SRI KRISHAN vs RAHEJA DEVELOPERS LTD.

ffi HARERA. # eunuennH,r Complaint no. : Date of complaint : Date oforder : Sri Krishan, R/o: - H.

No.

237, Mata Wali Gali, Pandit lraqir Chand Tower, Samalaka, New Delhi-110097.

Versus M/s Raheja Developers Limited.

Regd.

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

CORAM: Ashok Sangwan APPEARANCE: Rishabh Jain (Advocate) Garvit Gupta (Advocate) ORDER 1.

The present complaint has been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and Developmcnt) Act,2016 (in short, the Act) read with rule 28 of the Haryana Real Ilstatc (Regulation and Development) Rules,2017 [in short, the Rules) for violation of section 11(4) [a) of the Act wherein it is inter alio 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 there under or to the allottee as per the agreement for sale executed inter se.

Complaint No.

4411 of 2023 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM 44ll of 2023 27.O9.2023 24.07 .2024 Complainant Respondent Member Complainant Respondent Page 1ot20 ffi& A.

2.

HARERA GURUGRA|/] Complaint No.

4411 of 2023 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, dclay period, if any, have been detailed in the following tabular form: nt/ Reg ry s.

N.

Particulars Details 1.

Name of the project "Raheja's Revanta", Sector 7A, Gurugram, Haryana 2.

Project area 18.7213 acres 3.

Nature ofthe project Residential group housins colon 4.

DTCP license no. and validity status 49 of2011 dated 01.06.2011 valid up ro 37.05.2021.

5.

Name of licensee Sh.

Ram Chander, Ram Sawroop and 4 Others 6.

RERA Registered/ not registered Registered vide no.32 of 2017 dared 04.08.2077 7.

RERA registration valid up to 04.02. to 04.02.2023 5 Years from the date of revised Environment Clearance 8.

Unit no.

IF12-04,3.d floor (Page no.

80 ofthe complaint 9.

Unit area admeasuring 2548.700 sq. ft. (super area) fPage no.

80 ofthe comDlaint 10.

Addendum to agreement ffor change of unit no.) 28.04.201.4 (page 77 of complaint 11.

Date of execution of agreement to sell 74.06.2012 (Page no.33 of the complaint) 12.

Possession clause 4.2 Possession Time and Compensation Thqt the Seller shall sincerely endeavor to give possession oI the Unit to the purchaser within thirE-six (36) months in respect oI'TAPAS' Independent Floors and forty eight [48) months in respect of 'SIJRYA TQWER' Irom the date of the execution of the Agreement to sell and after providing of necessary infrastructure specially rood sewer & water in the sector by the Covernment, bul subject lo Iorce majeur( conditions or any Government/ RegulaLorv Pagc 2 ol 20 ffiHARERA # eunuennrvr Complaint No.

4411 of 2023 authority's action, inaction or omission ond reasons beyond the control of the Selter.

However, the seller shall be entitled for compensation free grace period ofsix (6) months in case the construction is not completed within the time period mentioned above.

The seller on obtqining certificate for occupotion and use by tht: Competent Authorities sholl hond over the Unit to the Purchoser for this occupoLion ond use and subject to the Purchoser having complied with all the terms qnd conditions of this qpplicqtion form & Agreement To sell. ln the event of his failure to take over qnd /or occupy qnd use the unit provisionally and/or frnally allotted within 30 rloys from the dote of intimation in writing by the seller, then the some shqll lie at his/her risk and cost qnd the Purchaser shqll be liable to compensation @ P,s.7/- per sq. ft. of the super area per month as holding chorges Jbr the entire pqtiod ofsuch 4"\qy.,......-. .,......-." Allowed As per clause 4,2 of the agrccmont 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. [t is a matter of fact that the respondent has not completed ttre project in which the allotted unit is situated and has not obtained the occupation certificate by June 2015.

As per agreement to sell, the construction of the projcct is to bc completed by June 2015 which is not completed till date.

