AROMATRIX FLORA PRIVATE LIMITED vs RAHEJA DEVELOPERS LTD.

HARERA GURUGRAM BEFORE THE HARYANA REAL ESTATE REGUTATORY AUTHORITY, GURUGRAM Complaint No.

7817 of 2022 Complaint no. : Date of complaint : Date oforder : Aromatrix Flora Pvt.

Ltd.

Regd.

Office at: DLF Prime Tower, Flat no.

538 & 539, sth Floor, F 79-80, Okhla Industrial Area, Phase-1, New Delhi-110020.

Veisus Raheja Developers Private Limited.

Office at: 215-21,6, Rectangle One, I)-4, I)istrict Centre, Saket, New Delhi-110017.

CORAM: Ashok Sangwan APPEARANCE: Aman Leekha (AdvocateJ Carvit Gupta (Advocate) 7817 of 2022 ,3.o1.2023 24.o7.2024 Complainant Respondent Memher Complainant Respondent 1.

ORDER The present complajnt has been filed by the complaina nt/a llottee under section 31 ofthe Real Estate (Regulation and Development) Act,2016 (in short, the Actl read with rule 28 of the Haryana Reat Estatc (Regulation and Development) Rules, 2017 (in short, the RulesJ for violation ofsection 11(4) (a) ofthe Act wherein it is inter alia prescribed that the promoter sha1l be responsible for all obligations, responsibilities and functions to the allottee as per the agreement for sale executed lnfer se them.

Page 1 ot 23 ffi& A.

2.

HARERA GURUGRAM Unit and proiect related details The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Complaint No.

7817 of 2022 l S.

N.

Particulars Details 1.

Name of the project "Raheia's Revanta", Sector 78, Gurugram, Haryana 2 Proiect area 18.7213 acres 3 Nature of the proiect Residential group housing colon 4.

DTCP license no. and validiW status 49 of20!l dated 01.06.2011 valid up to 31.05.202L 5.

Name of licensee Sh.

Ram Chander, Ram SawrooP and 4 ollqq - Registered vide no. l.i 2 of 2017 datcd 04.08.2017 6.

RERA Registered/ not registered 7.

RERA registration valid up to 04.02.2023 5 Years from the date of revised Environment Clearance B, Unit no. , Unit no.

C-44 | , 44th floor, Tower/block- c IPaee no.

16 ofthe complaint) 9.

Unit area admeasuring 7623.330 sq. ft. (super area) fPase no.

16 ofthe complaint 10.

Allotment letter 28.06.2012 (Dase 56 of complaint 11.

Date of execution of agreement to sell 28.06.20L2 (Page no.

12 of the complaint) 12.

Possession clause 4.2 Possession Time and Compensation That the Seller shall sincerely endeavor to give possession of the Unit to the purchaser within thirE-six (36) months in respect oI'TAPAS' lndependent Floors and forty eight (48) months in respect of'SURYA T)WER' from the date of the execution of the Agreement to sell and after providing of necessary infrostructure speciolly rood sewer & woter in the sector by the Governmenl, but subjecL to forcc mdieurc conditions or ony Government/ llegulototy Page Z of 23 trHARIIA #* eunuenRv Complaint No.

7817 of 2022 outhority's action, inqction or omission and reasons beyond the conLrol of the Seller.

However, the seller sholl be entitled Ior compensation Iree grace period ofsix (6) months in case the construction is not completed within the time Period mentioned above.

The seller on obtoining certificate for occupation ond use by the Compelenl Authorities sholl hand over the Ilnit to lhe Purchaser for lhts occupolion and use ond subjecl lo the Purchaser having complied wilh oll the terms ond condilions of this application form & AgreementTo sell. ln the event of his failure to tqke over and /oa accupy and use the unit provisionolly and/or finally allotted within 30 days from the date of lntimation in writing by the seller, then the sqme shall lie qt his/her risk and cost and the Purchaser shall be liable to compensation @ Rs.7/- per sq. ft. of the super orea per month as holding cho44es for ]!q!!!9r94949fj!c!:el!v. " Allowed As per clause 4.2 of the agreement to sell, the possession of the allotted unit was supposed to be offered within a stipulated timeframe of 48 months plus 6 months of grace period. ce period.

It is a matter of fact that the respondent has not completed the project in which the allotted unit is situated and has not obtained the occupation certificate by lune 2016.

As per the agreement to scll, the construction of the proiect is to hc I completed by June 20 l6 which is not completed till date.

Accordingly, in the present case the grace period of 6 I months is allowed.

