ANINDYA SENGUPTA AND RUCHIRA SENGUPTA vs RAHEJA DEVELOPERS LTD

MHARERA #* eunuenavr BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ORDER 1.

This complaint has been filed by the complainant/allottees under section 31 of the Real Estate (Regulation and Development) Act,201,6 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 (in short, 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 obligations, responsibilities and functions under the provisions of the Act or the Rules and regulations made Complaint No.

4230 of 2023 Complaint no. : Date of complaint : Date ofdecision : 1.

Anindya Sen Gupta, 2.

Ruchira Sen Gupta, Both R/o: - H.

No.

15, Defence Officer's Enclave Part-1, Near Defence Services, Officer's Institute, Delhi Cantonment, South West Delhi-110010.

Versus M/s Raheja Developers Limited.

Having Regd.

Office at: W4D, 204/5, Keshav Kunj, Western Avenue, Cariappa Marg, Sainik Farms, New Delhi-110062.

CORAM: Ashok Sangwan APPEARANCE: Gaurav Bhardwaj and Surbhi Garg (Advocates) Garvit Gupta fAdvocate] 4230 of 2O23 t4.o9.2023 16.10.2024 Complainants Respondent Member Complainants Respondent Page 1 of 19 ffiHARERA #- arnGnnll Complaint No.

4230 of 2023 thereunder or to the allottees as per the agreement for sale executed inter 5e.

A.

Unit and proiect related details 2.

The particulars ofunit details, sale consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: s.

N.

Particulars Details t.

Name of the project "Raheja's Aranya City", Sectors 11&J.4, Sohna Gurusram 2.

Proiect area 7.85 acres Nature of the proiect Residential plotted colony 4.

DTCP license no. status and validity ZS of 2072 dated 29.03.2012 valid up to 28.03.2018 5.

Name of licensee it Kumar and 22 Others 6.

RERA Registered/ not registered Registered vide no.

93 of 2017 dated 28.08.20L7 7.

08.20L7 7.

RERA registration valid up to 27.08.2022 8.

PIot no.

E-t24 lpase no.22 of comolaint 9.

Unit area admeasuring 275.84 sq. yds. (approx.) (Pase no.ZZ of the comDlaint 10.

Allotment letter 28.04.2076 foaee 17 of comolaint 77.

Date of execution of agreement to sell 24.04.20t6 Ipase 20 of comDlaint 1,2.

Possession clause 4.2 Possession Time and Compensation Thqt the Seller shall sincerely endeavor to give possession of the plot to the purchaser within thirty-six (36) months Fom the dak of the execution of the Agreement to sell and after providing of necessary infrqstructure specially road sewer & water in the sector by the Government, but subject to force mojeure conditions or any Government/ Regulotory outhority's action, inaction or omission and reosons beyond the control Page 2 of 19 HARERA GURUGRAIV Complaint No.

4230 of 2023 of the Seller.

However, the seller shalt be entitled for compensdtion free grace period of six (6) months in case the development is not completed within the time period mentioned above. ln the event of his failure to take over possession of the plot, provisionally and /or finally ollotted within 30 days from the date of intimation in writing by the seller, then the same shall lie at his/her risk qnd cost and the Purchoser shall be lie at his/her risk qnd cost the purchaser shall be liable to poy @ Rs.50/- .per sq.

Yds. of the plot qrea per month as cost.ilnd the purchaser shall be liabte to pay @ Rs.50/- per sq, Yords.

Of the plot area per month as holding charges for the entire period ofsuch de\ay........... " fPase no.

30 ofthe complaintl. t4.

Grace Period Allowed As per clause 4.2 of the agreement to sell, the possession ofthe allotted unit was supposed to be offered within a stipulated timeframe of 36 months plus 6 months of grace 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 part completion certificate by April 2019. pril 2019.

As per agreement to sell, the construction and development work of the project is to be completed by April 2019 which is not completed till date.