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

L4.12.2015 (Note: - 36 months from date of agreement + 6 months grace period Grace period Due date of possession Page 3 ol20 11- 15.

Total sale consideration as per payment plan at page no.

68 of complaint Rs.1,60,33,328l- 76.

Amount paid by the complainant as per customer ledger at page no.

83 of complaint Rs.1,54,99,365/- 77.

Occupation certificate /Completion certificate Not received 18.

0 ffer of possession Not offered ffiHARER' #, eunuenntil Complaint No.

441 1 of 2023 Facts ofthe complaint The complainant has made the following submissions: - That the complainant was allotted an apartment bearing no.

IF38- 04, 3rd Floor, Tower no.

IF38, having super area of 2548.70 sq. ft. and terrace area measuring 1186.19 sq. ft. in the project of the respondent named "Raheja Revanta" at Sector 78, Gurugram vide agreement to sale dated 1,4.06.2012 for a total sale consideration of Rs.1,60,33,328/- against which the complainant has paid an amount of lls.1,54,99,3 65/- to the respondent till April, 2 01 9.

That the respondent executed an'addendum to agreement to scll' with the complainant on 28.04.2014 wherein the allotted independent floor as per the agreement unit no. lF38-04, 3rd Floor, Tower no.

IF38 was changed to new unit no.

IF12-04,3rd Floor, Tower IF12 having same super area of 2548.20 sq. ft. and terracc area of 1186.19 sq. ft.

The date of handing over the possession of the unit as per clause 4. clause 4.2 of the agreement, was thirty-six months in case of ,Tapas, independent floors from the date of execution of this agrecncnt.

Whereas, the respondent, despite receiving more than ninety six percent payable amount of the unit From the complainant as per thc B, 3.

I.

II.

III.

Page 4 of 20 ffi HARERA H eunuennrrl agreement, failed to honour the terms of the agreement and timely deliver possession of the unit to the complainant even after a delay of more than eight years.

That the complainant has approached the respondent and pleaded for delivery ofpossession ofhis unit as per the agreement on various occasions.

However, the respondent did not reply to his letters, emails, personal visits, telephone calls, seeking information about the status ofthe proiect and delivery ofpossession of his apartment.

That the complainant does not intend to withdraw from the project and is seeking delay possession charges as the promoter has an obligation to pay interest on the amount deposited by thc complainant at the rate prescribed.

The respondent/promoter has neglected his part of obligations by failing to offer a legitimate and rightful possession ofthe unit in time. ln the present circumstances, the complainant has been left with no other option, but to approach this Authority.

4411 of 2023 IV.

C.

4.

Relief sought by the complainant: The complainant has sought following relief(s).

Direct the respondent to handover physical possession of the unit and to pay delay possession charges at prescribed rate of intcrcst.

Dircct the respondent to get the conveyance deed cxccutcd rn favour of the complainant.

Direct the respondent to pay legal expenses.

Reply by the respondent.

The respondent has contested the complaint on the following grounds: That the agreement to sell was executed between the complainant and the respondent prior to the enactment of the Real Estate (Regulation and DevelopmentJ Act,2016 and the provisions laid down in the said Act cannot be enforced enforced retrospectively.

Although the provisions ofthe ll.

I lt.

D, i.

Pagc 5 ol 20 HARERI GURUGRAM Complaint No.

4411 of 202 3 RERA 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 vide registration no.

32 of 2017 dated 04.08.2017 with the Authoriry. ii.

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 cvcnt of any dispute i.e. clause 60 of the booking application form and clausc 1 4.2 of the buyer's agreement. iii.

That the complainant had applied for allotment of a apartment in the project named "Raheja's Revanta" at Sector 78, Gurgaon Haryana vide his booking application form.

Thereafter, an agreement to sell was executed between the parties lor unit no.

IF-38-04 and the complainant agreed to be bound by the terms contained therein. iv.

