ASHOK NAGRATH vs VATIKA LTD

*HARERA S eunuennvr BEFORE THE TIARYANA REAL ESTATI REGULATORY AUTHORITY, GIIRIICRAM NAME OFTHE "Vatlka trade CenteratSe.tor 83, Gu.u8r5m, Haryana" -lpptluNcE Complaint No.oa649 of2023 and 1 2 ORDER This order shall dispose ofall the 2 complaints titled as above filed before the authority under section 31 of the Real Estate (Regulation and DevelopmentJ Ac!

2016 (hereinafter referred as'the Act"l 'ead with rule 28 olthe Haryana RealEstate (Regulation and Developmeno Rules' 2017 (hereinaiter reler.ed as "the rules") for violabon of section 11ta)(a) of rhe A.t wherein it is inter alia prescribed that the promoter shaU be responsible for all its obligations, responsibiliti's and functions to the allottees as pe. the agreement f,orsale executed interse between partres' The core issues emanating from them are similar in nature and the coDpla,nan(sl in the above referred matters are allottees ofthe project namely, "yoriko trade Cente/ at Sector 83, Curugram' Haryana being developed by the same rcspondent/promoter i'e, M/s vatrka Limited' PaEe I of23 R, GURUGRAN/ 3.

HARERA complaint No.4649 of2023 and The terms and conditions of the agreement to sell and allotment lette. asainst the allotment of units in the upcoming proiect of the respondent/builder and lulcrum of the issues ,nvolved jn both the cases pertains to failure on the part oi the promoter to deliver tinrelv possession oi the units in question, seeking awa.d of reaund the entire amount along with intertest.

The details of the complaints, reply to status, unit no., date of agreement, possessioD clause, due date of possession, total sale consideration, total paid amount, and reliefsoughtare given in thetable below: l4.

S.hedule lor Possession of the said space ttu de.etaD boted on t' po-Prt pt,Ft o4d 'n@a'f: p'o4 \a\ to viatrtP - Fr'L't;a'IthP"an\po. thP"an\po."a4ot Det4 P ptdottht \a ront- ddt"!- exe non ofthe oereen t unless there shutlbe delol or there shotl be luttute due b reasons ne; oned in clouv 161?13ond22 otdue toloilure olottottee to poy in tine the pti.e aJ the soid spo@otongwithothetcha'ses"" - v.tika trade aenter at sector 43, curuA.am, Haryana .oi,l l Ts.l HARERA PGURUGRAI/ 4. complainr No.

46t9 of 2023 and Th..omplahants ln th. above coDpl.ints hare soughr ti. rollowinC rell€fs: 1 DL.e.tthe respondent to relund theentire pard-up adount alons wrth nt.r.$ Jt (lc orc .- btd i.'P. --- Note: l. the r.bl€ .€ferred abov€, ce.t in abbreviations have beeD used.

Thev are elaborat€d as follows: abbreviation Foll form Tsc TotaL saLe consideration AP Anount Dard bv $eallottce The aforesaid complaints were filed agalmt the promoter on account of violation of the agreement to sell and allotment letter against the allotment of units in the upcoming project of the respondent/builder and for not handing over the possession by the due date, seeking .ward of refundtheentirepaid-upamountalongwithinterest.

It has been dec,ded to treatthe said complaints as an application for non_ compliance of statutory obligations on the part of the promoter/ on (pase28or mmplainn tt I GURUGRA]\I HARERA Complaint No.

4649 of Z023.nd respondenr in terms oa section 34(0 of the Act which mandates the authority to ensure complance of the obligations casr upon the promoters, the allottee(sl and rhe reat estate agents under the Acr, the rules and rhe regutarions made the.eunder.

The facts ofall the complarnts filed by rhe complajnan(sllalotreetsl are also similar.

Out ofthe above menrjoned case, rhe particulars ot lead case CR/4549/2023 case titted os Ashok Nagroth V/s votiko Limued ate being taken into considerarjon lor derermining the rights of thc allottee(s) qua refund the entire paid,up amounr atong with jnteren and Prorect and unit related detalls The particulars of the project, the details of sale consideration. ideration. the amount paid by the complainant(sl, date oi proposed handing over thc possession, delay period, if any, have been derarred in rhe to owtrrg cR/1649 2023.ose tialed as Ashok N rath V/s vottko Limited.

6.

7. vatika rrade cenrerat secror 83, curusram, il;, -ff;-# m'gratud irom LUmmercral rn resdennat zone to .ohmercral plorted cotony vrde order dar€d r:l ro 2022 M/s Shivam hfratech Pvt.