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

15.

Due date of possession 28.t0.2079 [Calculated as 36 months form the date ofexecution of agreement to sell i.e., 28.04.2076 + six months grace oeriodl Page 3 of 19 B, 3. ffiHARERA #-eunuenRl,l Complaint No.

4230 of 2023 1_6.

Total sale consideration Rs.95,09,600/- (as per payment plan on page 43 of comDlaintl 77.

Amount paid by the complainant Rs.91,35,148/- (as per applicant ledger on page 54 of complaint) 18.

Occupation certificate /Completion certificate Not received 19.

Offer of possession Not offered Facts ofthe complaint The complainants have made the following submissions in the complaint: I.

That the complainants were allotted a plot bearing no.

E-124 admeasuring super area of 275.84 sq. yd. in project of the respondent named "Raheja Aranya Ciq/' vide allotment letter dated 28.04.201,6.

Thereafter, an agreement to sell dated28.04.2076 was executed between the parties for a total sale consideration of Rs.91,71,680/-.

That as per clause 4.2 of the said agreement, the respondent undertook to handover possession of the said unit within a period of 36 ntonths from the date of the agreement to sell.

However, the respondent has clearly failed to adhere the said term of agreement and the construction of the project is still in its early stage despite Iapse of more than 9 years from the date ofbooking.

That the complainants, regularly and repeatedly followed up with the representatives of the respondent and enquired about the status of the proiect.

However, the representatives of the respondent on every occasion made false and vague assurances that the plot would be handed over to the . r to the .complainants soon and kept on prolonging the issue uniustifiably without any convincing reason thereby inflicting great mental agony and hardship upon the complainants, II.

II I.

Page 4 of 19 IV.

SHARERA ffi,eunuennlrr 5.

C.

4.

Complaint No.

4230 of 2023 That the complainants contacted the customer care centre of the respondent in order to enquire about the possession of the unit but to the utter shock and disbelief of the complainants, the respondent representatives said that there is a delay in the completion ofproject and possession ofthe unit shall be offered as soon as possible.

Hearing about the same, the complainants requested the respondent to initiate the process of refund with interest but to no avail.

That the complainants cannot wait for an indefinite period for taking possession of the unit despite having paid 800/o of the total sale consideration ofthe unit to theiespondent.

Hence the present complaint.

Relief sought by the complainentsl The complainants have sought folloviririg relief(sl.

I.

Direct the respondent to refund the entire amount paid by the complainant alongwith interest at prescribed rate.

0n the date of hearing, the authority explained to the respondent /promoter about the contraventions as alleged to have been committed in relation to section 11[aJ (a) of the Act to plead gui]ty or not to plead guilry.

Reply by the respondent.

The respondent contested the complaint on the following grounds: - a) That the complaint is neither maintainable nor tenable and is liable to be out-rightly dismissed.

The agreement to sell was executed between both the parties prior to the enactment of the Act, 2016 and the provisions laid down in the said Act cannot be enforced retrospectively.

Although, the provisions of the Act, 2016 are not applicable to the facts of the present case in hand yet without prejudice and in order to avoid complications later on, the respondent has registered the project with D.

6. with D.

6.

Page 5 of 19 bl HARERA GURUGRAM Complaint No.

4230 of 2023 c) the authority.

The said project is registered under the provision of the Actvide registration no.93 of 2017 dared 28.08.2077.

That the complaint is not maintainable for the reason that the agreement contains an arbitration clause which refers to the dispute resolution mechanism to be adopted by the parties in the event of any dispute as clause 13.2 ofthe buyer's agreement.

That the complainant has not approached this authority with clean hands and have intentionally lsuppressed and concealed the material facts in the present complaintr[tre present complaint has been filed by them maliciously with an uiteiior motive and it is nothing but a sheer abuse ofthe process of law.

