SARITA MISHRA vs OCEAN SEVEN BUILDTECH PVT. LTD.

trHARERA S-eunuenntr,t Complaint no.690 of2024and 2 other BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of Order: 16.04.2025 CORAM: Ashok Sangwan Member 1.

This order shall dispose of all the 3 complaints titled as above filed before this authority in form CRA under section 31 of the Real Estate (Regulation and Development) Act,2016 (herciqafter referred as "the Act") read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 (hereinafter referred as "the rules") for violation of section 11(4)(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

2.

The core issues emanating from them are similar in nature and the complainant(sJ in the above referred matters are allottees of the project, Name ofthe Builder Ocean Seven Buildtech Pvt.

Ltd.

Proiect Name Expressway Towers S.no.

Complaint No.

Complaint title Attendance 1. cR/690/2024 Priyanka Bhatia V/s Ocean Seven Buildtech Pvt.

B.L Jangra (ComplainantJ Arun Yadav (Respondentl , cR/446/2024 Avinash Yadav V/s M/s Ocean Seven Buildtech Pvt.

B.L langra (Complainant) Arun Yadav fResDondent) 3. cR/as7/2024 Sarita Mishra Vls M/s Ocean Seven Buildtech Pvt.

B.L Jangra (Complainant) Arun Yadav IResDondent) Pagelot?O / trHARERA # eunuennll Complaint no.690 of2024 and 2 other namely, "Expressway Towers" at Sector 109, Gurugram being developed by the respondent/promoter i.e., Ocean Seven Buildtech Private Limited.

The terms and conditions ofthe builder buyer's agreements fulcrum ofthe issue involved in all these cases pertains to failure on the part of the promoter to deliver timely possession of the units in question, seeking award of possession and delayed possession charges etc.

3.

The details of the complaints, reply status, unit no. , unit no., date of agreement, possession clause, due date of possession, offer of possession, total sale consideration, amount paid up, and reliefs sought are given in the table below: ProiecE "Expressway Towers" at Sector 109, Gurugram Possession clause in Affordable Housln I (iv) All such projects shall be required to be necessarily completed within 4years from the date ofapproval ofbuilding plans or grqnt ofenvironmental cledrqnce, whichever is lqter.

This date shall be referred to qs the "date of commencement of project,'for the purpose of the policy.

L oate olsonctl as per information obtained from the planning branch.

Date oI grant of environmental clearonce- Date of grant of environmental clearance is 30.11.2017 as per information obtained from the planning branch.

Due date ofhanding over ofpossession- 30.05.2022 [The due date has been calculated as 4 years from date of grant of enyironmental clearance i.e., 30.11.2017 as per policy of2Ol.3 + 6 months as per HARERA notification no.9/3-2020 dated 26.05.2020 for the projects having completion date on or after 25.03.2020').

4.

Occupation certi./tcate- Not obtained 5.

DTCP License no.

6 of 2076 dated 76.06.2076- Shrce Bhagwan is the licensee for the project as mentioned in land schedule ofthe project.

6.

RE?/ registration - 301 of 2017 dated t3.10.2077 valid upto 12.10.2021.

Page 2 ot 20 4.

HARERA GURUGRAM The aforesaid complaints were promoter on account ofviolation Complaint no.

690 of2024 and 2 other filed by the complainant(s) against the ofthe builder buyer's agreement executed page 3 of20 ,/ Sr.

No Complaint no./title/ date of complaint Reply status Unlt No. and area admeasur tng (Carpet area) Date of execudon of aparuncnt buye/s aSfee ent Due date of possession & Offer possesslon Total sale consideration and amount paidby the Complalnant (s) Relief tought 1. cR/690/2024 Priyanka Bhatia Seven Buildtech Pvt Ltd.

DOF.

14.03.2024 Reply received 24.07. ved 24.07.20 24 608, Tower 4 (PaEe Z? of complaint) Notexecuted 30.o5.2022 oferof Notoffered TSC: k 26,26,000/- (As per CRA on page 2l of complaint) Rs.

