LT COL GIRISH SINHA vs ANSAL PHALAK INFRASTRUCTURE PVT.

HARERA GI,]RUGRAI,/ BEFORE THE C.dolriot N.

2623.f 7071 HARYANA REAI, ESTATE REGULATORY AUTHORITY, GURUGRAM bolh R/o: ,l-,801.

LLt'nde'Vrn"r, Awtt0 rokn.r'n \r,ror unl.l lo,ker _. c"Lrdr 8uddt, Nd""r L-erre 1.

Nes LookBuildcrsand Developers Pvt Ltd (Formedy known as Ansal Phalak Infrastrucrure Pr.

Ltd.) Regislrred Ollicer 206.

B krng. t' 0JJr l\arr J.C uo^c 2r, (asturba candhj Mars, New Delhi-11001 2 AnsalPropert esand lnfrasrructure Lrd.

Registered Offic.r 115, Ansal Bhawan, 16, Kasrurba candhi M.rg, New oelh -11001 3 Ansal API lnarasrruclure Lrd.

Registered Office: HalfMezzanine no. l, Sandhya Deep Building, 15, EastolKarlash, NearCommuniryCentre, Ne$, Delhi 110065 Shn santeev l(umarArora .,] !hfl Deeptanshd larn tAdvo.arel Ms.

Shivangi SinSh proxy counsel I comptah.nts ORDER 1.

The presentcomplainthas been fited by the complainant/alottees unde Section 3l ofthe Real Estate (Regularion and DevetopmenO Act,2015 tin 262A.f2021 06.07.2021 16.11.2n22 & HARERA GURUGRA[/ short, the Aco read with .ul€ 29 otthe Haryana Real Esrate (Regularion and Development) Rules, 2017 (in shorr the Rutes) ior violarion of se€tion 11(4)(a) of rhe Act wherein ir k inter alia prescribed that the promoter shall be responsible tor all obligations, responsibilities and funct,ons under the provision ot the Act or the rutes and regulations mad€ there unde. or ro the altottees as per the agreement for sate A.

Unlt and prolectretated details 2.

The particulars of the project, the derails ot sale considerarion. the amount paid by the complainants, date of proposed handing over the possession and delay period, ifany, have been detailed in the ioltowins Cohplarnt No 26zB of202r "Versalia", 5ecto.

67, Curusram I :l 31.0A.2020 M/sAnsal PhalaklnfrastructurePvr l.rd Nane and location of the Resid€ntial Plored coLnnv 81 ol 2013 dated 19.09 2013 valid upro 19092019 Lord (rishna lnf.a Projecrs Ltd. and 13 RERA Regisre.edl not 30,07,2013 paid to rcspondent no.

2 for {inadvertently mentioned as 30,03. as 30,03.2013 t. proceed ings dated 16.11.2022) PaEe2ol25 F HARERA S GU]?UGRA|\/ B.

Facts ofthe corhplalnt: 3.

That in and around luly 2013 the representatives herein approached rhe complainanrs and Informed named "Palm Vllla" ar Sushanr Lok Lucknow, Uttar ComtlaLnr No 2628 of2021 D.te of firsr paymenr to 26.10.20t5 1t.

Date of Fl@r Buyer l4 r< Total sale consideration Rs.

1,20,65,000/- {Assubmitied by respondentin Lrs reptyl Amount pard by the Rr.54,12,630,5/- ( s mentioned by respondenr in pagc 2 ot .eply and also conlirmed by compLarnanr on 13.04,2018 Amount paid by .espondenr to Rs.37,S0,000/- (As hentioned by both rhe partjes in rhetr .esPective submissionsl 11.05.2018 -- (Pace 68-69 of com!larnO 24.

21 *IARERA S- eunLnnnvr compldlntNo 2b28 or20z I tall claims.

That bejng tured by the assurances, represenrations, brochures and meetings wirh the .espondenrs, th e comp tai nanrs decided to purchase a unit in the said project and made a payment of Rs.6,76,407l [Rupees Six Lacs Sevenry-Six Thousand Four Hundred Seven only) through cheque bearing no.

194357 dated 30.07.2013 as an advance payment on account of booking and were alotted a unir no.3813-0 3813-0 P/02l1 13.

4.

That the complainants further made a payment of Rs.

13,52,814/, (Rupees Thirreen Lacs Fiiry-Two Thousand Eighr Hundred Fourteen 0nly) th.ough cheque bearing no, 194360 dated 16.08.2013 to the on account of the unjt booked_ The complainants he.ein lurther made a payment of Rs.

79,25,624.A5 (Rupees Nin€reen Lacs Twenty,Five Thousand Six Hundred Twenry-Four and paisa eighty-five onty) on 106 December 2013 through cheque bearing no.

268116 dated 10.12.2013 against preponed payment of 2 jnstallments.

Hence, a total oi Rs.

39,54,445.45/- [Rupees Thirteen Lacs Fifty-Four Thousand Eight Hundred Forty Five and Paisa eighry-ffve only) was paid by the complainants till 10rh December 2013. mber 2013.

5 It is submitted thatnoconstructionworkwhatsoeverwas starred by rhe respondents and the above-named prolecr did not even take offon time.

