MALATI RANI MANDAL vs OCEAN SEVEN BUILDTECH PVT. LTD.

ffiHARERI\ &eunuennvr BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of Order: 24.07.2024 Complaint no.

7964 of 2022 and 14 other s Name ofthe Builder Ocean Seven Buildtech pvt.

Ltd.

Expressway Towers Compt"int titt" T Attendance Pr S.no. 'oiect Name i C"-ptaint f,lo.

1. cR/7964/2022 Rameshwar Singh V/s 0cean Seven Buildtech PvL Ltd. llarshit Batra (Complainant) Arun Yadav 2. cR/7973/2022 Shashi Saini V/s M/s Ocean Seven Buildtech Pvt.

Harshit Batra (Complainant) Arun Yadav 3. cR/8079 /2022 Malati Rani MandalV/s Ocean Seven Buildtech Pvt.

Harshit Batra IComplainant) Arun Yadav (Rcspondentl Harshit llatra (Complainant) Arun Yadav (Respondent.J llarshit Ilatra (Complainant) Arun Yadav IResnondcni] 4. cR/8020/2022 Sachin Poonia V/s 0cean Seven Buildtech Pvt.

5. cR/8026/2022 Manoj Kumar V/s 0cean Scven Buildtech pvt.

6. cR/8030/2022 Parveen Baliand Rakesh Kumar Balj V/s ocean Seven Buildtech PvL Ltd.

Harshit Batra (Complainants) Arun Yadav IResnondonl) 7. cR/8034/2022 Rishikesh Singh V/s Ocean Seven Buildtech Pvt.

Ltd. llarshit Ilatra (Complainant) Arun Yadav (Respondcnt.) Ilarshit Bal ra IComplainants) Arun Yadav 0lelpgndenQ Harshit Batra (Complainantl Arun Yadav IRespondent) B, cR/8098/2022 Sushma S.

Chaudhary and Sunil Xurnar Chaudhary V/s Ocean Seven Buildtech Pvt.

Lrd.

9. cR/8099 /2022 Ompal V/s Ocean Seven Buildtech pyl Ltd.

Page I of23 ,, ffi HARERA.

S*eunuennnl Complaint no.7964 of2022 and 14 orhers 10. cR/8702/2022 Sonu Verma V/s Ocean Seven Buildtech Pvt.

Harshit Batra (Complainant) Arun Yadav IResDondent] 11. cR/810412022 Ramesh Kumar Katyal V/s Ocean Seven Buildtech Pvt.

Harshit Batra (Complainant) Arun Yadav flglgond enQ Harshit Batra (Complainant) Arun Yadav (ResDondent) 72. cR/8105/2022 Rishubh Mathur V/s Ocean Seven Buildtech Pvt.

13. cR/8t06/2022 Sachin Kumar GoelV/s Ocean Seven Buildtech Pvt.

Harshit Batra IComplainant) Arun Yadav fResnondentl 14. ndentl 14. cR/8107 /2022 Vinay Totnar and Dinesh Kumar V/s Ocean Seven Buildtech PvL Ltd.

Harshit Batra (Complainants) Arun Yadav 15. cR/8t39 /2022 Sandip Kumar V/s ocean Seven Buildtech Pvt.

Ltd. llarshit Ilatra (Complainant) Arun Yadav (Respondcntl ORDER This order shall dispose ofall the 15 complaints titled as above filed before this authority in form CRA under section 31 of the Real Estate (Regulation and Developmentl Act, 2016 (herelnafter referred as,,the Act,,J read with rule 28 of the Haryana Real Estate (Regulation and Developmentl Rules, 2017 (hereinafter referred as "the rules"J for violation of section 1 1 (a) (a.) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

The core issues emanating from them are similar in nature and the complainant(s] in the above referred matters are allottees of the projcct, a,l] Mem 1.

2. v Ashok Sangwan PaBe 2 ol 23 CORAM: * HARER \ S- eunlennnt Complaint no.

7964 of 2022 and 14 othcrs namely, "Expressway Towers" at Sector 109, Gurugram being developed by the respondent/promoter i.e., Ocean Seven Buildtech private Limited.