23,A2,563 / - (As per ledger account at page 29ofcomplaint) DPCand Possessio n, CD 2. cR/a46/2024 V/s M/s Ocean Seven Buildtech Pvt Ltd.

14.03.2024 Reply received 24.07.20 24 106, Tower 3, 1n Floor (Page 36 of complaint) - 29.rt.2023 30.os_2022 Offerof possession- Not o{fered I I TSC: P's.26,29,5OO / - (As per BBA on pa8e 36 of complaint) AP: k 27,18,249/- (As per CRA at page 23 of complaint) )PC and 1,CD 3. cR/asl/2024 Sarita Mishra Seven Buildtech PvL Ltd.

DOF, 11.03.2024 Reply received 24.07.20 24 208, Tower 3,2"d Floor (Page 34 of complain0 !

22.O9.2017 RH 30.o5.2022 0Eerof possession Not offered TSC: Rs.

26,26,000 / - (As per BBA on page 37 ot complaint) AP: Rs.25,43,286 / - [As p€r CRA on page 24 of complaint) Rs.23,83,286l- [As per ledger account at page 87 of comDlaint) DPC and n, CD rote: ln the table refemed above certain abbreviatlons have been used.

They are elaboiated as follows: Abbreviatlons Full form DOF Date offiling complaint TSC- Total Sale Consideration AP- Amount paid by the alloftee[s) PHARERA Si eunuonnnr Complaint no.690 of2024 and 2 other between the parties inter se in respect of said unit for seeking award of possession and delayed possession charges etc.

5. lt has been decided to treat the said complaints as an application for non_ compliance ofstatutory obligations on the part ofthe promoter/respondent in terms of section 34(0 of the Act which mandates the authority to ensure compliance of the obligations cast upon the promoter, the allottee(s) and the real estate agents under the Act, the rules and the regulations made thereunder.

The facts of all the complaints frled by the complainant(s)/allottee(s) are also similar. o similar.

Out of the above-rnontioned case, the particulars of lead case CR/690/2024 titled as Prvanka Bhatta V/s Oceon Seven Buildtech pvL Ltd, are being taken into consiil,eration for determining the rights of the allottee(s) qua possession and delayed possesdon charges.

A.

Proiect and unit relited details 7.

The particulars of th'! proiect, the details ofsale consideration, the amount paid by the complainant(s), date of proposed handing over the possession, delay period, if any, have been &ailed in the following tabular form: CR/690/2024 titled as Hwnka Bhatia V/s Ocean Seven Bulldtech pvL Ltd. s.

N.

Particulars Details 1.

Name ofthe project "Expressway Towers", Sector 109, Gurugram 2.

Nature ofthe proiect Affordable Housing 3.

DTCP license no. and validity status 6 of 2016 dated 76.06.2076 4.

RERA Registered/ not registered 301 of 2017 dated 13.10.2017 valid upto L2.10.2021 5.

Allotment Letter 20.05.2017 (page 27 of complaintl 6.

Unit no.

608, Tower 4 fPage 27 of complaintl 7.

Unit area admeasuring 644 sq. ft. (carpet area), 100 sq.ft balcony area PaEe{ofZO / ffHARERA s*eunuennll Complaint no.690 of2024 and 2 other (Page 27 of complaintJ 8.

Date of execution of Apartment Buyer's Agreement Not executed 9.

Possession clause in Affordable Housing Policy 1 (tv) All such projects shall be required to be necessarily completed within 4years from the date ofapproval ofbuilding plans or grant of environmental clearance, whichever is later.

This date shall be referred to as the "date of commencement ofproject" for the purpose ofthe policv.

10.

Date of environmental clearance .30.11.2O17 .,(as per information obtained from the :planning branchl 11.

Date of approval of building plans 26.09.2016 ,(as per information obtained from the planning branch) 1,2.

Due date ofpossession 30.05.2022 (Calculated as 4 years from date ofgrant of environmental clearance i.e., 30.1.1.2017 as per poliry of 2013 + 6 months as per HAREM notiffcation no.