13.

Grace period 14.

Due date of possession 28.t2.2016 (Note: - 48 months from date of agreement + 6 months grace periodl Page 3 of 23 ffi HARER. #, eunuenll',1 17.

Total sale consideration as per payment PIan at Rs.L,19,10,710l- e no.

47 of complaint Rs.1,,18,97 ,160 /' 0ccupation certificate Not received complaint No.7817 of 2022 Amount paid complainant the per page customer ledger at no.

60 of complaint Completion certificate 18. qjf". q!pS!!c!!.19!

Not offered B.

Facts ofthe complaint 3.

The complainant has made the following submissions in the complaint: I.

That vide allotment letter dated 28.06.201'2' unit no C-441, 44th Floor, having a super area of 1623 sq' ft was allotted to the complainant in the proiect of the respondent named 'Raheia's Revanta', Sector 78, Gurugram Thereafter, an agreement to sell dated 28.06.201,2 was executed betlveen the parties regarding the said allotment for a total sale consideration of Rs 1,19,10,710/- against which the complainant had paid a sum of Rs 1,1t),97,160/ in all to the respondent till 14.12.2016' Il. 'lhat as per the terms and conditions of the said agreement, it was agreed that the possession ofthe said apartment will be handed ovcr within a period of 48 months from the date of its execution lt was further agreed that the respondent shall be additionally entitled to a period of 6 months as grace period.

However, the respondent failed to hand over the possession as contemplated in the said agrcemcnt despite repeated requests by the complainant Further, when thc complainant visited the said project on 07. ect on 07.03'2022 ie, after thc scheduled date of possession, it came to the knowiedge of thc complainant that the said apartment was not ready for possession' Page 4 of 23 ffiHARER,^ P* GURUGRAI/ Complaint No.

7817 of 2022 That the respondent has failed to develop and complete the project in accordance with the sanctioned plans and specification as approved by the competent authorities and it is on account of such defects that the project is facing delays' That the acts of the respondent caused severe harassment both physical and mental to the complainant and the respondent has duped the hard-earned money invested by the complainant by its act That the complainant seeks that the principal amount deposited by the complainant with the respondent in lieu of the agreement to salc be refunded back to the complainant along with an intercst' Relief sought bY the complainant: The complainant has sought following relief(s)' l.

Direct the respondent to refund the entire paid-up amount to the complainants along with along with 24yo interest p a' Il.

Direct the respondent to pay the cost oflitigation' Reply by the respondent The respondent contested the complaint on the following grounds: - i.

That the agreement to sell was executed between the parties prior to the enactment ofthe Act, 2016 and the provisions laid down in thc said Act cannot be enforced retrospectively Although the provisions of tho Act, 2016 are not applicable to the facts ofthe present case in hand yet without preiudice and in order to avoid complications later on' the respondent has registered the pro,ect with the authority under the provisions of the Act of 2016, vide registration no 32 of 2017 dated 04.0a.2017. ii.

That the complaint is not maintainable for the reason that thc agreement contains an arbitration clause which refers to the dispute resolution mechanism to be adopted by the parties in the event of any III.

IV.

C.

4.

D.

5. dispute i.e., clause 14. clause 14.2 of the buyer's agreement' Page 5 ot 23 ffiHARERA Heunuennll tv.

Complaint No.

7817 of 2022 iii.

That the complainant signed and executed the agreement to sell for the terms contained therein.

That the possession of the unit was supposed to be offered to the complainant in accordance with the agreed terms and conditions of the buyer's agreement as stated in clause 21 ofthe booking application form and clause 4.2 of the buyer's agreement That despite the respondent fulfilling all its obligations as per the provisions laid down by law, the government agencies have failed miserably to provide essentiallbasic infrastructure facilities such as roads, sewerage line, water and electricity supply in the sector where the said project is being developed.

That furthermore two High Tension [HT) cables lines werc passinB through the proiect site which were clearly shown and visible in thc zoning plan dated 06.06.2011.

The respondent got the overhead wires shifted underground at its own cost and only after adopting all necessary processes and procedures and handed over the same to thc HVPNL and the same was brought to the notice of District Town Planner vide letter dated 2A.L0.2074 requesting to apprise DGTCP' Haryana for the same.

That as multiple government and regulatory agencies and their clearances were in involved/required and frequent shut down of HT supplies was involved, it took considerablc time/efforts, investment and resources which falls within the ambit of the force majeure conditlon That GMDA, office of Engineer-Vl, Gurugram vide letter dated 03.1.2.2019 has intimated to the respondent company that the land of sector dividing road 77 /78 has not been acquired and sewer line has not been Iaid.