The complainants herein being apprehensive ofthe detay, requested the respondents to .erurn the money, however, the representatives of the respondents herein once again advised the complainants that rhey should shift to a different project named "colf Cat€way Towers,, situated in Sushant Lok, Lucknow being developed by the same group company/respondents and assured that the same will be iimely completed.

It was also agreed thar the amount already paid by rhe ft. rage 4 or25 fi HARERA GURUGRAI\I complainanrs for the previous projed wilt be duly adjusred in rhe new project.

Relying on respondents,assurance, rhe comptainants agreed to book a unit in the project ..colf cateway Towers,, and was allotred a unit no.3010-0-8-2/007 /oZ and was asked to make a further payment of Rs.

14,27,7ASl.

Supees Fourteen Lacs Twenty-Seven Thousand seven Hundred Eighry Five Only).

It is submitted rhat rhe they were not supplied with the signed copy of the bujlder buyer agreement for borh the projects even when the same was demanded rinre and again by the 6.

That the complainants again made a payment of Rs.

S0,000/- (Rupees Fifty Thousand Onty) on 09.01.2014 rhrough cheque on account oipart paymenr to the additional amounr of Rs.

Rs.

14,27,785/_ (Rupees Fou.teen Lacs Twenty-Seven Thousand Seven Hundred Eighty-Five only) demanded by the Respondents herein for the project ,.Cot, Cateway Towers".

Ir js pertinent ro menrion he.ein rhat the Complalnants made alt the payments on a tjmely manner and wirhour any delay, however, theywere never apprised ofthe status ofrhe proje.r by the respo ndents h erein.

The comptainants furrher made a paymentof Rs.13,77,785/- (RLrpees Thirteen Lacs Sevenry,seven Thousand Seven Hundred Eighty-Five Only) on accounr of remi.ing paymenr of Rs. enr of Rs.

14,27,745/- (Rupees Fourteen Lacs Twenty_Seven Thousand Seven Hundred Eighry Five 0nlyl through cheque bearing no.019778 dated 09.10.2014.

Hence by 09rh October 2014 the comptainanrs had paid a total amount oiRs.

53,82,630.85/- [Rupees Firry,Three Lacs Eighty,Two Thousand Six Hundred Thi.ry and paisa Eighty,Five ontyl ro the 1 iP HARERA S-eLrnucnan,t 7 That the complainants approached the respondenrs and asked them to refund the a mount already paid by them_ However, the respondents once again with th€ assurance that they will give a separate unit ro the complainanrs in a diflerenr and befter projecr situated in NCR region requested to take a unit in rhe project named Versatia,,situate.t in Sector 67 curgaon InowCurugram), Haryana.

Since the complainants were in need of the house to sray thus, they believed rhe words of rhe .espondents and agreed to sh,ft ro the project being developed by the respondents named 'Ve.salia" situated in Sector 67 Gurgaon, Haryana and also made an add it,onal paymeht ofRs.30,000/ [Rupees ThirtyTwo Thousand Only) through cheque bearing no.

268143 dated 21.08.2015 as was demanded by rhe respondents.

It is pertinent ro mention herein that no bLrilder buyer agreement was executed inter se the parries even afterrepeated requests.

8.

It is submitted that at rhe time of booking ot the projecr in'Versatia,, it was assu red to the com plainant that the project will be com pleted within a period of, 3 years and the same wil be handed over by 2018.

Ir was further agreed rhat the amoun15 alreadypaid by the complainants tor the above mentioned two projects will be duly adjusted as payments received for the cur.ent project.

The complainantwere f,nally a orted a unit FF 3129.

By 26s October 2015 the complainants had paid a sum of Rs s4,12,630.85/- (Rupees Fjity-Four Lacs Twetve Thousand Sir Hundred Thirty Rupees and Paisa Eighty-Five 0nty).

9.

0nty).

That aater the site visit by the complainanrs and being not satisfied with the rosy pictures presented by respondents' representatives, the complainant decided that it is best to seek refund of the amount and wrote a letter dated 14d' April 20rB addressed to the respondents Complaint No.

2628 of 2021 W fi HARERA GURUGRAI\4 seeking refund ofthe entire amountalongwirh several other communications and documenrs the interest and attached with the lette..

10.

After much deliberation and toltow up with the respondents, the buitder promoter agreed to refund rhe amounr atong with the int€rest.

Th. complalnants agreed to rhe .espondents, requesr of repayment in instalmenrs.

The respondents herein issued a cheque dated 2g.07.2018 in favor otthe punam Sinha for an amounr otRs.5,00,000/- (Rupees Five Lacs only) on account ofpart paymenr/instalmenr oirhe retund of the total consideration paid.

A second cheque dated 04.08.2018 in tavor ot the complain:nr Ipunam sinha] for an amount of Rs.5,00,000/, (Rupees Five Lacs Only) on account ofpaft payment/insralment ofthe.efund ot the total considerarion paid was issued.

By tSrh February 2019 rhe conplainants had received a totalsum of Rs.

3 7,S0,000/_ (Rupees Thirry- Seven Lacs Filry Thousand Onty) on account of retund of rhe rot: consideration of Rs.

