MANOJ KUMAR DAHIYA AND ALKA DEVI vs VATIKA LTD.

HARERA GURUGRAl\/l Complaint no.

1794 of 2022 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.: 1794 of 2022 Date of filing : 11.05.2022 Date of decision : 24.12.2024 1.

Manoj Kumar Dahiya 2.

Alka Devi Both RR/o: Rz-16 Lane No 3 Sita Puri P0 Palam New Delhi Complainants M/S Vatika Limited Regd.

Office: Vatika triangle, 4th floor, sushant lok, ph- 1 block-a, Mehrauli Gurugram road, Gurugram-1.22002 I Respondent I I Shri Arun Kumar Chairperson Shri Viiay Kumar Goyal Member Member APPEARANCE: Sh.

Yogesh Goel (Advocate) Complainants Sh.

Dhruv Dutt (Advocate) Respondent ORDER 1.

The present complaint has been filed by the complainants/allottees under section 31 of the Real Estate (Regulation and DevelopmentJ Act,20L6 (in short, the Act) read with rule 28 of the Haryana Real Estate [Regulation and Development) Rules, 2017 (in short, the Rulesl for violation of section 11[aJ[a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter-se them.

Page 1 of 17 CORAM: Shri Ashok Sangwan HARERA D* GURUGRAM Unit and Proiect related details: The particulars of the project, the details of 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: Complaint no.

1794 of 2022 A.

2.

S.No.

Particulars Details L.

Name and location of the project "Vatika India Next, Sector 82, Gurugram, Haryana Z.

Nature of the proiect .,.

3.

Project area l+ao.ztz...'es 4.

DTCP Iicense no. l of 2008 dated 01.06.2009 ' of Zor'.

5.

RERA Rt registered :gistered/ not 5 Z dated 16.05.2022 valid up to 9 31..03.202 6.

Date of builder agreement bu tst 28 (P t4 Ie 011 6 of complaint) 7.

Unit no.

Plot n( adme; .

16, first floor, third street block E suring 1094.21 sq. ft. | (r.e" so of complaintl New unit no. addendum ag dated 23.08. ted 23.08.2017 Plot no.

17, ST -1-.3, level 2 sq. ft. ) B.

Fossession clause I 70,1 Schedule for possession of the said unit The company based on its present plans and estintates and subiect to oll just 'exception.s, contemplotes to complete construction of the said unit within a period of three years from the date of execution of this agreemenl However, in case of the company is not oble to adhere to the said time frame, it sholl be entitled to reasonable extension of time for completing the construction, unless there shall be delay or there sholl be Page 2 of 17 ffiHARERA #. aJRTJGRANI B.

Complaint no.

1794 of 2022 Facts of the complaint The complainants have made the following submissions: - a.

That the complainants had applied for allotment of a residential apartment having area of 7094.21' Sq.

Ft. vide an application for booking dated 27.1.0.2009 in "Primrose Floors" of the project "Vatika India Next" in Sector 83, Village Sihi, Shikohpur, Sikanderpur Badha, Gurugram, Haryana 1'27009 of the respondents. failure due to reasons mentioned in clause (12.1),(12.2),(12.3) and clause (38) or due to failure of applicant(s) to pay in time the price of the said unit along with all other charges and dues in accordance with the schedule of payments given herein in annexure iii or as per the demands raised by the company from time to time or any failure on the part of the applicantfs) to abide by any of the terms or conditions of this agreement. (Emphasis supplied) 9.

Due date of possession 10.

Total sale consideration .Ri.37 ,29,545 /-as per statement of ,,ac-cOunt d ated 23.08.20 17 '. lannexure P5, page 94 of complaint) 11.

Total amount paid by complainants Rs.

13,15,340/- as per statement of account dated 23.08.2017 (annexure P5, page 94 of complaint) 12.

Notice for termination 3t.07.2021 (page 11 9 of complaint) Due to GAIL pipeline and unavoidable reasons like non- acquisition of sector road bY HUDA t2.

0ffer ol possession Not offe rerd 13. e rerd 13.

Completion certificate Not obtained Page 3 o[ 17 28.04.2014 ffiHARERIT ffi efnuennHrr b.

1794 of 2022 That as per the application the total consideration to be paid for the floor was Rs.

