen ial 3 Project a 'ea Cannot e ascertained 4 DTCP ] validity r cense no. and latus 58 of 20 upto 02 [0 issued on 03.08.10 a )8.2025 rd valid 5 Name of :he license holder Shivana d Real Estate Pvt. t,td.

6 RERA re istration number Not regi tered 7 Date of favour o llotment letter in original allottee r11 ,.

69 of reply) B Date of b from in allottee :rol<ing application avour of original LB.t7.2t 10 .30 of replyJ 8 Date of e rdorsement letter 01.08.2r (Page n 1.4 .71. of reply) 9 Date of ownersl in favour acknowledge of p transfer letter of complainant 1n" AI .

51 of complaintJ 0.

Date of buyer's i execution of flat greement but not executed 1.

Unit no.

A-160-( (As per F rage no.

29 of complair D 2. plair D 2.

Unit are admeasuring 1999 sc ft.

3.

Total co L sideration Rs.75,5 (As alle no.27 c ,308/- ;ed by the complainant 'the complaint) lt page 4.

Total ar complai ount paid by the ant Rs.3 2,0t (as allel 27 of th ,447 /- ed by the complainant r complaint) rt page no. , 2 ofZ 06.04.21 [Page nr Annexer tA. ffi ffi HABEB& GUI?UGRAM 5.

I Possession clau booking applicat ;e on as per form 19.

Subject to Force Majeure conditions, as defined hereiir in Clause 46 and further subject to the Applicant(s) having complied with pll his obligations under the terms and c{nditions stated herein as well as in !h.

Floor/Villa Buyers Agreement and $he Applicant(s) not Lreing in default unfler any part of this agreement incl$ding but not limited to the timely payrirent of each and every instalment of thp total sale consideration including DC, [tamp Duty and other Charges and also subject to the Applieants) hading compels within all formalities anp documentations as prescribed by the Company, the Company proloses to handover the physical possesfion of the Floor/ Villo to the Applicant(f) within a period of Thirty (30) mlnths from the dote of sanction of tf, building plans or execution of I the Floor/Vtlla/Villa Buyer's Agrelments, whichever is later("Commitrfent Period"), The Applicant(s) further agrees and understands tf at the Company shall additionally be {ntitled to a period of One Eighty (180) dafls ("Grace Period") after the expiry of thelsaid Commitment Period to allow for ofitaining the Occupancy Certificate etc. f[om DTCP unden the Act in respect of Project "Amstoria".

6. t Due date of possession livery of 05.04.2015 (calculated as per building plan sanctioned, mentioned on page L0 of reply) Lv.

Offer of possessi n Not offered Page 3 of25 3.

II.

III.

II/.

F HARERd', h, aJRUGRAM t-*,r*,r""^r,rr"1 Demand cum reminder letters tL.05.2 zr.0B.2 LB, 04.07 .20 18, 09.07.2018 LB, 0 6.10.20L8, 79.1.7.2 0 1B 18.

Termina,tion/ cancellation intimatidn t3.08.2 [page n 21, . ge n 21, .

85 of reply) Facts of the complaint The complainant has made the following su That present complaint has been filed by of Real Estate fRegulation and Developm Haryana Real Ilstate fRegulation and Dr relief in respect- of the lapses, defaults an< on the part of the respondent.

That the respondent planned and decide namely Amstoria, Gurugram on the land r Sectors-102 anrl 1,02Ain the real estate ol and District, Gurugram, Haryana and h bearing Nos.5B of 20L0 dated 03.08.2010 The respondent claimed that the said res residential plots, Villas, Shopping Centre, marketing call from the office of responde for making a booking in its upcoming pr 'Amstoria'.

The said original allottees wel project on accc)unt of publicity given by means like publishing various brochures, That original allottees induced by the assr by the responclent decided to book a 3 respondent as they required the same in I and occupatiorr for their family membe lmissions: - :he complainant under Section 3 ent) Act, 201,6 and Rule ZB of tl rvelopment) Rules;, 2017 seekil . unjust and unfair trade practice d to develop a residential colon reasuring L26.67 Ercres situated i Kherki Majra and Dhankot, Tehp td accordingly ob,tained license and 45 of 20L1 dated 17.05.20L1 dential colony would .orp.ir.

J Community Centrr:, School etc. oshi and Lata foshi received rt in the month of December, 2 0 | lject under the name and style I e attracted towarrls tt . ufo..rll the respondent through uu.iol posters, advertisements etc. rances and representations mafl BHK floor in ther project of tl . time bound manller for their us rs.

The original allottees ,ign! page a of2$ ffi ;&$. ssti&t B1 ,ll. rng .[, riiv r1" :tsil ,T, ,LI ,1, rde .ll. o[. ,lo l; Conrplaint no, 1870 of 202i! ffi [qRER,,&, ffi AfnUgnnftf I compraintno, rszo orzozl several blank and pririted papers at the instance of the respondent on the ground that the same vlvere required for completing the booking formLalities. mLalities.

That original allottees were not given a chance to read or understarnd tht: said documents ,na {ign.d the same and con:rpleted the formarlities as U desired by the ..rpo{,d.nt.

On the basis of the said application by the I original allottees, the r]espondent allotted a 3 BHK floor bearing No.

