DEEPAK ARORA vs SUNRAYS HEIGHTS PVT. LTD.

HAl?ERA OUl?UGI?AM BEFORE THE HARYANA REAI ESTATE REGULATORY ATJTHORITY, GURUGRAM Complaint no.: Date of filing of complaint: Date of first hearing: Order pronounced on: Deepak Sharma Resident of: House no.

5/1"05, Shivaji Nagar, Gurugram, Haryana -tZZT\l L47 6 of 2024 L8.O4.2024 24.07.2024 22.0L.2025 Complainant Versus M/s Sunrays Heights pvt.

Ltd.

Registered office: 21.L,Ansal, 16 Kasturba Gandhi Marg, New Delhi-110001 CORAM: Shri Ashok Sangwan APPEARANCE: Mr.

Vijay Pratap Singh (Advocate) Mr.

Harshit Batra fAdvocate) Respondent Member Complainant Respondent ORDER L.

The present complaint has been filed by the complainant/allottee under Section 3L of the Real Estate (Regulation and Development) Act, 2016 [in short, thc Act) read with Rule 28 of the Haryana Real Estate (Regulation and Devclopmcnt) Rules, 2017 [in short, the Rules) for violation of Section Ll(4)(a) of the Act wherein itis inter alla prescribed that the promoter shall be responsiblc for all obligations, responsibilities and functions under the provisions of the Act or thc Rules and regulations made thereunder or to the allottee as per the agreemcnt for sale executed inter se.

Page 1 ofZt)r.

HAREl?A GUl?UGI?AM A.

Unit and project related details 2.

The particulars of unit details, sale consideration, the amount complainant, date of proposed handing over the possession, delay have been detailed in the following tabular form: paid by the period, if any, i:-a, licy- upto pto hc in over of4 of orce ards the /o IDE l!!e ) Complaint No.

1476 of 2024 Sr.

No.

Particulars Details L.

Name of the project "Sixty-Three Golf Drive", Sector 63 Gurugram" 2.

Project area 5.9 acres 3.

Nature of the project Affordable Group Housing Poli Residential Flat 4.

DTPC License no. and validity 82 of 20t4 dated 08.08.2014 Valid up 07.08.20t9 Sunrays Heights Pvt.

Ltd., Smt.

Kiran W Dharam 5.

Name of licensee 6.

RERA registration details Registered 249 of 201,7 dated 26.09.2017 valid u 25.09.2022 04.02.

022 04.02.20L6 (Page 20 of complaint - Undatcd BtsA but I said date is agreed to by both the parties their respective oleadinssl 7.

Flat buyer's agreement B.

Provisional Allotment Letter 71.AL20L6 fPaee 1B of complaint 9.

Unit no.

25, Tower D fPage 34 of complaint 10.

Unit area admeasuring Carpet Area- 361.89 sq. ft.

Balcony Area- 69.84 sq. ft. fPaee 34 of comnlaint] Lt.

Possession clause 4- Possession "4.L The developer shall endeavour to honclo possession of the said flat within a period o. yeqrs i,e, 48 months from the date commencement of project, subject to fo majeure & timely payment by the allottee towa the sole consideration, in accordance with terms as stipulated in the present agreement." (BBA at page 24 of complaint) or *Note: As per affordable housing policy Z01S - L(iv) All such projects shall be required to necessarily completed within 4 vears from Page 2 of 27 ^,/ HARERA ffi GURUGRAM approval of building plans or grant oJ environmentol clearance, whichever is later, This date shall be referred to as the "dqte of commencement of project" for the purpose of this policy.

The licences sholl not be renewed beyond the said 4 years period from the date oJ comme n cement of p roj ect.

10.03.2015 (Page 31of reply) 16.09.2016 fPage 37 of reply) L6.03.2021 (Calculated from date of environment clearances i.e., L6.09.2016 being later, which pqmei out to be L6.09.2020 + 6 months as per HAREM notification no. g/3-ZOZO dated 26.Q5.2020 for projects having completion date on or after 25.03.2020, on account of force majeure conditions due to outbreak o[ Covid-19 pandemic) Rs.

14,82,480/- IBBA at page 34 of complaint] Rs.13,50,064 /- [Payment plan detail report dated 16.09.2024 at page 58 of Not obtained Applied on 08.12.2023 - Page 48 of feply) Not offered 14.03.2024 and 12.0 4.2024 55 and 56 of reply) 06.04,2024 Page 59 ofre 22.04.2024 Page 60 of re B.