31,54,346/-.

The respondent had allotted a unit no. plot no.

16, primrose, FF, 3rd St., Sector 83E, VIN having super area 7094.27 sq. ft. approx. vide letter dated 21.11.2009.

That the floor buyer agreement was executed between the complainants and the respondent on 28.04.2011 for the abovesaid allotted unit.

As per this agreement the respondent was under obligation t the possession ofthe property by April, 2014 in norn ns, i.e.

3 years from the date of builder buyers same is as per the clause no.

10.1 offloor buyers nent on page no.

17 of that agreement. r till fuly, 2014.

That the respondent had changed the numeric of the address and increased the area of the floor.

Earlier the address of the floor was plot no.

16, primrose, FF, 3rd st.83E, sector 83, vin and now the address was changed to plot no.

16, primrose, FF, st.

83E-3, sec-83, vin vide letter dated 77.01..201'2.

However, both the address were same.

The respondent had increase the area ofthe apartment from L094.2l to 1263.76 sq. ft. i.e' an increase in the size of the unit by 168.95 sq. ft.

That the complainants were not in a position to object the increase size of the apartment as hefty amount was already collected by the respondent.

The total consideration of the floor was increased by Rs.1,77,631/- including tax.

The respondent had forced the complainants to pay such amount immediately within 14 days and such amount was paid by the complainants to the respondent on 23.01.2012.

Page 4 of 17 d. ffi HARER,:. e arnuenru I I h.

1794 of 2022 That the complainants has paid a total of Rs.

L3,75,340 /- towards the instalments of the said floor against the demand letters issued by the respondent time to time. e to time.

That the respondent had again changed the floor/unit of the complainant and also increased the area of the floor on 23.08.20L7.

Now the new details of unit was Sector-83, Plot No.

17, ST.J-1-.3, Level-Z and area was now 1305 Sq. ft.

So now there was increase in the area. ,?LQ.79 sq. ft. in total from booking but there was no change in th agree ment. e other clauses of the floor buyer That all the activity ofthe respondcnt for again changing the unit is a violation of Section 13 of the Rera Act, and full and true disclosures was not given as per agreement to sell rules.

The complainants had sent numerous emails to the respondent regarding possession of floor but Lhe respondent had failed to give any satisfactory answer in this regard.

That the respondent issued notice of cancellation of floor dated 31.07.2021, to take refund of amount along with interest @60/o in violation to the provisions of llera Act,2016.

But the complainants want possession of the floor and do not want to cancel the floor.

So, the complainants have filed the present complaint before this Hon'ble Authority for revocation of cancellation of allotment and possession of floor along with interest.

As there is grave deficiency of service on the respondent's part so the complainants also want compensation from the respondent also so after the judgment of this Hon'ble authority the complaint Page 5 of 17 ob' ffiHARERA #* eunuennrvt C.

4.

1794 of 2022 must be transferred before Hon'ble Adiudicating officer for compensation.

Relief sought by the complainant: The complainants have sought following relief: a.

Direct the respondent to give legal and valid possession to the complainants. b.

Direct the respondent to give monthly interest on deposited principal amount for d c.

Direct the directo cial officer and company secretary to pay tioned supra in the event of failure by the ts within 90 days . d. days . d.

Direct the with regard to the status of Direct th the assets of the responden and company secretary to the innocent investors like the comp D.

5. f.

Impose penalty on the respondents, directors, chief financial officer and company secretary for not following the law and account of various defaults under RERAAct,2016.

Reply filed by the respondent: The respondent has contested the complaint on the following grounds: a.

That at this stage, it would be just and proper to refer to certain provisions of rule 8 & 15 of the 20\7 Haryana Real Estate Regulatory Authority Rules, which may be relevant for the adjudication of the present lis.

Page 6 of 17 HARERA GURUGRAM Complaint no.

1794 of 2022 That from the conjoint reading ofthe aforementioned Sections/ Rules, Form and Annexure 'A', it is evident that the 'Agreement for Sale', for the purposes of 2016 Act as well as 2017 Haryana Rules, is the one as laid down in Annexure'A', which is required to be executed inter se the Promoter and the Allottee.

That no such agreement, as referred to under the provisions of 2016 act and 2017 Haryana rules, has been executed between respondent and the co rather, the agreement that has of getting the adiudication of diction, is the floor buyer's agreement, ex to coming into force of 2016 Act.