The terms and conditions ofthe builder buyer,s agreements fulcrum ofthe issue involved in all these cases pertains to failure on the part of the promoter to deliver timely possession of the units in question, seeking award of possession and delayed possession charges.

3.

The details of the complaints, reply status, unit no., date of agreement, possession clause, due date of possession, offer of possession, total sale consideration, amount paid up, and reliefs sought are given in the table below: Project: "Expressway Towers" at Sector 109 Possession clause in Affordable Housing policy- 1. policy- 1.(iv) All such projects shall be required to be necessarily completed within 4years t'rom the date of approvol ofbuilding plans or gront ofenvironmental clearance, whichever is lqter.

This date shall be referred to os the,,dqte of commencement of project,,for the purpose of the Dolicv.

7.

Date ofsanction ofbuilding plans- Date ofsanction ofbuitaing ptans is ZOISZO f O as per information obtained from the planning branch.

2.

Date of grqnt of environmental clearonce- Date of grant of environmcntal clearance is 30.11.2017 as per information obtained from the planning branch.

Due date of handing over of possession- 30.OS.ZO2Z (inadvertently mentioncd as 26.03.2020 on proceedings dated 0B.OS.ZOZ4) 0'he due date has been calculated as 4 years from date of grant of environmental clearance i.e., 30.11.2 017 as per policy of 2013 + 6 months as per HARERA notification no.

9 /3-2020 dated 26.05.2020 for the pro,ects having completion date on or after 25.03.2020).

4, Occupation certr./tcate- Not obtained 5.

DTCP License no.

6 of 2076 dated 76.06.2016- Shrce Bhagwan is the licenscc lor the project as mentioned in land schedule ofthe project.

6.

RERA registrotion - 301 of 2017 dated 13.10.2 01 7 valid upto 12.10.2021 .

Page 3 of23 ff HARER^, #- euRuennu Sr.

No Complaint no./title/ date of complaint Reply status Unit No. and area admeasur ing (Carpet area) Date of of aparunent buyer's agreement Due date of possession & Offer possession Total sale consideration and amount paid by the Complainart (s) lief ught 1. cR/7964 /2022 Rameshwar Singh V/s Ocean Seven Buildtech Pvt.

DOF.

76_0',I.2023 Reply received 31.01.20 24 1107, Tower 6, 11,h Floor (Page 25 of complaint) 25.05.2019 30.05.2022 offer of Not offered TSC: Rs.26,29,500/- + lpaBe 29 or complaint) Rs.26,7 A,713 / {As per ledger 63 olcomplain0 DPC and Possessio 2. cR/7973/2022 Shashi Saini V/s M/s ocean Seven Buildtech Pvt Ltd.

16.01.2023 Reply 31.01. ply 31.01.20 24 507, Tower 1,5th Floor (Page 23 of complain0 26_12_2017 30_0s.2022 offer of Notoffered TSCI Rs.12,62,50o/ r lpage 23 ol complaintl Rs.13,22,469 / (As per demand letter on page 45 47 oicomplainrl PC and 3. cR/8019 /2022 Malati Rani Mandal V/s ocean Seven Buildtech Pvt.

DOF, 25_07.2023 Reply on 31.01.20 24 902, Tower 4,9rh floo. (Page 26 ol complaintl 06.06.201?

30.05.2022 offer ot possession- Notolfered TSC: Rs.26,29,soo / + (As per BBA on page 26 ol complain0 Rs-27 ,18,249 / . (As per ledger S8 ofcomplaint) DPC and PaBe 4 of 23 lt ffiHARERA S- eunrcnnvr Page S of 23 4. cR/4020 /2022 Sachin Poonia V/s ocean Seven Buildtech P\,1.

25_07_2023 Reply 31.01.20 24 5, 1508, 15th floor (Pase 26 complain0 oa_07 _2077 30.05.2022 offer of possession- Not ollered TSC: Rs26,26,000/- + [As per 8BA on page 26 ol complaintl Rs.23,83,09al- (As per demand letter on page 65 27 _01_2020 paCe 74 ol complaintl DPC and n 5. cR/4026 / 2022 ManoiXumar Seven Buildtech PvL Ltd.