Facts of the complaint: 3. plaint: 3.

The complainant has made the foilowing submissions: - a) That in 20L5, the complainant got information about an affordable housing project "Sixty-Three Golf Drive" at Sector 63 A, Gurugram, Haryana through an advertisement in some local newspaper and booked a 1-BHK residential uniL vide application bearing no SGDC6TOO for which he had paid an amount of Ils I)agc3of.2l v Complaint 1476 of 2024 Date of building plan Date of environment clearance Due date of possession Basic sale consideration Amount paid by the complainant Occupation certificate Offer of possession Final Reminder sent by respondent to complainant Publication in Newspaper Cancellation Letter HA[?ER,j:, GURUGRAM 74,000/- towards booking the unit vide receipts no.

1231 along with application form. bJThat the complainant was allotted unit no.

F-18 admeasuring 3 61.89 sq. ft. and 69.84 sq. ft. balcony vide a provisional allotment cum demand letter dated 11.01,.2016.

The unit was booked under the time linked payment plan as per the mandate under the affordable housing policy 201,3 for a sale consideration of Rs.

L4,82,480/-. c) That on 04.02.201,6, a pre-printed one sided, arbitrary and unilateral buyer's agreement for allotted unit was executed between the parties.

As per claus e 4.1., the respondent had to complete the construction of flat and handover thc possession within 4 years from the date of commencement of project. d)That till date the respondent has raised a demand of Rs. l-3,50,064/- and thc same was paid by the complainant i.e., 1,000/o of demanded money, but when complainant observed that there is very slow progress in the construction of' subject flat for a long time, he raised their grievance to the respondent. e) That the complainant has always paid the instalment on time and thc last instalment was paid on 1,9.03.2020.

That the project is already delayed by more than 3 years, and it is expected to take around 1,-2 years more for the completion of the project. e project.

It was promised by the respondent at the time of receiving payment for the unit that the possession of fully constructed unit at the time of sale, would be handed over to the complainant on and after the payment of last and final instalment, these instalment becomes accrue on every 6 months after the commencement of construction work and the respondcnt was under obligation to deliver the project complete in all respect as and whcn the respondent takes the last instalment or by maximum till 29.09 .2OZO. f) That the complainant has paidRs.

13,50,064/- and the same was paid by the complainant before filing the case before Hon'ble Authority, as and when demanded by the respondent.

The builder thereafter issued a letter datcd complaint No.

1476 of 2024 Page 4 of 27 4/ ffiHARERp, ffi* eunUGl?AM t4.03.2024 and has falsely alleged that there is deficit in payment made without any supporting evidence.

The letter was issued as reminden without even raising the last demand against the sales consideration to the complainant.

The escrow bank account of the respondent was blocked by the Authority vide its order dated 12.02.2024 and the respondent acting contrary to the said order demanded money from the complainant by way of physical cheque and wants to get affidavit signed. g)That as per section 19 (6) of the Act of 2016, the complainanr has fulfilled his responsibility regarding making the necessary payments in the manner ancl within the time specified in the said agreement.

Therefore, the complainant herein is not in breach of any of its terms of the agreement.

But the responclcnt is deliberately and intentionally not raising the last demand as per the amencled construction linked plan of the Haryana Affordable policy, 201.3. h)That the cause of action to file the instant complaint has occurred within the jurisdiction of this Authority as the unit which is the subject matter oi this complaint is situated in Gurugram which is within jurisdiction of this Authority.

Authority.

The complainant further relies on the judgements passed by the Authority in favour of the complainant in complaint case no.

43 7 of 2022 "Dilvindcr Singh vs Sunrays Heights Pvt.

Ltd." And in complaint case no.

28 14 of ZO21 "sunita Malhotra Vs Sunrays Heights pvt.

Ltd." C.

Relief sought by the complainant: 4.

The complainant has sought following relief[s): I.

Direct the respondent to pay interest @ 8.650/o per annum as per the prevailing MCLR rate plus 20/o on the paid amount of Rs,13,50,064 f - for delay period starting from 1,5.03.2021 till actual handover of the physical possession or offer of possession plus 2 month after obtaining O(l whichever is earlie4 as per the provisions of the Act.

II.

Direct the respondent to handover actual physical possession of the bookecl flat.

III.

Direct the respondent to raise the last demand as per Affordable lJousing Policy towards consideration of the unit, in order to make the paymcnt.