The true and correct facts are as follows: - o That the complainants, after checking the veracity of the proiect namely, 'Raheja's Aranya City, Sector 11and 14, Sohna, Gurgaon had applied for allotment of a plot vide a booki.ng application form.

They agreed to be bound by the terms and conditions of the booking application form.

The complainants were aware from the very inception that the plans:as-approved by the concerned authorities are tentative in nature and that the respondent might have to eftect suitable and necessary alterations in the layout plans as and when required.

That based on the application for booking, the respondent vide its allotment offer letter allotted to the complainant plot no, E- 124.

The complainant signed and executed the agreement to sell and the complainant agreed to be bound by the terms contained therein.

That the respondent raised payment demands from the complainant in accordance with the mutually agreed terms and conditions of allotment as well as ofthe payment plan and the complainant made Page 6 of 19 HARERA ffiGURUGRAM the payment ofthe earnest money and part-amount ofthe total sale consideration and is bound to pay the remaining amount towards the total sale consideration of the plot alon plot along with applicable registration charges, stamp duty, seryice tax as well as other charges payable at the applicable stage. .

That the possession of the plot is supposed to be offered to the complainant in accordance with the agreed terms and conditions of the buyer's agreement. o Despite the respondent provisions laid down by I ng all its obligations as per the government agencies have failed miserably to provide essential basic infrastructure facilities such as roads, sewerage line, water, and electricity supply in the sector where the said project is being developed.

The development of roads, sewerage, laying down of water and electricity supply lincs has to be undertaken by the concerned governmental authorities and is not within the power and control of the respondent.

The respondent cannot be held liable on account of non-performance by the concerned governmental authorities.

The respondent company has even paid all the requisite amounts including the external development charges IEDC) to the concerned authorities.

However, yet, necessary infrastructure facilities like 60-meter sector roads including 24-meter-wide road connectivity, water and sewage which were supposed to be developed by HUDA parallelly have not been developed.

That the time period for calculating the due date of possession shall start only when the necessary infrastructure facilities will be provided by the governmental authorities and the same was known Complaint No.

4230 of 2023 Page 7 ol19 ffiHARERA #ounuennlrr 7.

4230 oF 2023 to the complainant from the very inception.

That non-avarelability of the infrastructure facilities is beyond the control of the respondent and the same also falls within the ambit ofthe definition of'force majeure' condition as stipulated in Clause 4.4 of the agreement to sell. . to sell. .

That development of the township in which the plot allotted to the complainant is located is 50olo complete and the respondent shall hand over the possession of the same to the complainant after its completion subject to the fii$plirinant making the payment of rhe due installments amouri*lalid., on availability of infrastructure facilities such as sector road and laying providing basic external infrastructure such as wat€ ater, sewer, electricity etc. as per terms of the application and agreement to sell.

The photographs showing the current status of the development of the plot in which the plot allotted to the complaint is located.

Despite the occurrence of such force majeure events, the respondent has completed the development of the proiect and has already been granted part completion certificate on 11.11.2016.

Under these circumstances passing any adverse order against the respondent at this stage would amount to complete travesty ofjustice 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 submrssions made by the parties.

Jurisdiction of the authority The authority has complete territorial and subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.

8.

Page 8 of19 HARERA P*GURUGRAN/ Complaint No.

4230 of 2023 E.l Territorialiurisdiction 9.

As per notificationno.l /92 /2017-1TCP dated 14.12.2017 issued by Town and Country Planning Department, Haryana the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes.

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

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

E.ll Subiect-matteriurisdiction 10.

Section 11(41(al of the Act,201. e Act,201.6 provides that the promoter shall bc responsible to the allottee as per agreement for sale.