25.01.2023 Reply 31.01.20 24 708, Tower 1,7th Floor (Page 26 ol complaintlltr nl I (Mt i:r'!ii:i li{'il fi"r 30.05.2022 ofter ol Not offered \eo\ r \t\ fil,tl TSCI Rs.13,30,500/ r [As per BBA on page 26 ol complaintl Rs-13,A7,046/ (As per demand letter on page 55 ol complaint and payment acknowledgemen t on page 56 of complaintl DPC and 6_ cR/a030 12022 Parveen Bali and Rakesh Kumar Bali V/s 0cean Seven Buildtech Pvt.

25_0r_2023 Reply received 31.01.20 24 1707, Tower 6 (Page 37 of complaint) 3Un J u( 30.05.2022 ofler ol Notolfered TSC: Rs 26,29,500/ I (As per demand letter on page 39 otcomplaintl Rs- 27 ,1A,249 / (As per demand letter on page 39 of complaint and payment page 48 of complaint) DPC and n 7_ cR/8034 /2022 Rishikesh Singh Seven Buildtech Pvt Ltd.

25.O7.2023 Reply received 31.01.20 24 802, Tower 4,8ih floor [Page 25 of complaint) 23.06.2017 30.05.2022 offer o[ possession- Notoffered TSC: Rs. d TSC: Rs.26,29,5O0 / t (As per BBA on page 29 ol complaintl Rs 26,74,249 /- (As per payment with the conplain0 DPC I cR/ 8098 /2022 Sushma s.

Chaudhary and SunilKumar Chaudharyv/s Ocean Seven Buildtech Pvt.

DOF 25.07.2023 Rcply 31.01.20 24 7, Tower 6 fPage 38 of cornplain0 Notexecuted 30_o5_2022 offer of Notolfered TSC: Rs.26,29,500/ , tAs per application form on page 31 01 complaintl Rs-26,A1,469 / (As per demand letter on page 40 of complaint and email dated 73_07 _2020 Page 48 of complaintl DPC 9. cRl8099 /2022 OmpalV/s ocean Seven Buildtech Pvt.

DOF- 27.01.2023 Reply received 31.01.20 24 908, Tower (Page 29 of complaint) 24.07.2017 30.o5.2022 offer oI TSC: Rs.26,29,500/ r (As per BBA on paCe 29 ot complainrl Rs.24,44,495 /- [As per ledger 63 ofcomplarn0 DPC ffiHARER seunuennu PaEe 6 of 23 ll HARERA GUAUGRAII 10 cR/8102 /2022 0cean Seven Buildtech Pvt.

DOF 27 _07_2023 Reply received 31.01.20 24 1304, Tower 5 (Page 77 of complaino Notexecuted 30.0s.2022 offer of possession- Notoffered TSC: Rs.26,26,00o/ t laxes [pagc 19 of complaint) Rs.27,14,626/ [As per reminder payment the complaint on paEe 19 21 of complaintl DPC 11. cR /8104 /2022 Ramesh Kumar Katyal V/s ocean Seven Buildtech Pvt.

27.0',t .2023 Reply 31.01.20 24 602, Tower 3, 6th floor (Page 24 of complaint)r 30.05.2022 offer of Notoffered l I TSCI Rs.26,29,50O/ + [As per BBA on page 24 ol com plarnr) P,s 27 ,1,4,243 / - [As per demand letter and payment receipt complaint page 54'56 of complaintl DPC and 12_ cRlalos /2022 Rishubh Mathur V/s Ocean Seven Buildtech Plt Ltd.

DOF- 27.0r.2023 Reply received 31.01.20 24 1903, 19th Floor 3, 30.0s.2022 offer of possession- Not offered TSC: Rs.26,29,500/ + (page 29 ol complaini) Rs.27,24,962/ (As per ledger 6l ofcomplaint) DPC and Page 7 of 23 | 2A.10.2077 13. cR/8106 /2022 Sachin Kumar CoelV/s Ocean Seven Buildtech Pvt Ltd.

DOF- 27.01.2023 Reply 31.01.20 24 1908, 19th Floor lPaqe 24 complainr) 3, of 23.10.2017 30.05.