9/3-2020 dated 26.05. ted 26.05.2020 for the projects having completion date on or after 25.03.2020.-) 13. k.26,26,000 /- (As per CRA on page 21 of comDlaint) 14.

Amount paid by the complainant Rs.

23,82,563 /- (As per ledger account on page 29 of complaint) 15.

Occupation certificate /Completion certificate Not obtained 76.

0ffer ofpossession Not offered B.

Facts ofthe complaint 8.

The complainant has made the following submissions: - I.

That the complainantwas allotted a unit/flat bearing no.60g in Tower 04 on 9th Floor admeasuring 644 sq. ft. carpet area and 100 sq. ft. balcony area in the proiect of the respondent named "Expressway Towers,, at Sector-log, Gurugram vide allotment letter dated 20.05.2017.

The 4/ Page 5 of20 Total sale consideration trHARERA # eunuennHl II.

I II.

Complaint no.690 of2024 and 2 other complainant approached the respondent to get signed the agreement to sell but the respondent did not send and signed agreement to sell despite the payment from the complainant which is in violation of Section 13(1) ofthe Act, 2016.

That it came to the knowledge of the complainant that the respondent procured and obtained building plan approval on 26.09.2016 and received environmental clearance on 30.71.2017.

That the respondent cannot override clause 1(iv) of Affordable Housing Policy, 2013 relating to completioh Ofconstruction and possession.

Hence the due date of possession. is to be reckoned from environmental clearance that is 30.11.2017 whiah comes to 30.11.2021. lV.

That the complainant had already paid sum of Rs.23,82,563/- upto 07.12.2019 as per the demands sent by the respondent which is more than 900/0 ofthe total amount ofthe said flat.

That the complainant is also entitled to seek Input Tax Credit of GST pursuance to the order dated 05.11.2019 in case no.

55/2019, case titled as "Shri Hardev Singh & Ors.

V/s M/s Ocean Seven Buildtech pvt.

Ltdl, passed by the National Anti-Profiteering Authority.

Authority.

However, despite repeated request and reminders for settlement of the above in the cost and other payables by the complainant but the respondent refused to give the same hence committed the violation of the said iudgment.

The complainant visited several times in the office of the respondent calling upon to complete the project and handing over the possession, but it gave evasive reply and demands illegitimate money under the pretext the construction cost has gone above but were refused by the complainant.

However, the complainant is ready to pay the legitimate balance demand as may be directed by this Authority at the time of possession.

VI.

Page 6 of20 * HARERA As* eunuennL,r Complaint no.

690 of2024 and 2 other C.

Reliefsought by the complainant: 9.

The complainant has sought following relief(s): i.

Direct the respondent to handover possession of the unit, to execute conveyance deed and to pay delay possession charges as per the Act. ii.

To restrain the respondent from demanding Labour Cess, VAT, Work Contract Tax and Power Backup charges.

On the date ofhearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11(4) (a) ofthe act to plead guilty or not to plead guilty.

D.

Reply by the respondent: 11.

The respondent vide its reply 7.2024 has contested the complaint on the following grounds: i.

That this Authority lacks iurisdiction to adjudicate upon the present complaint as vide clause 16.2 of the builder buyer agreement, both the parties have unequivocally agreed to resolve any disputes through arbitration. ii.

That the complainant is a willful defuulter and deliberately, intentionally and knowingly have not paid timely installments. iii.

That starting from February 2023, the construction activities have been severely impacted due to the suspension ofthe license and the freezing of accounts by the DTCP Chandigarh and HRERA Gurugram, respectively. pectively.

This suspension and freezing ofaccounts represent a force majeure event beyond the control of the respondent.

The suspension of the license and freezing ofaccounts, starting from Feb 202 3 till date, have created a zero- time scenario for the respondent.

Furthet there is no delay on the part of the respondent project as it is covered under clause number 5.5 force Mareure, which is beyond control of the respondent.

Page 7 of20 *HARERA $$-eunuennHl Complaint no.690 of2024 and 2 other That the final EC is CTE/CTO which has been received by the respondent in February 2018.