Ltd. *HARERA $-eunueml,t Conplaint No.45/t9 of2023 and Facts ofthecomplaint The complainant has made the following submissions in the comPlaint: B, 8 5 RERA Registered/ not 'Srn.e th€ project is not regjstered the registration branch may take the necessary action underthe provisions of theAct, 2016 24.O7.2004 Date of builder buye.

23 02 2049 b) 10 23.02.20t2 \E\ t1 72 13.

H I A 74.

15 Lette. sent by.omplainant 28.03.2023 ALt r-rlstie-J4-9fule nlEefietu i yeqt-tgalhr lakgfclelr rllril ogree HARERA Conplaint No.

4549or2023 and gGURUGRA[/ L The complainant, on being convinced with the representations made by the respondent, applied ibr allotment of a unit in said project on 07-07' 2008 aDd paid an amount ol Rs.

13,52,250 vide cheque no.

594424 dated 05-06-2008.

That towards bookiDg oa the commercial space.

That thereafter respondenl on 24 July 2008 issued an allotment letterwherein a unit bearing no.401was allotted to the complajnant. ll.

That the respondent pursuant to the allotment letter dated 24-07-2008 executed a builder buyer agreementwith the complarnant.

It is pertinent to mention here that rnitially at the time ol execution ol builder buyer agreement unit bearing number A-401 was allotted to the complainant, however same was laterchanged to E-401and respondent issued a letter dated 17 09-2013 in this regard.

As on today complainant has already paid amount ol Rs.

90,28,705 out oi total sale consideration oi Rs 92,50,000 as per builder buyer agreement.

That account statement qua unit in question i. uestion i.e E-401 issued by respondent wherein all the above stated payments are duly acknowledged.

IIL That the clause 14 of the agreement clearly states that the possession shall be handed over to the complainant within three years from the date ofexecution oithis a8reement.

That inview oathe same the possession of the said unit should have been handed over to the complaint in the vear 2012.

That the complainant has adhered to the payment schedule and as already stated above paid more than 99% of the total sale consideratior by 2017 as and when demanded as per the terms of the agr€ement but unfortunately the respondent has miserably failed in lts obligation to !v u HARERA GURI]GRA[/ handover possession within the time limit as mentioned in the builde V.

That the complainant has alreadv made pavment of Rs' 90'28'705/ till date and the last payment was made in 27 06_2017 vide cheque bearing number 685305 fo. an amolrnt of Rs' 896402' That since 27'06_2017 trll today complainant has not received any other demand letter or offer of possession qua unit in question i'e E-401 floor 4th' VL That the complajnant even after several inquiries through various modes has not received a single valid reason for the delay in giving possess'on' However, till date no response has been given by respondent nor retund the amount Paid bY comPlainant Vll.

That even on 29_03 2023 complainant sent a letter to respondent demanding complete refund but even after receiving of said letter not refund was made by respondent, thus the complainant left with no other option to approach authoriiy ior seeking relielof refund vlll.

That complainant res€rves its righi to file another complaint se'krng compensation againstthe respondent before the appropriate forum' C.

Rellefsought by the complainant ' 9.

The complainantbas soughtfollowing reliefG) a.

Direct the respondent to refund the entire paid_up amount along witb i.terest at the prescribed rate 10. d rate 10. on the date ol hearing, the authorrty explained to the respondeni /promoter on the contravention as alleged to have been committed m relation to section r1(4) (a) of the Act to plead guiltv or not to plead cuilty D.

Reply bY the respondent Cooplaint No.

4649 oI2023.nd *HARERA dl- crLnuennnt 11. i.

Complaint No.

4649 of 2023 and The respondent contested the complaint on the following grounds: That the complainant has 6led the present complaint after a delay ofthe alleged due date of,possession- It is to be noted that the complainant has fil€d the present frivolous complaint in 2023 even thongh the complainant claims that the poss€ssion was due in 2012' That the present complaint being filed in 2023 after a gap of 10 years srnce the alleged due date of possession in 2012 is thus barred by limitation' The complainant who was aware of his own delav in payments and non execution oi agreement cannot be allowed to agitate its claim on a complaint that,s 6led after more than 5 years as being well beyond the That the complainant has got no locLrs standi or cause olaction to 6le the present complaint.

The present complaint is based on an erroneous interpretation of the provisions of the Act as well as an incorrect understanding of the terms and conditions of the allotment letter 17.09.2013., as shall be evident hom the submissio's made in the iollowing paras ofthe present replv' That the present complaint does not come within the ambit of RERA Acl' 2016 since the alleged due date of possession as cla'med bv the Complainant was in 2012.