Complaint No.

1476 of 2024 Page 5 of 2l r/ ffiH ffiG ARER,q Ul?UGI?AM complaint No.

L476 of 2024 IV.

Direct the respondent to quash letter dated 1,4.03.2024 issued by respondcnt demanding illegal arbitral amount of Rs.4,14,303/- without even raising thc last tax invoice/ demand letters.

V' The Authority to guide as to in which bank account complainant should deposit last demand if raised by respondent as escrow account of respondent is freezed by Authority vide its order dated LZ.OZ.2OZ4.

5.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided based on these undisputed documents and submissions made by the complainant.

D.

Reply by the respondent: 6.

The respondent contested the complaint on the following grounds: a) That the complainant approached the respondent and expressed her interest in booking an apartment in the affordable group housing project being developed by the respondent "63 Golf Drive" situated in Secto r- 63, Gurugram.

Gurugram. b)That the complainant vide application form SGDG-6700 applied to responclenr for allotment of the unit.

Pursuant thereto, a residential unit bearing no.

D-25, tower D admeasuring carpet area of 361.B9 sq. ft. and balcony area of 69.84 sq. ft. was provisionally allotted vide allotment letter dated lI.O1.201,6. l'he complainant represented that she shall remit every instalment on time as per the payment plan.

The respondent had no reason to suspect the bonafidc of thc complainant and proceeded to allot the unit to her. cJ That a builder buyer agreement was executed between the parties in 2016.

Thc terms and conditions of the same are binding on the parties.

As per claus e 4.7 of the agreement, the due date of possession was subject to the allottce having complied with the terms and conditions of the agreement.

That being a contractual relationship, reciprocal promises are bound to be maintained.

Thc respondent endeavored to offer possession within a period of four years from the date of obtaining all the government sanctions and permissions including environment clearance, whichever is later.

The possession clause of t.he agreement is at par with clause 1 [iv) of the Affordable Housing policy, 201,3.

Page 6 ofZl 4 HA[?El?E- GURUGRAM Complaint No, dJThat the building plan was approved on 10.03.2015 by DGTCI, and rhc environmental clearance was obtained on L6.09.201,6.

Thus, the proposed due date of possession, as calculated from the date of EC, comes out to be 76.09.2020.

Further, the Authority vide notification no.9 /3-2020 dated 26.05.2020 had allowed extension of 6 months for the completion of the project the due of which expired on or after 25.03.2020 on account of unprecedented conditions due to outbreak on Covid-19.

Hence, the proposed due date of possession comes out to be 16.03.ZOZ7. e) That, however, the offer of possession was also subject to the incidence of force majeure circumstances under clauseiL6 of the agreement. agreement.

The construction and development of the project was dpeply affected by circumstances which are beyond the control of the responden! i.e., certain force majeure events including but not limited to non-availability of raw material due to various orders of Hon'ble Punjab and Haryana High Court and National Green Tribunal thereby regulating the mining activities, brick kilns, regulation of the construction and development activities by the judicial authorities in NCR on account of the environmental conditions, restrictions on usage of water, etc.

These orders in fact inter-alia continued till the year 2018.

Similar orders staying the mining operations were also passed by the Hon'ble High Court of Punjab and Haryana and the National Green Tribunal in Punjab and Uttar Pradesh as well.

The stopping of mining activity not only made procurement of material difficult but also raised the prices of sand /gravel exponentially.

It was almost for two years that the scarcity as detailed aforesaid continued, despitc which, all efforts were made, and materials were procured at 3-4 times the ratc and the construction of the project continued without shifting any extra burclen to the customer.

The development and implementation of the said project have. been hindered on account of several orders/directions passed by various authorities/forums/courts.

1476 of 2024 PageT of27 4r/ ffiHAI?ERA ffi GURUGRAM f) That additionally, even before the normalcy could resume, the world was hit by the Covid-19 pandemic.

That the covid-19 pandemic resulted in serious challenges to the Project with no available laborers, contractors etc. for thc construction of the Project.

During the period from 1,2.04,2021 to 24.07.2021 (103 daysJ, each activity including the construction activity was banned in the State. the State.

It is also to be noted that on the same principle, the HaryanaReal Estatc Regulatory Authority, Gurugram granted 6 months extension for all ongoing Projects vide Order/Direction dated 26th of May 2O2O on account of '[st wavc of COVID-19 Pandemic.