A-160- GF Ground Floor f,ruifg tentative built-up area of 1,gggsq. ft.

That the the original allottees and the complainant thereafter requested the respondent to transf[r the said unit in question in the name of the complainant and accoi'dingly signed and submitted several docunrents for transfer/assignment/nomination of the registration/booking from the name of the original allottees to the complainant.

The original allottees ancl the complainant also submitted joint request form for transfer of tLre unit in V.

VI. the name of the complainant along with sever:al letters and documents which were demanded by the respondent for the said purpose.

Tht: respondent after the receipt of the documents as per the check list gtven by it issued an acknowledgment of ownership transfer dated 22.09.201t1 towards change of ownership in respect of the said unit.

It is pertinent to mention herein that the transfer fees of Rs.1,54,558/- and veril'ication charges of Rs.2,600/- were paid by the complainant to the respondent.

VII.

That the respondent after scrutiny of the documents submitterl by thr: origi,nal allottees and the complainant vide its letter dated 25.09,20I,1 assigned all the rights of the original allottees to the complainant.

VIII.

That it is pertinent to mention herein that while in the case of complainant making delay in the payment of instalments, thel respondent company wars sho',vn to be entitled to be charge 1B% per annum on the other hand, th,e complainant is shown to be only entitled to merger amount of Rs 10/- per sq. ft. per month of the built up area of the floor/villa for first six months of a' Page li of 25 ffiHARERA #-aIRUGRAM Complaintno. mplaintno.

LB70 of 2022 delay, Rs.20/- per sq. ft. per month for the next six months of delay and Rs.30/- per sq.

1[t. per month for the built up area for any delay thereafter.

That That the complainant made vocal his objections to the arbitrary and unilaterally claLuses of the application form to the rerspondent.

The complainant rerpeatedly requested the respondent for execution of an application form with balanced terms.

During such discussions, the respondent assured the complainant that the terms of the application form are tentative in nature and that the terms of the agreement'which would be sent by it in due course of time would be more balanced.

The respondent/promoter refused to amend or change any term of the pre- printed application form and further threatened the complrainant to forfeit the previous arnount paid towards the unit if the application form is not signed and subrnitted.

It is pertinent to mention herein that Rs.

32,00,447 /- had already be:en paid towards the unit in question bef,cre signing the Application form, The complainant was left with no other option but to sign the one-sided application form.

That the respondent vide its letter dated 29.07.201.5 serrt copies of ther Buyer's Agreement to the complainant for signing.

The corrrplainant on ther receipt of the said draft agreement was astonished to note that the: respondent had not taken any step for making the agreement balanced.

Most: of the terms of the Buyer's Agreement were identical to the terms of ther application form which was got signed by the respondent from ther complainant witl-r repeated assurances that the terms of the agreement: would be morer balanced and would not be unilateral in nature.

Rather, instead of doing the needful, the respondent brushed aside all the requisite norms and unilaterally amended the terms of the allotmen't.

It is pertinent. pertinent. to mention herein that the respondent changed the comnnitment period, Earlier in the application form, the commitment period mentioned was 30 Page 6 of2$ I)(. l{. ffiHARERA ffi GURuGRAM Complaint no.

1870 of 202i., months from the date of signing of the agreement or from the date of builcling plans, whichever is later.

However, in the agreement sent to the complainant for signing the commitment period was unilaterally increased to 36 months from the date of signing of the agreement or from the fl21s ,1 builcling plans, whichever is later.

Moreover, the respondent malafidely inserted the preferential location charges of Rs.3,3t,933.95/- which were not a. part of the total sale consideration at the time of the booking ol: the unit in the project of the respondent.

On other hand, Clause 19 of the Booking Application Form which provides for the time period to hand over the possession of the floor/villa to the appliicant(s) within a period of thirty days [30) months from ther tJate of sanctions of the building plans or execution of the floor /vllla,ll:3uyer's Agreement, whichever is later (commitment period).

As p,er Clause 19 of the application form, the respondent was to h;lnd over the physical possession of the unit to the complainant within a period of 30 months from the date of sanction of building plans.

It was further agreed that the respondent would be entitled to a period of 1B0 days afrer the expiry of the commitment period to allow for obtaining occupancy certificate etc. from DTCP.

As per the submissiod made by the respondefrt befone this Hon'ble Authority in another case titled 'sandhya Sharma Vs.

BPTP', the sanction date of the building plan was L9.09.2012.

Thus, the due date to hand over the possession of the unit as per the terms of the application form was 19.09.20L5 including the grace period which was provided to the respondent for obtaining the ner:essary approvals from the concerned authorities. thorities.

The respondent has accumulated huge arnount of hard-earned money of various buyers in the project inclucling the complainant and is unconcerned about the deliverry of the possession as per XI.

XII. the terms of the Application form even after alrnost 7 years of delay.

Tfre PageT ofZl W ffiHARERI', ffi-aJRuGRAM Complaint no.

1870 of 2022 respondent has deliberately, mischievously, fraudulently and malafidely' cheated the complainant.

XIll.

That it is pertinent to mention herein that the first payment demand after signing the application form was sent by the respondent onl'y on 11.05.201-B against the construction milestone of 'on casting of grounds floor roof slab to on casting of'first floor roof slab'.

