MR MIR ZAFFER UN NABI vs SUPOSHAA REALCON PRIVATE LIMITED

ffHA S-crrn RERA UGRAIV Compla nr No 1640or2024 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM 1&O ot 2024 16.04.20241 16.o4.2lJ24 Date offiling: lR/o: E-53, westend Heights, DLF Sector -m 53, Gurusram Phase - L --l Suposha Realcon Private Limited.

Regd. officer Unit no.

SB/C/2L/office/ol7A,M3M Urbana Sector - 67, Gurugram, Haryana 122102 Shri Santeev KumarArora APP[ARANCEI I\4r.

Varun Chuqh fAdvocate) lvs shri)a Takk.r lAdvocate] Respondent ORDER t.

The present complaint has been nled by the complaina.t/allottee in Form CRA undersection 31 ofthe RealEstate (Regulation and Development) Act, 2016 [in short, the Act] read with rule 28 ol the Haryana Real Ustate (Regulat,on and Developmentl Rules,2017 (in short, the rules) lor violation oi section 11(41(a) of the Act wherein it is inter al,a prescribed that th€ promoter shall be responsible lor all obligations, responsibjlities and functioDs to the allottee as pertbe agreement for sale executed inter se Mi.

Zaliae Un Nahi *HARERA S-Gunuen,qv ComplarnrNo I640of 2U24 2.

Prorect and unlt retated details The particulars ofthe projec! the detaits ofsate consideration, rhe amount paid by the complainant, dare of proposed handing over the possession, delayperiod, ifany, have been detajted jn the fotlowing tabutar form: =d 1. 'Sma( World Orchar4 G,Ur.!gram Nature ofthe project 68 of Z02r dated 1609.2021 to 75.09.2026 t4-70-2022 - R 28.09-2A22 (Page 17 ofcomplainr) IPage 23 oithe complaint) Total sale considerahon Rs 1,73,27,693/ Regisrered dated 03.11.2021 vide 74 of 2021valid up ro 31.t2.2024 LPaB. no. r6 nlcohplrrnr rjjd ro Rs.51,00,000/ lAs per page Do 13 orcomplaintl 29.t0.2022 (Page 89 ofreplyl (vide which respondent asked comptainanr to pay and amount otRs.96,507/, 2L.tt.2023 [page 92 of reply) [vide wh(h respondenrasked comptaihanr 0t.72.2023 (Page 93 of reply) Total amount paid by rhe Vide which he was called upon ro pay the Proiect name and DTCP licens€ no. icens€ no. validitystatus RERA registered/ registered Cancellation letter dated lro.

Final opponuniry/ Pre- tI] *HARERA #, eunuennrv B.

Facts ot the complaint RESPONDENT REFI]NDEI) name ofPooja Aggarwal l 12.

Cohpla nr No.

1640or2024 outstandrnS dues wrrh,n a weekl 05.02.2024 (Page 94 ofreplyl 27 43.2024 I [pase 9 ofreply) Amounr 32.02 8bl/.

13.

15 05.20 (pase98 24 3.

The complainant has made the following submissjons in rhe comptaint That, beljev,ng on false assurances and misleading rep.esenrations made by the Respondent in rhe adverrisements and retying upon the goodwlll of the Company, rhe Complamant booked a unrt bearing number C-20 C, snuated on the 3rd Ftoor in rhe said project by paying an amount ol Rs.51,00,000/, rowards said booking and the unit was allotred subsequenrly vide altotment letter dated 28.09.2022 issued by rhe Respondenr company l,he totalcost ofthe properly in quesrlon beingRs 1,73,21,690/ .