That this Hon'ble Authority was established after enacted of th€ RERA Act, 2016 and if there were anv valid claims' th€ Complainant could haveapproached' but the complainant chose to srt till 2023 to filed a frivolous, fictitious and delaved claim' That the Complainant has hidden the fact that the Respondent paid to the Real Estate agent namelv M/s Locations an amount of Rs' 1'26'405/_ as Page a of23 ffHARERA #eunueneu conplaint No, laint No, 46,t9 of 2023 and brokerage for the commercial unit booked by the complainant' That vide cheque N0.377743 dat€d 20.10.2008 the Respondent pa'd the brokerage amount for the unit No.4O2 to the Real sstate Agent That further on 09.10.2015 the Respondent also r€funded an amount of Rs 46,397'15/-' That the copy of the Cheque no.

339854 dated 09.10.2015 fo' an amount of Rs.

45,397.15/- in favour of the Complainant.

That further including the failure to make timely payments, the Complainant also failed to executethe Builder Buyer Ag.eement ior the un't' The said letter also contained the details ot the schedute of pavmeDt' which the complainant failed to abide by That even the account statement annexed with delaved payments that were due in t€rms ofthe payment plan opted by the Complainant.

That over the vears the delav in payment resulted in imposition of delayed payment interest' That it is pertinentto notethattheBBAannexedwiththecomplaintis unexecuted' The respondent sent the BBA to the Complainant timely however the Complainant who was to send the signed copy of the BBA to the Respondent for execution of the BBA failed to p'ovide the signed copy to the Respondent resulting in non'execut'on of the BBA till date' That lailure to execute the BBA resulted in breach of Clause of 14 ol the BBA which guided the timelines ofpossess,on.

That siDce the Clause t4 ofthe BBA d,ctated that the handover of possession was to be within 3 years from date ofexecution of the BBA, the Respondent cannot be directed to adhere to the timeline oian uDexecuted BBA' The Covid pandemic has given people to thinkbevond the basic legalwav anrl to attempt to gain financially at the cost of others' The complainant Complaint No.

46,19 of 2023 and vii. *HARERA $- eunuennr'r booked the commercial unit with respondent owing to the name, good wlll and rcputation ofthe respondenL Thus, while Section 11 to Section 18 ofthe RERA Act,2016 descdbes and prescribes the functlon and duties of the pronote he pronoter/Developer, Section 19 provides the rights and dutles of Allottees.

Hence, the RERA Act, 2015 was never intended to be blased legislation preferring the Allottees, mther the intent was to ensure that borh the Allottee and rhe Developer be kept ai par and either ofthe party should nor be made to suffer due to act and/or omisslon of part of the other.

That wi0rout pr€iudice to the other rights of the Respondent, it is submitted that the Hon'ble Authonty may also consider the Haryana Real Estate ReSulatory Authonty Gurugram (Forfeiture ofearnest money by the builder) Regulations, Tbus, in this regard it is pertinent to mention that the respondent was facing umpteen roadblock in construction and development work in proiects comprised in township 'Vatika India Next' beyond the control of the Respondent such as the follows: 1.

Non acquisition of land by Haryana Urban Development Authority (HUDA) to lay down of Sector roads 75 mtr and 60 mtr wide and the consequent litigatlon for the same, the issue is even yet not settled completely; 2.

Labour issue, dlsruptions/delays in supply of stone a88re8ate and sand due to court orders of the Courts, unusually heavy ralns, delay in supply of cement and steel, declamtion of Curgaon as 'Notified Area' for the purpose of Ground Water, 3.

Total and Partlal Ban on Coostruction due to the directives issued bythe NationalGreen Tribu,ul during various times since 2015.

4.

The National Greeo Tribund fNcT)/Environment Pollutlon Control Authorlty (EPCA) issued directives and measur€s (GRAP) to counter the deterioration in Air quality in Delhi_CR regiotr *HARERA S-eunuen,ql,t Complairt No.,t649 of2023 and esoe(idllv dut rns lhe winter month\ over the last Ies yedr \' Among ,,ii*' i,**'i' r'cr' EPCA HSPCB dnd Hon'ble supreme cotrrr '.r"."J" ."*rr"," u- "n constructron acnvities [or d lotdl of 70 ;;;;--- ";", va'ous Penod< rrom N;vember 2015 to December 2019' s. eia*i"".iy, tt l.p. y, tt l.p.*d a set of partial reslrictions' some oi wh ich _' 'u n .onrt rr.tion ,.t,,*res between 6 pm till 6 dm I I74 daysl ii. st.o tt'" usage ol oiesetGencrator sers ll28 davsl' ix.