The said demand was sent three years after the due date to offer the possession.

There has been an inordinate delay in developing the project well beyond what was promised and shared to the complainant at the time of booking.

As per the con:struction linked payment plan which was a part of the application form, the aforesaid demand which was raised in May, 2018 was supposed to be raised by the respondent after the start of construction.

XI'V.

That the complainant on the receipt of the aforesaid demand again contacted the representatives of the respondent and made it clear them to that since there is an inordinate delay on the part of the respondent irr completion and handing over the possession to the complainant, he will not make payments until the delayed possession charges are irdjusted and an agreement with balilnced terms and conditions is strared with the complainant. 'fhe respondent yet again, with mala fide nrotives, gave an assurance that it would adjust the delayed possession charges in the subsequent demand letters and that the complainant strould make tht: payment towards the due amount.

Although the complainant was reluctant to believe the representations made by the respondent, hre contacted his vendee Mr. vendee Mr.

Vidyut Taneja who was to receive some balance payment fronr the respondent.

Accordingly, Mr.

Vidyut Taneja vide hris email datecl 11,.03.2021 requested the respondent to transfer/adjust the payment due tcr him from the respondent towards the sale considr:ration of thr: complainant's unit.

Even the complainant vide his email dated 1,1.03.2021, Page B of25 ffiffi HARTRA GURUGRAM Conrplaint no.

LB70 of 202'2 gave no objection in getting the amount of Rs,32,78,157/- tranrsferred agair:lst his booking in the project of the respondent.

That the respondent vide its letter dated L2.08.2021 sent a statement of account to the complainant against the unit in question.

The fact tlhat the respondent has throughout acted in totally illegal and unprolflessional manner is evident from a bare perusal of the said letter dated L2,,08.2021. wherein the respondent has unilaterally increased the basic sale price without any intimation and without seeking any consent/objection from the complainant.

It is submitted that the basic sale price of the unit at the time of the booking with the respondent was Rs.66,38,758.96 which vidr: letter dated 12.08.2021 has been increased to Rs.74,02,598.1,6.

Moreover, the respondent has also unilaterally imposed cost escalation charges of Rs.6,84,102.39 on the complainant which is absolutely contrary to the agreed terms of the allotment.

The total sale consideration of the unit which was Rs.

75,53,308/- at the time of application has been unjlz,rterally increased to Rs.

1,32,92,51,0.94.

The respondent has been workirLg with malafide motives in order to somehow harass, pressurize and blackntail the complainant to submit to his unreasonable and untenable demands.

That after the receipt of the letter dated 1,2.8.2021,, a meeting rvas held betuzeen the complainant and the respondent. espondent.

On that date, the respondent agair:r gave assurance that it would amend the terms of the agreernent in question and would hand over the possession to the complainant r,rrithin a period of six months provided the complainant agrees to waivr: off the delayed interest charges that have been accrued due to the failurer of the respondent in handing over of the possession as per the term,s of the application form.

The complainant accepted the said proposal of the respondent and intimated that it would waive his right to receive delayed possession charges if the agreement with balanced terms is shared r,rrith the ,"*. , "r rl xv.

XVI.

M Complaintno.

1870 of 2022 complainant and if the possession of the unit is handed over to him by the respondent within the period of next six months as was assured by the respondent.

However, the respondent deliberately, mischievously, fraudulently and with malafide motives cheated the complainant by not doing the needful and instead sent a termination/ cancellertion intimation dated 13.0B.2A2L to the complainant.

The said cancellation is wholly' unilateral, arbitrary and is not in accordance with the appli,:ation form and without any suf'ficient cause.

XVII.

That the photographs showing the current stage of cons;truction of ther project.

It is pertinent to mention herein that even on the website of ther project, the stage of construction of the unit in questiion is that ther facade/MEP work is in progress It is astonishing that even after L1 years from the date of booking, the respondent is still not in a position to even complete the construction of the unit in question XVIIL That it is a settlr:d law that allottee cannot be forced to execule an agreement containing unilateral, unfair, one sided and arbitrary ternns and the said agreement if e:<ecuted due to coercion could not be enforced against thel allottee by the cleveloper. leveloper.

The project in question is an 'ongc,ing project' and hence falls under the first proviso to Section 3 (1) of RERI' Act,2016.

The: complainant even believes that no occupation certificate has been issued by, the concerned authorities for the project in question till date as the same has not even been ;rpplied by the respondent despite the lapse of the due date.

C.

Relief sought by the complainant: ffiHARERT" #- euni,lonnrv 4.

The complainant has sought following relief: Direct the respondent to withdraw the termination letter dated 13.08.2021 and restore tht allotment in the name of the complainant.

Direct the respondent to revoke the illegal charges mentioned in para no.24 Page 10 of25 I.

II. above imposed vide demand letter L2.08.2021,.

HARERA III. irect the respondent to handover the respondent has contested the complaint on the at at the outset, it is most respectfully submitted e Complainant is grossly misconceived, in law besides being clearly extraneous and circumstances of this case. lainant along with allthe amenities as pro f delayed possession charges on the amount e unit in question at the interest as prescribed an order imposing penalty upon the respond V. ng the present complaint after adju Ijudicating officer for deciding on the issue o L0 lacs on account of men 1 I On abr se( D.