54,12,630.95/- (Rupees Fifry-Four Lacs Twelve Thousand Six Hundred Thirry Rupees and paisa Eighty-Five Onlyl.

However, no interest:mount wharsoever was paid by th€ respondenrs tilldate as was agreed between th€ parties in April20tB.

1.

The respondents after making rhe payment on l8rh oi Februa.y 2019 stopped making furrher payrnents.

The comptainants he.ein wrote severalemails, made severa I ca s and metwith their rep.esentarives bur to noavail.

Even afterrepeared remindersand follow ups have nor made any paymenrs and an amount of Rs.16,62,630.8s/- [Rupees sixteen Lacs Six.

Lacs Six.y-Two Thousand S,x Hundred Thirry and paisa Eighq,_Five 0ntyl is pending on account of principal amount and an approximate amounr ot Rs.10,00,000/- [RupeesTen Lacs Only) is pend rnC on accoun r ot interesr and the respondents a.e ljable to paythesame. a ,tt\ 12 D.

HARERA GURUGRA[/ That in the aforesaid fads and circumstan being filed against the respondent compan relund ofthe balance amount due along wi perannum within a reasonable time. compla niNo 2628 or2021 ces, the present complaint ,s ies inre.o/ia seeking relielof th the simple interest @120lo C.

Rellef sought bythe complalnants: 13.The complainants have sought following rel'ef(rl i.

Direct the .espondent to refund the amount of Rs.

16,62,630.85/- out of total pa id u p amou nt along with interest from the date o f respective deposits till actual realisation. ii.

Direct the respondenr ro paycompensation and litigation costs. iii.

To conduct inquiry u/s.

35 of the Act including calling ior alt the records including calling forthe latest financiat reports, balancesheet etc. ofthe respondentand its representatives, directors etc. iv.

To freeze the bank account of the respondenr and ensure that no money is being mjsused by it.

Reply by respondent: The respondents by way ofwritten reply made following submissionsl 14.It is stated at the outset that all the averments made in rhe complaint under reply may be considered to have been reptied to and all the allegations contained therein may be considered to have been specifically den ied and controverted, unless admitted hereinafter. s.lt is humbly submitted that the complainant through the captioned complainthas prayed for directions ofretund under secrion 10 (1) ofthe Real Estate (Regulation and Development) Acr,20l6 of 16,62,630/- [Rupees Sixt€en Lakh Sixty Two Thousand Six Hundred andThtrty Only) nage8ol25 rs HARERA GURUGRAI\I along with interest to the respondents, which were paid by the complainant rowards rhe allorment ot unjt no. t unjt no.

3129, nrst floor in the project "Avante Floors, Versalia,, in Sector 67, Gurugram, Haryana (hereinafter referred ro as,,Unit,,). rr is pertinent to mention rhat rhe complainant has made a total payment of Rs.54,12,630.8s/- tRupees Filty four Lacs Twelve Thousand Six Hundred Thirry Rupees and paisa Eighty-Five Only) till dare toward the a orment of the Unit out ot totat basic sale consideration ofRs.

1,20,65,000/-(Rupees One Crore Twenq, Lacs Sixry-Five Thousand Only) exctud,ng EDC, 1DC charges ptus ctub members iee plus jnterest-tiee maintenance charges plus service charges.

16.

It is humbly submirted rhat th e allotmenr of the comp taina nt towa rds rhe said unit has already been cancelled and the parties have execured a settlement agreemenL That rhe respondenr has atready paid Rs 37,50,000/- [Rupees Thjrty Seven Lakh and Fifty Thousand onty) (Appx.l ,n terms of rhe settlement.

It is perrinent ro mention rhat execution of settlement agreement has suspended the operation of flar buyer agreement.

Thereiore, since rhe flar buyer agreemenr execured between the parties canno r be enforced and has been superseded by the. this Hon'ble Aurhority no tonger have the jurisdiction under the Acr ro adjud,cate upon the Issue as rhe complainanr is not a atlonee within the deiinjtion olSection 2(dJ of the Act.

Hence, rhe captioned comptaint is 1iable to be dismissed to lack otju.isdiction of the subiect matter oi rhe Complaint No.2628 or ?O2l 17.That the instanr complaint deseryes to be d,smissed at rhe threshotd in view of the conduct of the €omplainant. tr is rhe first and foremosr ^ principle of law that the parry approachjng any legat torum/courr tor lA. *HARERA S-cLrmrcmv ComplarntNo 2628of 2021 dispensation oajustice must approach wjth clean hands.

The complaint under reply is not only gross abuse ofprocess of 1aw but the same is filed with mala flde intentions oimaligning the reputation and goodwil ofthe respondent. espondent.

The contents ofthe instanr complainrwould revealthat the co nr p la inants have suppressed material iacts that are extremely retevant to the adiudication of the instant complaint.

The cou.ts have on all occasions come down heavily on litigants who have approached courrs suppressing material facts.

That the complainant by way of the present complajnt is attempting to misleadthis Hon'ble Authority by fabricarion and concealment offacts which never eyisted and rrying ro unduly gain at the cost of the respondent, for which the complainant is nor enritled 18.