That the possession of the unit was supposed to be offcrcd to thc complainant in accordance with the agreed terms and conditions ot the buyer's agreement as stated in clause 21 of the booking appljcation form and clause 4.2 of the agreement to sell. v.

That despite the respondent fulfilling all its obligations as per the provisions laid down by law, 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 proiect is being developed.

Thus, the respondent cannot bc held liable on account of non-performance by the conccrned governmental authorities. vi.

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 to thc Page 6 oF 20 HARERA MGURUGRAI,/ Complaint No.

4411 of 2023 vii.

2023 vii. complainant from the very inception.

It is submitted that non- availabiliry of the infrastructure facilities is beyond the control of thc respondent and the same also falls within the ambit of the definition of 'Force Majeure' condition as stipulated in clause 4.4 of the agreement to sell.

That furthermore two high tension cable lines were passing through the project site which were clearly shown and visible in the zoning plan dated 06.06.2011.

Hence, the respondent got the overhead wircs shifted underground at its own cost and only after adopting all necessary processes and procedures and handed over the samc to thc HVPNL and the same was brought to the notice of District 'l'own Planner vide letter dated 28.10.201,4 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 the high-tension supplies was involved, it took considerable time/efforts, investment and resources which falls within the ambit of the forcc majeure condition.

Further, the GMDA, 0ffice of Finginccr VI, Gurugram vide letter dated 3.12.2019 has intimated the respondcnt that the land of sector dividing road 77 /78 has not been acquired and sewer line has not been laid.

So, the respondent has written on several occasions 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.

That the construction of the tower in which the unit allotted to thc complainant is Iocated is 800/o complete and the respondcnt shall han d VIII, lx.

Page 7 of 20 HARERA *@- GURUGRAII 6.

Complaint No. plaint No.

4411 of 2023 xL over the possession of the same to the complainant after its completion subiect to the complainant making the payment of the due installments amount and on availability of infrastructurc facilitics such as sector road and laying providing basic external infrastructure' such as water, sewer, electricity etc. as per terms ofthe application and agreement to sell and due to the above-mentioned conditions which were beyond the reasonable control of the respondent, the construction ofthe project in question has not been completed and the respondent cannot be held Iiable for the same.

That the construction of the tower in which the floor is allotted to thc complainant is located already complete and the respondent shall hand over the possession ofthe same to the complainant after getting the occupation certificate subject to the complainant making thc payment of the due installments amount as per terms of thc application and agreement to sell.

That the respondent cannot be held responsible for no fault of theirs.

There is no failure on the part of the respondent to hand over the possession of the unit as per the agreement to sell.

Furthermore, the Hon'ble Punjab and Haryana High Court vide its order datcd 1,2.01.2023 in CWP no.

609 of 2023 has directed the State of Haryana not to take any coercive steps against the respondent til20.07.2023.

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

Their authenticity is not in dispute.

Hence, the complaint can bc decided on the basis of these undisputed documents and submissions made by the parties. lurisdiction of the authority The authority has complete territorial and subject matter jurisdiction to adiudicate the present complaint for the reasons given below.

E.

7.

Page I of20 9. *HARER ffi eunGnArrl 8.

E.I Territorialjurisdiction As per notification no.

1./92/2017-1TCP dated 1.4.L2. ed 1.4.L2.20L7 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 jn 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 Section 11(4)(a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)(al is reproduced as hereunder: Section 11 (4) The promoter sholl- (o) be responsible for all obligcttions, responsibilities oncl functnns under the provisions of this Act or the rules and regulotions made thereunder or to the dllottees os per the ogreement for sale, or Lo the ossociation of allottees, os the case nay be, till the conveyonce of all the apartments, plots or buildings, as the case may be, to the allottees, or the common oreos to the association ofallottees or the competent authority, os the cose moy be; Section 34-Functions of the Authority: 344 of the Act provides to ensure compliance of the obligotions cost upon the promoters, the allottees qnd the real estate qgents under this Act and the rules and regulotions mocle 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 oblections raised by the respondent F.l Obiection regarding agreements contains an arbitration clause which refers to the dispute resolution system mentioned in agrecment.