Hence the start date of proiect is Feb 20lg and rest details are as follows: ryqi9ct completion Date Feb-22 Covid lock down waiver 18 months NGT stay (3 months approx. for every year)i.e.

6*3 18 months Total Time extended to be extended (18+ LB) months 36 months Accounts freezed & license further time to be exten unfreezing ofthe accou 2023 (10 monthsl Feb 2023 till date Nov-23 Final project completion date (in case prorect is unfreezed) further time would be added till unfreezing the accounts Nov-25 As per the table given above, the final date for the completion of construction is Feb 25 in case the accounts are unfreezed by the competent authority on the date of flling this reply.

From Feb 2023, the license has been suspended and accounts have been freezed by the DTCp Chandigarh and HRERA Gurugram. v.

That the complainant has claimed relief for restraining it from demanding labour cess, VAT, work contract tax and power backup charges.

However, the project has not been completed yet and no cause ofaction has arisen for the complainant to file a complaint based on false, fabricated and erroneous grounds.

12.

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 on the basis of these undisputed documents and submission made by the parties. e parties.

PageSof2o / Covid and NGT Restrictictions MHARERA *$- ounuennnr Complaint no.690 of2024and 2 other E. lurisdiction ofthe authority 13.

The authority observes that it has territorial as well as subiect matter ,urisdiction to adjudicate the present complaint for the reasons given below.

E.

I Territorial iurisdiction 14.

As per notificarion no.

1/92lZ0lT -tTCp dated,1,4.lZ.ZOl7 issued by Town and Country Planning Department, the iurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

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

Therefore, this authority has colEpllte territorial iurisdiction to deal with the present complaint.

II Subiect matter iurtsdicdon.

15.

Section 11(a)(a) of the Act, ,016 i,idvides that the promoter shall be responsible to the ellottee as per agri:ement fsr sale.

Section 1l[4)(a) is reproduced as hereunder: Section 71 (4) The promoter shall- (o) be responsible for oll obligotjons, responsibilities ond functions under the provisions of this Act or the rules ond regulotions made thereunder or to the allottees as per the agreement for sale, or to the ossociotion oJallottees, os the cose may be,till the conveyonce of all the oportments, plots or buildings, as the cose moy be, to the ollottees, or the common oreas to the associotion of ollottees or the competent authoriE, as the case mqy be; Section 34-Functions of the Authoriay: 34(fl of the Act provides to ensure complionce of the obligations cost upon the promoters, the allottees qnd the reol estate ogents under this Act ond the rules ond reg ulotions mode thereunder.

16.

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.

Page 9 of20 F.

17. * HARERA *,ounuenall Complaint no. plaint no.690 of2024 and 2 other Findings on the obiections raised by the respondent: F,l Obiections regarding force maieure.

The respondent/promoter has raised the contention that the construction ofthe proiect has been delayed due to force mareure circumstances such as ban on construction due to orders passed by NGT, major spread ofCovid-19 across worldwide, suspension of license by the DTCP, Chandigarh and freezing of accounts by HRERA Gurugram etc. which is beyond the control of the respondent and are covered under clause 5.5 of the agreement.

The respondent has further sub&&&d-,that suspension of the license and freezing of accounts, starting ffO*r. f* 2023 till date have created a zero- time scenario for the respondeni iurthermore, the final EC is CTE/CTO which has been received by.th€ .respordent in February 2018, hence the start date of proiect is Feb 2018.

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

As per clause 1(iv) of the Affordable Housing Policy, 2013 it is prescribed that 1,411 such projects shall be required to be necessarily completed within 4 years from the date of approval of building plans or gront of environmentd clearance, whichever is toter- This date shall be referred to as the "date of coinmencement of project" for the purpose of this policy.

The respondent has obtalned environment clearance and building plan approval in respect of the said proiect on 3O.LL.?OLZ and 26.09.2016 respectively.

Therefore, the due date of possession is being calculated from the date of environmental clearance, being later.

Further, an extension of 6 months is granted to the respondent in view of notification no.

9/3-2020 dated 26.05.2020, on account of outbreak of Covid-19 pandemic.