017 30.05.2022 offer of possession- Notoffered TSC: Rs.26,26,400 / - + (page 24 ol complaintl Rs.27 ,35,543 / [As per demand letter on page 54 and payment with the page 5U-59 ot complaint) DPC 14. cR/8107 /2022 VinayTomar and Dinesh Ocean Seven Buildtech Pvt.

27.0r.2023 Reply 31.01.20 24 7206, 1zrh floor (Pase 25 of complaintl 30.o5.2022 offerof Not offered TSC: Rs.26,29,5oo/-+ (As per BBA on page 25 of complainr) Rs z7 ,18,2ss / (As per demand letter on page 55 and email datcd 20.70-2020 on paCe 57 ol comPlain0 DPC 15. cR/8139 /2022 Sandip Kumar Seven Buildtech PvL Ltd.

25.01.2023 Reply 31.01.20 505, Tower 7, 5s floor [Page 25 ol complain0 26.09.2017 30.o5.2022 0trerof possession- Notoffered TSC: Rs.13,30.500/ + taxes (As per BBA on page 25 of complaint) Rs.13,67 ,297 / - (As per ledser account on page 63 otcomplaint) DPC ,.dl Note: In the table referred above certain abbreviations have been used.

They are elaborated as follows: Abbreviations Full form D0F Date offiling complaint TSC Total Sale Consideration AP-Amount paid by the allottee(s) tr HARERA #-eunuennl,t Complaint no.

7964 of 2022 and 74 others 4.

The aforesaid complaints were filed by the complainant(s) against the promoter on account ofviolation ofthe builder buyer's agreement executed Page 8 of23 22.07 _2017 5.

HARERA GURUGRAN/ between the parties inter se in respect of said unit for seeking award of possession and delayed possession charges.

It has been decided to treat the said complaints as an application for non_ compliance ofstatutory obligations on the part ofthe promoter/responclcnt in terms of section 34[fJ of the Act which mandates the authority to ensure compliance of the obligations cast upon the promoter, the allottee(s) ancl the real estate agents under the Act, the rules and the regulations made thereunder.

The facts of all the complaints filed by the complainant(s)/allotteets] are also similar. o similar.

Out of the above-mentioned case, the particulars of lead case CR/7964/2022 titled as Rameshwar Singh V/s Ocean Seven Buitdtech PvL Ltd. arebeingtaken into consideration for determining the rights of thc allottee(s) qua possession and delayed possession charges.

0n proceedings dated 08.05.2024, the counsel for the complainant(s] has submitted that "the complainant(s) is/are seeking delay possession char.tles and directions for handing over of possession ofter obtaining on occupotlon certificote.

The rest of the reliefs are not being pressed as the same are being addressed in the suo motu proceedings before the outhorily.,, In view of the above, the authority is proceeding to decide only the main relief sought by the complainant(s] in the above saitl complaints i.e., delay possesslon charges and possession on the basis of documents available on record as well as submission made by the parties.

Proiect and unit related details The particulars of the project, the detairs of sare consideration, the amount paid by the complainant(s), date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: 6.

A.

8.

PaEe 9 of 23 Complaint no.

7964 of2022 and 14 others ffiH #-eURUGRANI ARERA Complaint no.

7964 of ZO22 and14 others CR/7964/2022 titled as Rameshwar Singh V/s Ocean Seven Buildtech Pvt.

Details "Expressway Towers", Sector 109, Gurusram Affordable Housin 6 of 2016 dated 76.06.2016 301 of 2017 dated 1.2.L0.2021.

13.10.2017 valid 20.05.201.7 e 17 of complaint 1107, Tower 6, 11th Floor (Page 25 of comDlaint 645 sq. ft.

Jca.pet areal, 99 sq-ft area e 25 ofcom laint 25.05.2019 5.2 Possession Time "The Company shall sincerely endeovor to complete construction of the said unit within 5 years from the date of receiving oflicence (commitment period), but subject to force majeure clause of this Agreement and timely payment of installments by the Allottee(s). lottee(s).