The agreement to sell entered into between the parties on 74.06.2012 contains a clause 14.2 relating to dispute resolution between thc parties.

The clause reads as under: - 10.

F.

4411 of 2023 11. f 2023 11.

Page 9 of20 ffiH &e ARERA URUGRAI'/ "All or any disputes arising out or touching upon in relotion to the terms of this Applicotion/Agreement to Sell/ Conveyqnce Deed including the interpretation qnd volidity of the terms thereofand the respective rights and obligotions oi the parties shall be settled through orbitration.

The arbitration proceedings sholl be governed by the Arbitration and Conciliation Act, 1996 or any stotutory omendmentsl' modifcotions thereof for the time being in force The arbitrotion proceedings sholl be held atthe offce of the seller in New Delhi by a sole arbitrator who sholl be oppointed by mutuql consent of the porties. lf there is no consensus on qppointment of the Arbitrator, the motter will be referred to the concerned court for the some. ln case of ony proceeding' reference etc. touching upon the arbitrator subject including ony oword, the territoriol iurisdiction of the Courts sholl be Curgaon as vrell os of Punjob and Haryana lligh Coutl ot Chandigarh".

12.

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 intention 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 othcr law for the time being in force.

Further, the authority puts rcliancc orl catena of judgments of the Hon'ble Supreme Court, particularly in National Seeds Corporation Limited v.

M, Madhusudhon Reddy & Anr, (2012) 2 SCC 506, wherein it has been held that the remedies provided under the Consumer Protection Act are in addition to and not in derogation of the other laws in force, consequently the authority would not would not be bound to refer parties to arbitration even ifthe agreement between the parties had an arbitration clause.

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

4411 of 2023 Page 10 of 20 *HARERI, #,eunuennrr,r Complaint No.

4411 of 2023 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 (NCDRC) has held that the arbitration clause in agreements betlveen the comp)ainants 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, Afiab Singh in revision petition no.

2629-30/2018 in civil appeal no, 23512-23513 of2077 decided on 70.72.2018has upheld the aforesaid iudgement 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 above iudgements and considering the provision ofthe 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.Il Obiection regarding iurisdiction of authority w'r.t. buyer's agreement executed prior to coming into force ofthe Act. ofthe Act.

Another contention of the respondent is that authority is deprived of the iurisdiction to go into the interpretation ol or rights of the parties inter-se in accordance with the buyer's agreement executed between the parties prior to the enactment of the Act and the provision of the said Act cannot be applied retrospectively.

The authority is of the view 13. t4.

Page 11of20 , tr HARER : #" eunueiunt 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, 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 of the Act and the rules.

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

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

UOI and others. (w.P 2737 of 2077) decided on 06.12.2017 which provides as under: " 119- Under the provisions of Section 18, the deloy in handing over the possession would be counted from the date mentioned in the agreement for sale entered into by the promoter qnd the allottee prior to its registration under REpl..

Under the provisions of RI':RA, the promoter is given a focility to revise the dote of completion of project and declare the same under Section 4.

The RERA does nol contemplate rewriting of controct between the flat purchoser ancl the promoter......

122- We have already discussed thot above stotecl provisions uf Lhe lllltl,l dre not retrospective in naturc.

They ma)) to some extenl be havin!) a retroqctive or quasi retroactive effect but then on that ground the validity of the provisions of RERA cannot be chqllenged. hqllenged.

7he Parlioment is competent enough to legislate law having retrospective or retroactive effect- A low con be even framed to affect subsisting / existing contractual rights between the porties in the larger public interest.

We do not hove ony doubt in our mind thot the REM hos been fromed in the lorger public interest after o thorough study and discussion made at the highest level by the Stonding Committee ond Select Committee, which submitted its detailed reports." Complaint No. of 2023 15.