The said lockdown was imposcd in March 2020 and continued for around three months.

As such an extension of only six months was granted against three months of lockdown. g) That as per license condition developers are required to complete thesc projects within a span of 4 years from the date of issuance of environmental clearance (EC) since they fall in the category of special time bound project under section 7B of The Haryana Development and Regulation of Urban Arca Act 1,975, it is needless to mention that for a normal group housing project there is no such condition applied hence it is required that 4 years prescribcd period for completion of construction of project shall be hindrance free and if any prohibitory order is passed by competent authority like National Grccn Tribunal or Hon'ble Supreme Court then the same periocl shall be excluclecl from the 4 years period or moratorium shall be given in respect of that periocl also' Section 7(2)[i) of the act itself recognizes the relaxation for renewal of license in case the delay in execution of development work was the reason beyond control of the colonizer, here also colonizers were estopped because of force majeure. hJThat despite the default caused, as a gesture of goodwill, with good intent thc respondent got sanctioned loan from SWAMIH fund of Rs.

44.30 crores to complete the project and has already invested Rs.

35 crores from the saicl lra.

1476 of 2024 l)age B ol 21 HARER,*.

GUl?UGl?AM amount towards the project.

The respondent has already received the fire NOC, lift NOC, the sanction letter for water connection and electrical inspection report. i) That the respondent has applied for occupation certificate on 08.12.2023.

8.12.2023.

Once an application for grant of occupation certificate is submitted for approval in the office of the concerned statutory authority, the respondent ceases to havc any control over the same.

The grant of sanction of the occupation certificatc is the prerogative of the concerned statutory authority over which thc respondent cannot exercise any influence.

No fault or lapse can be attributed to the respondent in the facts and circumstances of the case.

Therefore, the time period utilized by the statutory authority to grant occupation certificate to thc respondent is necessarily required to be excluded from computation of the time period utilized for implementation and development of the project. jJ That the complainant has been allotted unit under the Affordable tlousirrg Policy, 2013 which clearly stipulated the payment of consideration of thc unit in six equal installments.

The complainant was liable to make the paymcnt o[ the installments as per the policy under which the unit is allotted.

At the timc of application, the complainant was aware about the duty to make timely payment of the installments in terms of clause 3 of BBA and clause 5(iii)(b) of the Policy,2013.

In case of default by the complainant the unit is liable to bc cancelled as per clause 5[iii) of Affordable Housing polic y, z0l3. k) That the Complainant stands in default of the payments as per the payment plan.

The respondent sent multiple demands from time to time requesting thc complainant to pay the instalment.

The following demand notices have ltccrr sent by the respondent: Particulars Date Demand Letter L7.70.2016 Demand Notice 03,05,2017 Demand Notice 25.01.201,8 Demand Notice 1,7.L]^.20lt) Complaint No.

1476 of 2024 Page 9 of ?.1 y' ffi ffi wis 6qi OUl?UGl?AM HARTR$, l) That the S0A dated 14.03.2024 states that the amount paid by the complairranr is Rs.13,50,064/-.

The complainant failed to make payment within 15 days of the reminder letter dated 14.03. ted 14.03.2024 and thus, the respondent also made a publication in the newspaper dated 06.04.2024, The respondent had no other choice but to cancel the allotment of the complainant on 21,.04.2024 and same was conveyed to the complainant vide e-mail dated zz.o4.zoz4. m) That without prejudice to the rights of the respondent, the unit of complainant can be retained only after payment of interest on delayed payments from thc due date of installment till the date of realization of amount.

F'urther clelaycd interest if any must be calculated only on the amounts deposited by thc complainants towards the sales consideration of the unit in question and not on any amount credited by the respondent, or any payment made by thc complainants towards DPC or any taxes/statutory payments, etc.

E. furisdiction of the authority 7.

The authority observes that it has territorial as well as subject mattcr jurisdiction to adjudicate the present complaint for the rcasons given bclow.

E.l Territorial iurisdiction B.

As per notification no.

1/92/201,7-ITCP dated 14.1,2.2017 issued by Town ancl Country Planning Department, the jurisdiction of Real Ilstate Regulatorv Authority, Gurugram shall be entire Gurugram District for all purpose.

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

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

E.II Subiect matter iurisdiction 9.

Section 11( )[a] of the Act, 2Ot6 provides that the promorer shall bc. responsible to the allottees as per agreement for sale.