St;D entrv ofTruck Traffic into Delhi' ', crole U.iit t ,tns. ttot Urx pldnr< dnd srone Crushers' ". in-J y""t, prul"i restrictions continued to be in place in NCR . rr'" .?r"."f ",r"uf,"' ot toldl and pdrlial consrtuctron restrr(lions " n,r" i.J. i"r,il.-' loss ol productivrtv rn 'onsrrudton of our pr"r".it. w" ll:*" rr* suferJ from demobilization of the labor worhns ".""'iiii. ""a rt took severdl additronrl weeks to resume rhe :nnstru.tion acti! itres wxh lhe requrred momentum' z i-r.ri-ir'" ,".p-a*, had been issued rhe ltcense' bv the Directot ' +:i;;'; il;i;i'r;;nins.

Ha'vana tor the deveropment dnd .".rl"u", "i rti i*"g,"ted townsh ip in ierms with r he H arva n d ;::'i;;;;;il nleutarion or urban Areds Rures rq'6 ii-'11"""' i,,ior n"r"i. rq?61 rerms ol rorm LC-lv A' which wcre i,."]" ."i.*io "' ,"' ,t'e HUDA Rules lcTb' The <aid HIJDA A't I;;;'";; i;;*,r;J;; iezo pre<nte ' dutv upon the HUDA dnd the Drre.tor Town and Counlry Planning to provroe Lxterldr ii""r"p*"", w*ks a r"ftastructure Development works' It is submitted that upon the issuance ofthe DTCP t'icense' the concerned government department levied a certain fee in order to iulfil the EDC and IDC development work, which has been d€layed and not completed by the Covernment authorities The incompletion of such Development Work resulted in m,nor alterations in timelines olthe project' however the respondent yet managed to complete the proiect' lt is pertinent to mention that in the matter titled, Credai'NCR vs' Department of Town Page 11of23 *HARERA Heunuon,qrv and Country Planning, Government of Harvana & Anr' before tbe Competition Commission of India _ Case No- 40 of 2017 it has been opined and well conveved by the Hon ble Commission that there is a dependency of a proiect vis')'vis the concerned departments responsibili sponsibilities and failure ofgovernment departments in providing the necessary development work subsequently' impact the project timelines' Thus, the altered timelines were never intended and the Respondent lacked any control in the subsequent deference olth€ proiect That since the hurdles faced by the ResPon'lent Company were beyond the conkol ol the RespoDdent, there was unint€ntional delay in completion of the project.

It is iurther submitted that' it was never the intent'on of the Respondent Company to not complete th€ project' and the only effect of all the obstructions was that the timelines as proposed initially could not be fulfilled. ix.

That the Complainant is attempting to seek an advantage of the slowdown in the real estate sedor and it is apparent from the facts of the present case that the main purpose ofthe present compla'nt is to harass the Respondent by engaging and igniting frivololts issues with ulterior motives to pressurize the Respondent Company' Thus' the present complaint is without any basis and no cause of action has arisen till date in favour ofthe Complainant and against tbe Respondent and hence' the complaint deservesto be dismissed' That' it is evident that the entire case ofthe Complainant is nothing but a web oflies aDd the false and frivolous allegations made againstthe Respondent are nothingbut an aftertho!tght' ComplaintNo. /t649 of2023 and Pag€ l2 ofZ3 il HARERA GURI]GRAIV reproduced as hereunder; (4)lhe P.onoter sholl' (o) be responebte lo. att abligotiont under the prcrisions ol this Act or the thereunder ar to the o ottees os per the Complaint No. ,t6'19 of 2023 and resqonsibilites ond fun ti@s tules aid rcguldtion nade ds@nent Jot ele or to the hence the present compla'nt filed by the Complainant deserves to be dismissed with heavy costs' 12.

Copies ol all the relevant documents have been filed and placed on the record. he record.

Their authenticitv is not in dispute' Hence' the complaint can be decided on the basis of these un'lisputed documents and submissions made bY the Parties E.

Iurlsdiction ofthe authorlty 13.

Tbe authoritv has complete territorial and subject matter ju'isdiction to adiudicate the present complaint for the reasons given below' E.l Terltorialiurisdiction 14.

As per notification no. r/s212017'1TCP dated 14'122017 issued bv Town aDd Country Planning Department' Haryana the jurisdiction of Haryana R€al Estate Regulatory Authority' Gurugram shall be entire Gurugram district for all purposes ln the present case' the project nr question is situated within the planning area of Gurusram distnct Therefore, this authority has complete territorialjurisdiction to dealwrth the Present comPlaint E.ll Sublect_matter,urisdlction 1s.