A1so, in appeal no.

1.73 of 2079 ti ed as Magic Eye Developer Pvt.

Ltd.

Vs, Ishwer Singh Dahiya,in order dated 77 .72.2019 the Haryana Real Estate Appellate Tribunal has observed- "34.

Thus, keeping in view our aforesoid dlscussio4 we ore of the considered opinion thot the provisions of the Act ore quast retroactive to some extent in operation and will be applicoble to the Page 12 of 20 HARERA GURUGRAM Complaint No.4411 of 2023 agreements for sole entered into even prior to coming into oDeratrcn ofthe Actwhere the t .

Ilence in cose of delay in the offer/delivery of possession os per the terms qnd conditions of the qgreement for sole the allottee sholl be entitled to the interest/delayed possession charges on the reasonoble rote of interest os provided in Rule 15 of the rules and one sicled, unfair ond unreosonoble rdte ofcompensation menLioned in the ogreement for sale is lioble 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 agreed terms and conditions of the agreement subject to the condition that thc samc arc rn accordance with the plans/permissions approved by thc respectivc departments/competent authorities an orities and are not in contravention of any other Act, rules, statutes, instructions, directions issued thereunder and are not unreasonable or exorbitant in nature.

Hence, in the light of above-mentioned reasons, the contention of the respondent w.r.t. jurisdiction stands rejected.

F.lll Obiections regarding the circumstances being 'force maicure'.

The respondent has contended that the proiect was delayed bccausc of the 'force majeure' situations like delay on part of govcrnnrort authorities in granting approvals, passing of HT lines over the project etc. which were beyond the control of respondent.

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

First of all, the possession of the unit in question was to be offered by 14.72.2015.

Further, the time taken in getting governmental approvals/clearances cannot be attributed as reason for delay in project.

Moreover, some of the events mentioned above are of routine in naturc happcnrng 1,6.

17.

Page 13 oF 20 ffi HARER/, #"arRucRAu G.

4411 of 2023 annually and the promoter is required to take the same into consideration while launching the project.

Thus, the promoter- respondent cannot be given any leniency on based ofaforesaid reasons and it is a well settled principle that a person cannot take benefit of his own wrong and the objection of the respondent that the project was delayed due to circumstances being force majeure stands rejected.

Findings on the relief sought by the complainant.

G.I.

Direct the respondent to handover physical possession of the unit and to pay delay possession charges at prescribed rate of interest In the present complaint, the coimplainant intends to continue with the project and is seeking delay possession charges as provided under the proviso to section 1B(lJ ofthe Act.

Sec.

18(1) proviso reads as under. "Section 18: - Retum of qmount qnd compensation 18(1). lf the promoter foils to complete or is unable to give possession of on aporlmenl, plot, or bulding. r bulding. - 18.

Provided that where on ollottee does not intend to withclrow from the project, he sholl be poid, by the promoter, interest for every month of delay, till the handing ovet ofthe possession, ot such rote os mqy be prescribed.' 19.

As per article 4.2 ofthe agreement to sell provides for handing over of possession and is reproduced below: 4.2 PossessionTimeandCompensotion Thot the Seller sholl sincerely endeovor to give possession of the Unit to the purchaser within thirty-six (36) months in respect of'TAPAS' Independent Floors ond forqr eight (48) months in respect of'SURYA ToWER'fron the date ofthe execution ofthe Agreement to sell ond ofter ptoviding of necessary infrastructu te special Iy roacl sewer & water in the sector by the Covernment, but subject to force mojeure conditions or ony GovernmenL/ llegulaLory authority's action, inaction or omission and reasons beyond the control ofthe Seller.

Houtever, the seller shall be entitled for compensation Jree grace period of six (6) months in cqse the construction is not completed within the time period mentioned above.

The seller on obtoining certificote for occupotion ond use by the Competent Authorities shall hond over the Unit to the Page 14 of 20 ffiHARERT #eunGrw Purchaser fot this occupation and use and subject to the Purchoset hqving complied with oll the terms ond conditions ofthis opplicotion Jorm & Agreement To sell.