Section 11(4)(aJ is reproduced as hereunder: Section 11,,,,, (4) The promoter shall- (a) be responsible for oll obligations, responsibilities ond functions under the provisions of this Act or the rules and regulations mqde thereunder or to the ollottees os per the agreement for sole, or to the ossociation ofallotteet as the case may be, till the conveyonce of oll the aportments, plots or buildings, as the case may be, to the allottees, or the common areos to the ossociation ofallottees or the competentauthority, as the case mqy be; Section 34-Functions of the Authority: 344 of the Act provides to ensure compliance of the obligations cosL upon the promoters, the allottees and the real estote agents under this Act ond the rules ond regulations mode thereunder.

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.I.

Obiection regarding agreement contains an arbitration clause which refers to the dispute resolution system mentioned in agreement.

The respondent has contended that clause 13.2 of the agreement to sell entered into between contains a clause 13.2 relating to dispute resolution between the parties.

The clause reads as under: - 11.

F.

12.

Page 9 ol19 ffiHARERA # aJRUoRAN/ Complaint No.

4230 oF 2023 "All or any disputes arising out or touching upon in relotion to the terms of this Application/Agreement to Sell/ Conveyance Deed including the interpretation and validiry ofthe terms thereofand the respective rights ond obligations of the parties shall be settled through orbitrqtion.

The arbitrotion proceedings shall be governed by the Arbitration and Conciliotion Act 1996 or any stotutory omendments/ modifications thereof for the time being in force. in force.

1'he orbitration proceedings sholl be held qt the office ofthe seller in New Delhi by o sole arbitrotor who sholl be appointed by mutuol consent of the porties. lf there is no consensus on oppointment of the Arbitrator, the matter will be referred to the concerned court for the some. ln case of any proceeding, reference etc. touching upon the arbitrator subject including any oward, the territorialjurisdiction of the Courts shall be Gurgaon os well as of Punjab and Harydna High Court qt Chondigorh".

13.

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 of the 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 intentio n to render such disputes as non-arbitrable seems to be clear.

Also, section 88 of the Act says that the provisions of this 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 Hon'ble Supreme Court, particularly in Nstional Seeds Corporation Limited v.

M.

Madhusudhan Reddy & Anr. (2012) 2 SCC 506, wherein ir 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 if the agreement between the parties had an arbitration clause.

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

Page 10 of 19 HARERA ffiGURUGRAN/ Consumer case no.

70L of 20lS decided on 13. ded on 13.07,2017 , the National Consumer Disputes Redressal Commission, New Delhi (NCDRC) has held that the arbitration clause in agreements between the complainants and builders could not circumscribe the jurisdiction 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 McF Land Ltd.

V.

Aftob Singh in revision petition no.

2629-30/2018 in civil appeal no.

23572-23513 of 2077 decided on 70,72,2078 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 ofthe above judgements and considering the provision of the Act, the authority is of the view that complainant is well within his right to seek a special remedy available in a beneficial Act such as the Consumer Protection Act and RERA Act, 2016 instead of going in for an arbitration.

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

F.II Obiection regarding iurisdiction of authority w.r.L buyer,s agreement executed prior to coming into force ofthe Act.

The respondent has raised an obiection that the authority is deprived of the jurisdiction to go into the interpretation of, or rights of the parties inter-se in accordance with the buyer's agreement executed betvveen the parties prior to the enactment of the Act and the provision of the said Act cannot be applied retrospectively.

The authority is ofthe view that the Act Complaint No.

4230 of 2023 14.

Further, in Aftab Singh and ors. v.

Emaar MGF Land Ltd and ors. d and ors., Page 11 ol19 HARERA MGURUGRAM Complaint No.

4230 of 202 3 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 ofthe Act, rules and agreement have to be read and interpreted harmoniously.

However, if the Act has provided for dealing with certain specific provisions/situation in a specific/particular manner, then that situation will be dealt with in accordance with the Act and the rules after the date of coming into force ofthe Act and the rules.

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

The said contention has been upheld in the landmark judgment of Neel kamal Realtofs Suburban pv..

Ltd, Vs. alOI and others. (W.P 2737 of 2017) declded on.06.72.2077 which provides as under; "719.