Therefore, the due date of possession was 30.05.2022.

As far as other contentions of the respondent w.r. ndent w.r.t delay in construction of the project is concerned, the same are disallowed as firstly the orders passed by NGT banning construction in the NCR region was for a very short period of time and thus, Page 10 of20 ffiHARERA $b- ounuennHr Complaint no.690 of2024 and 2 other cannot be said to impact the respondent-builder leading to such a delay in the completion.

Secondly, the licence of the proiect of the respondent was suspended by DTCP, Haryana vide memo dated ZZ.OZ.ZO23, due ro grave violations made by it in making compliance ofthe terms and conditions of the licence and thereafter due to several continuing violations of the provisions ofthe Act, 2016 by the respondent, in view to protect the interest of the allottees, the bank account of the respondent related to the project was frozen by this Authority vide order dated 24.02.2023.

Thus, the promoter/respondent cannot be granted any leniency on based ofaforesaid reasons and it is well settled pf&iciple that a person cannot take benefit of his own wrong.

F.II Obrection regarding ln breach of agreement for non- invocationofarbltlatlon..?.-.. .r 18.

The respondent hat submitted that the complaint is not maintainable for the reason that the agreement contalns an arbitration clause which refers to the dispute resolution rRechanism to be adopted by the parties in the event of any dispute.

The authorlty is of the opinion that the iurisdiction of the authority cannot be fettered by the existence of an arbitration clause in the buyer's agreement as it may be noted that section 79 of the Act bars the iurisdiction of civil co*rts abort,any matter which falls within the purview of this authority, or the Real Estate Appellate Tribunal.

Thus, the intention to render such disputes as non-atbitrable seems to be clear.

Also, section gg of the Act says that the provisions ofthis Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. in force.

Furthel the authority puts reliance on catena of judgments of the Hon,ble Supreme Court, particularly in National Seeds Corpomtion Limited v.

M.

Madhusudhan Reddy & Anr. (2012) 2 SCC 506, wherein it has been held that the remedies provided under the Consumer protection Act are in addition to and not in derogation ofthe other laws in force, consequently the PaSe 11of20 tr HARERA #ounuennH,l Complaint no.

690 of2024 and 2 other authority would not be bound to refer parties to arbitration even if the agreement between the parties had an arbitration clause. ?herefore, by applying same analogy the presence of arbitration clause could not be construed to take away the jurisdiction ofthe authority.

19.

Further, in Aftab Singh and ors. v.

Emaar MGF Land Ltd and ors., Consumer case no.

7Ol of 2O15 decided on l3.O7.ZOl7, the National Consumer Disputes Redressal Commission, New Delhi TNCDRC) has held that tle arbitration clause in agreements between the complainants and builders could not circumscribq.dld:iurisdiction of a consumer.

Furthet while considering the issue C-rygii,tlhinaUility of a complaint before a consumer forum/commission in the fact of an existing arbitration clause in the builder buyer agreement, the hon'ble Supreme Court in case titled as M/s Emaar MGF l,and Ltd.

U Afiob Stngh in revision petition no.

2629- 30/2078 in cilrl appeal no.

2i512-2J573 ofZOIT decided on 70.72.2078 has upheld the aforeSiid ludgement ofNCDRC and as provided in Article 141 ofthe Constitution oiindi", thdl"* declared by the Supreme Court shall be binding on all courts within the terrftory of India and accordingly, the authority is bound by the afuresald yiew.

Therefore, in view of the above judgements and coasidering th€ lrwisloD of the Act, the authority is of the view that complaitiant is well wlthln his right to seek a special remedy available in a beneficial Act such as the Consumer protection Act and RERA Act, 2016 instead ofgoing in for an arbitration. bitration.

Hence, we have no hesitation in holding that this authority has the requisite iurisdiction to entertain the complaint and that the dispute does not require to be referred to arbitration necessarily.

G.

Findings on the reliefs sought by the complainant: G.