However company completes the construction prior to the period of 5 yeors the Allottee shalt not raise on in taking the possession qfter payment of remaining sale price ond other chqrges stipulated in the to Sell.

The Compony on obtaining certificote for occupotion ond use by the Competent Authority hqnd ovcr Lhe said unit to the Allottee for his/her/their _ l u Dto_l Name of the project Nature of the proiect DTCP license no. and validity status RERA Registered/ not registered Allotment Letter Unit no.

Unit area admeasuring Date of execution of Apartment Buyer's Aqreement Possession clause Possession clause in Affordable Housing Page 10 of23 pN.

Particulars 1.

4. ffiHARERA #- eunuenant Complaint no.

7964 of 2022 and 14 others from the date of approval of building plans or grant of environmental clearance, whichever is later.

This date shall be referred to as the "date of commencement of project" for the urpose of the poli 30.11.201_7 (as per information lannine branch 26.09.2076 (as per information obtained from plann ing hra nch I 30.05.2022 (Calculated as 4 years from date of grant of environmental clearance i.e., 30.1L.2017 as per policy of 2013 + 6 months as per HAREM notification no.

9 /3-2020 dated 26.05.2020 for the projects having completion date on or after 25.03.2020.

Rs.26,29,500/- + taxes 29 of complaint Rs.26,7I,7 13 /- [As per ledger account on page 63 of complaint obtained from l Not obtained Not offered B.

Facts ofthe complaint 9.

The complainant has made the following submissions: - I.

That the complainant was allotted an apartment bearing no.

1107, Tower 6 having 645 sq. ft. carpet area and 99 sq. ft. balcony area in project of respondent named "Expressway Towers" at Sector 109, Gurugram, under the Affordable Housing Policy, 2013 vide allotment letter dated 20.05.2017.

Thereafter, an builder buyer agreement dated 2 5.05.2019 was executed between the part ies. part ies.

Date of environmental clearance Date of approval of building plans Due date of possession Total sale consideration Amount paid by the complainant Occupation certificate Completion certificate Offer of possession Page 11 of 23 72.

15. ffiHARERA S- eunuennnr II.

That the respondent had unilaterally, unlawfully and arbitrarily extended the due date under the agreement by going beyond the Affordable flousing Policy, 2013, which, under no circumstance whatsoever, be acccptcrl.

IIL That under the Sec 1(ivl of the Affordable Housing policy, 2013, the possession of the unit was to be delivered within 4 years from the approval of building plan or grant of environmental clearance, whichever is later.

IV. 'l'hat till date, the possession has not been offered and the project is far from being completed.

It is a matter of record that no occupancy certiticate has been applied till date and the essential services are incomplete in the proiect.

V.

That the respondent failed in complying with all the obligations, not only with respect to the agreement with the complainant but also with respcct to the concerned laws, rules and regulations thereundel due to which thc complainant faced innumerable hardships.

Moreover, the respondent made false statements about the progress of the project as and when inquired by the complainant.

VI. 'l'hat under proviso of section 1g(1) of the Act, the respondent is bound to make the payment of interest on the amount deposited by the complainant till the actual handover ofpossession.

C.

Reliefsought by the complainant: 10.

The complainant has sought following relief(s): i.

Direct the respondent to handover possession of the unit, to execute conveyance deed and to pay delay possession charges as per the Act.

11.

On the date ofhearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11(4) (a) of the act to plead guilty or not to plead guilty.

D. guilty.

D.

Reply by the respondent: 12.

The respondent has contested the complaint on the following grounds.

PaEe 12 of 23 I1ARERA GURUGRAM Complaint no.

7964 of2022 and 14 orhcrs lll. ll. lv.

That this Authority lacks jurisdiction to adjudicate upon the present complaint as vide clause 16.2 of the builder buyer agreement both the parties have unequivocally agreed to resolve any disputes through arbitration.

That the complainant is a willful defaulter and deliberately, intentjonally and knowingly have not paid timely installments.

That starting from February 2023, the construction activities have been severely impacted due to the suspension ofthe license and the freezing of accounts by the DTCP Chandigarh and HRERA Gurugram, respectively.

This suspension and freezing ofaccounts represent a force majeure event beyond the control of the respondent.