Re t agreements that were executed prior to implem Fi.ules shall be binding on the parties and cannot ies being a signatory to a duly documented t are bound by the terms and conditions III. is clarified in the Rules published by the state of the end of the prescribed agreement for sale in An clarified that the developer shall disclose the of ongoing project and further that such di idity of such existing agreement executed with its nt suffe of the unit to the and to make paymefrt by the complainant ffr the REM Act,2\Lb for its failure act as pf r to the FIon'ble compensation amount 0f by the complainant. respondent/ promotfr committed in relation to ead guilty. ad guilty.

Page 11 of25 ffiHARER,\ ffi, GURUGRAM Complaintno, LB70 of 2022 IV.

That Relie(s) sought by the Complainant is unjustified, baseless and beyond the scope/arnbit of the Agreement duly executed between the parties, which forms a basis for the subsisting relationship between the parties.

The Cornplainant entered into the said Agreement with the Respondent with open eyes and is bound by the same.

That the relief(s) sought by the Complainant travel way beyond the four walls of the Agreement duly executed between the parties.

The Complainant while entering into the A.greement have accepted and are bound by each and every clause of the said Agreement.

The detailed relief clairned by the Complainant goes beyond the .iurisdiction of'this Hon'ble Authority under the Real Estate (Regulation and Development) Ac,l, 2016 and therefore the present Complaint is not maintainable qua the reliefs claimed by the Complainants.

That having agreerJ to the above, at the stage of entering into the Agreement, and raising vague allegations and seeking baseless reliefs beyond the ambit of the Agreement, the Compla.inant are blowing hot and cold at the same time which is not permissible under law as the same is in violation of the "Doctrine of Aprobate & Reprobate".In this regorC, the Respondent reserves his right 1o refer to and rely upon decisions of the Hon'ble Supreme Couft at the time of argun'lents, if required.

Therefore, in light of the settled law, the reliefb sought by the Conrplainant in the Complaint under reply cannot be granted by this f{on'ble Authority.

V.

The parties had agreed under Clause-33 of the Floor Buyer Agreement (FBA) to attempt to amicably settle the matter and if the matter is not settled amicably, to refer the matter for arbitration.

Admittedly, the Complainant has raised a dispute but did not take any steps to invoke arbitration. r/1.

That Complainant is defaulter under Section 19 (6) of the Real Estate (Regulation and Development) Act, 2016.

Act, 2016.

It is humbly submitted that the Cornplainant failed to make timely payments according to the payment plan opted by them It is submitted that the Complainant failed to make tirnely payrnent fbr the demand raised on 09.07.2018 and 11.05.2018, therefore, the Respondent was constrained to issue reminder letters dated 04.07.2018, Page12 of25 HARER,q GUl?UGRAM Complaint no, 1"870 of 20ZZ VII.

21.08.2018 and 06.10.2018.

The Complainant still did not remir their outsrand dues.

Therefore, the Respondent had to issue last and final opporturnity le dated 19.11.2018.

Thereafter, constrained by this errant attitude of Complainants, the Respondent was constrained to issue Termination Ler dated 13.08.202. fhat vide Clause-6 of the FBA it was further dulf agreed upon betw,een parties that subject to the conditions mentioned therein. in case the Re failed to hand over possession within 24 months lrom the date of saLn,ction building plan or execution of FBA, whichever is later along with 1g0 days gr&co period, the Respondent shall be liable to pay to the Comprlain com'pensation calculated @ Rs.

10/- per sq. ft. for every rnonth of delily, fbr first six months of delay, Rs.

20l- per sq. ft. lbr every month of delay for fhe n six months of delay and Rs.

30/- per sq. ft. for the built-up area of the floor month for any delay.

That vide clause 5.6 of the FBA, the parties had further agreed that if Respondent fail to complete the construction of the unit due to force rrr-raje circumstances or circumstances beyond the control of the Respondents, then Respondent shall be entitled to reasonable extension of time for compl,etion construction.

That it is pertinent to mention that,on 16.03 .2010, DTCP, Haryana (the statu body for approval of real estate projects) issued Self-Certification policy vi Notification dated 16.03.2010.

6.03.2010.

Respondent in accrrrdance with the prclicy Other prevailing laws submitted detailed drawings and designs plans for relev buildings along with requisite charges and fees.

In terms of the said Poliicy, a person could construct building in licensed colony by applying fbr appr:.oval building plans to the Director or officers ol'the departmenl$eut.d rvith t powers for approval of building plans and in case of non-receipt oflny objecti r]vithin the stipulated time, the construction could b{ started.

The building pl lvere withheld by the DTCP, Haryana despite the f{cr that these building pl IX.

Page 13 of2 ob .er e er e nt f AS t, e re e f d t v f n IS IS ffiHARER^ #- eauGRAM Complaint no.

1870 of 2022 were well within the ambit of building norms and policies.

Thatl the Respondent applied for appr:oval of building plans under the Self Certification Scheme.

Although the department did not object to the building plans however, to ensure that there are no legal issues/ complications atalater date, the Respondent also applied fcrr approval o1'building plans under the regular scheme, which were subsequently approved.