I Direct the respondents to handover possession of the unit, to execute conveyance deed and to pay delay possession charges as per the Act PaEe 12 ofzo 20. *HARERA s- eunuennvr Complaint no.690 of2024 and 2 other The complainant intends to continue with the proiect and is seeking delay possession charges as provided under the proviso to section 18(lJ of the Act.

Sec.

18(1J proviso reads as under. "Section 78: - Retum of omount qnd compensotion 18(1). lf the promotcr foils to complete or is unoble to give possession of an oportment, plot, or building, - Provided thotwhereon allottee does not intend ta withdtdw from the project, he shall be poid, by the promotcr, interest for every month of delay, till the handing over of the possession, ot such rote as moy be prescribed." for ready reference: 1 (iv) "Allsuch projects shqll be required to be necessorily completed within 4yeors from the date of approvol of building plans or grant of environmentol clearance, whichever is later.

This date sholl be referred to os the,uate of commencement of project" for the purpose of the policy.,, Due date of handlng over of possession: As per clause 1(iv] of the Affordable Housing Poliry, 2013 it is prescrib ed that.,A such projects shall be required to be necessdrily completed within 4 years from the date of approval of building plons or grant of environmental clearance, whichever is later.

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

The respondent has obtained environment clearance and building plan approval in respect of the said proiect on 30.L7.2017 and 26.09.2076 respectively. pectively.

Further, an extension of 6 months is granted to the respondent in view of notification no.9/3-2020 dated 26.05.2020, on account of outbreak of Covid-19 pandemic.

Therefore, the due date of possession comes out to be 3 0.05.2022.

Admissibility of delay possession charges at prescribed rate of interest: Proviso to section 18 provides that where an allottee does not Page 13 of20 )) 23.

24.

S HARERA Ah ounuonnu Complaint no.690 of2024 and 2 other intend to withdraw from the projec! he shall be paid, by the promoter, interest for every month ofdelay, till the handing over ofpossession, at such rate as may be prescribed and it has been prescribed under rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 75.

Prescribed rate of interest- lproviso to section 72, section 78 and sub-section (4) dnd subsection (7) oI section 791 (7) For the purpose of proviso to section 12; section 1g; and sub-sections (4) and {Z) of section 79, the ,,interest qt the rote prescribed" shqll be the Stote Bankoftndio highest marginol cqstollending rote +2tj6.: provided tbqt t, ct* the Stote Bonk of lndia marginal cost af lefilrg rute (MCLR) is not ii use, it sholl be reploccd W such benchmark lending rotes which the Stotc tuttkofi dio mqyfrxfrom timitotime for lending to the geneml public.

The legislature in its wisdom'ir tfie subordinate legislation under the provision of rule 15 Of the rrrlgs, has determined the prescribed rate of interest.

The rate of lirbrest so determined by the legislature, is reasonable and ifthe said rule is followed to award dre interesl it will ensure uniform practice in all the cas€s.

Consequently, as per website of.theState Bank of India i.e., https://sbi.co.in. the marginal cost of lending rate (in short, MCLR) as on date i.e., L6.O4.2OZ; is 9.10olo. s 9.10olo.

Accordirgly, the presc bed rate of interest will be marginal cost oflending rate + 2 Vt i.e., lL.lOVo.

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 the promotel 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: "(zo) "interest" meons the rates oI interest payable by the promoter or the allottee, os the cose moy be, Explqnation. -For the purpose of this clouse- O the rate of interest chargeoble from the ollottee by the promoter, in case of default, shall be equal to the rote oI 25.

26.

Page 14 ofzo THARERA #,ounuennu Complaint no.690 of2024 and 2 other interest which the promoter shqll be liable tD pay the allottee, in cose of deloult; (ii) the interest poyable by the promoter to the allottee sholl be Irom the datc the promoter received the amount or qny port thereof till the dote the amount or part thereof and interest thereon is refunded, qnd the interest Wyable by the ollottee to the promoter shq be lrom the dote the ollottee delaults in powent to the promoter till the date it is poidi, 27.

Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., 11.l0yo by the respondent/promoter which is the same as is being gran_ted to the complainant in case of delayed possession charges.

28.