That, thereafter, on t4.10.2022, the Complainant and the Respondent Company had exe.uted a builder buyer asreement for the unit in question and rhe said ag.€ement was got duty registered in the off,ce orSub Registrar, Gurugram and thc payment towards the sale consid€ration has to be made in accordance with rhe That, vide demand letter dared 06.11.2023, rhe Respondenr had demandedasum ofRs 52,93,014/- trom the Comptainant wh ilsr he Cancellation letter dated iTHARERA $-qnuenetr.r was posted in Russia, owing to ex'gency ofwork and hence tried to make remittan€e of the instalment demanded by the company' however. due to the on'going Russia-ukraine war' he could not transferthe desired funds as his traDsactions were freezed because of th€ sanctions imposed by the U S' Government and the said fact was duly apprised by the complaiDant to the Respondent company's representatives telePhonically' That, believing the same ro be true, the Complainant had applied lor a hom€ loaD from tammu & Kashmir Bank' ou'ugram Branch and was informed bv the bank that documents na cuments namelv approved site plan, environmental clearance, NOC irom fire department/ pollution control board/ airport authonry besides undertakinE etc' would be required in order to sanction the loan and accordinslv' the Complainant requested the Respondent to provide the necessary dodments to the bank' That. the complainant as well as the bank sent several written correspondences via emails requesting to provide the afo'esaid documents for sanctloning lhe loan' however the Respondent conpany iailed in providing the necessary documents to the complainant and instead of repllng to the email of the Complainant, raised a final reminder letter dated 01'12'2023 via emailand imposed penaltv ofRs 1'22'44il'for non-payment ofthe Tha! the Respondent Company did not provide the documents to the Complainant as well as tbe bank' despite rhe lact of loan being sanctionell by the bank which could not be disbu'sed due to the vi. complaintNo.

1640 or291 1 ENA GRA[,1 AB URtI L1 u aforesaid reason and taking advantage of mv clienfs vulnerable situation, the Respondent' vide le$e' dated 05'02'2024' had cancelled the Comptainanfs unit' That' the Complainant' vide his email dated 08 02 2024 has duly responded to the ullit cancellation letter issued by the RespondeDt companv and registered h's protest to the sald arbitrary act of the cornpany in cancelling his ;nit despite tbe fact that the ComplainaBt has alreadv paid a substantiai sum oiRs 51Lacs towards thP sale coDsideration ,,,. ,n*, *,ina aggrieved at the hands of the Respondent' the ' - a".p,"*"t *"t *ally constrained to serve tbe Respondent with " r,"g,f lotrc" *ltft u afection to with'lraw the unit cancellahon i"tt", "na to restore the allotment of the sublect unit besides ,_r*,0,", **''n" documents to the Complainant' but no heed was paidbythe Respondentio the complainani's request' vili. est' vili. rhat the Complainant kept painstaki$gly pursuing the Respondent to restore allotment ofthe unit and to further provide the desired documents fo' loa' disbursal but to no avail as the Respondent' :fter $e receipt of legal notice' on 27 O3'2O24 itseli with a .",** *t""U"" *t *rnitted Rs 32' 02' 863/'ln the account of ,.1 l.rnr'"-t after deducting a huse sum or Rs 18'e7'137l- towards f orteitu'e charges' C.

Rellefsought by the complainant n ,n" .".ri'"'"' has filed the present compliant for seeking following ,. _ r,*., *" *****t to withdraw the unit cancellation letter dated ' Or.Orro,'*'tn **ectto the property/Ftoor to the compl:inant; ComplaintNo 1640of 2024 D 6.

HARERA GURUGRAIV complarnt No 1640 ot2024 ll.

Direct the Respondent to restore the allotment letter dated 28.09.2022 issued to the Complalnanti IIL Direct the Respondent to provide allthe requisite documents sought bythe Bank for Loan disbursalj lV.

Dnect the Respondent to pay a sum of Rs50,000/' to the Complainant towards the cost ofthe lit,gationl 5.

On the date of, hearing, the authority explained to the respondent/promoter about the contravention as alleged to have been committed in relat,on to section 11(4)[a) ofthe Act to Ple.rd guiltv or not to plead guiltY. .

R€ply by th€ respondent The respondent has contested the present complaint on the iollowing groundsl i.

That in due consideration ofthe commitments bv the Complainant to comply with the terms of the book'ng/Allotment and make timely payments ofdemands, the Respondent allotted lJnit bearing no.

G-20C,3'd floor in the said project ior a total consideration of Rs- t,73,21,693/'plus other charges vide allotment letter dated 28.09.2022.

It is submltted that the Complainant on his own free will and understanding of the legal import and effect opted for a specific PaYment Plan i.e.

3 0:30:40 ' ii.

0:40 ' ii.

Thereafter the Complainant requested that the amount paid towards expression of interest for booking of mult'ple units be transferred towards the unit in question i'e, Unit No' G 20C' without any deductions.

The Answering Respondent being a customer-oriented company acceded to the request of the #HARERA $-eunLrcnm,l Complarnt No 1640 of2024 Complainant and accordingly transferred the entire amount paid by the Complainant towards lJnit No.

C-20C in'Smarrworld Orchard', Sector 61 curugram. iii.

It is subm,tted that the Complainant collected the copies of the Buyers Ag.eement for execution at hrs end.