Section 11[ )(a) is reproduced as hereunder: Section 17.... ft) The promoter shall- 27 Complaint No, 1476 of 2024 Page 10 of HARER& ffi GURUGIIAM (a) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or Lo the allottees as per the agreement for sale, or to the associotion of allottees, qs the case moy be, t moy be, till the conveyonce of all the opqrtments, plots or buildings, as the case may be, to the allottees, or the common orees to the association of allottees or the competent outhority, as the case may be; Section 34-Functions of the Authority: 34(fl of the Act provides to ensure compliance of the obligotions cast upon the promoters, the allottees and the reol estate agents under this Act and the rules and regulations made thereunder.

10.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a later stage.

F.

Findings on obiections raised by the respondent.

F.I Obiection regarding force maieure conditions: 11.

It is contended on behalf of respondent/builder that due to various circumstances beyond its control, itcould not speed up the construction of the project, resulting in its delay such as various orders passed by NG1' Flon'blc Supreme Court.

All the pleas advanced in this regard are devoid of merit.

The passing of various orders to control pollution in the NCR-region during the month of November is an annual feature and the respondent should havc taken the same into consideration before fixing the due date.

Similarly, thL. various orders passed by other Authorities cannot be taken as an excuse for delay as it is a well-settled principle that a person cannot take bencfit of his own wrong.

1,2.\t is observed that the respondent was liable to complete the construction of- the project, and the possession of the said unit was to be handed over by 16.09.2020 and is claiming benefit of lockdown amid covid-19.

In view ol' notification no.

9 /3-2020 dated 26.05.2020, the Authority has allowed six months relaxation due to covid-19 and thus with same rclaxation, even if duc date for this project is considered as 16.09. as 16.09.2020 + 6 months, possession was4 Page ll of 27 Complaint No.

1476 of 2024 ffiHARER,,q ffi* CunUGRAM to be handed over by 16.03.2021, but the respondent has failed to handovcr possession even within this extended period.

Moreover, the occupation certificate/part OC is not yet obtained by the respondent from the competent Authority.

G.

Findings on the relief sought by the complainant.

G.I Direct the respondent to pay interest @ 8,650/o per annum as per the prevailing MCLR rate plus 2o/o on the paid amount of Rs.13,50,064/- for delay period starting from 15.03,2021 titl actual handover of the physical possession or offer of possession plus 2 month after obtaining OC whichever is earlier, as per the provisions of the Act.

G.II Direct the respondent to handover actual physical possession of the booked flat.

13.

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

14.

The factual matrix of the case reveals that the complainant booked a unit in the affordable group housing colony project of the respondent known as "Sixty-Three Golf Drive" situated at sector 63-A, District- Gurgaon, Haryana and was allotted unit no.

25, in tower D for a sale consideration of lls.

14,82,480/-.

The builder buyer agreement was executed between the partics on 04.02.201,6.

The possession of the unit was to be offered with 4 years fronr approval of building plans (10.03.2015J or from the date of environmenr clearance (76.09.2016), whichever is later which comes out to be 16.09.2020.

Further, as per HARERA notification no. g/3-2020 dated 26.05.ZOZO, an extension of 6 months is granted for the projects having completion date on or after 25.03.2020.

The completion date of the aforesaid project in which the subject unit is being allotted to the complainant is 1,6.09.2020 i.e., afrcr 25.03.2020.

5.03.2020.

Therefore, an extension of 6 months is to bc given over and abovc the due date of handing over possession in view of notification no.

9 /3-2OZt) dated 26.05.2020, on account of force majeure conditions due to outbre ak of { Page 12 of 27 HAt?El?E GURUGRAM Covid-19 pandemic.

As far as grace period is concerned, the same is allowed for the reasons quoted above.

Therefore, the due date of handing over possession comes out to be 16,03.202I.

The contention of the complainant is that there has been an inordinate delay in the construction of the project ancl that the construction is very slow paced.

15.

During proceedings dated 1,8.09.2024, in exercising the power under Section 36 of the Act 20L6, the respondent was restrained from cancelling the subject unit and is further directed not to create any third-party rights till the next date of hearing.

16.

The counsel for the respondent stated that the complainant was in default in making payment and despite repeated reminders, the payment of outstanding amount was not made leading to cancellation of the unit on ZZ.O4.ZO24. l'hc OC of the unit has not been obtained by the respondent and no offer ol- possession was made in view of the prior cancellation.