SectioD 11ta)(a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreernent for sale' Section 11{41(al is u HARERA GURUGRA[/ asacotioh aJ ollattees, us the case tnov be tillthe.ohvelan'e ofot the opattnents, plots at buihings, us the cdse nav be ta the olloueet ot the con on oteos ta the osociotian aJ ottottees or the competent autho.irJ,ds the cose nay be; Seetion j4-Functiots of the Authotity: 34(f) af the Act p.avtder to ensu.e cornphanLe ol the obllotbns cast upan the prcmotes, theottatuesontl the rcol enab aaents uhdetthts Actond the.ules on,l rcsulatians node thereunde.

16.

So, in v,ew of the provisions of the Act quoted above, the authority has complete jurisdict,on to decide the complaint regarding non_comphance ofobligations by the promoter leaving aside compensation which is to be decided by the adiud,cating officer if pursued by the complainant at a t.

Findings on the obiecUons raised by tb€ respoDdent F.l.

Obiection regardlng iurlsdiction of authoritv wr't buv€rt agieement executed prior to coming loto torce ofthe Act 17.

The .

17.

The .es;ondent has contended that the authoritv is deprived ot the jurisdiction to go into the interpretation ol or rights ofthe parties inter- se in accordance witb the buyels agreement executed between the parties prior to the enactment ofthe Act and the provision of the said Act cannot be applied retrospectively.

The authority is of the view that the Act nowhere pro\,{des, nor can be so construed that all previous agreements will be re_written atter coming i'to force of the Act' Therefore, the provisions ofthe Act, rules and agreement have to be read and interpreted harmoniously However, if the Act has provided for dealing with certain specific provisions/situat'on in a specific/particular manner. tben that situatioD will be dealt with in accordance with the A't and the rules after the date of coming into iorce of the Act and the rules' Numerous provisions of the Act save the provisions of the agreements complaint No, {6,19 of2023 and *HARERA S-aLnuennlur Complaint No,,1649 of2023 and made beiween the buyers and sellers.

The said content'on has been upheld in the landmark ju dgri.e$t of Neetkamal Reoltors Suburbon Pt'L Ltd, Vs. llol and others. (W.P 2737 o12017) decided on 06'12'2017 which provides as under: "119. t)nder the praeisiohs ol Se.tion t8, the delo! in honding ovet the bose$ion would be counted hon the dote nentione'l t^ rhe ostee ent lor sole ent*ed into bt the pronotet ond the oltott!

Ptior to its rcgistrotion untlet RERA.

Under the provisions of REP.4, the pmoret is o,l"n o to t ry o ',u ." * aok oI 'anDle or ot ptot?Lt ond de'tot? ;h, *^p der \e.taq 4-fhs RERA doe. aol .oatPnptoP tedrtnq ot giveh o lacilitt ta relise the connact bed|een the llo 122.

Ed provkions ol the RERA are nne extent be hovins a hen an thot qrcund rhe volidirJ aJ the p;ovisiohs ofREM.onnotbe chollenged lhe Pa'honent s competent enough to legskte low huing 'etrosPe'tive or retooctive 18. octive 18.

Also, in aPpeal no !73 of 2019 ritled as Mogic Eye Developer PvL Ltd extent i oPeraaon anrl cnetL A tow .oa b, e\pr ran d b atlP t 'ut "'tag L'-r". o*,o,, -t .tsr'u ^.* "n,n",o|P\ i th" to'|Pt Drbh n ?'Pr tLP ,^ ^^.,^--"" a-,r,; ^. -ird rhotthe FE,-4 hos been lroned tn the do nat hove ony doubt in o!.nhd thotthe FE!L4 hos been toned tn the torcer pubhc l;tu.en ofet o thorotsh studv and dtscussion node ut the ht;hes; bvel br the st'hdins cadnitee antl setect t:onnttee whtth ^-w otloa.t*,y , po"nt'on a\ pet the uns ond 'on'htion\ ol t h? i,*,*, t", -,. ,* at"*" .hott be qt ted to rhe nrerc\laekftd ,'^*,*. .-*. - ,n" *^"noblP totPotome! o: ototned n Ftb ti "i ,0, ,,,,, ad ore rd"a nntor ord lnteo\onobt? 'otc ol ,"-*^*.^ .***a 4 rne aEee4?4r tot 'o1?

6 hoble to bP vs. lshwer Singh Dohtya, in order dated 17 '12'2079 rhe Harvana Real Estate Appellate Tribunal has observed- "34.Thus, keePing in view our ot'oresoitl dt*uson' we ore of the 'onsidftd oPihion that the prowsions of the Act e qr6t rctao'tNe ro son,c PaSe l5 ol23 ffi& HARERA GURUGRAN/ 19.