After constant follow ups with the Complainant, the said Agre€ment was duly executed on 14.10.2022 and the samewas duly registered. iv.

Since, the Complainant failed to clear his outstanding dues raised vide demand letter, the Respondent issued a reminder letter dated 29.10.2022 fot payment of Rs.

96,507/ ,mmediately, to avoid further accrual of interest/penal consequences. v.

That subsequently, the Respondent Company as per the payment plan opted by the Complainant, raised the third demand vide letter dated 06.11.2023 for all amount of Rs.

52,93,014/ out olwhich an amounr of Rs.96,507/- was payable immediately and an amount of Rs.51,96,507/- was due on or before 21.11.2023. vi.

The Complainant failed to make the payment of the dues and continued to breach the terms of the Buyers Agr€emenl, due to which, the Respondent Company hsued a remjnder l€tter dated 21.11.2023 of Rs.

52,93,074/- and requested the complainant to make the payment of the outstanding dues to avoid any further accrual oi penal conseq uences. vii.

Despite issuance of the reminder letter, th€ Complainant did not come forward to clear his outstanding dues, thereiore the Respondent issued pre-cancellation letter dated 01.12-2023 to the Complai.ant finally calling upon the Complainant to make payment HARERA GURUGRA[/ ofRs.

RA[/ ofRs.52,93,014/ along with interest within 7 davs ofreceipt of the said letter, lailing which the allotment/booking shall be cancelled/terminated. viii.

That the Complainant even after the issuance of the abovementioned pre-cancellation letter failed to take advantage of this opportunity and continued to breach the terms of the Buye's Agreement.

As a consequence of the same the Respondent was constrained to terminate tlle allotment oi the complainant vide cancellation letter dated 05.02.2024 and iorfeit the amount as per terms or the Buyers Agreement'That the Respond€nt was .onstrained to cancel/terminate the uDit as per the Buyers As.eement on account of non-payment/failu'e oi pendine amounts.

It is submitted that the complainant had paid an amount of Rs.

51,00,000/- against the total sales consideration or Rs' 1,73,21,6931' plus other charges' It is submitted that the Respondent Company is incurring losses/damases on account of the breach of the terms of the Buyers Agreement' which the Complainant isliable to pay to the Respondent Companv as per the terms of the Allotm€nt.

The losses sulTered by the Respondent are Complarnr No.

1640 o12024 1.

Earnest Money -Rs 16,49,585/_ lt is submitted that the Complainant herein had agreed to the forf€'ture of the earn;st money, in ihe event of failure to comply with the terms of the Buvers Agreement and perform its obliSations.

2.

Loss of taxes deposited- Rs. the Respond€nt ComPanY 2,47,452l- lt is stated that has atready deposited the HARERA GURUGRAN/ requisite amounts towards GST.It is submitted that these taxes are to be d€posit€d by the Respondentthe moment the demands are raised and thus an amount of P.s.

2,47,452l-towards GST has been paid by the Respondent and a loss to the said amount is borne as the same is not refundable to the Respondent.

3. lnterest- Sum of Rs.

1,28,735l- was the interest payable by the Complainant for the delayed payments. ix.

Thus, the total loss calculat€d comes to Rs.20,25,872/- (apprcx. - (apprcx.) which includes, earnest money deduction @10q0 to the tune of Rs.

16,49,685l-, tax€s to the i!\c gf Rs.2,47,452/-, and further sum of Rs.

1,28,735l- was the interest payable by the Complainant for th€ delayed payments. x.

The Respondenr i. full and final settlement has also reiunded the amount oi Rs.

32,02,863/ to Conplainant vide Bank transfer on 27.03-2024 post deductlon oi earnest money in accordance with terms of the Buyers Agreement and HRERA Regulation.

1t is submitted that the Complainant is a defaulter and has defaulted in making timely payments and dr.retbre constrained to cancel the allotment of the letter dated 05.02.2024.

That in furtherance Complarnt No. t640of 2024 the Respondent was unit vide cancellation of the .ancellation of the subiect uDit, the Respondent Company has allotted ihe unit to _ Mrs.

Pooja Agarai,al and Mr.

Deepa Agarwal vide allotment letter dared 15.05.202{..

That the unit being cancelled there is no privity of contract betlveen the parties and the Complainart has no right, title or interest in the unit in question and neither is the allottee of thesame and therefore the Complaint is infructuous.

HARERA GURUGRAI\iI xi.