It is however pertinent to point out that while the Responde:nt were granted license bearing rno.

58/2010 for setting up a residential plotted colony on land admeasunng 108.068 acres at Village Kherki Majra and Dhankot, Sector 102.

102 A, Tehsil and District.

Gurgaon for which the layout was also approved. subsequently additional license bearing no.

4512011 was issued by DTCP for setting up plotted colony on land admeasuring 18.606 acres and at the stage of grant of additional license bearing no.

451201 1 for Amstoria, laysul for the entire colony was also revised vide Drg.

DTCP-5618 dated 16.09.2016, by DTCP.

The revised planning of'the entire colony submitted to the DTCII has affected the infrastructure development of the entire colony including'Amsl.oria Floors'. a Floors'.

T'he said revision in <lernarcation was necessary considering the safeff of the allottees and to meet the area recluirement for community facilities in the area.

Therefore, it is subrnitted that due to reasons beyond the control of the Resllondents, the said possession timetines stands diluted.

It is further subrnitted that the construction was also affected on account of the NGT order prohibiting construction (structural) activity of any kind in the entire NCR by any person, private or government authority.

It is submitted that vide its order NGT placed sudden ban on the entry of diesel trucks more than ten years old and said that no vehicle from outside or within Delhi will be permitted to transport any construction rnaterial.

Since the construction activity was suddenly stopped, alter the lifting of the ban it took some time for mobiliz:ation of the work by various agencies employed with the Respondent.

Page 14 of25 X. ffi ffi *ruir dqi HARERA GURUGRAM Further, the Environment Pollution (Prevention and Control) Authority.

EpCA,. expressing alarm on severe air pollution level in Delhi-NCR issued pr(3ss note vide which the construction activities were banned within the Delhi-NC:R regiorr.

The ban was commenced from 3lll0l20l8 and was initially subr;ir;ted till l0llll20l8 whereas the same was further extended till l2llll20lg.

Thereafter, in20l9, the Hon'ble Supreme Court of India on 04llll21lg). in M.C.

Mehta v.

Union of India banned all the construction activities.

The saicl ban was partially lifted by the Hon'ble supreme court on 09/1 2l20lg whereby relaxariol was accorded to the builders for continuing the construction activities fr.m 6:00 am to 6:00 pm.

Whereas the complete ban was lifted by the Hon'ble Apex Court on l4l02l202o.It is imperative to mention herein that the constructi<x of tht: project was going on in full swing, however, the changed norms for wal.er usage. .er usage. not permitting construction after sunset, not allowing sand quarrl,ing irr Faridabad area, shortage of labour and construction rnaterial, liquidity crunch ancl non-funding of real estate projects and delay in payment of installrnents by, customers etc. were the reasons for delay in oonstruction and after thar: Government took long time in granting necessary approvals owilg to itsr cumbersome process.

Furthennore, the construction of the unit was going on irL full swing and the Respondent was confident to handover possession of the units; in question.

However, it be noted that due to the sudden outbreak of the coronavirus (COVID 19), liom past 2 years construction carre to a halt and it took some tirne to get the labour mobilized at the site.

It was communical.ed to the Complairrant vide email dated 26.02.2020 that the construction was nearing completion and the Respondent was confident to handover possession of the unit in ques1ion by March 2020.

However, it be noted that due to the sudden outbreak of the coronavirus (COVID 19), construction came to a halt and it took some time to get the labour mobilized at the site.

Complaintno.

1870 of 2022 XII.

XIII.

XIV, Page 15 of25 ffiHARERA M-aJRUGRAM Complaint no, 1t|70 of 2022 XV, Hence, delay if' any, in completing the construction of the unit and offering possession to the various allottees is due to factors beyond t.he control of the Respondents.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission made by the parties. furisdiction of the authoritY The authority observes that it has territorial as jurisdiction to adjudicate the present complaint.

E, I Territorial iurisdiction E.

7. well as subject matter B, As per notificatio nno.

L,192/201.7-LTCP dated 14.12.201.

14.12.201.7 issued byTown and Country Planning Department, the jurisdiction of Real Es;tate Regulatory Authority, Gurugram shall be entire Gurugram District for all 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 w'ith the present Section IL( )(a) is complaint.

E.ll Subject matter iurisdiction Section 11[ )[a) of the Act, 2016 provides that the responsible to the allottee as per agreernent for sale. reproduced as hr:reunder: promoter shall be Section fi@)(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 allottee as per the agreement fOr sale, or to the association of allottee, as the case may be, till the ,orrryorri af alt the epartments, plots oi buildings, as the case may be, to tha allottee, or the common areas to the association of allottee or the competent authority, as the case may be; 3a(fl of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottee and the real estate agents under this Act and the rules and reg ulati on s ma de th ereunder.

9.

So, in view of ther provisions of the Act of 201.6 quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of Page 16 of25 {v o HARER& igations bythe promoter leaving aside compen n which is to be decid by adjudicating officer if pursued by the compl inants at a later stage. ings on the objections raised by the respo Objections regarding force majeure. respondents-promoter has raised the contenti tower in which the unit of the complainant is L0.

F.I Th th for res Hi ent: n that the construction ituated, has been clela letion. la letion.