Th€ ag.eements are sacrosanct save and except for the provisions which have been abrogated by the Act itsell Further, it is noted that the ag.eements have been executed in the manner that there is Ro scope left to the allottee to negotiate any of the clauses contained therein' Therefore, the authoritv is of the view that the charges pavable under various heads shall be pavable as per the agreed terms and conditions of the agreement subiect to the cond,tion that rhe same are in accordaDce with the plans/permisstons approved bv the respective departmeDts/competent authorities and are not in contravention of anv .ther Act. rules. statutes, instructions, directions issu€d thereunder and are not unreasonableor exorbitaniin nature Hence' in the light ofabove mentioned reasons, the contention of the respo'dent w'r't' jurisdiction stands rejected.

F.ll oblectioos regarding the circumstances b€ing force maleure" 20. leure" 20.

The respondent has cont€nded that the project was delayed because of the 'force maieure'situations like d€lay on part of gove'nmenl authorities in granting approvals, etc which were beyond the control ot respondent.

However, all the pleas advanced in this 'egard are devoid of merits.

First olall, the possession ofthe unit in question was to be offered by 23-02.2012.

Further, the time taken in Setting governmental approvals/clearances cannot be attributed as reason for delav rn Proiect Moreover' some olthe events mentioned above are of routiDe in nature happening annually and the promoter is required to take the same into consideration while launching the project Thus' the promoter respondent cannot be given anv lenien'v on based of aforesaid reasons an.l it is a well senled principle that a person cannot take benefit of his complaint No.4649 of2023 and u c.

HARERA GURI]GRA[/ own wrong and the objection of the respond€nt that the proi€ct was delayed due to circumstances being lorce rnajeure stands rejected' Flndinss on the rellefsought by the complainant' i.i.-"''o]*.i,1'" "".r*a;t t;rerund th; enure paid-up 'nourt alons with interestat the pres'ribed rate' Zr.

I" tt" pr"." "i ...praint, the complainant intends to withdraw from the project and ,s seeking return of the amount paid bv it in respect of subiect unit along witb interest at the p'escribed rate as provid€d under section 18t11 of the Act Sec- 18(1) of the Act is 'eproduced below ror ready rei€rence 'Secti TA: ' Retttu ol odount dn'l conp'niltion ,iOl. f ,n" p.^*u nat ' "ompkt' or is unoble to give pos'e$ioh ol an oPo.tnent Plot:, o. building 'o, no.a'd aw th" tetnt ofth? og "c4Pnt fot 'oteat o'th' o\" nat ra d,tJronPPtcd D\ the aa@ \pc'' Pa tlP'aa 't ,"t"* n a ,o..,ot' o1 nt\ Lr\''e ' -' a '1ev' luoa n o' -trt -t tu-Det Dn at Qn at@n rf o" Qa^t'ouor Lrd?t tr^ A t u' fot 'n! ofiet teoson o" "ii.1t o" rri,. t o" rri,.' o"^o'o to the attottces' in case the ottonee wtshes t" *'rna^* t* dle prcjecc withort preiudoe to on! other temettv ,,.it"ttt". a;**o tn" o^ont eeiDd by hih in respe't o' thot aDo.tnenL ploL btilding' as he '6e nav be eith inteest ot tuth i"r".i, ^,i o" o**nia 4 in'5 behatttnctud'ns taqDPnsouo. a'he nonner os Providcd ander this Act: ii"iii"i ,i* **" * "'^'tee does nat intend to |9tttunaw r'on the Dro,en. r,p.hdtt be pod-bl oe P'o otet-ntet$t lot Pve4 4"\tnotdeta' i.,i',i,"", """'",.',,;"".'"',or o, ', t"o'l"o.'n-v oe o""' n"d ' (EnPhars suPPtted) 22. clause 14 of the agreement dated 23'02 2009 provides for completion of construction and is reproduced below: 14.

Schedulefo.Pos*ssion of thesaid space f^" r.,d""pr n $.1 on t5 ese\' ptdn\ otu Patdote\ P'|o4ne' to '.1^,"i) i5,", ".i.; "l ,h" *"t 'po, oa ot betot " eq ! ot tht?e !Pa' ' i:;:;';;;;;,;;;;;.;.,;,;";"1'he i.eea"n' ,nte' ,h*e '\hoh b' d'tlt o' Paae 17 ol23 coDplaint No.