In the event of his foilure to toke over ond /or occupy and use the unit provisionally and/or finolly qllotted within 30 days from the dote of intimation in writing hy the seller, then the some shall lie at his/her risk ond cost and the Purchoser sholl be liable to compensation @ Rs.7/' per sq. ft. of the super areo per month as holding charges for the entire period of such de|ay...........".

20. ....".

20.

At the outset, it is relevant to comment on the preset possession clause of the agreement wherein the possession has been subjectcd to providing necessary infrastructure specially road, sewer and watcr ir) the sector by the government, but subject to force majeure conditions or any government /regulatory authority's action, inaction or om ission 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 possession clause irrelevant for the purposc of allottee and the commitment date for handing over possession loscs its meaning.

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

This is iust to comment as to how the builder has misused his dominant position and drafted such 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 ofthe agreement to sell dated 14.06.2 012, thc possession of the allotted unit was supposed to be offercd within n stipulated timeframe of 36 months from the date of its execution plus 6 Complaint Page1^Sof?O I Complaint No.

4411 of 2023 22.

23.

HARERA ffiGURUGRAM months of grace period, in case the construction is not complete within the time frame specified.

It is a matter of fact that the respondent has not completed the pro,ect in which the allotted unit is situated and has not obtained the occupation certificate by June 2015.

June 2015.

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

Therefore, the due date of possession comes out to be 14.1 2.2015.

Payment of delay possession charges at prescribed rate ofinterest: Proviso to section 18 provides thatwhere an allottee does not intend to withdraw from the proiect, he shall be paid, by the promoter, intcrest for every month ofdelay, till the handing over ofpossession, at such rate as may be prescribed and it has been prescribed under rulc 15 of thc rules.

Rule 15 has been reproduced as under: Rule 75, Prescribed rate of interest- lProviso to section 12, section 7B and sub-section (4) and subsection (7) oJ section 191 (1) For the purpose of proviso to section 12; section 78; and sub- sections (4) and (7) of section 19, the "interest ot the rote presc bed" shall be the State Bank oJ lndio highest morginal cost oflending rote +2ok,: Provided thot in case the Stote Bank of India morginol cost of lending rote (MCLR) is not in use, it shall be reploced by such benchmark lending rotes which the State Bonk of lndio may Jix from time to time for lending to the general public 'fhe legislature in its wisdom in the subordinate legislation undcr 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-//s-bieo.u, the marginal cost of lending rate (in short, MCLRJ as 24.

Page 16 ol 20 ffi HARERI #. eunuerw Complaint No.4411 of 2023 on date i.e., 24.07.2024 is 9%0.

Accordingly, the prescribed rate of interest will be marginal cost oflendingrate +2Vo i.e.,llo/o.

25. llo/o.

25.

The definition of term 'interest' as defined under section 2[za) ofthe Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default. 'l'hc relevant section is reproduced below: "(za) "interest" means the rates of interest poyable by the promoter or the olloLLee, as the case may be.

Explqnotion. -For the purpose pfthis clause- (i) the rdte of interest chargeoble lrom the allottee by the promoter, in cose of default shall be equtl to the rate of interest which the promoter shqll be liable &o poyihe ollottee, in case ofdefoult; (ii) the interest payable by the promoter to the allottee shall be from the date the promotel reaeived the qmount or ony port thereoftill the dqte the qmount or port thereof and interest thereon is refunded, and the interest payqble by the allottee to the promoter sholl be ftom the date the ollottee defaults in poyment to the promoter till the date it is poid;" 26.

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

On consideration of the documents available on record as well as submissions 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 1,4.06.2012, the possession of the subject unit was to bc delivcrcd within a period of 36 months from the date of execution of this agreement.

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

Therefore, the due date of handing over possession comes out to be L4.12.2015.