The suspension of the license and freezing of accounts, starting from Feb ZOZ3 till date, have created a zcro_ time scenario for the respondent.

Furthet there is no delay on the part of thc respondent project as it is covered under clause number 5.5 brcc Majeure, which is beyond control ofthe respondent.

That the final EC is CTE/CTO which has been received by the responcient in February 2018, Hence the start date of project is Feb 201g and rest details are as follows: Covid and NGT Restrictictions Project completion Date Feb-22 Covid lock down waiver 18 months NGT stay [3 months approi foi eGry year)i.e.6+3 Total Time extended to be extended [18+ 18) months 18 months 36 months Feb 2023 till date Accounts freezed & license suspended further time to be extended till the unfreezing of the accounts i.e.

Feb- Nov 2023 (10 months) Nov-2 3 ll l Page 13 of 23 ff HARER { #- eunuennvr As per the table given above, the final date for the completion of construction is Feb 25 in case the accounts are unfreezed by the competent authority on the date of filing this reply. his reply.

From Feb 2023, the license has been suspended and accounts have been freezed bv the I).ICp Chandigarh and HRERA Gurugram.

13.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission made by the parties.

E. furisdiction ofthe authority 14.

The authority observes that it has territorial as well as subiect matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.

I Territorial iurisdiction 15.

As per notification no. l /92 /2017 -lTCp dated 14.1,2.20j,7 issued by.Iown and Country Planning Department, the iurisdiction of Rcal Estatc Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the proiect in question is situated within the planning area of Gurugram District.

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

II Subiect matter iurisdiction 16.

Section 11(a)(a) of the Act, 2016 provides that the promorer shall bc responsible to the allottee as per agreement for sale.

Section 11[4)[a) is reproduced as hereunder; Complaint no.

7964 of2022 and 14 others Final project completion date (in case project is unfreezed) further time would be added till unfreezing the accounts Page 14 of23 17. ffiHARERA S- eunuenaur Complaint no.7964 of2022 and 14 others Section 77 (4) The promoter sholl- (o) be responsible for qll obligations, responsibilities oncl functions under the provisions of this Act or the rules qnd regulotlons made thereunder or to the allottees as per the agreement for sale, or to the qssociation of allottees, qs the case mqy be, tillthe conveyance ofoll the apartments, plots or buildings, as the cose may be, to the ollottees, or the common ereos to the association of q ottees or the competent authority, as the cose moy be; Section 34-Fun ion 34-Functions of the Authority: 34A of the Act provides to ensure complionce of the obligations cast upon the promoters, the allottees qnd the real estate agents under this Act and the rules and reg u Ia tio ns mqde 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.l Obiections regarding force majeure.

The respondent/promoter has raised the contention that the construction of the project has been delayed due to force majeure circumstances such as ban on construction due to orders passed by NGT, major spread ofCovid-19 across worldwide, suspension of license by the DTCp, Chandigarh and freezing of accounts by HREM Gurugram etc. which is beyond thc control of the respondent and are covered under clause 5.S of the agreement.

Thc respondent has further submitted that suspension of the license and freezing of accounts, starting from Feb 2023 till date have created a zero- time scenario for the respondent.

Furthermore, the final EC is CTE/CTO which has been received by the respondent in February 201g, hence the start date of project is Feb 2018.

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

As per clause 1(iv) of the Affordable Housing Policy, 2013 it is prescribed that "All such projects shall be required to be necessarily completed within 4 years from the date of approval of building F.

18.

Page 15 of23 trHARERA #-eunuennnt Complaint no.7964 of2022 and 14 others plans or grant of environmentql clearance, whichever is later.

This date shall be referred to as the "date of commencement of project" for the purpose ofthis policy.

The respondent has obtained environment clearance and building plan approval in respect of the said pro,ect on 30.11.201.7 and 26.09.20L6 respectively. pectively.

Therefore, the due date of possession is being calculated from the date of environmental clearance, being later.

Further, an extension of 6 months is granted to the respondent in view of notification no.

9 /3-2020 dated 26.05.2020, on account ofoutbreak ofCovid-19 pandemic.