46{9 of 2023 .nd u HARERA GURUG|lAN/ there sholl be t'o ute due ta reasons nentnned n 'louse 1617 1a and 2:! oi due n loilure ol ottottee ro pov in tme the Pnce aJ the sotd spoce utang with other chorges.. . ----- z:. ettt" ouis"t,lt is r"Lvant to commenton th€ preset possession clause ol the agreement wherein the possession has been subiected to providing necessary infrastructure speciallv road, sewer & water in the sector bv the government, but subiect to force maieure conditions or anv government/regulatory authority's actioD' inaction or omission and reason beyond the control of the seller' The drafting of this clause and incorporation ofsuch conditions are not onlv vague and uncertain but so heavily loaded in iavour of the promoter and aSainst the allottee that even a s,ngle default by the allottee in maklng pavment as per the plan may make the possesslon clause lrrelevant for the purpose ofallottee and the commitment date for handing over possession loses its meanrng The incorporation oisuch a clause in the agreement to sell b to sell by the promoter is iust to evad€ the liability towards timely delivery of subject unit and to deprive the allottee ofhis right accruing after delay 'n possession' This is just to comment as to how thebuilderhas misused his dominant position and dralted such a mischievous clause in the sgreement and the allottee is left with no option butto sign on thedoted llnes' 24.

Due date of handing over possesslon and admissibillty of grace perlod: As per clause 14 ofthe agreement' the possession ofthe allotted unit was supposed to be completed within a stipulated timeframe ol 36 months.

It is a matter of fact that the respondent has not completed the proiect in which the allotted u'ii is situated and has not obtained the occupation certificate by February 2012 Conplaint No, 4649 of 2023 and u HARERA GURUGRA[/ 25.

Admisslbility of r€fund along with prescribed rate of int€restr The complainant intends to withdraw from ihe project and is seek'ng 'efund of the amount paid by it in respect of the subiect unit with interest at prescribed rate as provided under rule 15 ofthe rules Rule 15 has been reproduced as under: Rule TS Prestibed rate ol intercst [Provi9 to sectlon 12' ection 13 ond sub'section (4) onil sube'rion (7) oJ section 191 (1) Fot the purpae ol Pravko to sectioh 12; se'tian 1a; ond sub se'ttans ' ' t4) ond (7) oJ ecttoh le the'thterestot the totc ptesc bett" shutt be thie stote Bank altn'1io hillhettnorgnol con aflenains tote +2% Prcvided that n.ose the State Bonk al tndtu narsn)al tost ollendtn! to@ (MCLR) is not in u*' x sholt be rcplo'ed bv such benchnork lendins to@s vhich the fidre Bonk oJ hdio no! lix Fon nne to one fo. lendi ng to the 9c ne ro I P rblic' 26.

The legislaiure in iis wisdom in the subordinate lesislation under the provision of rule 15 of the rules, has determined the prescribed rate of interest.

The rate of interesl so determined by the legislature' is reaso. is reaso.able and il the said rule is followed to award the int€rest' it will ensure uniform practice in allthecases' 27.

Consequently, as Per website of the Statc Bank of Ind'a r'e' the marginalcost oflending rate (in short' I\4CLRl as on <tare i.e..16.0A.2024 is 9o/o.

Accordinglv, the prescribed rate of interest willbe marginal cost oflending rate +2% ie" 11oA' 28.

On consideration of the documents available on record as well as submiss,ons made by the parties, the Autho'ity is satisfied tbat the relpondPnt i5 rn contrdvention ol ihe provisions ol lhe A't By vr11ue ot c)ause 14 ofthe agreement executed betwee' the parti€s on 23'02'2009' the possession ofthe subiect unit was to be completed within a period of Complaint No.

4649 of2023 and u HARERA GURUGRAIV 36 months from the date ofexecution ofbuyer's agreement which comes out to be 23 02.2012.

29.

Ke€ping in view the fact that ihe allottee/complainant wishes to withdraw from the project and demanding return oithe amount received by the promoter in respect of the unit wiih interest on iailure ol the promoter to complete or inability to give possession of the unit in affordance with the terms of agreement for sale or dulv completed by the date specified therein.

The matter is covered under section 18(11 of theAcrof2016.

30.

The due date of possession as pet agreement as mentioned in the table above is 23.02.2012.

The aurhority has further' observes tbat even after a passage of 10 years till date neither the ronstruction is complete nor the occupation certificate has been obtained of the allotted unit bv the respondent/promoter.

The authority is oi the view that the allottee cannot be expected to wait endlessly for taking possession of the unit which is allotted to it and for which it has pajd a considerable amount ol money towards the sale consideration Further' the authonty observes that th€re is no document place on r€cord from which it can be ascertained that whether the respondent has applied for occupation ce upation certificate/part occupation certificate or what is the status of construction of the proiect' In view of the above mentioned fact' the allottee intend to withdraw from the proiect and ls well within the right to do th€ samein viewofsection 18[1) of th€ Act' 2016' 31.

Moreover, the occupation cerhficate/completion certificate where the unit is situated has still not been obtained by the respondent /promoter.

The authoritv is of the view that ihe allottee &nnot be Complaint No.

4649 of2023 and Page 20 of23 I HARERA Conplaint No.