That the respon( rondent has already cancelled the booking of the complainants vide on notice dated37.07.202L due to by HUDA.

It is submitted that as per clause 11.5 of the agreement, it has been agreed that in the event of failure to handover the possession, the company shall be entitled to terminate the agreement and refund the amount.

It is pertinent to mention here that the respondent also offered to refund the amount to the complainants along with 60lo interest p.a.

However, it was the complainants who did not come forn,ard to collect the money. the money.

In the present case, there has been a delay due to various reasons which were beyond the control of the respondent and the same are enumerated below: Page 7 of 17 HARERA GURUGRAM Complaint no.

1794 of 2022 .

Decision of the Gas Authority of India Ltd.

IGAIL) to lay down its gas pipeline from within the duly pre-approved and sanctioned project of the respondent which further constrained the respondent to file a writ petition in the Hon'ble High Court of Punjab and Haryana seeking directions to stop the disruption caused by GAIL towards the proiect' Llowever, upon dismissal of the writ petition on grounds of larger public interest, the construction plans of the respondent were adversely affected and the respondent was forced to reevaluate its construction plans which caused a long delay. o Delay caused by the Haryana Development Urban Authority (HUDA) in acquisition of land for laying down sector roads for connecting the Project.

Thc matter has been further embroiled in sundry litigations between HUDA and land- owners. o Re-routing of High-Tension lines passing through the lands resulting in inevitable change in the lay out plans and cause unnecessary delaY in develoPment. f.

That it was due to the aforesaid reasons which were beyond the control of the respondenU the unit of the complainants became no n-deliverable. g.

All other averments made in the complaint were denied in toto.

6.

Copies ofall the relevant documents have been filed and placed on the record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submissions made by the complainants.

Page 8 of 17 HARERA GURUGRAM E.

8.

7794 of 2022 7.

Written submissions filed by both the parties are taken on record and considered by the authority while deliberating upon the relief sought by the complainants. plainants. furisdiction of the authoritY The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint.

E.

I Territorial jurisdiction 9.

As per notification no.

11921 -1TCP dated 74.12.2017 issued by Town and Country Plan nt, the jurisdiction of Real shall be entire Gurugram Estate Regulatory Autho 10.

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

Section 1 1 ( ) (a) is reproduced as hereunder: " section 11(4)(a) Be responsible for all obligations, responsibilities and funccions under the provisions of this Act or the rules and regulotions 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 conveyance of all the apartments, plots or buitdings, as the case may be, to the allottee, or the commonareostotheassociationofallotteeorthecompetentauthority'as the case maY be; 34A of the Act provides to ensure compliance of the obligations cast uponthepromoters,theallotteeandtherealestateagentsunderthisAct and the rules and regulations made thereunder'" So, in view of the provisions of the Act of 2016 quoted above, the authority has complete jurisdiction to dccide the complaint regarding non-compliance of obligations by the promoter leaving aside Page 9 of 17 11.

II Subiect matter iurisdiction HARERA GURUGRAM Complaint no. t794 of 2022 compensation which is to be decided by the adjudicating officer if pursued by the complainants at a later stage.

F.

Findings regarding relief sought by the complainant.

F,I.

Direct the respondent to give legal and valid possession to the complainants, F.IL Direct the respondent to give monthly interest on deposited principal amount for delayed period.

12. ln the present matter the complainant purchased a unit on l,'t floor block E admeasuring 1094.27 sq. ft. in the project namely Vatika India Next located in sector 82, Gurugram.

Gurugram.

The complainant paid an amount of {13,15,340/- against the total sale consideration of <37,29,5451-.

A builder buyer's agreement was executed between the complainant and the respondenton28.O4.2011 and according to clause 10.1- of the agreement the respondent was obligated to complete the construction of the unit within 3 years from the date of execution of agreement i.e., by 28.04.2074.

Thereafter the respondent vide addendum agreement dated 23'08.20L7 changed the complainants unit and increased the area from L094,21 sq. ft. to 1305 sq. ft.

Again on37.07.2021 the respondent arbitrarily cancelled the unit stating that the project is not deliverable due to initiation of GAIL corridor passing through the project and the company is not in a position to develop the said unit as per the agreement.