The respondent has failed to handover possession of the subject unit till date of this order.

27. order.

27.

Page 17 ol20 M HARERA S eunuennvr 28.

441 1 of 2023 Accordingly, it is the failure of the respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

The authority is of the considered view that there is delay on the part of the respondent to offer of possession of the allotted unit to the complainant as per the terms and conditions of the agreement to sell dated j.4.06.2012 executed between the parties.

Further no OC/part OC has been granted to the project.

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

Accordingly, the non-compliance of the mandate contained in scction 11(4J Ia) read with section 18(1] ofthe Act on the part of rhe respondenr is established.

As such, the complainant is entitled to delay possession charges at rate of the prescribed interest @1.1ol0 p.a. w.e.f.

74.12.20Is till actual handing over of possession or offer of possession plus two months after obtaining occupation certificate from the compctcnt authority, whichever is earlier, as per section 18(1) ofthe Act of 2016 read with rule 15 of the rules.

Further, as per section 11(4) (0 and section 17(1) of rhe Afi of 201 6, rhc promoter is under an obligation to get the conveyance deed executed in favour of the complainant.

Whereas as per section 19(11) of the Act of 2016, the allottee is also obligated to participate towards registration of the conveyance deed ofthe unit in question.

However, there is nothing on the record to show that the respondent has applied for occupation certificate or what is the status of the development of the abovc- mentioned project. ln view of the above, the respondent is djrcctcd to get the conveyance deed executed in favour of the complainant in tcrn)s of section 17(7) of the Act of 2016 on payment of stamp dury and 29. ry and 29.

Page 18 of 20 MHARERA H eunuenntr,r Complaint No.

4411 of 2023 registration charges as applicable, within three months after obtaining occupation certificate from the competent authority.

G.

II Cost oflitigation.

30.

The complainant is seeking above mentioned relief w.r.t. compcnsation.

Hon'ble Supreme Court of India in civil appeal nos.6745-6749 of Z0Z1 titled 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 per section 71 and the quantum of compensation and litigation expense shall be adjudged by the adjudicating officer having due regard to thc factors mentioned in section 72.

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

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

Directions ofthe authority 31.

Uence, 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. 'Ihe respondent is directed to pay interest to the complainant against the paid-up amount at the prescribed rate of 1 1% p.a. for every month of delay from the due date of possession r.e., 74.1,2.2015 till actual handing over of possession or offer of possession plus two months after obtaining occupation certificate From the competent authority, whichever is earlier, as per section 18(1) of the Act of 2016 read with rule 15 of the rules.

Pagc l9 oi 20 HARERi S-GURUGRAN/ It.

The arrears of such interest accrued from due date of possession i.e., 14.12. e., 14.12.2015 till the date oforder by the authority shall be paid by the promoter to the allottee within a period of 90 days from date of this order and interest for every month of delay shall be paid by the promoter to the allottee before 1Oth ofthe subsequent month as per rule 16 [2) ofthe ru]es.

The respondent/promoter shall handover possession of thc flat/unit and execute conveyance deed in favour of thc complainant(s) in terms of section 1.7 (L) of the Act of 2016 on payment of stamp duty and registration charges as applicable, within three months after obtaining occupation certificate from the competent authority. iv.

The respondent shall not charge anything from the complainant which is not the part of the agreement to sell dated 14.06.2012. v. 'l'he complainant is directed to pay outstanding dues, if any, aftcr adjustment of interest for the delayed period. vi. 'f h e rate of interest chargeable from the allottee by the pro mote r, in case of default shall be charged at the prescribed rate i.e., 1 10lo by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottee, in case of default i.e., the delayed possession charges as per section 2(za) of the Act.

32.

Complaint stands disposed oi 33.

File be consigned to registry. (Ashrik S Complaint No.

4411 of 2023 lll.

Haryana Real Estate Regulatory Authority, Gurugram Date* 24.07 .2024 PaEe 20 of 20 (