IJnder the provisions of Section 1'8, the deloy in honding over the possession would be counted ftom the date mentioned in the agreement for sole entered into by the promoter ond the qllottee prior to its registrotion under REM.

Under the provisions of REP./., the promoter is given a rocility to revise the date of completion of project and declare the some under Section 4.

The RBp.y'. does not contemplate rewriting of contract between the flot purchoser ond the promoter,,,,,.

122.

We have alreody discussed thot sbove stqted provisions oI the RERA ore not retrospective in nature.

They moy to some extent be hoving o retroactive or quasi retrooctive elfed but then on thot ground the validity of the provisions of REM cannot be chqllenged.

The Porlioment is competent enough to legislote law having retospective or retroactive elfect A law can be even framed to oflect subsisting / existing contrqctuol rights between the parties in the larger public interest We do not hove any doubt in our mind thot the REM hqs been fromed in the lorger public interest ofrer o thorough study and discussion made at the highest level by the Stand the Standing Committee and Select Committee,which submitted its detoiled reports." 16.

Also, in appealno.

L73 of 2079 titled as Magic Eye Developer pvL Ltd.

Vs.

Ishwer Singh Dahia, in order dated 17 .12.2019 the Haryana Real Estate Appellate Tribunal has observed- "34.Thus, keeping in view ouraforesaid discussion, we are oftheconsidered opinion that the provisions of the Act are quasi retrooctive to some extent in operqtion and will be opplicable to the agreementslor sole entered into even orior to coming into onerotion ofthe Act where the Page 12 of 19 ffiHARERA ffi aTRTJGRAI/ L7.

4230 of 2023 transaction are still in the process of completion.

Hence in case of delay in the offer/delivery of possession os per the terms ond conditions of the agreement for sqle the ollottee sholl be entitled to the interest/delayed possession chorges on the reasonable rote of interest as provided in Rule 15 ofthe rules ond one sided, unfoir ond unreasonable rote of compensotion mentioned in the agreement for sqle is liable to be ignored." The agreements are sacrosanct save and except for the provisions 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 scope 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 agre'dii terms and conditions of the agreement subject to the condition that:the same are in accordance with the plans/permissions approved by the respective departments/competent authorities and are not in contravention of any other Act, rules, statutes, instructions, directions issued thereunder and are not unreasonable or exorbitant in nature.

Findings on the reliefsought by the complainants.

G.

I Direct the respondent to refund the entire amount paid by the complainants alongwith interest at prescribed rate. ibed rate.

In the present complaing the complainants intend to withdraw from the project and are seeking return of the amount paid by them in respect of subject plot along with interest at the prescribed rate as provided under section 18(11 ofthe Act.

Sec.

18(L) ofthe Act is reproduced below for ready reference. "Section 78: - Return of amount and compensqtion 1B(1), lf the promoter fails to complete or is unoble to give possession ofon opartment plot, or building.- (a) in occordance with the terms of the ogreement for sale or, as the cose moy be, duly completed by the date specoed therein; or (b) due to discontinusnce of his business os a developer on account of suspension or revocation of the registrotion under this Act or for ony other reason, G.

18.

Page 13 of 19 HARERA ffiGURUGRAM Complaint No.

4230 of 2023 he shall be lidble on demand to the ollottees, in case the allotteewishes to withdraw from the project, without prejudice to ony other remedy available, to returu the amount received by him in respect of thot qpartment, plot" building, as the cose may be, with interest at such rate as mqy be prescribed in this behalf including compensotion in the manner as provided under this Act: Provided thqt where on allottee does not intend to withdraw from the project, he sholl be paid, by the promoter, interest for every month ofdelay, till the handing over ofthe possession, st such rote as may be prescribed." (Emphosis supplied) 19.