On consideration of the documents available on record and submissions made by both the parties, the authority is satisfied that the respondent is in contravention of the Section 11[a)(a) of the Act by not handing over possession by the due date as per the agreement.

By virtue ofclause 1(iv) of the Affordable Housing Poliry 2013, the respondent/promoter shall be necessarily required to complete the construction of the prolect within 4 years from the date ofapproval of building plans or grant ofenvironmental ironmental clearance, whichever is later.

Therefore, in view ofthe findings given above, the due date of handing over of possession was 30.05.2022.

However, the respondent has failed to handover possession of the subject apartment to the complainant till the date ofthis order.

Accordingly, it is the failure of the respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

Moreover, the authority observes that there is no document on record from which it can be ascertained as to whether the respondent has applied for occupation certificate or what is the status of construction of the proiect.

Hence, this project is to be treated as on-going project and the provisions of the Act shall be applicable equally to the builder as well as allottees.

Page 15 of20 29. ffiHARERA s, eunuennvr Complaint no.690 of2024 and 2 other Accordingly, the non-compliance of the mandate contained in section 11(4J(a) read with proviso to section 18(1J of the Act on the part of the respondent is established.

As such, the allottee shall be paid, by the promoter, interest for every month of delay from due date ofpossession i.e., 30.05.2022 till valid offer of possession plus Z months after obtaining occupation certificate from the competent authority or actual handing over of possession whichever is earlier, as per section 18(1) of the Act of 2016 read with rule L5 ofthe rules.

Further, as per section 11(a)(f) and section 17(1) of the Act of 2016, the promoter is under an obligation to get the conveyance deed executed in favour ofthe complainanL Whereas as per secrion 19(1 t) ofthe Act of 2016, the allottee is also obligated io paiticipate towards registration of the conveyance deed ofthe unit in"r1uesfion.

Howwer, there is nothing on the record to show thatthe respondent has applied for occupation certificate or what is the status of the development of the above-mentioned project. d project.

In view ofthe above, thd respondent is directed to bandover possession ofthe flat/unit and execute conveyance deed ln favour ofthe complainant in terms of section 17(1) of the Act of 2016 on payment of stamp duty and registration charges as applicable, within three months after obtaining occupation certificate from the competent authority.

G,ll To restrain the rospondent&.om dehanding l,abour Cess, VAT, Work Contract Tax and Power Backup charges.

31.

The complainant has sought the relief to restrain the respondent from demanding Labour Cess, VAT, WCT and power backup charges.

Although, as per record, no demand under the above said heads have been made by the respondent till date, however in the interest of justice and to avoid further litigation, the Authority is deliberating its findings on the above said charges: Page 16 of20 ./ 30. *HARERA db- ounuonnvr Complaint no.690 of2024and 2 other o Labour Cess: - The issue of labour cess has already been dealt with by the authority in complaint bearing no.96Z of 2019 titled Mr.

Sumit Kumar Gupta and Anr.

Vs Sepset properties privote Limited wherein it was held that since labour cess is to be paid by the respondent, as such no labour cess should be separately charged by the respondent.

The authority is of the view that the allottee is neither an employer nor a contractor and labour cess is not a tax but a fee.

Thus, the demand of labour cess is completely arbitrary and the complainant cannot be made liable to pay any labour cess tatlp respondent and it is the respondent- builder who is solely respoqrible.fr disbursement ofthe said amount. .

VAT: - The promoter is entitled to charge VAT from the allottees where the same was leviable, at the applicable rate, if they have not opted for composition scheme.

However, if composition scheme has been availed, no VAT is leviable. leviable.

Further, the promoter shall charge actual VAT from the allottees/prospective buyers paid by the promoter to the concerned department/authority on pro-rata basis i.e. depending upon the area of the flat allotted to the complainant vis- i-vis the total area of the particular project.

However, t}le complainant would also be entitled to proof of such payments to the concerned department along with a computation proportionate to the allotted unit, before making payment under the aforesaid heads. .

WTC (Work Contract tax): - The complainant is seeking above mentioned relief with respect to restraining the respondent from demanding Work Contract Tax.