17.

Upon perusal of documents placed on record by the parties, it has been founcl that allotment of subject unit was cancelled by the respondent on 22.04.2024 due to non-payment.

The foremost question which arises before the authority for the purpose of adjudication is that "whether the said cancellation is a valid or not?" 18.

The Authority notes that the complainant has paid approx.

91-o/o of the salc consideration, and the respondent was required to hand over the project by 1,6.09.2020 under the Affordable Housing Policy, 2013, cxcluding thc COVII)- 19 grace period.

Even with a six-month grace period in lieu of Covid-19 pandemic to 16.03.2021,, the respondent failed to complete the project. e project.

More than three years later, the project remains incomplete, and the responclent has not obtained the occupation certificate from the competent authority.

Thc interest accrued during the delay period significantly reduces the amount payable by the complainant.

Upon adjustment of this intcrest, the rcspondent Page 13 ol21 t/ Complaint No.

1476 of 2024 HARER*l W*GUI?UGI?AM would, in fact be liable to pay the complainant.

Despite this, the responclent chose to cancel the unit on grounds of non-payment, while neglecting its own obligations.

Such actions by the respondent displays bad faith, as it failed to adjust the delay period interest.

Considering these findings, the cancellation of the allotment on 22.0t4.2024 is deemed invalid and is hereby quashed as issued in bad faith.

Thus, the respondent is directed to reinstate the unit allotted to the complainant.

19.

Further, the complainant intends to continue with the project and is seeking delay possession charges as provided under the proviso to Section 1B[1) of the Act.

Section 1B(1) proviso reads as under. "section 78: - Return of amount and compensation 1B(1).

If the promoter fails to complete or is unable to give possession of an apartment, plot, or building, - iitrlar:i intt *nrre qn 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 posse.s.sion, at such rate qs may be prescribed." 20.Clause 4 of the buyer's agreement provides for time period for hancling ovcr of possession and is reproduced below: "4-Possession 4.1 The Developer shall endeavour to handover possess ion of the said flat within q period of four yeqrs i.e, 48 months from the dote of commencement of project, subject to force majeure & timely payments by the allottee towards the sale consideration, in accordance with the terms as stipulated in the present agreement." 21. ment." 21.

The Authority has gone through the possession clause of the agreement.

At the outset, it is relevant to comment on the pre-set possession clause of thc. agreement wherein the possession has been subjected to all kinds of tcrnrs and conditions of this agreement and the complainant not being in default under any provision of this agreement and in 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 ancl Pagel 4ofzt y' Complaint No.

1476 of 2024 w ffi HARER& GURUGRAM uncertain but so heavily loaded in favour of the promoter and against thc allottee that even a sirfgle default by the allottee in fulfilling formalities and l documentations etc. as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning.

Moreover, the project was to be developed under the Affordable Housing Policy, 201.3,which clearly mandatcs that the project must be delivered within four years from the date of approval of the building plan or environmental clearance, whichever is later.

However, the respondent has chosen to disregard the policy provision ancl has instcad opted to reiterate its own self-serving, pre-set possession clause.

22.While crafting such unfair clause, the respondent has opcnly cxploitcd its dominant position, effectively leaving the allottee with no choice but to accept and sign the document.

This conduct by the respondent demonstrates its blatant disregard for the allottee's rights and its prioritization of its ow, unfair advantage over the allottee's lawful entitlements.

It should be draftcd in the simple and unambiguous language which may be understood by a common man with an ordinary educational background. ackground.

It should contain a provision regarding stipulated time of delivery ol possession ol" the apartment, plot or building, as the case may be and thc rights of thc buyer/allottees in case of deray in possession of the unit, 23' Admissibility of delay possession charges at prescribed rate of interest: The complainant is seeking delay possession charges till delivery of possession.

Proviso to Section LB provides that where an allottee does nol intend to withdraw from the project, he shall be paid, by the promotcr, interest for every month of delay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under Rule 15 of [hcr Rules, ibid.

Rule 15 has been reproduced as under: Complaint No.