4649 of 2023 and GURUGRA[/ exp€cted to wait endlessly for taking possession of the allotted unit and for which he has paid a considerable amount towards the sale considerat,on and as obse.ved by Hon'ble Supreme Court ollndia jn lreo Cm.e Realte.h Prt- Ltd Vs.

Abhishek Khanna A Ors, civil appeal no 5785 oI 2019, decided on11.012021 " .

The occupation certircote is nat avolable even os an date' qhich cleorlr omounLt ta defckhc! olservice The altotzes cohnat be node to wait ndefihjdvJor poseson althe oParttnehrs allatted to theh nar con the, be baund to tdke the apo ents n Phose 1 of the prolect . ' 32.

Further in the judgement oi the Hon'ble SuPreme Court oi lndra in the cases ol lvswtecrr Promo terc on I DeveloPerc Privab Limlted Vs State ol U.P. and ors 2021'2022(1) RCR tC), 3s7 reitetated in case of lr'l5 Sana Realtors Priwv Li ited & other vs Unlon oJ lndia & others sLP (Clvil) No.130OS oJ2020 decided on 12'05'2022 it was observed: z5 The unquotilied risht ol the attottee ta seek refund rclered Under sttion 1s(1)(a) ond sect@n 19(4) al the Ad i rct dependent on ahr a;insaria nipulotbf ke'eot ttoppeo1thot the tesislotu'e hos can{i;usl! ptotided this tisht ol ret'Lnd on denond a' on uncordttlanal obsolute nght to the olkntue I the pranatet latls ta gtve possession ol the oportnena Plot or butding ||ithin the e stluloted undet the Qms aJ the dsreenent restdle$ ol unlo64n events or stov a1lers af the Ca;. f the Ca;.t/Tribunol \|htch k in either |9ov not attnbutoble to the ollattee/hane bule. the Prchotet 6 under dn obligation to tefund the dmount on demond with iterest ot the 'ate prct'nbed h! the stofu Covemnent including conpensotion n the nahhet p'ovidetl uhder the Acr wth the ptoviso thot tl the ollottee doesnat\|tsh to wthdrawJiam the project, ie shott bc ehtitted fot interest t'a' the period ol detat titt honlling ovet possessioh ot the rote p/es'tibctl 33.

The promo;er is responsible for all obligations' responsibilities' and functions under the provisions of the Act of 2016' or the rules and regulations made thereunder or to the allottee as per agreement for sale HARERA gg GURUGRAI\,4 under section 11(al(al' The promoter has failed io complete or unable to give possession of the unit in accordance with the terms ofagreement for sale or duly conpleted by the date specified therein Accordingly' the promoter is liable to the allottee' as the allottee wishes to withdraw from the proiect, without preiudice to any other remedv avarlable' to return the amount received by it in respect ofthe unit with interest at such rate as maY be Prescribed' 34.

Accordingly, the non_compliance of th€ mandate contained in section 11(4)(a) read with section 18(1) of the Act on the part or the responde't is established.

As sucb, the complainant is eotitled to refund ofthe entire amount paid by it at the prescrib€d rate of i'terest i'e'' @11% p'a lthe St:te Bank of lndia highest marginal cost of lending 'ate IMCLR] applicable as on dare +2%l 3s prescribed under rule 1s of the Harvana Real Estate (Regulation and Development) Rul€s 2017 hom the date of each payment till the actual date of refurd of the amount within the timelines provided in ruie 16 of the Haryana Rules 2017 ibid' H.

Dlrections of the authoritY 35. horitY 35.

Hence, the authority her€by passes tbis order and issues the follow'ng rlirections under section 37 of the Act to ensure compliance ofobligations cast upon the promoter as per the function entrusted to the authority under sectiorl 3a(l): i.

The respondent/promoter is directed to refund the amount received by it from each of the complainant[s] slong with interest at the rate of 11% p'a' as prescribed under rule 15 oi tbe Haryana Real Estate (Regulation and Developmentl Rules' 2017 from the ComplaintNo 4649 of2023 and *HARERA S-aLnuenel complaintNo- 46{9 of 2023.nd date ofeach payment tillthe actualdate olrefund ofthe depos'ted ii.

A period of 90 days is given to the respondent to comply with the dir€ctions given in this order and failing which legal consequences iii.

The respondent is further directed not lo create any third-party rights against the subiect unit before full realization ofthe paid_up amouDt alone with i n to the complainant(s), and even if, any transfer is th respect to subject unit, the receivable shall for clearing dues of s mentioned in Para 3 36.

This declsion shall ofthls order' 37.

38.

Complaintstands Dated:16.08.2024 Real Estate Gurug.am ,fr, :rv P,Be 23 of 23