At this stage, it is important to stress upon the definition ofterm 'work contract,under Section 2 [119) ofthe CGST Act, 2017 and the same is reproduced below for ready reference; "(119) - works contract meons o controct for building, construction, fobrication, completion, erection, instollolion, fiuing out. improvemenL modilicot ion, repotr, mdintenance, renovotion, olteration or commissioning of ony immovoble PaEe 17 ofzo ./ *HARERA d!- ounuonnul Complaint no.690 of2024 and 2 other pr?per:y wltgtgin tonsfer of proper,y in goods {whether os goods or in some other form) is involved in the execution ofiuch cintroct:,, After considering the above, the Authority is of the view that the complainant/allottee is neither an employer nor a contractor and the same is not applicable in the present case.

Thus, the complainant/allottee cannot be made Iiable to pay the same to the respondent. .

Power Backup Charges: - The issue of power back-up charges has already been clarified by the _ofice of DTCP, Haryana vide office order dated 31.01.2024 wherein it has rically clarified the mandatory services to be provided by the colonizer/developer in affordable group housing colonies and services for which maintenance charges can be charged from the allottees as per consumption. nsumption.

According, the promoter can only charge maintenance/use/utility charges from the complainant_ H.

32. allottee as per consumption as prescribed in category_ll of the office order dated 3l.oL.z0z4.

Directions of the authority Hence, the authority hereby passes this order and issue 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 under section 34(0: i.

The respondent/promoter is directed to pay interest to the complainant against the paid-up amount at the prescribed rate of 11.10o/o p.a. for every month of delay from the due date of possession i.e.,30.05.2022 till valid offer of possession plus 2 months after obtaining occupation certificate from the competent authority or actual handing over of possession, whichever is earlier, as per section 1g(1J of the Act of 2016 read with rule 15 ofthe rules.

Page 18 of20 Y *HARERA d[, ounuennv ii.

The arrears ofsuch interest accrued from 30.05.2022 till the date of order by the authority shall be paid by the promoter to the allottee within a period of 90 days from date of this order and interest for every month ofdelay shall be paid by the promoter to the allottee before 10th of the subsequent month as per rule 15(2) ofthe rules. iii.

The respondent/promoter is directed to supply a copy of the updated statement of account after adjusting delay possession charges within a period of30 days to the complainant. iv.

The complainant is di days from the date of receipt ofupdated statement of account.

The respondent/promoter shall handover possession of the flat/unit and execute conveyance deed in favour of the complainant in terms of section 17(1) of the Act of 2016 on payment of stamp duty and registration charges as applicable, within three months after obtaining occupation certificate from the competent authority. authority.

The rate of interest chargeable from the allottee by the promotet in case of default shall be charged at the prescribed rate i.e., 1,1.L0% 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 2(zal ofthe Act.

The respondent/promoter shall not charge labour cess as well as work contract tax from the complainant-allottee.

The respondent/promoter can charge VAT from the complainant where the same was leviable, at the applicable rate, if they have vl, Complaint no.690 of2024 and 2 other vll. ull.

Page 19 of20 *HARERA d[ ounuennHl Complaint no.690 of2024 and 2 other not opted for composition scheme.

Further, the promoter shall charge actual VAT from the complainant paid by it to the concerned department/authority on pro-rata basis i.e. depending upon the area of the flat allotted to the complainant vis- d-vis the total area ofthe particular project.

The complainant would also be entitled to proof of such payments to the concerned department along with a computation proportionate to the allotted unit, before making payment under the aforesaid head. ix.

The respondent/promotercancharge maintenance/use/utility charges from the complainant-allottee as per consumption as prescribed in category-II of the office order dat ed 37.01,.2024. x.

The respondent/promoter shall not charge anything from the complainant which is not the part of the buyer's agreement or provided under the Affordable Housing policy, 2013.

33.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of 34.

35. this order.

The complaints stand disposed of.

Files be consigned to registry. tAs(or Mem Haryana Real Estate Regul Authority, Gurugram Datedt 16.04.2025 Page 20 of 20