The Respondent in full and final settlement has also refunded the amount of Rs.32,02,863/ to complainant vide Bank transfer on 27.03.2024 post deduction of earnest money in accordaDce with terms of the Buyer's Agreemenl and HREM Regulation dated 05.12.2018.

Thus, the present complaint is liable to be dismissed at tbe verY threshold' 7.

Copies of all th€ relevant documents have been liled and placed on re'ord' Th;ir authentictv is not in dispute Hence' the complai nt can be decided on the basis oi these undisputed documents anrl submissions made by the Iurisdictton of th€ authorlty The authorily observes that it has territorial as well as subject matter tuLdicrun lo rdlLdicate ihe p'espnt rompldht lor the rcd'on\ givrn E, 8.

E.l T€rritorial iurlsdiction 9.

As per notification no' 1 lgllZOl7'i. gllZOl7'i.TCP dared 14'12'2017 issued bv Town and Country Planning Depanment' Haryana the iurisdiction of Real Estate Regulatory Authority, Curugram shall be entire Gurugram District for all puipose uth ofnces stuated in Gurugram' tn the present case the proiect in qu"rtl"n i, situated within the planning area of Gurugram Distrrct' iherefore this authoritv has complete territorial lurisdiction to deal with the Present complaint' E.Il, Subiect'matter lurtsdtction 10.

Section 11(4)(a) of th€ Act' 2016 provides responsible to the allottee as per agreement reproduced as her€under: that th€ Promoter shall be for sale.

Section 11(axa) is ilrte p-noter snott (a) be responsible t'a. oll obligations responsibilittes ond functions unde. the prcwions ol thtt Ad ot the tules ond rcgulonans node thercunde. o. to the allattees os pet the oireeneht fot te, ar to the ossociottoh ol oltattees os the .;se ho! be, ttll theconvevonce aloll the oPattnents Plots or buldtngs, os the cuse nor be, to the ollotteei at the Lonnon ateos to the o$ociotioh of ollatte$ or the competent autho.iry, as the cose noj be: Sectioa 34-Fun.rions oJ the Authoriry: 31A olthe Act pravid* ta ensurc conPlian'e olthe abhsatians cost upoh the inonateB, the olloues and the rcal estute osent! undcr thts A't and the rulesona regulorions hadethereuhdet 11.

So, in view ol the provisions of the Ac! quoted above, the authority has complete jurisdiction ro decide the complaint regarding non compliance of obligations bythe promoteras per provisions ofsection 11(4)(al of the Act leaving aside compensation which is to be decided bv the adjudicating officer ifpursued by the complainant ata lat€rstage' F. rindlngs on the rellef sought by the complainant l.

Direct the Respondent to withdraw the unit cancellation leter dated 05.02.2024 with respcctto thcproPerty/Floorto the complainant; Il.

Dire.t the ResPondertto restore the allotmentletter dated 2a09'2022 issred to the CoDPIainant, lll. nant, lll.

Direct the Respondent to provide a1l rhe requjsite documents sought by the BaDk for Loan disbursal; tV.

Direct the Respondent to pava sum ofRs50,0oo/'to the ComPlainant *HARERA $-eunrLennt' complarnt No 1640 of2024 rowards the cost ofthe litigation: tr ds HARERA GURUGRAIV 12.

The above mentioned reliefs sought by the complainant are being taken together as tbe findings in one rel,efwill definitely alfect the finding of the other reliefs andthe same being interconnected 13.

In the present complaint, the compla,nant intends to continue with the project and,s seeking restoration ofthe o.iginally allotted unit' 14.

The respondent sent demand letter dated 21.11.2023, pre_cancellation notice dat€d 01-72.2023 ro make payment of the outstanding amount' However, the complainant conti.ued with his deiault and failed to make payment even after receipt of final reminder letter dated 01'122023 leading to cancellation oiunit vide letter dated 05.02.2024.

15.

Vide proceeding dated 09.08.2024, the counsel fo' the respondent stated that the unit had already been sold to a third partv and had refunded the amount to the complainant alloitee on 27.03.2024 i'e before nling of the complaint.

The counselforthe complainant stated that the deduction made by the respondent ls mor€ than 10% and calculation has also not been provided, hence the respondent be directed to provide the calculation whereas counselforthe respondent stated that they have already provided the details as per reply at page 29.

Further, the cou'sel for the respondent stated that they had deducted only 10olo ofthe total sale consideration and loss oltaxes already deposited with the depertment 16.