The respondent also stated that they are ready to refund the amount paid by the complainant along with 60/o simple interest from the date of payment received.

However, the authority observes that the GAIL notification regarding laying of pipeline came out in the year 2009 and thereafter, GAIL granted permission for reducing R0U from 30 mtrs. to 20 mtrs. vide letter dated 04.03.201L as submitted by respondent in his reply.

GAIL notification and permission letter was Page 10 of 17 ffiHARERA ffi aJRUGRAM Complaint no.

1794 of 2022 prior to the execution of addendum to the buyers' agreements.

The complainants in the present matter are seeking delay possession charges along with interest and possession of the unit.

To this the authority vide order dated 09.02.2024 directed the respondent to file an affidavit w.r.t. no unit is available in the same project.

The respondent on L7.05.2024 during the course of hearing filed the affidavit of authorized representative namely "Nitish" stating that no alternate unit is now available in the project which can be allotted to the complainants.

The Autho-rity.herein doubts the veracity of the said affidavit as there,,, ,t no,,l.:'r. no,,l.:'r.d of resolution passed by the respondent company rr.ll:lirilirlvlr.

Nitish as its authorized representative was filed along with the affidavil Also, the board of resolution dated 25.08.2022 given along with the reply has not authorized any person named as Nitish as an authorized representative in the present matter. on the respondent reasoning for cancelling the uni inconsistency casts doubt Le the unit.

Therefore, the cy casts doubt t said cancellation is bad in eyes of law and is hereby set aside' Accordingly, the said affidavit is not of mttch significance as on today and the authority directs the respondent to offer an alternate unit to the complainants similar in nature at the same price and nearby the same location of the said proiect within a period of 60 days from the date ofthis order.

13.

In the present complaint, the complainants intend to continue with the project and is seeking delay possession charges as provided under the provisions ofsection 18(1J ofthe Actwhich reads as under: "section 18: ' Return of amount antl compensation Page 11 of 17 HARERA GURUGRAM (1).

If the promoter fails to complete or is unable to give possession of an apartment, plot, or building, - Provided that where an allottee does not intend to withdraw from the proiect, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed" The apartment buyer's agreement was executed between the parties.

As per clause 10 ofthe agreement, the possession was to be handed over within a period of forty-eight months from the date of execution of agreement.

The clause l-0 o uyer's agreement is reProduced below: '?ossession 10.

Subject conditions) and of sale price, stamp according to the demanded by contemplates to commercial unit the agreement.

15.

At the outset, it is Complaint no.

1794 of 2022 1.4.

2022 1.4. clause of the agreem to all kinds of terms and conditions of this agreement, and the of this agreement and compliance With, all provisions, formalities and documentation as prescribed by the promoter' The drafting of this clause and incorporation of such conditions is not only vague and uncertain but so heavily loaded in favor of the promoter and against the allottees that even a single default by him in fulfilling formalities and documentations etc. as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottees and the commitment time period for handing over possession loses its possession has been subiected Page 12 of 17 HARERA GURUGRAM meaning.

The incorporation of such clause in the buyer's agreement by the promoter is just to evade the liabiliry towards timely delivery ofsubject unit and to deprive the allottees oftheir right accruing after delay in possession.

This is just to comment as to how the builder has misused his dominant position and drafted such mischievous clause in the agreement and the allottees is left with no option but to sign on the dotted lines.

However, proviso to sectio that where an allottee[sJ does not intend to he shall be paid, by the promoter, interest for every month of delay, till the handing over of possession, at such rate as may be prescribed and it has been (1) For the purpose of proviso to section 1-2; section 18; and sub-sections (4) and (7) of section 19, the "interest at the rate presffibed" shall be the Stace Bank of India highest marginal cost of lending rote +2t%': Provided that in case the Stote Bonk of lndia marginol cost of lending rate (MCLR) is not in use, it shall be replaced by such benchmark lending rates which the Stote Bank of lndia may fix from time to time for lending to the general Public." 17.

The legislature in its wisdom in the subordinate legislation under the rule 15 ofthe rules has determined the prescribed rate of interest. interest.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate [in short, MCLRJ as Complaint no.

1794 of 2022 16.