The respondent/promoter wrote on several occasioll5 unit no.

C-441,4th Floor and the complainant agreed to be bound by vll. nd by vll.

Page 6 of23 ffiHARER #-eunuettnn,l to the Gurugram Metropolitan development Authority (GMDA] to expedite the provisioning of the infrastructure facilities at the said project site so that possession can be handed over to the allottees' However, the authorities have paid no heed to or request till date viii.

That the construction of the tower in which the plot allotted to the complainant is located is 80% complete and the respondent shall hand over the possession of the same to the complainant aftcr its completion subject to the complainants making the payment of thc duc installments amount and on availability of infrastructure facilities such as sector road and Iaying providing basic external infrastructurc such as water, sewer, electricity etc. as per terms of the application and agreement to sell. ix.

That due to the above-mentioned conditions which were beyond the reasonable control of the respondent, the development of the township in question has not been completed and the respondent cannot be held liable for the same.

The respondent is also suffcring unnecessarily and badly without any fault on its part.

Due to thesc reasons the respondent has to face cost overruns without its fault' Under these circumstances passing any adverse order against the respondent at this stage would amount to complete travesty ofiustice' x.

That the origin of the present complaint is because an investor is unable to get required return due to bad real estate market lt is increasingly becoming evident, particularly by the prayers made in the background that there are other motives in mind by few who engineered this complaint using active social media. xi.

That the three factors: (1) delay in acquisition of land for dcvclopment ofroads and infrastructure (2) delay by government in construction of the Dwarka Expressway and allied roads; and (3) oversupply of the C"-pl"*X"r8t? "f ,0- PaEe 7 ol23 ffiHABERA #-eunueRltrr Complaint No. plaint No.

7817 of 2022 residential units in the NCR region, operated to not yield the price rise as was expected by a few.

This cannot be a ground for complaint for refund as the application form itself has abundantly cautioned about the possible delay that might happened due to non-performance by Government Agencies. xii.

That amongst those who booked [as one now sees) were two categories: (1) those who wanted to purchase a flat to reside in future; and (2) those who were looking at it as an investment to yield profits on resale.

For each category a lower price for a Revanta type Sky Scaper was an accepted offer even before tendering any money and bilaterally with full knowledge and clear declarations by taking on themselves the possible effect of delay due to infrastructure. xiii.

That in the present case, keeping in view the contracted price, the completed fand lived-in) apartment including interest and opportunity cost to the Respondent may not yield profits as expected than what envisaged as possible profit.

The completed building structure as also the price charged may be contrasted with the possible profit's v/s cost of building investment, effort and intent.

It is in this background that the complaint, the prevailing situation at site and this response may kindly be considered.

The present complaint has been filed with malafide motives and the same is liable to be dismissed with heavy costs payable to the respondent.

6.

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 submissions made by the parties.

Page I of 23 HARERA ffiGURUGRAM L 9.

7817 of 2022 E.

7. turisdiction of the authority The respondent has raised a preliminary submission/objection the authority has no iurisdiction to entertain the present complaint' The objection of the respondent regarding rejection of complaint on ground of juris d of jurisdiction stands reiected.

The authority observes that it has territorial as well as subiect matter iurisdiction to adiudicate thc present complaint for the reasons given below' E.l Territorialiurisdiction As per notification no.

1/921201,7-1TCP dated 74.1'2'201'7 issued by 'fown and Country Planning Department, Haryana the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entirc Gurugram district for all purposes.

In the present case, the projcct in question is situated within the planning area of Gurugram district 'Iherefore, this authority has complete territorial jurisdiction to dcal with the present comPlaint.

E.lf Subiect-matteriurisdiction Section 11(4)(aJ of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale Section 11(4)(a) is reproduced as hereunder: Section 17 [4) 7'he promoter sholl (o) be responsible for all obligations' responsibilities ond functions under the provisions of this Act or the tules and regulations mode thereunder or to the allottees as per the ogreement for sole, or to the association of allottees, as the case may be' till the conveyonce of all the aportments, plots or buildings, qs the cose moy be' to the allottees, or the common oreos to the association ofollottees or the competent outhoriq/, as the case moy be; Section 34-Functions of the Authority: 34A of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estote agents under this Act and the rules ond regulations made thercuncler' Page 9 ol 23 ffi HARER . #- eunuennu 11.

10.

F.

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.