1476 of 2024 Page 15 of21 HARERE ffi GURUORAM "Rule 15. prescribed rate of interest- [proviso to section 72, section 78 and sub-section @) and subsection (7) of section 791 (1) For the purpose of proviso to section 1Z; siciioi lB; and sub_ sections (! ana (7) of section L9, the "interest at the rote prescribed" shall be the State Bank of India highest marginal cost of lending rate +Zo/0.: Provided that in cose the Stqte Bank of India marginal cost oJ'lencling rate (MCLR) Is not in use, it shatl be replaced by sucl't benchmark lending rates which the State Bank of India may fix from time to time for lending to the general public.,, 24'The legislature in its wisdom in the subordinate legislation under thc provision of Rule 15 of the Rules, ibid, has determined the prescribed ratc ol interest.

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

25' Consequently, as per website of the State Bank of India i.e., https :f f sbi.co.in, the marginal cost of lending rate fin short, MCLR) as on date i,c., Z2.O1.ZO25 is 9.1,00/0.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2o/o i.e. +2o/o i.e., 11,.I00/o.

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

The relevant section is reproduced below: '(za) "interest" means the rqtes of interest payable by the promoter or the allottee, qs the case may be, Explanation. -For the purpose of this clause_ (i) the rate of interest chargeable from the allottee by the promoter, in cqse of default, shall be equal to the rate of inierest'which the promoter shall be liable to pqy the allottee, in case of default. (ii) the interest payable by the promoter to the allottei snitt be from the date the promoter received the amount or any part thereoJ'till the date the amount or part thereof and inie'rest thereon /s refunded, and the interest payable by the allottee to Lhe promoter shall be from the date the allottee defaults in paymelnt to the promoter till the date it is paid;,, I']agc 16 ol'2'( Complaint No.

1476 of 2024 ffiHARERA ffi cURUoRAM 27.Therefore, interest onr the delay payments from the complainant shall be charged at the prescribed rate i.e., 11.10 o/o by the respondent/promoter which is the same as is being granted to them in case of delayed possession charges.

Further no interest shall be charged from complainant-allottee for delay if any between 6 months Covid period from 01.03.20 20 to ol.Og.2ozo.

28.

On consideration of the documents available on record and submissions macle regarding contravention of provisions of the Act, the authority is satisfied that the respondent is in contravention of the Section 11(4)[a) of the Act by ngt handing over possession by the due date as per the agreement. tsy virtue of clause 4. clause 4.1, of the buyer's agreement, the possession of the subject apartment was to be delivered within 4 years from the date of commencement of project [as per clause 1[iv) of Affordable Housing Policy,2O13, all such projects shall be required to be necessarily completed within 4 years from the approval of building plans or grant of environmental clearance, whichever is later.

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

In the present case, the date of approval of building plans is 1-0.03.2015, and the date of environment clearance is 16.09.2016.

Thc due date of handing over of possession is reckoned from the date ol environment clearance being later.

Therefore, the due date of handing over of possession comes out to be 16.09.2020.

Further as per HARERA notification no'9/3-2020 dated26.05.2020, an extension of 6 months is granted for thc projects having completion date on or after 25.03.2020. 'l'he completion darc of the aforesaid project in which the subject unit is being allotted to the complainant is 16.09.2020 i.e., after 25.03.2020.

Therefore, an extension of 6 months is to be given over and above the due date of handing over possession in view of notification no.9/3-2020 dated 26.05.2020, on account of forc. majeure conditions due to outbreak of Covid-19.

As such the due date for handing over of possession comes out to be t6.03.2021,.

Page17 of21/ Complaint No.

1476 of 2024 ffiH ffiG IAl?ER,& Ut?UGI?AM 29.|t is the failure of the promoter to fulfil its obligations and responsibilities as per the buyer's agreement to hand over the possession within the stipulatcd period.

Accordingly, the non-compliance of the mandate contained in Section L1(4)[a) read with Section 1B[1) of the Act on the part of the respondent is established.

As such the complainant is entitled to delay possession charges at rate of the prescribed interest @ 1.1..L00/o p.a. w.e.f.

1,6.03. f.

1,6.03.2021 rill valid offer of possession plus 2 months after obtaining occupation certificate from the competent Authority or actual handover, whichever is earlier as pcr provisions of Section 1B(1) of the Act read with Rule L 5 of the Rules, ibid.

30.

It is pertinent to note that the rate of interest chargeablc from the allottee by the promoter, in case of default shall be charged at the prescribecl rate i.c., L1,.1,0o/o by the respondent/promoter which is the same rate of intercst which the promoter shall be liable to pay the allottee, in case of default i.e., the delayed possession charges as per Section 2(za) of the Act.

3L.Also, as per Section 17(1)of the Act of 2016,the respondent is obligated to handover physical possession of the subject unit to the complainant.