Hon'ble Del ndent-builder leading to such a delay in the breach since September 20L9, Opportunities were to cure the same repeatedly, Despite the same, tl du to force majeure circumstances such as orders passed by Nationa,l G unal to stop construction, EPCA banning cons uction activities, [{on reme Court banning construction activities in M Mehta vs Union of Ind id-19 etc.

The plea of the respondent regarding rious orders of the N a demonetisation and all the pleas advanced in this regard are devoid m it.

The orders passed by NGT banning constru on in the NCR region w a very short period of time and thus, cann said to impact t Court in case titled as M/s Halliburton Services Inc.

V, ta Ltd. & Anr, bearing no.

O.M,p (1) (Com BB/2020 and 3697/2020 dated29.05.ZOZ0 has observed a 69.

The past non-performance of the Con,tractor be condoned due to the COVID-L? lockdown in March Z0Z0 in I to the Contractor tractor could not complete the ProjecL The outbreak of a pa be used as an deadlines were excuse for non-performance of a contract for much before the outbreak i*elf." 1.t. e present case also, the respondents we le to conrplete t In CO ction of the project and handover the p of the said unit 05 .20L5.

It is claiming benefit of lockdown ich came into effect 23. .2020 whereas the due date of handing over ion was mu r to the event of outbreak of Covid-19 pandemi Therefore, the authori rso the view that outbreak of a pandemic cannot be ed as an excuse for no pe ".f rmance of a contract for which the deadli re much before t eriod cannot be exr:lud plaintno,1870 ofZ0Z2 reak itself and for the said reason, the said time PagelT of25 F.

The Contractor was in G.

G.I Itz.

13.

1.4. ffiHARER M.GURUGRT while calculati the delay in handing over possession.The pl EPCA is also de id of merit.

Further, also there may be cases w has not paid ins suffer because o any leniency on a person cannot Findings rega G.l Direct th L3.O8.202 Direct allotted u G. otted u G.ll Direct the The complainan letter dated 25. buyer agreemel bearing no.

A-1 the complainan the total sale agreement, the the allotted uni possession.

Th demand letters but the compla outstanding du L3.08.2021 vid the entire am The responden make payment .

Complainant has paid an amount of Rs.32,00, onsideration of Rs.75,53,308/-.

As per clau espondent was required to hand over possessi till 05.04.201.5 per building plan was sanctioned on 05.L0.20 mentioned at 10 of reply.

That the respo ent has not obtained the occupation certifica lments regularly but all the allottee cannot b few allottee.

Thus, the promoter respondent ca sed of aforesaid reasons and it is well settled e benefit of his own wrong. ng relief sought by the complainant. respondent to withdraw the termination I and restore the allotment of unit. respondent to handover the physical it complete in all respects. dent to pay delayed possession chargtls. was allotted a unit beaiing no.

4-160-GF, vide g.201,4 under construction linked payment pla t is annexed but not executed the parties, vide 0-GF, ground floor admeasuring t,999 sq. ft. of the complainant till date and thereafter, has n fter, the respondent has issued various o the complainant and requested to pay the ou nant has failed to pay the same.

Due to non-p the respondent has cancelled the unit vid which the respondent threatened the complai it paid by him. submitted that the complainant is a defaulter a s per the agreed payment plan.

Various remin rs and Complaint no.

LB70 ere allot expected not be gi rinciple t .

Howeve allott 7/-ae n of the 2 as the in res inder nding ment of letter d has fail regard dorsem nt ich a a it to t 19 of e it te offered ttofo of he tm ,es he ed eit Page 18 of 15.

16. op CA ab de HARERA GURUGRAM unities were given to the complainant a celled vide letter dated 13.08.202L.

Accordingl e by the terms of the agreement to sell ex ulting in making payments in a time boun edule. oun edule. , the question before the authority is whether matter of record that the complainant booked i )t \ t ( i It ab to to th It: qll 1L fbr J,, ,1,, uln +, ve-mentioned payment plan and paid an i 'ards total consideration of Rs.78,53,308/- wh I sale consideration and the complainant has year 22.09.2014. pertinent to mention here that as per section 1 allottee is under obligation to make paymen unit.

The respondent after givirrg rerl .201.8,06.10.201,8 and final reminder on 19.1 outstanding dues as per payment plan and the Despite issuance of aforesaid numerous remi to clearing the outstanding dues.

The respo rtunity to the complainant before proceeding Thereafter, the respondent issued final notice t proportion of the said notice is reproduce "Your failure to deposit the qbove-mentioned overdue breach of the terms and conditions of the Agree specifically agreed and accepted by you that timely the Agreement/allotment and any default in payment constitute afundamental breach thereof.

Further, as in the Agreements and reiterated herein, your continu the payment schedule andfailure to makefull and ability to fulftll our obligations to you and other prejudicially affects as well as results in the waiver of .

Agreements, including but not limited to the right to c for delay in handing over possession of the unit and th Page 19 of2 laint no.

1,870 of 202t2 as to by nt thereafter the unit the complainants fail uted inter-se parties manner as per paym his cancellation is .valid e aforesaid unit unLder t e ount of Rs.32,0A,44 /- constitutes 42olo of e d the last payment only in (t, f ot Act 0f nsiderat d 04.07 aking pia' ied the s mplaina iven sufl tion of al .2018. ar t 19(7) rrds cc s date Jform cancel, , the co thasg lrmina I 19.11 der:- tisincc erein it is of ess tretn tt was c s of essence tc payment shal notified toyor, 'e to adhere tc nt impacts out I consequentll thts under the compensatior, llation of vour t7.