Findings on the obiections raised by the respondent F.l. ndent F.l. obiections regarding the complainant being investor' The respondent has taken a stand that the complainant is an investor and not consumer, therefore, it is not entitled to the protection of the Act and thereby not entitled to file the complaint under section 31 of thc Act.'l'he respondent also submitted that the preamble of the Act states that the Act is enacted to protect the interest of consumers of the rcal estate sector.

The authority observes that the respondent is correct in stating that the Act is enacted to protect the interest of consumers of the real estate sector.

It is settled principle of interpretation that preamble is an introduction ofa statute and states main aims & objects ofenacting a statute but at the same time, preamble cannot be used to defeat thc enacting provisions of the Act.

Furthermore, it is pertinent to note that any aggrieved person can file a complaint against the promotcr if thc promoter contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions ofthe agreement to sell dated 28.06.201'2, tt ls revealed that the complainant is a buyer, and it has paid total price of Rs.1,18,97,160/- to the promoter towards purchase of a unit in its project.

At this stage, it is important to stress upon the definition of term allottee under the Act, the same is reproduced below for ready reference: "2(d) "allottee" in relation to o real estote proiect meons the person to whom a plot, aportment or building, os the cose moy be, hos been qllotted, sotd (whether as freehold or leasehold) or otherwise transferred by the promoter' ond includes the person who subsequently acquires the said ollotment through sale, Page 10 of 23 t/ Complaint No.

7817 ot 2022 ffHAREIA #* eunuenRv 72.

Complaint No. plaint No.

7817 of 2022 transfer or otherwise but does not include a person to whom such plot, apqrtment or building, as the case may be, is given on renti' ln view of above-mentioned definition of "allottee" as wcll as all tho terms and conditions of the agreement to sell executed between promoter and complainant, it is crystal clear that the complainant is an allottee as the subject unit was allotted to it by the promoter' The concept of investor is not defined or referred in the AcL As per the definition given under section 2 ofthe Act, there will be "promoter" and "allottee" and there cannot be a party having a status of "investor". 'fhe Maharashtra Real Estate Appellate Tribunal in its order dated 29.01.2019 in appeal no.

0006000000010 5 57 titled as M/s Srushti Sangam Developers Pvt.

Vs.

Sarvopriya Leasing (P) Lts' And onr. has also held that the concept of investor is not defined or referred in the Act.

Thus, the contention of promoter that the allottee being investor is not entitled to protection of this Act also stands rejected.

Il Objection regarding jurisdiction of authority w.r't. buyer's agreement executed prior to coming into force of the Act.

Another contention of the respondent is that authority is deprived of the jurisdiction to go into the interpretation of, or rights of the partics inter-se in accordance with the buyer's agreement executcd betwcon the parties prior to the enactment of the Act and the provision of thc said Act cannot be applied retrospectively.

The authority is of the view that the Act nowhere provides, nor can be so construed, that all previous agreements will be re-written after coming into force of the Act.

Therefore, the provisions of the Act, rules and agreement have to be read and interpreted harmoniously.

However, ifthe Act has provided for dealing with certain specific provisions/situati,on in a specific/particular manner, then that situation will be dealt with in accordance with the Act and the rules after the date r the date of coming into force Page 11o123 ffHARERA #-eunuennH,l L4.

7817 of 2022 of the Act and the rules.

Numerous provisions of the Act save the provisions ofthe agreements made between the buyers and sellers.

The said contention has been upheld in the landmark judgment of Neelkamal Realtors Suburban Pvt' Ltd' Vs.

IlOl and others' (W.P 2737 of2017) decided on 06.12.2017 which provides as under: "119.

I|nder the provisions of Section 18, the deloy in hqnding over Lhc possession would be counted t'rom the dote mentioned in Lhe ogreement for sole entered into by the promoter ond the qllottee prior to its registration under REq.1- Under the provisions of RI:RA, the promoter is given a faciliE) to revise the dote of completion of project and declore the same under Section 4- The REM does not contemplote rewriting of contract between the flat purchoser and the promoter......

122.

We have already discussed that obove stated provisions of the RERA are not retrospective in nature.

They may to some extent be hoving a retroactive or quasi retrooctive eft'ect but then on thot ground the vatidity of the provisions of RERA cannot be challengecl' Ihe Pa ioment is competent enough to legislote law having retrospective or retrooctive et't'ect.

A low can be even fromed to offect subsisting / existing contractual rights between the parties in the lorger public interest.

We do nothave any doubt in our mind thot the RERA has beenfromed in the lorger public interest ofter o thorough study ond discussion mode at the highest level by the Stonding Committee and Select Committee, which submitted its detailed rePorts" Also, in appeal no.

173 of 2019 titled as Magic Eye Developer Pvt' Ltd' Vs, Ishwer Singh Dahiya,in order dated L7 .12.2019 the Haryana Real Estate Appellate Tribunal has observed- "34. rved- "34.

Thus, keeping in view our aforesoid discussion, we ore of the considered opinion that the provisions of the Act are quasl retroactive to some extent in operotion ond will be aoplicable to the agreements for sole entered into even prior to coming into oDerotlon ofthe Actwhere the transaction are still in the Drocess ofep-LlpkllpD Hence in case of delay in the offer/delivery of possession os per rhe terms ond conditions of the ogreement for sale the ollottee sholl be entitled to the interest/deloyed possession charges on the reqsonable rate of interest os provided in Rule 15 of the rules and one sided, unfoir ond unreasonable rate of compensation mentioned in the agreementfor sale is liable to be ignored." P age 12 of 23 w& 15.

HARER' gunuonAM lcomptaintNo 78l7of2022 \,/vr\v\",/r\r nvl The agreements are sacrosanct save and except for the provision S which have been abrogated by the Act itself.

Further, it is noted that the agreements have been executed in the manner that there is no scopc left to the allottee to negotiate any of the clauses contained therein.

Therefore, the authority is of the view that the charges payable under various heads shall be payable as per the agreed terms and conditions of the agreement subject to the condition that the same dre in accordance with the plans/permissions approved by the respectivc departments/competent authorities and are not in contravcntion of any other Act, rules, statutes, instructions, directions issued thercunder and are not unreasonable or exorbitant in nature.

Hence, in the light of above-mentioned reasons, the contention of the respondent wr't. jurisdiction stands rejected.

F.lll Obiection regarding agreements contains an arbitration clause which refers to the dispute resolution system mentioned in agrecment 16.

The agreement to sell entered into betlveen the parties dated 28.06.20L2 contains a clause 14.2 relating to dispute rcsolution between thc parties. c parties.

The clause reads as under: - "All or any disputes arising out or touching upon in relation to the terms of this Applicotion/Agreement to Sell/ Conveyonce Deed including the interpretation ond volidiry ofthe terms thereofand the respective rights and obligotions of the parties sholl be settled through orbitrotion.

The arbitrotion proceedings shall be governed by the Arbitrotion ond Conciliotion AcC 1996 or ony stqtutory amendments/ modiJicqtions thereof for the time being in force.

The arbitration proceedings shall be held ot the offrce of the seller in New Delhi by a sole qrbitrator who shall be oppointed by mutual consent of the parties. lf there is no consensus on qppointment of the Arbitrotor, the mottet will be referred to the concerned court for Lhe same. ln cqse of ony proceeding, refercnce etc. touching upon Lhe arbitrator subject including ony aword, the territoriol jurisdictiotl of the Courts sholl be Gurgaon os well as of Punjob and Horyana High Coutt at Chandigorh". , Page 13 oF 23 ffi HAREBi #*eunuennvt Complaint No.

7817 of 202 2 The authority 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 ofthe Act bars the jurisdiction of civil courts about 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-arbitrable seems to be clear.

Also, section 88 ofthe 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.

Further, the authority puts reliance on catena of judgments of the llon'ble Supreme Court, particularly in National Seeds Corporation Limited v.

M. ited v.

M. lladhusudhan Reddy & Anr, (2072) 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 of the other laws in force, consequently the authority would not be bound to refer parties to arbitration even ifthe agreement betlveen the parties had an arbihation clause.

Therefore, by applying same analogy the presence ofarbitration clause could not be construed to take away the jurisdiction ofthe authority.

Further, in Aftab Singh and ors. v.

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

701 of2015 decided on 13.07.2017, the National Consumer Disputes Redressal Commission, New Delhi INCDRC) has held that the arbitration clause in agreements between the complainants and builders could not circumscribe the iurisdiction of a consumer.

Further, while considering the issue of maintainability 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 Land Ltd, V.

Afiob Singh in revision petition no.

2629-30/2078 in civil appeal no.

1,7 .

18.

Page 14 of 23 HARERA GURUGRAM Complaint No.

7817 of 2022 23572-23513 of2017 decided on 10,12'2078 has upheld the aforesaid judgement of NCDRC and as provided in Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts within the territory of India and accordingly, the authority is bound by the aforesaid view.

Therefore, in view of the abovc judgements and considering the provision of the Act, the authority is of the view that complainant is well within his right to seek a spccial remedy available in a beneficial Act such as the Consumer Protection Act and RERAAct,2016 instead ofgoing in for an arbitration 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 referred to arbitration necessarily' F.lv Obiections regarding the circumstances being'force maieure' 19.

The respondent has contended that the project was delayed bccausc of the 'force majeure' situations like delay on part of government authorities in granting approvals, passing of HT lines over thc projcct etc. which were beyond the control of respondent However, all thc pleas advanced in this regard are devoid of merits First of all' the possession of the unit in question was to be offered by 2A722016' Further, the time taken in getting governmental approvals/clearances cannot be attributed as reason for delay in proiect' Moreover' some of the events mentioned above are of routine in nature happcning annually and the promoter is required to take the same into consideration while launching the proiect 'thus, the promotcr respondent cannot be given any leniency on based of aforesaid reasons and it is a well settled principle that a person cannot take benefit of his own wrong and the obiection of the respondent that the project was delayed due to circumstances being force maieure stands rejected Page 15 of 23 G.

20.

HARERA Complaint No.

7817 of 2022 Findings on the relief sought by the complainant, G.l.

Direct the respondent to refund the entire paid-up amount to the complainants along with 24olo interest p.a.

In the present complaint, the complainant intends to withdraw from the proiect and is seeking return of the amount paid by him in respect of subject unit along with 240lo interest p.a. under section L8(1) of the Act.

Sec.

18(1J of the Act is reproduced below for ready reference. "section 18: - Rettm of amount qnd compensation 18(1), lfthe promoter foils to complete or is unable to give possession ol on apartment, plot, or building.- (o) in occordancewith thetermsofthe agreementfor sole or, as the case moy be, duly completed by thi date specifred therein; or (b) due to discontinuance of his business as a developer on account oJ suspension or revocotion of the ion of the registrotion under this Act or for any other reason, he shall be liable on demanil-to the altottees, in case the allottee wishes to withdraw from the pioiect, without prejudice to ony other remedy availoble, to return the amount received by him in respect of that aportment plot, buitding, os the cdse moy be, with interest qt such rate as moy be prescribed in this beholf including compensqtion in the manner as provided under this Act: Provided that where an allottee does not intend to withdrqw from the project, he sholt be paid, by the promoter, interest for every month of detay, till the handing over of the possession' ot such rate os moy be prescribed." (Emphasis supplied) As per clause 4.2 of the agreement to sell dated 28.06.20 L2 provides for handing over of possession and is reproduced below: 4.2 Possession Time and Compensation Thatthe Seller shall sincerely endeavor to give possession ofthe Unit to the purchaser within thirry-six (36) nonths in respect of'TAPAS' tndependent Floors qnd lorty eight (48) months in respect of 'SURYATOWER'from the dqtc of the execution of the Agreement to setl ond after providing ofnecessary infrastructure speciolly rood sewer & woter in the sector by the Government' but subject to force majeure conditions or ony Government/ Regulatory outhority's oction, inaction or omission ond reasons beyond the control of the Seller.

However, the seller shall be entitted for compensotion free grace period of six (6) months in case the construction is 27.

Page 16 of 23 HARERA ffiGURUGRAM complaint No.

7817 of2022 not compteted within the time period mentioned above' The seller on obtaining certificate for occupotion and use by the Competent Authorities shall hond over the IJnit to the Purchaser for this occupotion ond use ond subject to the Purchaser hoving compliedwith oll the terms ond conditions of this opplication form & Agreement To sell ln the event of his failure to tqke over and /or occupy and use the unit provisionqlly ond/o qlly ond/or frnolly allotted within 30 days from the date ofintimotion in writing by the seller, then the same shqll lie at his/her risk and cost and the Purchaser sholl be liqble to compensation @ Rs'7/- per sq ft of the super orea per month as holding chorgesfor the entire period of such delay . " " 22.

At the outset, it is relevant to comment on the preset possession clause of the agreement wherein thb..possession has been subiected to providing necessary infrastructrire specially road, sewer & water in the sector by the government, but subject to force maieure conditions or any government/regulatory authority's action, inaction or omisslon and reason beyond the control of the seller.

The drafting of this clausc and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour ofthe promoter and against the allottee that even a single default by the allottee in making payment as per the plan may make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning.

The incorporation of such a clause in the agreement to sell by the promoter is just to evade the liability towards timely delivery of subject unit and to deprive the allottee of his right accruing after dclay in possession.

This is,ust to comment as to how the builder has misuscd his dominant position and drafted such a mischievous clause in thc agreement and the allottee is left with no option but to sign on the dotted Iines.

23.

Due date of handing over possession and admissibility of grace period: As per clause 4.2 ofthe agreement to sell dated 28 06 2012 ' the possession of the allotted unit was supposed to be offered within a PaEe 17 of 23 HAREkT ffi" GURUGRAM Complaint No.

7817 of 2022 stipulated timeframe of 48 months from date of its execution plus 6 months of grace period, in case the construction is not complete within the time frame specified. specified. [t is a matter of fact that the respondent has not completed the project in which the allotted unit is situated and has not obtained the occupation certificate by June 2016 llowever' considering the ground in above clause of handing over possession which led to delay in completion of the project, in the present casc' thc grace period of 6 months is allowed Therefore, the due datc of possession comes out to be 28.12.2016.

24.

Admissibility of refund along witi prescribed rate of interest: 'Ihe complainant/allottee intends to withdraw from the proiect and is seeking refund of the amount paid by him in respect of the subject unit with interest at 24o/o p.a However, the legislature in its wisdom in thc subordinate legislation, under the provision of rule 15 of the rules vidc notification dated 12.09.2019, has determined that for the purpose of proviso to section 12; section 18; and sub-sections [a) and (7) ofscctiorr 19, the "interest at the rate prescribed" shall be the State [lank of lnd ia highest marginal cost of lending rate +2o/o' the prescrihed rate of interest.

Therefore, in case the complainant/allottee intends to withdraw from the proiect after commencement of the Act' 2016' the amount paid by it shall be refunded alongwith interest at prescribed rate as provlded under rule 15 of the rules Rule 15 has been reproduced as under: Rule 15.

Prescribed rate of interest- [Proviso to section 72' section 18 and sub'section (4) and subsection (7) of section 191 (1) For the purpose of proviso to section 12; section 18; ond sub' sections (4) and (7) of section 19, the "interest ot the rate prescribed" sholl be the Stote Bank of Indio highest morginal cost of lending rate +24k.: Provided thot in case the Stote Bonk of lndia morginol cost of lending rate (MCLR) is not in use, it sholl be reploced by such Page 18 ol23 MHARru ffieunuenRH,r Complaint No. plaint No.

7817 of 2022 benchmark lending rates which the State Bank of lndio moy Jix from time to time for lending to the generol public, The legislature in its wisdom in the subordinate legislation under thc provision ofrule 15 ofthe rules, has determined the prescribed rate of interest.

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

Consequently, as per website of the State Bank of India i.e., hl!ps:l/-sbi.co.in, the marginal cost of lending rate (in short, MCLRI as on date i.e., 24.07.2024 is 970.

Accordingly, the prescribed rate of interest will be marginal cost oflending rate +2o/o i.e.,l7o/o.

0n consideration ofthe documents available on record and submissions made by both the parties, the authority is satisfied that the respondent i s in contravention of the provisions of the Act.

By virtue of clause 4.2 of the agreement to sell executed between the parties on 28.06.2012, the possession of the subject unit was to be delivered within a period of 48 months from the date of execution of buyer's agreement which comes out to be 28.06.201,6.

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

Therefore, the due date of handing over ofpossession is 28.12.2016.

Keeping in view the fact that the allottee/complainant wishes to withdraw from the pro,ect and is demanding return of the amount received by the promoter in respect of the unit with interest on failure ofthe promoter to complete or inabiliry to give possession ofthe unit in accordance with the terms of agreement for sale or duly completed by the date specified therein.

The matter is covered under section 18(1) of the Act of 2 016.

The due date of possession as per agreement for sell as mentioned in the table above is 28.12.2016.

The authority has further, observes that Page 19 ol23 25.

26.

27.

29. complaint No. plaint No.

7817 of 2022 even after a passage of more than 7 6 years till date neither the construction is complete nor the offer of possession of the allotted unit has been made to the allottee by the respondent/promoter' 'Ihc authority is of 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 paid a considerable amount of money towards the sale consideration.

Further, the authority observes that there is no document place on record from which it can be ascertained that whether the respondent has applied for occupation certificate/part occupation certificate or what is the status of construction of the project.

In view of the above-mentioned fact, the allottees intend to withdraw from the proiect and is well within the right to do the samc in view ofsection 18(1) ofthe Act,2016.

30.

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

The authority is of the view that the allottee cannot be expected to wait endlessly for taking possession of the allotted unit and for which it has paid a considerable amount towards the sale consideration and as observed by Hon'ble Supreme Court of India in Ireo Gtdce Realtech Pvt, Ltd, Vs.

Abhishek Khanno & Ors" civil appeal no.

5785 of 2079' decided on 77'07.2027 "....

The occupotion certiJicate is not ovailoble even os on dote' which cleorly omounts to defrciency of service.

The ollottees cannot bc mode to woit indefrnitely for possession ofthe aportments allotted to them' nor con they be bound to take the qpartments in Phase 1oJ the project......." 31.

Further in the iudgement of the Hon'ble Supreme Court of lndia in the cases of lvewtecft Promoters and Developers Private Limited Vs State of II.P. and Ors. (supra) reiterated in case of M/s Sana Realtors Page 20 of 23 ffi HARERA *&* eunuennlr Complaint No. plaint No.

7817 of 2022 Private Limited & other vs Union of India & others SLP (Civil) No.

73005 of 2020 decided on 12.05.2022. it was observed: 25.The unqualified right ofthe allottee to seek refund referred Under Section 1B(1)(o) ond Section 19(4) of the Act is not dependent on any contingencies or stipulations thereof. lt appears that the legisloture hos consciously provided this right oI refund on demond qs an unconditional absolute right to the ollottee, if the promoter foils to give possession of the aportment, plot or building within the time stipuloted under the terms ofthe agreement regordless ofunforeseen events or stay orders of the Court/Tribundl, which is in either way not ottributable to the allottee/home buyer, the prornoter is under qn obligation to refund the omount on demand with interest qt the rote prescribed by the Stote Government including compensqtion in the manner provided under the Act with the proviso that if the allottee does not wish to withdraw from the project, he shall be entitled for interest for the period of delay till honding over possession at the rote prescribed." 32.

The promoter is responsible for alt 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 under section 11[4)(aJ.

The promoter has failed to complete or unable to give possession ofthe unit in accordance with the terms ofagreemeut for sale or duly completed by the date specified therein.

Accordingly, the promoter is liable to the allottee, as the allottee wishes to withdraw from the proiect, without prejudice to any other remedy available, to return the amount received by it in respect of the unit with interest at such rate as may be prescribed.

33.

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

As such, the complainant is entitled to refund of thc entire amount paid by it at the prescribed rate of interest i.e., @ 1 I % p.a. (the State Bank of India highest marginal cost of lending rate (M(ll,ltJ applicable as on date +20lo) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development] Rules,2017 from the date of Page 21of23 1 ffiHARERA #"eunuennn,l Complaint No.

7817 of 2022 each payment till the actual date of refund of the amount within thc timelines provided in rule 16 ofthe Haryana Rules 2077 ibid.

G.

Il Cost of litigation.

34, The complainant is seeking above mentioned reliefw.r.t. compensation.

Hon'ble Supreme Court of India in civil appeal nos.6745-6749 of 2021 tttled as M/s Newtech Promoters and Developers PvL Ltd.

V/s State of Up & Ors. (supra), has held that an allottee is entitled to claim compensation and litigation charges under sections 12,14,18 and section 19 which is to be decided by the adjudicating officer as pcr section 71 and the quantum of compensation and litigation expense shall be adjudged by the adjudicating officer having duc regard to thc factors mentioned in section 72.

The adjudicating officer has cxclusivc jurisdiction to deal with the complaints in respect of compensation.

Therefore, the complainant is advised to approach the adjudicating officer for seeking the relief of compensation and litigation expenses.

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 thc authority under section 34(0: i.

1'he respondent/promoter is directed to refund thc amourt i.e., Rs.1,18,97,160/- received by it from the complainant along with interest at the rate of 1170 p.a.

1170 p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2 017 from the date ofeach payment till the actual date ofrefund of the deposited amount.

Page 22 ot 23 ffiHARIRA ffieuRuenRu complainant.

36.

Complaint stands disposed 37.

File be consigned to Complaint No.

7817 of 2022 ii.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences would follow. iii.

The respondent is further directed not to create any third-party rights against the subiect unit before full realization ofthe paid-up amount along with interest thereon to the complainant, and even if, any transfer is initiated with respect to subiect unit, the receivable shall be first utilized for clearing dues of allottee/ (.

I Haryana Real Estate Regulatory Authority, Gurugram Dated: 24.07 .2024 llrt ,{:\ t\ ,1 UGI?A HA ^trt-] t -"1 i!r' i, .,-r. .\is Page 23 of 23