Therefore, the respondent shall handover the possession of the allotted unit as per specification of the buyer's agreement entered between the parties, after receiving occupation certificate from the competent authority.

G.III Direct the respondent to raise the last demand as per Affordable Housing Policy towards consideration of the unit, to make the payment.

G.IV Direct the respondent to quash letter dated L4.03.2024 issued by respondent demanding illegal arbitral amount of Rs.4,1 4,303 /- without even raising the last tax invoice/ demand letters.

32.

The Authority is of the view that the respondent/promoter shall not chargc anything from the complainant(s) which is not the part of the builder buycr agreement and under the Affordable Housing policy, 2013.

33.

Perusal of case file reveals that the demand raised by the respondent via lettcr dated 1,4.03.2024 was towards payment of interest on delay payments.

Page 1B ol21 ,7 a"rpM HAl?TR& GUI?UGl?AM Therefore, the rate of interest chargeable from the allottee by the promoter, in case of default, if any shall be charged at the prescribecl rate i.e., tl. i.e., tl.I0o/o by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottee, in case of default i.e., the delayed possession charges as per Section Z(za) of the Act.

G.V The Authority to guide as to in which bank account complainant should deposit last demand if raised by respondent as escrow account of respondent is freezed by Authority vide its order dated L2.O2.2024.

34.

The Authority is of the view that the complainant shall deposit the last demand raised by the respondent, if any outstanding remains after adjustment of the delayed possession charges as and when the escrow account of the respondent is de-frozenby the Authority.

H.

Directions of the Authority 35.

Hence, the authority hereby passes this order and issues the following directions under Section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority undcr Section 34(f): I' The cancellation letter 22.04.2024, of the allotted unit issued by rhc respondent to the complainant is hereby ordered to be set-aside with a direction for reinstate of the subject unit and issue a fresh statcment ol account as per builder buyer's agreement with prescribed rate of interesl i.e., 11.1,0o/o p.a. on the outstanding amount towards complainant/allottcc as prescribed under Rule 15 of the Rules, ibid.

The respondent is directed to pay delay possession charges to the complainant against the paid-up amount at the prescribcd rate of intcrcst i.e.,11.100/o p.a. for every month of delay from the due date of possession 1,6.03.2021 till valid offer of possession plus two months, after obtaining occupation certificate from the competent Authority or actual handins Complaint No.

1476 of 2024 Page L9 of 27 ffiHARER& ffi eunUGRAM over of possession, whichever is earlier as per proviso to Section 1B[1J of the Act read with Rule 15 of the Rules, ibid.

III. ibid.

The arrears of such interest accrued from due date of possession of each case till the date of this order by the authority shall be paid by the promoter to the allottee within a period of 90 days from date of this orclcr and interest for every month of delay shall be paid by the promoter to allottee(s) before 10th of the subsequent month as per Rule 16(2) of the Rules, ibid.

IV.

The complainant is directed to pay outstanding dues, if any, aftcr V. adjustment of interest for the delayed period.

The respondent is directed to offer the possession of the allotted unit within 30 days after obtaining occupation certificate from the competent authority.

As per Section 19[10) of Act of 201,6, the complainant shall take the physical possession of the subject unit, within a period of two months of the occupancy certificate.

The rate of interest chargeable from the allottee by the promoter, in case of default shall be charged at the prescribed rate i.e., 11,.1.00/o by thc respondent/promoter which is the same rate of intcrest ',vhich thc promoter shall be liable to pay the allottee, in case of default i.e., thc delayed possession charges as per Section Z(za) of the Act.

Further no interest shall be charged from complainant-allottee for delay if any between 6 months covid period from ol.o3.zoz0 to 0l.og.zozo.

The complainant shall deposit the last demand raisecl by the respondent, il' any outstanding remains after adjustment of the delayed possession charges as and when the escrow account of the respondent is de-frozen by the Authority.The respondent shall not charge anything from the complainant which is not part of the buyer's agreement and under the Affordable Housing Policy, 201,3. / VI.

VII.

1476 of 2024 Page 20 of 27 HARTRA ffi GUI?UGI?AM 36.

Complaint stands disposed of.

37.

Files be consigned to registry.

Dated: 22.Ot.2025 Complaint No.

1476 of 2024 Haryana R{a/Estate Regulatory AMhority, Gurugram Page27 ol21 Astiok (M