On the contrary, the counsel for the respondent stated that since the complainant was not willing to continue wrtb the project and did not pay the amount demanded on 27.11.2023 the unit was already cancelled on 05.02.2024 and further refund was processed and sent to the complainant throush bank transfer on 27. fer on 27.03 2024 and the complaint has been filed bv ComplarniNo.

1640o12024 *H $-c ARERA URUGRA[/ complaint No.

1640 oi2024 the complainant post receipt ot that refund amount, hence, as on the date offilingthe complaint, the complainant had no claim ofthe said unit' 17.

The issu€ with regard to deduction oi earnest money on cancellation of a contract arose in cases of Maula Bux vs. ljnlon of India, (1970) 1 sCR 928 and Sirdar KB Ram Chandra Rai Urc' vs Sarah C Urs ' (2015) 4 SCC 136, aDd wherein it was held that forieiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature ol penalty, then provisions ol section 74 of Contract Act 1872 are attached and the party so forfeiting must prove actual damages' After cancellation of allotment. the flat remains with the builder as such there is hardly anv actual damage.

National Consumer Dlsputes Redressal Commissions in CCl435/2019 Ramesh Malhotra VS Emaar MGI Land Limited [decided on 29.06.2020) and Mr.

Saurav Sanval vS M/s lR[o Privat€ Limited (decided on 12.04.2022) and followed in Ccl276612017 in cas€ titled as Jayant Slnghal anil Anr.

VS M3M Indla Limited decid€d on 26.07 2022, held that 10yo ofbasic sale price is 'easoDable amount to be forfeited in the name of earnest money"' Keep'nC in view the principles laid down in the first two cases, a regulation known as the Haryana Real Estate Regulatory Authority Gurugram [Forfeiture ofearnest money by the builder) Resulations,ll[5] of2018,was tarmed providins as undeF "S- AMOI]NI AF EARN E'T MANE'I sl",i,i" ,"i, * ,n" a*t *,t? [Resu]d'ion\ nnd De!'topn'nt) Ad' ?416 ||as -,*'^ n,-" ,a o -datn\\a)o\tP' i^. ",, ".* ".ri ot he oDo\c to' )..".-".t'-..t""-' -u^?D Dr' Pe&'-:r !44"a"o4d hr i".n,i *-"*" *,,',." .\r ou ha' N ' at tn" "'n.nI thP 1! ' t"t ';;.;;,;ii,. ;,, "".. ^",., .-., "o,.. p-d 40, p, ho^ t aL,a on ie, o' ; - ;-;i,;,;,;;"':.,;;,";" ." *.,tne p.a b".to,-o . tre d " Fr ap 'n ott -r ", ,""" a" tr. """ a" tr.dtatb" al w lo ut pti " 1ad" a t* brt'et ,j a J^t 4q 4Mp, u (" *!{ -r'P^o' a t tlo'o [o-'h p-aE l o"d ,nv o eene cantonihg otv claue cantrury ta the aloresaid regulotons sholl be ;d ond not bindino an the buler u HARERA GURUGRA[/ compl,rntNo 1640of 2024 18.

The complaiDant is seeking relief w.r't' compensation in the above mentioned reliei Hon'ble Suprene Couft ol lndia in civil appeal titled as M/s Newtcch Pronoters and Developers Plt Ltd' V/s State ol Up & Orsfsuprar, has held that an allottee is entitled to claim compensation & litigation charges under sections 12,14,18 and section 19 wh'ch is to be decided by the adjudicating officer as per section 71 and the quantum of compensation & litigation expense shall be adjudged bv the adjudicating offcer having due regard to the factors mentioned in section 72' The adjudicating officerhas exclu sive jurisd iction to dealwith the complaints in respect of compensation & legal experses' Therefore' ior claimins compensation under sections 12, 14, 18 and section 19 of the Act' the complainant may file a separate complaint before the Adjudicating Officer under section 31 rea.l with section 71 ofthe Act and rule 29 oithe rules' 19.

Keeping in view the above mentioned facts the promoter has already .eiuDded the amount paid after deduction of earnest money' interest and losses of tax before the pendency of the case to the complainant through bank transfer on 27.03.2024 and the same has been accepted bv him Hence. cancellationis deemed to have beenaccepted by the complaiDant' 20.

Complaint stands disPosed ot 21.

Filebe consigned to registry' uo-l-"&-,= (s.

Haryana Real Estate Regulatory AuthoritY, Curugram Dated:16.08.2024