1ti. r t7.

1ti.

HARER$r GURUGRAM allotment st other rights, Accordingly in the event that you strictly to the complete terms of this Final Demand Notice Agreements, :h action on your part shall amount to a voluntat!, cottsr waiver and relinquishment by you of all rights and privi of the Agreements and this letter shall , in exercise e terms of the Agreement, be treated as termir and intenti ltt.

On 19.1.0.2023, documents vide under the rights under cancellation o allotment of unit and you shall cease to have any ri1 interest wha in the said unit or under the agreements and liable to ture of earnest money deposit, accumulated interest brokerage (if any)." As per clause B a right to cancel the floor buyer's agreement, the respondent/ unit in case the allottee has breached the agr executed betw both the parties.

Clause 8.5 of the er for a ready reference: reproduced as u B,5," Con is fulfilment its obligations in entirely in every case of delayed I of the type of Payment Plan, acceptance of such instalmen date, shall Par$t at sole discretion Party at its sole discretion to termi Agreemen and exercise the consequent righ* under this Agreement That the abo entioned clause provides that the promoter terminate the a otment in respect of the unit upon default u agreement.

Des complainant ha te the issuance of several demand notices cum r y that the Seller/Confirming Party's ability to fulfil its ob t on the Purchas;er[,s):adherence to timely compliar 's)/ payments along with interest beyond period from ,[*iyi f, without p-reiudice' to the rights of the Seller/Co failed to clear the outstanding dues. the complainant filed an application to tak ich complainant submitted that "Taneja Vid Ltd through its thorized representative namely Mr.

Vidyut l'an electrical wor for the respondent and the respondent owed said Taneja Vid t Control Pvt.

Ltd.

Mr.

Vidyut Taneja was well respondent had suggested to the said Vidyut complainant. mplainant. the amount pa ble by the respondent adjusted in the instalm of the complai nt and the complainant as well as Vidyut Taneja said proposal a transfer/adjust unit". sent email dated 71.03.2021 requesting the he payment due to him towards the cost of the mplaina Complaint no.

1870 'to the tor lbe and and and t e due rming :e this ment to s right on re t Control ja was do of the to ponde o d e to t,S Page 20 of 20. ffiHARERA ffi GURUGRAM Complaintno.

1870 of Z0Z2 Dfrrins proceedin g on 2L.03.2024, the counsel fof the respondent stated the amount requested by M/s Taneja vidyut control pvt Ltd was not adjus a$ainst the above unit of the complainant as thefe was no such contra o$lisation on the part of the complainant as therfe was no such contrac o{lisation on the part of the respondent.

The resp{ndent cancelled the uni the complainant after giving adequate demands no[,.ur.

Thus, the cancellat in respect of the subject unit is valid and the relielsought by the comprai is hereby declined as the complainant-allottee hls violated the provisio seption L9(6) & (7) of Act of 20t6bjr dqfaqlting in r{raking paymenrs ,u p., {h. agreed payment plan.

In view of the aforesaid circumstances, only rr:fund be granted to the complainant after certain deductions as prescriberl un law.

Now, another question arises before the authority that whether the autho can di.rect the respondent to refund the balance arnount as per the provisi laid down under the Act of 201,6, when the complainant has not sourght relief of the refund of the entire paid-up amountlwhile filing of the ins complaint or during proceeding.

It is pertinent to note here that there nothing on record to show that the balance amount after deduction as relevant clause of agreement has been refunded back to the complain;rnt.

T authority observed that rule 2B(2) of the ruk:s provides that the authopity sh follow summary procedure for the purpose ol deciding any cornplai Howe'v'er, while exercising discretion judiciously f iciously fbr the advancement of t cause of justice for the reasons to be recorded, the authority can alway,s wo out its own modality depending upon per;uliar facts of each case ,,vitho causing prejudice to the rights of the parties to meet the ends of justice and n to give the handle to either of the parties to protract litigation.

The authori will not go into these technicalities as the authority follows the summa procedure and principal of natural justice as provicled under section 3g of t 21,.

PageZl ofZ at ed ral al of 0n nt of an er ity NS e nt is er e ll t. e k t t v v e ffiHARER& M- GURUCRAM Act of 201,6,there Further, it would which have bee reproduced as u "An Act to promotion 22. building, as transparent sector and redressal decisions, adjudicati thereto." From the above, ZArc has been e sector and to P is also pertinent force and not in issue direction The issue with contract arose i and Sirdar K,B, and wherein it contract must b provisions of s forfeiting must remains with th Consumer Dis Malhotra VS.

Saurav Sanyal followed in CC/, 23:'.

India Limited re the rules of evidence are not followed in letter and spir e appropriate to consider the objects and ..atods of the A enumerated in the preamble of the Act and lhe same he intention of the legislature is quite clear that the Act o acted to protect the interests of the consumer in real esta ide a mechanism for a speedy dispute redressal system.

I o note that the present Act is in addition to another law i erogation.