Admissibility of delay possession charges at prescribed rate of interest: The complainant is seeking delay possession charges.

Page 13 of 17 HARERA GURUGRAM Complaint no.

1794 of 2022 on date i.e.,24.L2.2024 is 9.10%.

Accordingly, the prescribed rate of interest will be marginal cost of lendingrate +2o/o i.e., 11'10%' L8.

The definition ofterm'interest'as defined under section Z(za) ofthe Act provides that the rate ofinterest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: " (za) " interest" m interest payable by the promoter or case may be.

Explanation. -For this clause- (i) the rate of from the allottee by the promoter, in I be equal to the rate of interest which any part and le on record and submissions made n of provisions of the Act, due date as per the agreement.

By virtue of clause 10'1 of the buyer's agreement executed between the parties, the possession of the subject apartment was to be delivered within a period of 3 years from the date of execution of agreement i.e.,by 28.04.2014.

But despite due datehavinglapsedaboutl0yearsback,theunitisneithercompleted nor offered for possession till date.

20.

Accordingly, it is the failure of the promoter to fulfil its obligations and responsibilities as per the apartment buyer's agreement to hand 79. shall be liable to Page 14 of 17 ffiHARERA ffi aJRuGRAM Complaint no. t794 of 2022 over the possession within the stipulated period.

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

The respondent is directed to pay delayed possession charges on the amount paid by the complainant to it after adjusting amount already paid if any, from the due date of possession i.e., 28.04.2014 till valid offer of possession plus two months after obtaining OC from the com ority or actual handing over of prescribed rate of interest i.e., possession whichever is 77o/o p.a. for every month per proviso to section 18(1) of the Act read with rule 15 of the rules.

F.III.

Direct the directorr,..!hluf,,fir"ncial officer and company secretary to pay the amounts mentioned supra in the event of failure by the respondents to pay the amounts within 90 days.

F.lV.

Direct the respondent to fite the status repoft with regard to the status of the proiect, F.V.

Direct the respondent for attachment of the assets of the respondents, directors, chieffinancial officer and company secretary to secure the payment made by the innocent investors like the complainants. : :' F.VI.

Impose penalty on the respondents, directors, chief financial officer and company secretary for not following the law and account of various defaults under RERA Acl.'2Ot6' 21.

The above-mentioned reliefs sought by the complainants were not pressed by the complainant's counsel during the arguments in the passage ofhearing.

The authority is ofthe view that the complainants counsel does not intend to pursue the above-mentioned reliefs sought.

Hence, the authority has not raised any finding w.r.t. to the above-mentioned relief.

G.

Directions of the Authority 22.

Hence, the authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of Page 15 of 17 ffiHARERA #- arnuennHir Complaint no.

1794 of 2022 obligations cast upon the promoter as per the function entrusted to the authority under section 34(fJ: a.

The cancellation dated 37.07.2021, is bad in eyes of law and is hereby set aside. set aside.

The respondent is directed to allot an alternative unit of same size, similar location and at the same rate and specifications at which the unit was earlier purchased, within a period of two months from the date of this order. b.

The respondentis delayed possession charges on the amount paid by from the due date of possession i.e.,28. offer of possession plus two months after competent authoriry or actual on ever is earlier at the prescribed 1.1. for every month of delay as read with rule 15 of the rules.

The arrears o due date of possession till the date of by the promoter to the of this order and be paid by the respondent-promoter to the allottees before 1Oth of the subsequent month as per rule 16[2) ofthe rules. d.

The complainant is directed to pay outstanding dues, ifany, after adjustment of delay possession charges/interest for the period the possession is delayed.

The respondent/promoter shall handover possession of the physical possession of the allotted unit and execute conveyance deed in favour of the complainant(s) in terms of section t7(L) of the Act of 2016 on allottee interest Page 16 of 17 HARERA GURUGRAIU payment within th File be co Complaint no.

L794 of 2022 stamp duty and registration charges as applicable, months after obtaining occupation certificate from the co authority.

The respo ent shall not charge anything from the complainant the part ofthe builder buyer agreement. disposed of. to registry. which is Complaint (Ashok Member Haryana Gurugram Dated:24.12.2 HARER.A GURUGRAM 23.

24.

I :. (Aru Chi al Estate Reg 24 Page 17 of 17