That the true and correct lacts ofthe presenr case are mentioned below for p roper adiudication of the captioned complaint: The Complainant had approached Respondent No.2 i.e., Ansal Properties and lnlrastructure Pvt.

Ltd. on 30.07.2013 for booking a particular unit in the project "Palm Villa'stuated at Sushant Lol!

Lucknow (hereinafter relerred to as rirst Prolect") and paid Rs.

6,76,407l- (Rupees Six Lakh Seventy Six Thousand Four Hundred and seven only). b.

Thereafter, in January,2014 the allorment otrhe complainanr in the first p roject was cancelled on his request and he was allotted another unit ofsimilarvalu€ in the project "colfGatewayTowers" situated as Lucknow (hereinafter ref€rred to as "Second Proiect"l by n respondent No.

2 and 3.

14.. u HARERA GURUGRA[/ c.

It is pertinentto mention thatanswering respondent company is not the developer or was in anfray involved in rhe atlotment olunit in the name of the complainant in the first or the second projecr.

That the complainant had made a total paymenr ot Rs.

53,82,630/, (Rupees Fifty-Three Lakh Eighiy Two Thousand Six Hundred and Thirty Only) towards rhe bas,c s3le price ro respondent no.

2 and 3 ti1t25.10.20r5 ComplaintNo.

2628of ?021 i.

That therealter, on 26.10.2015 the comptainant along with respondent no.2 and r€spondent no.3 approached answerinE respondent submitted appljcatjon for allorment ot unit in tb. nit in tb. upcoming project of the answering respondent namely 'Avante Floors, VersaUa" sltuated atS€ctloo 671674, curugram, Haryana of the answering respondent company exchanging the booking fronl the'Proiect colf cateway Towers'.

For allotment ofthe unit in th€ projecr oianswering respondenr by way oitransaer offunds from respondenr no.2 and 3, the comptainant vide application dated 26.10.2015 app.oached the .espondent company and agreed for allotment ol an independenr residenrial dwelung unit in Avante/Woodwinds, Versatia, upon the rerms and conditions of sale as mentioned in the flat buyer agreement dated 26.10.2015 (hereiDaiter referred ro as "FBA').

Thereaiter, theanswering respondentprovisionattyallotred d!ve ing unit no.

FF 3129, in the project "Avante Floors, Versatia" in name of the complainant lor a toral sale conside.ation of Rs.

1,20,6S,000/, (Rupees On e Cro re Twenry Lacs Sixty-Five Th ousand 0n1yl excludins *& HARERA GURUGRA[/ EDC, 1DC charges plus ma intenance cha rges plus g.

As mentioned above, thecomplainanthad alreadypaid some amount as part ol sale consideration amounting to Rs.

54,12,630.85/- IRupees Filty-four Lacs Twelve Thousand Six Hundred Thirty Rupees and Paisa Eigh ty'Fjve only) tothe respondent no.2 and 3 lvith regard to other p.olects. at the time ofallorment ofthe unit, the said amount was transferred by respondenr no.

2 and 3 to the accounts of answering respondent i.e., on 26.10.2015.

The transferred amount was adjusted to the toral sale consideration oi the project and the remaini.g amount was to be paid by the complainanr ro the answering respondent company in terms ofthe FBA. h.

It is denied that the PBA was never executed between the parties or that the copy ofFBAwas notgiven to the complainant.

Theaforesaid fact is evident from the bare perusal ofthe FBA bea ring the signatures of the complainant, had ir been rhe case that the FBA was never shown to the complainant, it would not be bearing the signatures of the complainanL i. lainanL i.

In terms of the FBA the answering respondent was obligared to deliver the possession oi the unit to the complainant within 42 months irom the date olreceiving the sanction plan ior the project, subject to timely payment ol dues by the complainant and io.ce majeure circumstance.

ComDlaintN.

2623of 2n2l tee plus interest.free j.

That the complainants failed to pay the due lnstallments as per the payment schedule aSreed thereupon, in respect ofthe said dwelling uniL It is pertlnent to m€ntion here that the payment schedule was w t& HARERA k.

That the a nswering respondent had repearedlycaled torpaymenrot the amount but despire the ca notices dated 26.11.2015 and 29.12.2015 theamounrwas not pajd bythe comptainant. l.

Particularly, on 26.11.2015 a ca notice which included basic price ptus seruice 24,46,1ss.s9 / (Rupees Twenry-Four GURUGR timely rimely AM adhered to by rhe complainants. lt ts payment by the allottees is a maior deliveryofthe project submitted that the non, contribution to the non, was sent to the complainant tax basic amounting to Rs_ Lacs Eighty-Six Thousand Under the sertlemenr thar the complainant agreement t was agreed berween the parties shall forfeir irs r,ght towards the unit and 'to Hundred dnd Fifty-Frve and paisa Frfry-Nine Onty) wh,.h was dLe on 10.12.2015.

However, rhe comptainant failed to make the paymenr againsr the aforesaid caltnotice. m.

Thereafter, on 29.12.2015 another call notice was issued by rhe answering respondenr calling complainant to pay Rs.3a,?7,O-t}.67 /- (Rupees Thirry-Eight Lacs Seventy,seven Thousand and Ten and Paisa Sixty-Seven onlyl which was due on 24.01.2016.