In view of the same, the authority has power t per documents and submissions made by both the parti rd to deduction of earnest money on cancellation o cases of Maula Bux VS.

Union of India, (1970) 7 SCR am Chandra Rai Ors' VS.

Sarah C,lJrs., (2015) 4 SCC 7 he intention of the legislature is quite clear that the Act o{ rcted to protect the interests of the consumer in real estate ride a mechanism for a speedy dispute redressal system. al system. ll o note that the present Act is in addition to another law ir erogation.

In view of the same, the authority has power tc per documents and submissions made by both the parties egard to deduction of earnest money on cancellation of cases of Maula Bux VS. (lnion of India, (1970) 7 SCR 9) lam Chandra Rai Ors.

VS, Sarah C.lJrs., (2015) 4 SCC 13 ras held that forfeiture of the amount in case of breach reasonable and if forfeiture is in the nature of penalty, th tion 7 4 of Contract Act, 1872 are attached and the party of n ' 7 56/2 077 in case titted as Jayant Singhal and Anr.

VS.

M' ecided on 26.07.2022, held that 100/o of basic sale prict Page22 of M is the Real Estate Regulatory Authority for regulation and officer and for matters connected therewith or incidental Complaint no.

1870 of 2022 the real estate sector and to ensure sale of plot, apartment or rc case may be, or sale of real estate project, in an efficient and manner and to protectthe interest of consumers in the real estate to establish an adiudicating mechanism for speedy dispute also to establish the Appetlate Tribunal to hear appeals from the rctions or orders of the Real Estate Regulatory AuthoriLy and the rove actual damages.

After cancellation of allotment, the builder as such there is hardly any actual damage' Redressal Commissions in CC/435 /2019 MGF Land Limited (decided on 29.06.2020) and M/s IREO Private Limited (decided on L2.04.2022) 24.

25.

HARERE GURUGRAM onable amount to be forfeited in the name of the principles laid down in the firsr two Real Estate Regulatory Authority Gu oney by the builder) Regulations, LL(5) of 201. der- "5, AMOUNT OF EARNEST MONEY Scenario prior to the Real Estate (Regulations a was different.

Frauds were carried out without a for the same but now, in view of the above facts an the judgements of Hon'ble National Consumer DisS, and the Hon'ble Supreme Court of lndiia, the autho forfeiture qmount of the earnest money shall not e the considerqtion amountof t amountof the real estate i.e. as the case may be in alt cases where the cancel mqde by the builder in a unilateral mqnner or the from the project and any agreement containing c aforesaid regulations shalt be void and notbinding , keeping in view the law laid down by the Hon'bl regulation 11 of 201,8 framed by the Harya thority, Gurugram, and the respo ndent/buil der sale consideration as earhest money on cancell the respondent/builder is directed to refund th plainants after deducting t\o/o of the sale co ming amount along with interest at the rate ol ia highest marginal cost of lending rate (MCLR) In f, 2 prescribed under rule 15 of.the Haryana R lopment) Rules, 20L7, from the date 10.2022 till the actual date of refund of the pr vided in rule L6 of the Haryana Rules 201.7 ibid G.

II Direct the respondent to pay litigation ex towards cost of litigation of Rs.

10lacs. e complainant is seeking relief w.r.t. compensati iefs, Hon'ble Supreme Court of India in L and Developers Pvt.

V/s State Page23 ofZ plaintno,1870 of2022 arnest money".

Kerepin i , a regulation knourn as m (Forfeiture of ear , was farmed providi Development) Act, 2016 "ear os there was no low ing into consideration Redressal Commi:;sion rty is of the view that the more than 70!To of a r tm e n t/p I o t/ b uil d i ng of the flat/unit/plot is intends to withdrow clause contrary to the the buyer." Apex court and provisi Real Estate Regula n e ;t NS ry e he '/c,) rd ln CS on but that was not of I.

26.

27.

C 28.

HARER& C) 357), has held that an allottee is enti claim co tion charges under sections LZ,l4,LB and ided by the adjudicating officer as per secti pensation & Iitigation expense shall be adj r having due regard to the factors men aftr:r deducting 1-0o/o of the sale consideratio earnest money along with interest at the ra under rule 15 of the Haryana Real Estate ( Rules, 2017, from the date o date of terminatictnf ca realization. laint stands disposed of. be consigned to registry. d:23.05. . d:23.05.2024 mpiaints in an issue th followi n7 :d o pl n l-9 wh and the by the in secti Membe ana Real ch is to be djudicating n 72.

Tf,e judicating officer has exclusive jurisdiction to ith the pect of compensation & legal expenses. ns of the Authority of ,f a o ce of obl tions c thority u r secti nt of Rs 2,00,44 Rs.75,53,3 0.85% as /- be rescrib and pm 21 till i llat n 13.08. ly with directio ollow. uen would V 'l - (vi Ktimar Ha Reg oy'al) state latory Au rrity, nt no.

1870 pr:riod of 90 days is given to the respondent to ven in this order and failing which lega.l conse Gu 24 of 24 & uantum of rg ;t n GURUGI?AM Hence, the authority hereby passes this ord directions under section 37 of the Act to ensure co upon the promoter as per the function entrusted to 3a(Q: