SHALINI vs APEX BUILDWELL PVT. LTD.

ComplaintNo.24llof 2023 ComPlslntto: Date ofdeclslonl Ms.shalini R/or509, Block-14, DGER ComPlex, PwD Flats, Dwarka, Sector_3, Delhi-110078.

Vers'rs [4/s.

Apex BuildwellPvt.

Lld.

2417 012023 04,09.2024 R;gd. orfice:144/36, W€a Karol Bash, New Delhi'110053.

CORAIVI: ShriAshok Sangwan APPEARANCEI Sh.llarshit Batra ORDER 1.

The present complaint dated 02.06.2023 has been Rled bv the complainant/allotte€ under section 31 of the Real Estate (Regulation and Development) Act, 2016 (in short' the Aco r€ad with rule 28 ot ihe Haryana Real Estate (Regulation and Development) Rules, 2017 (in short the Rules) tor violation ot ffHARERA gP- GURUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM rs- HARERA GURUGRAt\,4 Complarnt No.

2411 or20Zl section 11(4)(a) oftheActwherein it is inErdlia prescrib€d that the promoter shall be responsible for all obligations, responsibilities a.d functions as provided under the provision of the Act or the Rules and regulations made there under or to theallottees as per the agreement for sale executed inlerr€ Unit and proiect r€lated detalls The particulars of the projec! the details of sale 'onsideration' the amount paid by the complainant, dare olproposed handinS over the possession and delay perlod, if any, have bee' detailed in the following tabular formr Low cost/Altordable Croup Housing 'our Homes', Sector37, Curuaram, Harvana 8. .{0 0f 2019 dated- 08.07.2019 77.02 2073 tAs on page no.88 ofcomPlarnrl 404, Floor'4b, Block/Tower lasmlne (Asonpage no 33 ofconPLarno 516.57sq,ft.. alon8withonecar (Ar on pas. no.

33 of comPlaint) 110220L3 (Ason pase no 30 olcompLanrtl t_ 5 L L 2 Date oi grant of Environmental Clearance *HARERA S- arnuennM CompLaLnt No.

2411 o1 2023 POSSESSION (a)oiter of Dosession Whia d P.rto<t oI thtnv (36) n@'h' wiih a sro.e pcio.t oJ 6 no'th, lrcn rh. dote oJ connenem.at ol .onsta.tion of rn CodPld uPon the rcceipt ol ott prcject rclated opprotols includins snction ol buildns ptons/rcvtAd plan ond oPp. n ond oPp.ovot ol atl @ncerned outhotities lncluding the fne Seoice Deprrtnehl civil Arto.ton Deparrnen| f rofrc Depannena pollution coniol Depoident etc, os o! b.

IEmPh.sissuPPliedl {As on paSe no 39of.onplaintl Date of commencement of construction olthe Project/ consent to establish granted by the HSPCN on 0.2.12.1U11 t_ 02,72.2017 lcalculated 4 Years from .dn6enNment of constructionl Rs.16,00,000/_ (As on pase no 33orcomPlaintl 17 ,95,r r'! l- ?011 2019 10 13 15 lr c5 F a. l.

HARERA GURUGRAIU 05.11,2020 05112020 {As on page no.89 of.omPlaina 2A.06.2021 (As on paSe no.92 ofcomplaint) tacts ofthe comPlaint: The complainant has made the following submissions in the l.

That the respondent launched an affo'dable group hous'ng project called "Our Homes" at Sector - 37C' Gurugranl under thc license no.

13 ol 2012 dated 22'022012 issued bv the D](:P Haryana, Chandigarh II That the complainant is a law abiding citizen The respondenl advertised aboui the project and painted a rosy pictLrre of dr' prorect rn iIs dd!eflr\Pmenll making rdll cldrm\ IIl. ln 2012, the respondent issued an advertisement and lher'bv invited applications from prospe€tive buyers for the purchase oi unit in the said project.

The respondent confirmed thdt thc building plan approvals have been obtained from the concerncd lv.

The complainant while searching for a flat/accommodahon was lured by such advertisements and calls from the b'okers oi the respondent.

Relying on the representations and assur:rnces g'vcn by the respondent and on belief of su'h assuranccs' thc or20?l tr$ HARERA GURUGRAIV Complarnt No 2411 ol l0ll complainant booked a unit in the project by paving an amount o' Rs.1,64,9441' on 28.01.2013, towards the booking of the said unit bearing no 404 on 4th Floor ,n Tower-lasmine having an area admeasuring 48 sq. mtrs. and the same was acknowledged by the respondent.

V. ondent.

V.

That the respondent confirmed the booking of the unit to the allottee providing the details of the project and allotting unit no 404 on 4th Floor in Tower'lasmine in the project for a total sale consideration or Rs.16,00,000/'alons with car parking and other VL That a Buyer's Agreeme[t was exe€uted b€tlveen the complainant and the respondent on 1 102 2013 As per annexure of tbe buver's agreement the sale price of the said apartment was tu 16,00'000 /' inclusive of basic sale price, EDC, IDC, preferential location charges and excl'rsive right to use the dedicated car parking' Vll.

Further, fte complainant signed the agreement in the hope that the unit will be delivered on or before 11'022016' The complainantwas also handed over one detailed payment plan which was constructiofl linked plan.

VIII.

As per ClausF3(a) of the Apartment Buyer's Agreement' the respondent agreed to deliver the possession of the unit within period 36 montbs plus 6 months from the date ofcommencement of construction upon receipt of all project related approval' Due date of possession is calculated from the date of agreement i'e 11.02.2013.

Hence, the due date ol possess'on comes out to be t1-02.2076.

PaSc 5,n32 *HARERA #* aLnuonnvt complaint No.2411 of 2023 IX.

As per the demands raised by the respondent , the complainant has paid a total sum of Rs.17,95,113.00, towards the sard unit against totat sate consideration of Rs 16,00,000 /'' That the paym€nr plan was desrgned in such l way to extrrct maximum payment from the buyers viz a viz or done/completed' x.

That the complainant approached the respondent and ask€d about the status ol constructlon and also raised objections towards non-completion oftbe project ln terms of Clause 3(al of the Buyer's Agreemenf the respondent was under an obligation to complete lhe construction and to offer the poss€ssion on o' before 11.02.2016.

1.02.2016.

That the complainant approached the r€spondent in person to lmow lhe fate of the construction and offer possession in terms of the Buyer's Agreem€nt, respondent misrepresented to the complainant that the construction would be completed !oon. xl.

That the complainant after many requests and emails received the demand on account of offer of possession on 3011'2019' It is pertinent to me[tlon here that along with the letter of oft€r ot possession, the rcspondent ralsed sevtral illegal demands whi'h were actually not pavable as per the Builder Buver Agreement bv the complainant. xll.

That the respondent despite having made multiple tall representat,ons to the complainant, the respondent has chosen deliberately and contemptuously not to act and fulfil the promises and have given a cold shoulder to the grievances ra's€d by the ARERA r,----,'^",,,-,0,-.-l tilRAr,/ | That the respondeDt have plaved a fraud upon the complainant and have cheated her iraudulentlv and dishonestlv with a false promise to complete the construction over the project site within stipulated period.

The respondent had turther malalfidelv failed to implement the terms and conditions as stipulated in the Buyer's Agreement. * dh XIII H G CofrplaintNo.2411 of 202:l XlV.

That the respondent making demands for electric meter charges and electriilcation charges from the compl:inant is absolutely illegal as the cost ofthe electric meter in the market is not more than Rs.2,500/- hence asking for such a huge amount' when the same is not a part of the Euilder Buyer Agreement rs unjustified a.d illesaland therefore needs to be withdrawn immediately XV That the complainant requested the respondent to show/inspecl the unit after that only tbe complainant would pay any furthcr amount and requested to provide the located car parking sp'rce number, butthe respondent lailed to reply' XVl. eply' XVl.

That the respondent asked the complainant to sign the rndennrtv bond as a perquisite condition lor handing over of the possessron The co mplainanr raised objection to the pre_requisite condrtion ol the respondent as no delay possession charges was paid to the complainant and instead of paying the delay possession drarges the respondent clearly refused to handover to possession rl the complainantdoes notsign the aforesaid indemnitv bond' Iiurther' the complainant was left with no other option instead ol srgn'ng XVIL That the complarnant after many follow ups and remrnders' and after clearing all the dues and fulfilling all one-sided demands nnd *H dbe ARERA URUGRAII compld nl No 2411 of2021 formalities as and when demanded bv the respondent issued th€ physical handover advice letter dated 05.11.2020 of the unit on account ofhanding over the physical possession ofthe unit' xvlll.

That the conveyance deed had been execut€d after many follow ups, reminders, after clearing all the dues and tulfflling all one- sided demands and formatities as and when demand€d bv the respondent on 28.062021.while the sale deed acknowledges that the complainanthas paid the total consideration of Rs-77 95'113/' , towards full and nnal consideration of the unit and appl'cable taxes etc, it makes no provislon for compensatinS the complainant for the huge delay in handrng over the unit' The complainant was not given any opportunily to neSotiate the terms of the said sale deed XIX.

That no negotiations wer€ permitted in relation to th€ buyer's agreement.

The complainant was told that the sale deed will encompass all the relevant issues at hand lt is submitted that this agreement and various clauses therein amounts to an "Unconscionohle Agrcenend' i.e., an agreement containing terms that are so 6$remely unjust, or ovenrhelmingly one-sided in favour of the party who has the superior bargaining power' that they are contrary to goodconscience' y,X. ence' y,X.

That the Buyer's Agreement stipulates payment otcompensation on account ofdelay in handing over possession ofthe unit in the project.

The so called compensation payable as pe' the said agreement is Rs.

S/'per sq. ft' per month No compensation was provided to the complainant till date.lt is respectlully submtted rhri the Hon'ble National Consumer Disputes Redressal HARERA GURUGRAful ComplarnrNo.

2411 of ?021 that tbe payment ofthe aioresaid R5.5/_ as compensatroo is verv less because the penalty payable by a home buyer in the event oi default in making payments to the builder is much more The Hon'ble Commission has also taken note ofthe fact that th. home loan iDte.est rates are very high and in the event the builder does not delive. the flats on time,,t ought to pay reasonable equitable rdte of, ompensatron in lieu ofsuch deldv.

XXL Moreover, the said clause is also in clear contravention of the provisions of the Real Estate (Regulation and Developmen0 r\ct 2016 itself which has clarified the positron that the rnterest payable by the Promoter ln case of default shall be the same as the interest payable by the Allottees in case of any defaull madc xXIl.

That mere execution of the sale deed will not deprive the complainant of her rights to seek compensatjon ln this regard, the Hon'ble Supreme Courl has iD v.

M/s.

Unltech Ltd..

Consumer Case No.

427 of 2014, has noted in a similar case, Shri.

Satish Kumar Pandev &Anr.

Civ,l Appeal No.

623912019 lpara.3a) held: "...1n this bdckdrap, the sinple question which we need to addre$ k whether a flot buyet who seeks to espoue o cloi oqotnst thedeveloper fu delayel P6*ion can a, a consequehce ol dotns so becono.lied ti dPtu the,oht to obtotn o.onwvaqce @ p'tla. rhe'' tttP lt *oLldrn ow wew be nonne< t u4rco:ooable b ?rpec. thot tn atdet to pursue o ctoinlor .onpenetion lot detaved hondi^g over ol poe$tnn the ouuhak. nulndefiInetr dcle, oDtointng a . ointng a .onveronte ot Ih? p Pntr 'punhoed ot,I rhettP?k to obtt'n o D"ed ot LonvEoa.e to fot\otP.he 'oht fhn bosicollt is o position which the NCDRC hot espougd. we connot .n nrenonce that viN,,," onil Ors. y.

DLF SouthernlolacslllJLL!

HARERA GURUGRAI,4 TheCohploinant k enft:e.t to the relund ofthe illegal potktns spa'e 'hotset xxtll. ihat t:tre respondent is guilty of deficiencf in sewices Qithin the purview of provisions of the Act, 2016 and the provis'ons or Haryana Real Estate (Regulation and Developmeno Rules 2 0 1 7 c.

Relief sought by the complainantl 4.

The complainants have sought followrng reliei(sJ: 1.

Directthe respondentto intereston the totalamount paid by thc complainant hom thc due date otpossession tillthe date ofactual physicalPossession.

2.

Directthe respondentto relund the amount collected under difierent hea.ls as per the letter of offer of possession which the complainnnt was not liableto pay as per the payment plan' 3.

Directthe respondent to return the amorrnt unreasonablv chareed by the respondent by increasing the sal€ price of the unit att'r execution ofthe Buyer's Ag.eement 4.

Set aside the one sided indemnirythatwas signed bv the .omplainant under undue influenc€ ollhe respondent' 5.

Reply by respondent: The respondent has made fouovring submisslons by way of 'eply: l.

That the complainant approached the respondent and expressed her interest in book,ng an apartment in the Low Cost/Ailordable Group Housing Project developed bv respondent known as "Our Homes" situated in sector 37C, Curgaon, Haryana' Prior to the booking, th€ complainant has conducted extensive and independ€nt enquiries with regard to the project and only after being fuUy satisfied on all aspects, she took an independent and D, *& HARERA compla nrNo 24l l of2023 GURUGRAIT,4 informed decision, un,nnuenced in any manner bv the respondent, to bookthe unit in question Il.

Thereafter, the complainant applied to the . d to the .espondent for provisional allotment of the un,t Pursuant thereto, unit bearing no 404, located on the 4ih Floor, Tower_ Jasmine admeasuring 516.67 sq. ft. ltentative area) along with One Car Parking was allotted to the complainant.

Th€ respondent had no reason to suspect the boro,qde ofthe complainant and proceeded to allot lhe unit i. quest,on in her favour' lll.

Thereafter, a Buyer's AgreemeDt dated 11.02.2013 was executed between the complainant and the iespond€nt. tt is pertinent to mention that rhe BuyeCs Agreement was €onscioudy and voluntarily executed b€tlveen the pa(ies and the terms and conditions of the same are binding on both the parties.

IV.

That as per Ct.use 3[a) ofthe Buyer's A$eement, the due date of possession ol the unit in question was 36 months from date oI commencement of constnrction upon the receipts of all project related approvals along with a Srace period of 6 months' The rel€vant para ls reiterated hereunder: 'fhe Developer Ptoposs ta hondover the posseon aJ the APARTMENT wlthin o pe od of thnry sir (36) honths with o !'a'c peiod of 6 nontht, lron dore of @nnen'etuent of consttuction oJ rhe Canplq upoh the r\eipt ol all prolect r'loted oppravuts including sonction of building plans/ revised plan ond appto'ok ol oll concerned outhorities including the Fne 'etuice Deportnent Cletl Av iation Depa ft fi enL....." v.

At this stage, it is submitt€d that the benefit of grace has to be given as has also been considered bv the Hon'ble Appellate Tribunal, Chandigarh in the case titled as Emaar MGF Land Ltd vs Laddi Praramjit Singh Appeal rc.

722 of 2022 that if the grace period is mentioned in the clause, the be.efit of the same is VI.

That the due date/possession clause provided under clause 3 of the Builder Buyer Agreement was subiective in nature and hence shall depend on the Allottee/Complainant complying allthe terms and conditions of the Agre€ment.

Agre€ment.

Thus, the due date of offer of possession was subjected to the terms of Clause 3 (Force Majeure) and the complatnaht hevlng complied with all the terms and conditions of the Bi'llder Buver Agreement.

However, the complainant tailed io tulfflled hls obligation and had deiaulted in making the outstandlng Payments.

Moreover, it ls to b€ noted that the development and implementation oa the proiecr have been hindered on account of several orders passed by !€rious aurhondes/torums/courts, before passing of the due date of offer of possession They have been del'neated hereinbelow: HARERA Complarnt No 2411of 2023 GURUGRAIV HARERA GURUGRAI\4 Complaint No 2411 of 2023 HARERA GURUGRAIII ComplaintNo.

2411 o12023 *HARERA $-aIRUGRAI/ Com.L.int No 2411 of 202:l HARERA GURUGRA[/ Complarnt No.24II or 2021 SHARERA Ll$- crnlGRnM Compla nl No.241I of202l *IAREIA _c$* eunuenntvt Compla nrNo 2al1of202l *HARERA S- c-,rrnLrennl,l complainr No 24Ll of202l Vll.

Tbat lrom the facts indicated above, it is compreh'nsively establishsd that a period of377 days was consumed on account oi circumstances beyond the power and control ol the respondent' owing to the passing of orders ofvarious statutorv authorines 'nd the Covid_19 pandemic.

It is well recognized that one dav or hindrance in the construction industry leads to a giganhc delay and has a.leep effect on the ove.all construction process ola real estate prolect.

All the circumstances stated hereinabove come within the meaning oflorce najeure, as srared above However' despite all odds, the respondent was able to carry out construction/development at the project site and obt'rrn tht necessary approvals and s:nctions and has ensured compliance under the Agreement,laws, and, rules and regulations' Vlll.

Thatdespite such delay, earnestly fulfiiled its obligation under the Buyer's Agreement and completed the proiect as expeditrousl)' rs possible. possible.

The various circumstances beyond the conrol of the respondent are the factors responsible for the delayed development oi the pro)ect.

The respondent cannot be penalized and held responsible for the default of its customers or due to force maieure circumstances.

Thus, it is most respcctfull!- *& lX.

That the respondent has complied with aU of its obligations, not only with respect to the Buyer's Agreement with the complainant but also as per the concerned laws,.ules, and .egulations thereunder and the local authorities.

That despite innume.able hardships being faced by the .espondent, the .espondent completed the construction of the project :nd applied fo. the occupation certificate before the conce.ned Autho.ity and successlully attained the occupation certiricate dated 29.11.2019 and 24-02.2020.

X.

It is submitted that once an appljcation for grant of occupahon certificate is submitted to the concerned statutory authority, thc respondent ceases to have any controloverthe same.

The gr.nt of occupation certiflcate is the prerogative of the concerned statutory authority and t}e respondent does not exercise any influence in any manner whalsoever over the same.

Therelbre, it is respectfully submitted that the time period utilised by thc concerned statuiory authority for granting the occupatron certificate is liable to be exduded from the time period util's.d lor the implementation of the project. xl.

That after receiving ol the occupation Certificate, the possessiof of the unit was lawfully offered to the complarnant vidc OtLr oI Possession dated 30.11.2019.

That th€ physical possession was taken by the complainant without any demur and hence.r possession certificate was thereby issued in favour oi the complainant bythe respondent.lt is now, after over 3 years of thc Complaint No 24ll of202l present complaint deserves to be dismissed ar HARERA GURUGRAIV submitted that the the very threshold. offer of possessio. possessio. that the complainant has approached the Authority as aD afterthought seeking delay possession charges with the sole intent ol getting wrongful gajns and causing wrongful loss to the respondent.

Without prejudice to thc conteDts ol the respondent, it is submitted that the present complaint is barred by limitation as the cause ofaction ilany, only arose till the receipt ofoccupancy certificate and not thereafter XI1.

That after giving the lawlul possession of the unit to the complainant, the Conveyance Deed dated 28.06.2021 was nlso executed berween the complainant and the respondent lt is submitted that after execution of the Conveyanc.

Deed, the contractual relationship berween the parties stands lully satistied and comes to an end.

That the.e.emains no cla,m/ grievancc ol the complainant with respect to the Agreement or any obligation of the parties thereunder.

Xlll That:fter the execution of the Conveyance Deed, the parties 3r. estopped irom making any claims at th,s instance ln liSht of lhe bona frde corLdtct of the respondent, the peacerul possession having been taken by the complainant, non_existence of cduse ol action and the lrivolous complaint filed by the complainant, this complaint is bound be dismissed with costs in favor of thc 6.

Copies oiall the relevant documents have been nled 3nd placed on reco.d.

Their authenticity is not in dispute. tlence, the complaint can be decided on the basis of these undisputed documents .nd submission made by the parties. *HARERA S-cLrnrrcnnu ComplarntNo.

2411 of 2021 & E.

HARERA GURUGRAI\,4 Iurisdictlon of the authority: The Author,ty observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

Terrltorial lurlsdlcdon complarnrNo 241r of 2023 E.I 8.

As per notification no.

1/92/2017'1TcP dated14.72. ated14.72.2017 issued bv Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Curugram shall be entire Curugram District for all purpose with omces situated in Gurugram. ln the present case, the project in question is situated within the planning area of Gurugram dtstrict.

Therefore, lhis Authority has complete territorial jurisdlction to dealwith th€ present complaint.

E.Il subiect matter iurisdiction 9.

Section 11t4)ta) olthe Act,2016 provides that the promoter shall bc responsible to the allottee as per agreement for sale S'ction 11(a)(al is reproduced as hereunder: Be re'oonlbte lot oll obhsonant 'sPorlbthtE\ ord funuon' r4d the nt thn\ot thls A.t oth; rbtsand.eoutonoos ndde theteund ot@th' 'atloneeotrc, theo ecnet ta, \ale. or ta ttte ostot otbn ol ollattee a" h" cose noJ ie, till th; .orteyonce oI oll the dportnents plob ot buildings as ne rosi nat te. to rte oitotee ot .he \annor oQo\ to ie a$ottot@a "t allotteeorthe co pete ourha4tt os thP cose dov be, 10.

So, in view ofthe Provisiors has complete jurisdiction to compliance of obligat,ons of the Act quoted above, the Authority decid€ the complaint regarding non' by the promoter leaving aside HARERA Complarnt No 24II or20ll GURUGRAIV compensation which is to be decided by the adjudicating officer 1f pursued bythe complainant ata laterstage.

F.

Findings or oblections ralsed by the respondent F.l Obi€ctior regardingd.lay due to force majeure circu mstanccs 11. 'lhe respondent_promoter has raised a contention that thc construction ol the proiect was delayed due to force majeure conditions such as various orders passed by the National Cr'cn Tribunal, Environment Pollution (Prevention & Controll Authorrty. shortage of labour and stoppage of work due to lock down due to outbreak of Covid_19 pandemic.

Since there we. there we.e circumstances beyond the conEol of respondent, so taking into consideration th' above-mentloned facts, the respondent be allowed the period dunng which his construction activities came to stand still, and the sa'd pe.iod be excluded while cal€ulating the due date 'lhe plea of dre respondent regard,ng various orders ofthe authorities, allthe pleas advanced in this regard a.e devoid of merit.

The orders passed bv authorities banning constructlon in the NCR.eg,on was for a verv short period oi time and thus, cannot be said to impact thc respondent_builder leading to such a delay in the completion ln thc present case, accordins to Clause 5(iii)[b) of the Affordable llousing Policy, 2013, the strpulated timeline lor handing over possessron oi the unit in question is four years from either the dale of sanction ol bitilding plans or the receipt of environmental clearance' whichev'r *& HARERA GI,]RUGRAIV] occurs later.

I. this instance, the environmental clearance was granted on 26.06.2013.

Calculating fouryears from this date results in 26.05.2017.

The argument related to Covid 19 lacks merit sincc the pan.lemic began in March 2020, which is well after the due possessio. date.

Therefo.e, leniency cannot be extended to lhe promoter/responrlent based on these grounds' It is a fundament3l principle that one cannot beneiit kom their own wrongdoing' Consequently, the Authority concludes that no relief can be granted to the respondent in this regard. tll.

Obi€ction r€qardlng lhe complainaor cannot claim delav pos;ession charges afier execution oflhe convevance deed' 12.

It had been contended by the respondent that on execution of thc conveyance deed, the relationship beMeen both the parties strnds concluded and no right or liabiliti€s can be asserted bv thc respondent or the complainant against the other' lherelore' the complainants are stopped from claimingany interest in the facts and circumstances of the case.

14. case.

14.

It is important to )ook at the definition oi the term deed' itseil in order io understand the extent of the relationship betwecn dre allottee and the promoter.

A deed is a written document or an instrument that is sealed, signed delivered bv all the parlies to the contract i.€., buyer and sell€r. lt is a contractual document that includes legally valid terms and is enforceable in a coLrrt of law lt is mandatory that a sale deed should be in writing and both the part'es involved must sig. the document Tbus, a convevance deed rs o12023 rs HARERA Gi]RUGRAN/ essent,atly one wherein the seller transfers all rights to legally own, keep and enjoy a particular asset,,mmovable or movable' In this case, the assets under consideration are immovable property On signing a conveyance deed, the original owner transfers all legal rights over the property in question to the buyet against a valid consideration usually monetary.

Therefore, a "convevance deed' or "sale deed" implies that the seller signs a document stating that all authority and ownersh,p of the property in question has been transferred to the buyer.

From the above it ,s clear that on execut,on of a sal€/convevance deed, only the title and interest in the said immovable propertv (herein the allotted unit) is nansferred.

However, the convevance deed does not conclude the relatlonship or marks an end to the liabilities and obllgations of the promoter towards the said unit whereby the righ! title and ,nterest has been transfer'ed in the name ofthe allottees on e'reortion of the conveyanc€ deed' The allottees have invested their hard-earned money and there is no doubt that the promoter has been enjoying benefits of and the next step is to get their title pertected by executing the conveyance deed which is the statutory right of the allottees.

Also, th€ obligation of the developer_promoter does not end with the executjon of a conveyance deed. ance deed.

Th€refore, in turtherance to the Hon'ble Apex Court iudgement and the law laid down in case titled as Wr'Cdr' Arilur Ratunon Khan anil Aleyo Sultona ond Ors' vs DLF so them Homes Pvt- Ltd. (now known as BEGUR OMR 15. *HARERA 9Eeunu nnl,r 24.OA.2020, il!{,,,!j,#l[ii:.!!:l$ii.,iiixii!::i:ii,i.:!: ,1* x i I ;r v: l::iii;; ; ** ji, ; i i:ij' :: :: u"2", ". ,"*-,,,"t. ;;,;; :"."::::^":"::":" :,.."", ,*, *,." "j :;:;x,;,1t;:,:".:,:;:::.,:::|i:i i!:;:";^:::*,':;,: ",:;"";.;.";:;,,;::::, i#t#i{i{i##ii#ir',M t' :: :: "#:: : :,-;: T r;::: "i; *;{ ii:i i:i' : #:; ; ;1:"; :;t : ": ; :n;,:r; :"';m;Z:,:" ;;t::i;i! ij:ii*#:,i": :" :,"::;. :. i:: ": rf;W-XrrWf*rW 17.

The Aurhoriry has atready taken a vtew in cr.

No.4031/2019 and others titled as Varun cup1 y/s E,'laar McF Land mlte.l and oarlers and observed that the execution of a conveyance deed does not conctude the retationshjp or marks an end to rhe liabititjes and obligations of the promote. towards the subject unir and upon taking possession, andlor execut,ng conveyance deed, the complaint never gave up hts statutory right ro seekdelayed possession charges as perthe provisjons ofthe saidA.r Ltd-) akd ors. (civit oppeat no_ 6239ofZ019) dated the reievanr parrs are reproduced r-- Comptrrni No 24rl ot2;; HARERA GURUGRA[/ 18.

Aiter consideratjon of all the facts and circumstances, the Aurhority holds that even after execution of the conveyance deed, rhe complainant/allottee cannot be precluded from her right to seek delay possession charges from the respondent,promoter.

F.IIl.

Obiectlon regarding complaint being barred by timiiaflon 19.

So far as the issue of Umitation is concerned, the Authority is cognizant of the view thar the law of l,mitation does not strictly apply to the Real Estate Regulation and Developmenr Aurhority A.t of2016.

However the Authorlty under section 38 of the Act of 2016, is to be guided by the principle of natural justic€. l justic€.

It is universaly accepted maxim and the law assists thosewho are v,gilant, nor rhose who sleep over their rights.

Therefore, to avoid opportunistic and frivolous litigatioD a reasonable period oftime oeeds to be arrived at for a litigant to agitate his right.

This Authority ofthe view that three years is a reasonable time period lora litigant to int,ate litigation ro press hrs flghts under normat clrcumstance(.

20.

It is also obsewed that the Hon'ble Supreme Court in jrs order dated 10.01.2022 in MA NO.21of2022 ofsuo Moto W.tt Petition Civll No.3 of 2020 have held that the period from 15.03.2020 ro 28.02.2022 shallstand excluded for purpose otlimitat,on as may be prescribed under any general o. speciallaws in respect ofalljudicial or quasi judicial proceedings.

21.

In the present matter the cause ofaction arose on 30.11.2019 when the possession was handed over to the complainanrs by rhe respondent.

The complainant has filed the present complaint on 02.06.2023 which is 3 years 6 months and 3 days from rhe date or tr (5 HARERA GURUGRAIV Compla'nr No.24l I of20zl c_ cause ofaction.

In the present case the thr€e year period oadelay in filing ofthe case also after taking into account the exclusion period from 15.03.2020 to 28.02.2022.

In v,ew ofthe above, the Authorjtv is of the view that the present complaint has been filed within a reasonable time period and is not barred bythe lim,tation.

Findlngs on the rellef sought by th€ comPlalnant: G.l Direct the respondent to pay delayed possession charges on the total amount paid trom the du€ date ofpossession till the actual handover of possession.

22.

The complalnants booked a unit in the project "Our Home located in Sector-37C, Gurugram, be,ng developed by the respondent l'hev were auotted unit number 404 orr the 4th floor of tower Jasmrn', with a super area ot 516.67 sq lt, as Per the allotment letter daled 11.02.2013.

Subsequently, the Buyer's Agreement was ex'cuted between the parties on 11.02.2013.

1.02.2013.

According to Clause s(iiil[b] ol the Affordable Housing Poliry 2013, possession of the unit was to be provided to the complainants within four yetrs irom either the drte of obtainiDg building plan approvals or the grant of envrronmen('rl .learance from the.oncerted authorities, whichever was later l hc respondent obtained the environmental clearance on 2606'201:l Calculating four years from this date, the due date for posseseon comes out to be 26.06.2017. lhe respondenr oblained thc occuPirul cenillcatc on:9.11.2019. and rhc unn was handed o\t' ro Ihe complsinanls on 05.11 2020.

However, rhe oifer ol posscssion s!s nrd' on 30.1!.?019.

The conretance decd was cxeculed on lE'06l0ll HARERA (ofiplaLniNo 2 l1 I .f 202:l GURUGRAI,/ In the present complaint, th€ complainant intends to continue with the project and is s€eking delay possession charges along with interest on the amount paid.

Proviso to section 18 provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest forevery month ofd€lay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules. "Section 78: .

R.tum ofdnotnt aad compensad@ 18(1). f the prohotet loih to .onPtete ot b unobte to sive pcesion of an oponnent, plol or buildi^g, - Prcvided thot qherc on o ottee does not intend ta ||ithtlto ton the p.o)e.t, he shdtl be patd, bt the pronoter, tntiest lat cv{r nohth of aehy, nll the hondns avet al the Posession, at such rate o\ noy be prescnbe.l.

24.

Admtssibility of d€lay possession charges at prescribed rate of interesc Proviso to section 18 provides that where an allottee doet not intend to withdraw lrom the proiect, he shall be pald by the promoter, interest for every month ofdelay, till the handing over ol possession, at such rate as may be prescribed and it has been presc.ibed u.der rule 15 oirhe rules.

Rule 15 has been reProdLrc'd "Rute 15.

Pre*ribed rote oJ inte. e oJ inte.est' lProvko to section 12, section 10 onat stb'se.tion (4) ond subsecrion (7) ol section 191 (1) Fatth. turPoseolpraviso to tection 12 sectDn 13,antlsub- sections U) ahd (7) aJ se.tian 19, the interestatthe rate pres'nbed shollbe the stote Bonk oflndto highen morgtnal.ost olten'ltn! 'aLe +2%: P.avtded thot incase Lhe sto?

Eohk ol tndn notgtnalLa\t 'ltcn'lrns rote (ttlcLR) r not h use, n shall be rcPto.ed bv su'h benLhnta'k tendng.oteswhkh the State Bonk aJtndid navfi\ frcn t)h' b nnc lor len(ltng tothe lteherclPubhc 25 The legislature in its wjsdom in the subordinate legislatron under thc provision of rule 15 of the rules, has determined the p'escflbcd r'rte PaEe 28,I3l *HARERA db- cunLronruu of interest.

The rate of interest so determined by the legislature, is reasonable and if the said rule is followed to .ward the interest, it will ensure uniform practicein allthecases.

26.

Consequently, as p€r website of the State Bank of India i.e', shi.co.in. the marginal cost oflending rate (in short, ['lCLR] as on date i.e.,04.09.2024 is 910 %.Accordinglx the prescribed rate of interest wilt be marginal cost oflend,ng rate +2qo i'e', 11 10%' 27.

The dennition ofterm'interesd asdefined under section 2(za) orthe Act provides that the rate of interest chargeable from the allottee bv the promoter, in case of defaulf shau be equalto the rate ofinterest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section isreproduced below: "Ao) 'interst kdns the rotes oI int test potobte bv the pronoEr ot the ollottee, 6 d1e cose naY be Eplononon -For the Prrpde oJ ttu clouv- t,l ,hp tote ol n@ten clorgeable fton the ollon@ bv 'he p'onok' ' ' in c6e oi d.hult shott be equat to the rct of intercst \|hich the prohotei ih; be tiobte to pov the allor@e in cose ofdefoutL t ihe n?ta. poyabt. a. poyabt. b! the prcnotet to the otonee:hott bc ['t4 fie dote the p;oqowrue\ed fie aqou ot an! pafl the'eoftlt the dote the amount or pon thqeol ahd interest thet4n ts retlldPd. dnd thP hk'est pavobte b! the otlox"c to LhP D'on'''e' .i"tt te rnn me aae ne olbtl?e deJouta h parnPr. ta thP p.ohoz; dtl the dote it is paid: 28.

Therelore. interest on the delav palanenls from th€ complainant shall be charged at the prescribed rate i'e-, 11'10% bv the respondent/promoter which is the same as is being granted to the compla,nants in case oidelayed possession charges' 29.

On consideration of the documents available on record and submissions made regarding contravention of provisions of the Act' the Authority is satisfied that the respondent is in contravention ot the section 11[4](a] of th€ Act bv not handing over possession bv *& HARERA GURUGRAIV the due date as per the agreement.

As per Clause 5 (iii)(bl of the Affordable Housing Poliry 2013, the due date of possessio' of the unit in question is 4 y€ars from the date otsanction oibuilding plans or receipt of environmental clearance, whichever is later' The environmental clearance of th€ proiect was obtained by the respondent on 26.06 2013.

Therefore, the due date ofhanding ove' possession is 26.06.2017.

30.

The competent authorities granted the occupation certifirate to the respondent on 29.11.2019, aDd the unit was subsequently handed over to the complainaDtson 05.11.2020.The offer ofpossession was made by the respondent on 30.11,2019.

The deadlin€ for handing over possession of the unlt was 26.06.2017, and the delay on the part ofthe respondent is evident.

3 1.

Accordingly, the non'compliance of the mand'te contained in section 11t4)(al read with proviso to section 18(1) ofthe Act on the pan of the respondent is established As such the allottee, shall be paid' by the promoter, interest for every month of delay from due date of possession i.e., 26 06. e., 26 06.2017 till offer of possession plus two months after obtaining occupation certificate Fom the competent authoritv or actual handing over of possession wbichever is earlier' as per sect,on 18(11 ofthe Act of 2016 read with rule 15 of the rules c.IL Dlrect the respondent to s€t aside the indemnity bond' 32.

1t is noteworthy that section 18 ofthe Act stipulates for the statutorv right of the allottee against the obligatioD ofthe promoter to dehver the possession within stipulated tim€frame Therefore' the liability of the promoter continues even after the execution of indemnity cum_undertaking at th€ time of possession The Authority is of the HARERA LompLa nrNu ?4ll of202l GURUGRAT/ view that the aforesaid indemnity-cum-undertaking does not pr€clude the complainant_allottee from ex€rcising her right to claim delay possession charges as per the provisions o[the Act Thus, the said the indemnity bond is hereby set_aside. c,IIl.

Dlrect the resPondent to refirnd the amount collected under different heads alongwith ofrer of possesston whlch the complalnantwas not llabl€ to pay as p€r the payment plan G.lV.

Direct the respondent to retund th€ amount unreasonably charged by the r€sPondent by incr€aslng the sale prlce after executlon of the BuYer's A$eement 33.

The financial liabilihes berween the allottee and the promoter comes to an end after the execution of th€ conveyance deed The complainant could have asked for the claim b€fore the convevance deed got executed between the partjes.

Therefore, aiter ex€cution of the conveyance deed the complainant_allottee cannot seek refund of charges other than statutory benefits, if any pending' Once the conveyance deed is executed and accounts have been s€ttled' no claims remains so, no directions in this regard can be effectuated at th,s stage.

H.

Directtons of the authodty 34. thodty 34.

Henc€, the Authoriry hereby passes this order and issue the tollowing directions under section 37 ot the Act to ensure compliance ol obugations casted upon the promoters as per the functions entrusted to theauthoritv undersection 34(0: i.

The respondent is directed to pay the interest at the prescribed rate i.e., 1110% per annum for every month of delay on the amount paid by the complainant from due date of possession i.e-,2606.2017 till offer of possession plus two months after P" GURUGRAI/ HARERA Complaint Filebe 35.

36. obtaining pat,on certificate from the €ompetent orty dover, whicheveris earlier, as Per 18[1] of 16 read with rul€ 15 ofthe rules. to registry, Dared:04.09.

ARERA URUGI?Ai'v'i P.8 32 ol32