However. rhe complarnanr oetaulted rn thal rn payment once dgain n.

Thereaiter, the complainant approached the answering respondenr and requested ro cancel the allotment of the unit :nd ro refund the consideration paid towards the unir. the unir.

The answering respondent being a customer-orjented organization onc€ again accommodated the request ofthe complainant and entered inro settlement through letter dated 11.05.2018 [hereinafrer referred to as,.Settlement Agreem€nt").

ITHARERA S- crnrnnnvr Cnmplarnt No.262fl of ?011 claim any form of compensat,on, claim, etc. against the answering respondent lor delay in handing over the possession of the Unit.

Fu rth er, th e answering respond ent agreed to reiund theamount paid 19.

It is humbly submitted that rhe answe.ing respondenr is ready and willing to make the pending payment ro the comptainanr in terms ofthe settlement agreement- It is pertinenr ro mention that tbe answering respondenr was compliant in paymenrofthe instaltments in terms ofthe sertlement agreement titl 2019.

However, in 2020 COVID 19 lead pandemic severely affected the real estate sector resuhing in financiat crunch in the marker.

Hence the delay in payment oiremaining amounl.

20. lt is humbly submitted rhat the answering respondent allotted rhe Unit to the complainant only on 26.10.2015 and rhe iund which were originally paid to the respondent no.

2 and 3 were transferr€d to the ba nk accounts oa the answering respondenL Theretore, the answering respondent cannot be made liable for any kind ofdelay/ compensaiion lor time lost by the respondeni no.2 and 3 before 26.10.201S.

21.

It is pertinent to state that the said projecr oft}le answering respondenr is reasonably delayed becaus€ of the 'force majeure' situation which js beyond the control oi the answering respondent.

However, despite all odds,still, the an swering respo ndent is making all effo rrs to completethe co nstruction wo rk at the projed site at full pace and is expectingto hand over the possession very sooD, once the present situarjon of pandemjc 'covid-19' gets over and situation no.malizes. a.

That due to the exponential incr€ase in rhe cases of'Covid-19,, the Ceotral Govt. had imposed nationwide lockdown' w.e.f .

25.03. f .

25.03.2020 * d5 HARERA unprecedented situationof pandemic.Covid-19,,the respondentno.j along with the development manager had been carrying out the construcrion oithe project ar full pace and was expecring to detiver the units to the buyers by rhe end ofthe year 2020, however, due to the sudden outbreak ot the pandemic and closure of economic activities, rhe respondenr had ro stop the const.ucrion work during the'lockdown', as such, amid this dimcuh siruatjon of,fo.ce majeure, the answering respondent are not tn a position to adhere ro the a.bitrary demands of the conplainant for canceltation of the allotment and refund oa rhe monies along wirh interesr due to the reasons mentioned hereinabove. b.

That owing to the present situarjon, the reatesrate sector is severely aliected due to the implementation of nationwide,tock,down,w.e.u 22.03.2020 and amjd this prevailing siruation oi rhe pandemic the slowing economy is atso posing difficutt chaltenCes for the answerinB respondent- Although, considering the seriousness of the situarion and prevailing circumstances caused due to imptementarion natio nwide '1ockd own' to contain the spread oi,Covid-19,, rhe Covt. of India has already extended rhe project comptetion deadlines ofalt the projects across the narjon, by another six (61 months trom thc scheduled deadline of comptetion as the answering respondent expects within the said extended time period unit to the complainant very soon.

0 06_2020, GRAIV ich has been ext€nded rill 3 sed a serious impact on the GURU wh resultantly, rhe same has econ0my posing diffi cult challenees everyone.

It is pertinent to mention that prjor, to thh per the agreements.

Therefore, to complete the €ntire proiecr and expects to deliver the llatl *HARERA S- clrnrcnnur Complarnr No.

2620of 2021 c. of 2021 c.

The natural life cycle was about to come back on track which was dera,led in March 2020 the sudden outbreak of the second wave of thepandemicofCOVID inApril2021jn the nation made the situation worst lrom worse and the country once again was under the grip of COVID and subsequently, a lockdown was imposed ,n the country aI over once again. lt is iurther submitted thar the second wave caused severe damage to the economy and the real estate sector is no exception was hi he worsL d. lt is further submirted rhat rhe delay in handing over rhe possession ol thc dwelling unir/ apartment has been caused onty due to the varjous reasons which are beyond the conrrol ofthe respondent no. l Following important aspects are relevant which are sutrmitred for the kind consideration ofthis Hon'ble Court. constructlon: lt is sublnitted tha he gtobal recessio n badtyhir the economy and particularly rhe real estare sector.

The construction oi project of the answering respondent is dependenton the number ofmonies received from the bookings made and monies received henceforth, in form of instalments paid by the allottees.

However, ir is submitted that during rhe prolonged eliect ofthe global recession, the number ofbookings made by the prospective purchasers reduced drasrically in comparison to the expecred bookings anticipated by the answering respondent atthe rime oflaunch of rhe project.

That, the reduced number ot bookinss along with the facr that severat allottees ol rhe proiect either deaaulted in makjng payment of the instalment or cancelled booking in rhe proiect, resulted in HARERA GURUGRAI\,4 less cash a delay in flowto the answering respo nden t, henceforrh, caus,ng the construction work olthe proiect.

The following var,ous p.obtems which are beyond rhe conrroto, theanswering respondent serjously affected th e cons!ructronl a.

Lack ofadequate sources of,financej b.

Shortage oflabouri c- Rising manpower and material costsj d. approvalsandproceduratdiincultjes. incultjes.

In addition to the aforesaid chaltenges the toltowr ng tactors also played r major rote rn detaying the offer or po;lessron: a.

There was an extreme shortage ofwate. in the region which affected the construction wo.ks; b.

There was a shorrage of bricks due ro reskicrio ns j mposed by the Minisrry ofEnvironment and Forest on bricks kitnl c.

Th e unexpeded sudden dectaration of demo netization po ticy by the Central Covernment affecred the consrruchon works of the Respondent in a serious way for many months.

Non- availabiliry oa cash-in-hand affected the avaitability oi d Recessjon in the economy also resulted jn the availabilirv ot labour and rawmateriats becoming scarce, There was a shortage oflabour due to the implementation ot social schemes like rhe Narional Rurat Employment CohplainrNo.

26ZBoI202l I}HARERA $- eLrnrcnnur Complainr No 2b28 of 202r Guarantee Act (NREGA) and lawaharlal Nehru Urban Renewal ltlission (JNNURMI' Direction by the Hon'ble National Creen Tribunal & Environmental author,t,estosroptheconstructionactivities ior some time on regular interuals to reduce air pollution in the NCR region.

22.

Allthe above problems are beyond the control ofthe developer i.e., rhe answering respondent It may be noted that rhe respondent company had on many occasions orally communicated to the complainant that the ^ constru(tron acflvity ar rhe sdrd project s,te had to be halred for some lq,.' iii.

Apart from the above, it is relevant to menrion here that due lo thc increase in pollution in NarionalCapiralRegion, the Hon'ble Supreme Court of India vide Order dated 04.11.2019 passed nr writ Petltion (Civil) No.

13029 ol1985 titled os "M.C, Mehta.

Versus-Union o, lndla & Ors'(,writ Petltion'l had put a blanket bank on the construction activities in rhe National Capital Region.

Subsequendy vide order dated 09.12.2019, the Hon'ble Supreme Court ol India lift€d the ban partially i.c. construction activities were only allowed between 6:00 AM ro 6:00 PI\4.

6:00 PI\4.

It is pertinent to mention that due ro the aforesaid restraining orders passed by rhe Hon'b1e Supr€me Court ofl ndia all the construction activitles in rbe National Capilal Reg,on came toa standstill, resultantly the project got delayed.

The said ban is completely 1ifted by the Hon'ble Supreme Courr onty on 14.02.2020 In pastalso the construction was banned by tton'ble courts and tribunah.

GI.JRUGRAI/ time due to certain beyond the controlof sect,on 11[a](a) of responsible to the al reproduced as hereu unforeseen circumstances which the developer, [. otthe authority: 25. ]'he authoriry observes that it has rerritorial as well as ju.isdicrion to adjudjcate the presenr complaint ior the lurisdiction E.

I Ter.itori.t jurisdtction As per notiiication no.

1/92/20t7-tT1p dated 14.12.2017 issued by Town and Counrry Planning Departmenl, the jurisdiction of Real Estate ReCulato ry Autho rity, Curugram shaI be entire Gurugram District io. a purpose wirh offfces situated in curuSram.

In the p.esent case, thc project in question is siruated within the planning area ot curugranr district.

Therefore, this aurhority has cornptere territoriaj ju risdictio n to dealwith the present complaint.

E.II Subie.tmatter jurisdi.fion 2016 provides that the promoter peragreement for sale. section 11 shall (4Xa & HARERA 23.

All orher averments made the complaint were den,ed in toto_ 24.

Copies of all the relevant documents have been fited and ptaced on record.

Their authentjcjty is not in dispure.

Hence, the complaint can be decided on the basis oi those undisputed documents and wrirten submissions made by rh e parries and who reirerated theireartierversion as set up in rhe pleadings_ )i. &HARERA #- cLrnucnnur Complarnr No 2628or 202I Ee responnble Jor al obligotions, retponsibllities ond functions under the proisions oI this A. oI this A.t ot the rules atd rcgulotions made theteundet ot to the o llottees as per the og reenent Iot sole, or to the o*ociotion of allott et as th e ee noy be, till the nnvetance olall the dpa.tuentt, plots ot buitdingt B the caft hot be b rhe ollotteet ot the connon oreos to the osociotion ol ollotte$ ot the conpeenr outhotiqr, os rhe coe na! be; Se.tion 34-Funcdonsof the Authorlty: 344 ol the Act provides to ensure .onpliohce oJ the oblisotions .ost upon the pronoters the dllotteq ond the @l estate ogenLt undet this Act ond the rut6 ond rcAulations nade thereunde.