Clause 4.2 ofthe agreement to sell dated 28.04.2016 provides for handing over of possession and is reproduced below: 4.2 Possession Time and Compensation That the Seller sholl si to give possession of the plot to the purchaser within thin months fi'om the ddte oJ the execution of the Agreement td sell ond after providing of necessory infrastructure specially rood sewer & woter in the sector by the Government, but subject to force majeure conditions or any Government/ Regulatory outhority's action, inaction or omission ond reasons beyond th beyond the control of the Seller.

However, the seller shall be entitled for compensotion lree gtqce period of six (6) months in cqse the development is not completed within the time period mentioned qbove, ln the event of his failure to toke over possession of the plot, provisionally ond /or frnolly allotted within 30 days from the date of intimation in writing by the seller, then the some sholl lie at his/her risk and cost and the Purchqser shall be lie at his/het risk and cost the purchaser sholl be liable to pay @ Rs.50/- per sq.

Yds. ofthe plot areq per month as cost ond the purchaser shqll be lioble to poy @ Rs.50/- per sq.

Yards.

0fthe plot area per month os holding chorges for the entire period of such de\oy............" 20.

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

The drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promoter and against the allottee that even a single default by the allottee in making payment as per the plan may make the Page 14 of 19 HARERA ffiGURUGRAM Complaint No.

4230 of 2023 possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning.

The incorporation ofsuch 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 delay in possession. ossession.

This is just to comment as to how the builder has misused his dominant position and drafted such a mischievous clause in the agreement and the allottee is left with no option but to sign on the dotted lines.

21.

Due date of handing over possession and admissibility of grace period: 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 36 months plus 6 months of grace period, in case the development is not complete within the time frame specified.

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

However, the fact cannot be ignored that there were circumstances beyond the control of the respondent which led to delay incompletion of the proiect.

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

22.

Admissibility of refund along with prescribed rate of interest: The complainants intend to withdraw from the project and are seeking refund of the amount paid by them in respect of the sub,ect plot with interest at prescribed rate as provided under rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 75, Prescribed rqte oJ interest- lProviso to section 72, section 1B and sub-section (4) and subsection (7) ofsection 191 (1) For the purpose of proviso to section 12; section 18; and sub-sections (4) ond (7) oJ section 79, the "interest at the rqte prescribed" sholl be the Stote Bank of lndia highest mdrginal cost of lending rute +2ok.: Page 15 ol19 ffiHARERA ffi arnuemH,r Complaint No.

4230 of 2023 Provided that in cose the State Bonk of lndia morginal cost oflending rote (MCLR) is not in use, it sholl be replaced by such benchmark lending roteswhich the State Bonk oflndio moyfix from time to time for lending to the generol public. ol public.

The legislature in its wisdom in the subordinate legislation under thc provision of rule 15 of the 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., https://sbi.co.in, the marginal cost of lending rate (in short, MCLRJ as on date i.e., 16.10.2024 is 9,LOo/o.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +20/o i.e-,l!.10o/o, On consideration ofdocuments available on record as well as subm rssio ns made by the parties, the authority is satisfied that the respondent is in contravention of the provisions of the Act.

By virtue of clause 4.2 of the agreement to sell executed between the parties on 28.04.2076, the possession of the subject plot was to be delivered within a period of 36 months from the date ofexecution ofbuyer's agreement which comes out to be 28.04.2019.

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

Therefore, the due date of handing over of possession is 28.10.2019.

The authority observes that even after a passagc of more than 4-11 years till date neither the construction is complete nor the offer of possession of the allotted plot has been made to the allottecs by the respondent/promoter.

26.

Keeping in view the fact that the complainant/allottees wish to withdraw from the project and demanding return of the amount received by the promoter in respect of the plot in question with interest on failure of the promoter to complete or inability to give possession of the plot in 23.

24.

25.

Page 16 of 19 ffiI]AREBA S* eunuenRvr Complaint No.

4230 of 2023 accordance wlth the terms ofagreement for sale or duly completed by the date specified therein.