So. in view of the provisions ofthe Act quoted above, the authority has complete jurisd,cfion todecide the complaint regard ing non-com pliance ofobligations by the promoterlea!'lng aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a Further, the authorilyhas no hitch in proceedingwith thecomplaintand to grant a reliefolrefund,n the p.esent man€r in v,ew ofthe judgement passed by the Hon'bl€ Apex Court in lveLtech Promoters and Developers Private LlmlEd Vs Sute oI U.A and Orc.

2020-2021 (1) RCR (c) 3 57 and reiterated In case of M/s Sana Realtors Pivote Limiteit & other vs Unlon of lndlo & oahers SLP (Ctv ) No.

13005 ol 2020 decided on 12.os.2o22wh erein it has been laid down as under: ''86 FtohtheeheneoltheActolwhichodeta ed rckrence hos beeh nade ona tdktng note ol pawer olodjudicdtion delineoted with the regutotory outho.iE ontl atjudicottns olfcer, whot lnollt cutts out 6 that okhaush the Act ihdicotes the dktihctexpresions like lelund', in|ren, penaly ond '@npensotion', a canjoint reodins olSections laohd 19 cteottt nonilesLs that||hen itcones to relund al the anotnL ond interesr oh the refund onounC or dnecdhg polnent ol interst fot deldred deliveryafposession,orpenolr!ond intercstthereoh, it is the rcgulobry authotiry which has the po\|er to eNonine ond deternine the ourcone ol o conplalnt. conplalnt.

At the sane tine, when it cones to a question ol seeking the reliel of odtudgingconpensdtioh dnd nte.est thereon under Se.tions 12,14,18ahd 19,the odtLdicoting ollicer exclusivelt hos the po\|er ta detenine, keeping in view the co ective feoding af Section 71 reod with Section 72 of the AcL iI the adjudkation uhd.r Sections 12,14,13ond 19 otherthahcohpensationosenvisaged,ilextehdetl PaCe 20 al25 HARERA GURUGRA]V a,he odtudloLrg aff.

N orctpd Lnat hau\Evooyht"4dtae^bondth, untor ono !ope ot Lhe po\pt. o4d tuqt@4: ol hp odtudt.otng an..,et dn@, Sectian 7t ond thotwoutd be ogoihst the nondateoJthe A 2a16.,, Hence, in view oi the authorirative pronouncement oi the Hon,ble Sup.eme Courr in rhe cases mentioned above, the aurhoriry has the jurisdiction to entertain a complaint s€eking refund ot the amount and interest on the.efund amounr.

F.

Findings on the obiections ratsed by the r€spondenrs: r.I Obrectlon regardtng force maieure 26.

The respondents-promoter has raised the contention rhat the construction ot the rower ,n which the unit of rhe complajnanrs is situated, has been delayed due to iorce majeure cjrcumstances such as orders passed by Nationatcreen Tribunal to srop consrrudion, COVID 19, non-booking of aparrments among others.

The ptea oi the respondent regarding various orders oi rhe NGT are devoid of merir.

The orders passed by rhe NCT banning construdion in the NCR region was ior a very short period oftime and thus, cannor be said to impact the respondent-buitder teading to such a delay in the comptetion.

The plea regarding COVID,19 is also devoid ofmerit since a long durarion or time had exp,red sjnce bookjngotunit even before COVrD-19 srruck the country.

Also, non-booking ofal aparrments by theallottees cannor be takenas plea fo.delayin complerion of th e project.

It is understood thar some units might not be booked by the a onees however, the allortees who have booked their units cannot be expected to suffer because of that. e of that.

Thus, rhe promoter respondenr cannot be given any teniency on based ofaioresaid reasons and ir is welt setrted principte that a p€.son cannot take benefit ofhis own wrong.

Complaint No.

2628 oi202r Page2r or 25 9HARERA #-cunrnnnv ComblaintN..26236f 2021 G.

Intitlement ofthe complalnants for retundl G.l Direct lh€ respondents to retund the €ntire paid-up amount along with interest at the prescribed rat€.

27. ln the present case, the complainant initially booked a unit in projecr Palm Villa being developed by respondent no.

2 in Lucknow in the year 2013.

However, the respondent no.

2 was not able complete the construction ol the project and hence, the respondent advised rhe complainant to shift its unit in "Golf Gateway Towers" in Lucknow irseli The complainant believing the responden t agreed to shift the unjrin the project. lt was also agreed thaithe amount paid lor a unit in flrst project will be transferred to the new project.

However, even this project could not be started and therefore, the complainant requested for refund ofhis paid-up amount, butthe respondent requested the complainantto rather take a unit in project named Versalia, Sector 67, Gurugram i.e., the present project in the year 2015.

The toral amount paid by the complainant for units ,n Palm villa and then Golf Cateway Tower was then transferred as payment lortheunit in the Versalia.

The complainant then vide letter dated 13.04.2018 requested refund oi his paid-up amount.

Both the parties then reached an agreementwith respect to the same dated 11.05.2018 wherebythe respondent was to make payments in instalments to the complainants.

In lieu oarhe same, the respondent even made payments to the complainant.

However, certai. amounr is still due to be paid to the complainant and the present complaint has been filed lorthe srme.

28.

Civen the fact that the complainant had surrendered the unit vide letter dated 13.04. ted 13.04.2018, the r€spondent was liable to act upon iL The complainants made their flrst payment for a unit in the project of HARERA GURI]GRA[/ CooplaintNo.262Sof 2021 respondent no.

2 in 2013.

It js pertinenr to mention that the Hon,ble Supreme Court in the case offor&ne f nftastructure and Ors. vs.

Trevor D'Lima and Ors. (12.03.2Ua - SC)i MANU/SC/0253/2018 observed that La person connot be nade ta wait indefnitetr lor the possession of the fiate anotted to them and they ore entitted to seek the refund ofthe anountpaid by them,otong y/ith conpensation.

Although we ore aware of the fact that when therc was no detivery petiod stipu lated tn the ogreement, a reasonabte tine has to be taken inta considerotion. ln the focts and circunstances ofthis case, a time period of3 rears woutd have been reosonable for completion of the contoct,. tn the instant case, the respo nden t did not even execute a buyer/s agreemen t of th e complaina nr even after transferring jr to rhree different projects.

The complajnants cannot be made to wait endtessty.

Thus, the due date oipossessjon has been calcutated as three years from dare of first payment by the complainants ,.e., 30.03.2013 as rhe same was booking amount which comes ourto be 30.03.2016.

29.

The complainants thus wirhdrew from the project afrer expiry oithe due date oipossession.

The panies ther€after entered into an agreement for refund olthe amounr dated 11.0S.Z01B however, the respondent faited to adhere to the terms of the agreement.

Civen the fact rhar the respondent did not refund the amount ro the comptainant, rhe complainantsapproachedtheAurhor,tyforrefundorbalanceamount. rt is pertinent to specify rhat rhe respondent has made payment ri 18.02.2019 and has submitted that it,s willing ro make remaining payments [page 9 of reply].

The authority hereby djrects the promorer to rerurn the balance amount deposited with him along wirh interesr at rhe rate oI 10. ate oI 10.25% (rhe State Bank of lndia highest marginal cosr of l4/ *s PHARERA S- cttnLnnltvt Complainr No.

2628of 2021 lendingrate IMCLR) applicableas on date +2%] asprescribed underrule ts ofthe Haryana Real Estate (Regulation and Development) Rules,2017 from the date ofpayment as promised in the sertlement agreement ritl the actualdate ofrefund ofthe amountwithin the timelines nrovid.d in rule 16 ofthe Haryana Rules 2017 ibid.

G.U.Todirecttherespondenttopaycompensatlon 30.

The complainants in the aforesaid head are seekins relief w.r.t compensation.

Hon'ble Supreme Court of India, in case ttled as M/t Newtech Promoters ond Developers PvL Ltd. y/s Stote ol UP & Ors. (Civilappeal nos.6745-6749 ot2021, decided on 11.11.2021), has held that an allottee is entitled to claim compensation under sections 12, 14.

18 and section 19 which is to be decided by the adjudicating office. as per section 71 and tbe quantum of compensation shall be adjudged by the adjudicating otficer having due regard to the factors mentioned in section 72.

Therefo.e, the compla,nants are advised to approach the adjudicating officer iorseekingthe rellelof compensation.

G.lll.

35 ofthe Act including calling for all the records including calllng for the latest financial reports, balance sheetetc. ofthe respondentand lts representatlves, directors etc.

G.lV.

To frecze the bank account ofthe respondent and ensure that no moncy is belng misused byit.

31.

Both these issues being inte.connected are being taken up together.

The above-mentioned relief sought by the complainants were not presscd during the arguments.

The authority is ofthe view that the complainanrs does notintend to pursue the above-mentioned reliefsought.

Hence, rhe authorityhas notraisedanyfindings w.r.t.to theabove-mentioned reliet H.

Directions ofthe Authority: P HARERA GI]RUGRAN4 Complarnr No 2628 ot2021 32. ot2021 32.

Hence, tbe authority hereby p,rsses rhis order and issue the foltowing directions under section 37 ot the Act to ensure compliance of obligations castupo. the pronrotcrs is perthe functions entrusted to the Authority under Sed,on 34(0 ot rhe Act of20t6. i.

The respondent-pronrol.r s dirccted to retund the balance amount j.e., Rs.

16,62,630 5/ dcpo\ired with him by the complainanrs atong wirh interest ar the r.rtc ol 1025%(thesrareBanko ndiahighesr marginalcost oitendrns rrre {ruCLRl appticable as on date +2%l as prescribed under rute t5 olrhc Haryana Real Estate (Regutation and Development) Rules,20l,, I onr rhe date ofpayment as promised in the sertlementagreenrcnr rr the actual date otrefund ofthe amounr within the timelines |,rvd.d in rule 15 of, the Ha.yana Rules 2017[ibid]. ji.

A period of90 days js Sjvrij to the respondent to compty with th. directions given in this or,LU .rnd fa,ling which tegat consequenccs would aollow 33.

Complaint stands disposed of 34.File be cons,gned ro the regis ! \,- a; vijay Kumarcoyal EstJlr l(cAuldrory Authoriry, curugram Datedi 16-l1.2n22 Haryana Real