The matter is covered under section 18(11 of the Act of 20L6.

27.

20L6.

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

The authority is of the view that the allottees cannot be expected to wait endlessly for taking possession of the allotted unit and for which they have paid a considerable amount towards the sale consideration and as observed byflon'ble Supreme Court of India in lreo Grace Realtech PvL Ltd, Vs.

Abhlshik Khanna & Orc, civil appeal no.

5785 of 2079, ilecided on 77.07.2027 "....

The occupotion certilicate is not avqilable even as on dote, which cleorly omounts to dejiciency ofservice.

The allottees cannot be made to wait indefinitely for possession ofthe apartments allotted to them, nor can they be bound to take the oportments in phase 1 of the project......." 28.

Further in the judgement of the Hon'ble Supreme Court of India in the cases of Newtech Promoters and Developers Private Limited Vs State of U.P. and Ors.

2021-2022 (1) RCR (Civil),357 reirerated in case of M/s Sana Realtors Private Limited & other Vs llnion of lndia & others SLp (Civil) No.

73005 of2020 decided on 12.05.2022 it was observed that: 25.

The unquolfied right of the allottee to seek refund referred Ilnder Section 18(1)(0) and Section 19(4) of the Act is not dependent on uny contingencies or stipulations thereof. lt appears thot the legisloture hos consciously provided this tight of refund on demand as on unconditionol absolute right to the allottee, if the promoter foils to give possession of the oportment, plot or building within the time stipulotecl under the terms ofthe agreement regardless of unforeseen events or stay orders ol' the Court/Tribunal, which is in either $)ay not attributable to the allottee/home buyer, the promoter is under on obligqtion to refund the anount on demond with interest at the rate prescribed by the Stote Covernment including compensation in the manner provided under the Act with the proviso thot ifthe thot ifthe ollottee does not wish to withdrdw from the project, he shall be entitled for interest for the period of delqy till handing over possession at the rate prescribed." PaEe 17 of 79 ffiHARERA ffieunuenanr Complaint No.

4230 of 2023 29.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunder or to the allottees as per agreement for sale under section 11(4J[a).

The promoter has failed to complete or unable to give possession of the plot in accordance with the terms of agreement for sell or duly completed by the date specified therein.

Accordingly, the promoter is liable to the allottees, as the allottees wish to withdraw from the prorect, without preiudice to any other remedy available, to return the amount received by it in respec!.of the unit with interest at such rate as 30.

Accordingly, the non-compliance of the mandate contained in section 11(41[a) read with section 18[1] of the Acr on the part of the respondenr is established.

As such, the complainants are entitled to refund of the entire amount paid by them at the prescribed rate of interest i.e., @ 11.10%o p.a. (the State Bank of India highest marginal cost of lending rate (MCLII) applicable as on date +2%) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Rules,2017 from the date of each payment till the actual date of refund of the amount within thc timelines provided in rule 16 ofthe Haryana Rules 2017 ibid.

H.

Directions ofthe authority 31.

Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(fl: i.

The respondent/promoter is directed to refund the entire amount received by it from the complainants i.e., Rs.91,3 5,148/-along with interest at the rate of 11.100/o p.a.

100/o p.a. as prescribed under rule 15 of thc may be prescribed.

Page 18 of 19 ffiHARERA S- anuennr,r Complaint No.

4230 of 2023 Haryana Real Estate fRegulation and Development) Rules,2017 from the date ofeach payment till the actual date ofrefund ofthe deposited amount. 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 subject full realization of the paid-up the complainants.

Even if, any amount along with in transfer is initiated subiect unit, the receivables shall be first utilized fo lplainant/allottees.

32.

Complaint stands 33.

File be consigned Dated: 16.10.202 HARERA GURUGRAiVI Page 19 of 19 lnsriox s{n[wan; Mempdr Harvana Rdal Estate Regulatory Authority, Gurugram