Therefore, the due date of possession was 30.05.2022.

As far as other contentions of the respondent w.r.t delay in construction of the project is concerned, the same are disallowed as firstly the orders passed by NGT banning construction in the NCR region was for a very short period of time and thus, cannot be said to impact the respondent-builder leading to such a delay in the completion.

Secondly, the licence of the proiect of the respondent was suspended by DTCP, Haryana vide memo dated 23.02.2023, due to grave violations made by it in making compliance of the terms and conditions of the licence and thereafter due to several continuing violations of the provisions ofthe Act, 2016 by the respondent, in view to protect the interest of the allottees, the bank account of the respondent related to the project was freezed by this Authority vide order dated 24.02.2023. 'l'hus, the promoter/respondent cannot be given any leniency on based of aforcsaid reasons and it is well settled principle that a person cannot takc bcncfit of his own wrong.

F. ll Objection regarding complainant is in breach of agreement for non- invocation of arbitration.

19.

The respondent has submitted 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 Page 16 ol 23 HARER}.

GURUGRA[/ Complaint no.7964 of2022 and 14 others dl'y urspure. rne aurnortfy ls or the oplnion that the jurisdiction of the authority cannot be fettered by the existence of an arbitration clause in the any dispute. y dispute.

The authority 1S of the opinion th at the jurisdiction buyer's agreement as it may be noted that section 79 of the Act bars thc 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 Bu 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 National 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 ofthe other laws in force, consequently the authorify would not be bound to refer parties to arbitration even if thc agreement between the parties had an arbitration clause.

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

20.

Furthet in Aftab Singh and ors. v.

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

7OL of ZOLS decided on L3.07.2077, 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 iurisdiction of a consumer. turther, while considering the issue of maintainability of a complaint beforc 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.

Aftab Singh in revision petition no.

2629- 30/2018 in civil appeal no.

23572-23573 of2077 decided on 10.12.2018 has upheld the aforesaid judgement ofNCDRC and as provided in Article I41 v PaBe 17 of 23 ffiHARERA #-eunuennnr Complaint no. plaint no.

7964 of2022 and l4 others G. 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 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 ofgoing 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.

Findings on the reliefs sought by the complainant: G.

I Direct the respondents to handoyer possession of the unit and to pay delay possession charges esi..per the Act The complainant intends to continue with the proiect and is seeking delay possession charges as provided under the proviso to section 1g(1J of the Act.

Sec.

18(1J proviso reads as under. "Section 18: - Return ofomount and compensotion 1B(1). lf the promoter fails to complete or is unable to give possession ofqn opartment, plot, or building, - Provided thotwhere an ollottee does not intend to withdrow from the project, he sho be paid, by the promoter, interest for every month of delay, till the handing over of the posseseon. aL such rote os moy be prescribed.

Clause 1(iv) ofthe Affordable Housing policy,2013 provides for complerion of all such projects licenced under it and the same is reproduced as under for ready reference: 1 (iv) "All such projects shall be required to be necessarily completed within 4 yeurs from the dote of opprovol of building plans or grant of environmental cleqrance, whichever is loter.

This date shall be relerred to as the ,,dote of commencement ofproject" for the purpose ofthe poticy. he poticy.', Due date of handing over of possession: As per clause 1(iv) of the Affordable Housing Policy, 2 013 it is prescribed that,,All such projects sholl of the Constitution of India, the law declared by the Supreme Court shall be 2t.

22.

1 23.

Page 18 of23 ffiHARERA #, eunuenavr Complaint no.7964 of2022 and 14 others be required to be necessorily completed within 4 years from the dote of approval of building plans or grant of environmental clearance, whichever is later.

This dote shall be referred to as the "ddte of commencement of proiect" for the purpose of this policy.

The respondent has obtained environmcnt clearance and building plan approval in respect of the said proiect on 30.11.201,7 and 26.09.2016 respectively.

9 /3-2020 dated 26.05.2020, on account of outbreak of Covid-19 pandemic.

Therefore, the due date of possession comes out to be 30.05.2022.

24.

Admissibility of delay possession charges at prescribed rate of interest: Proviso to section 18 provides that where an allottee docs not intend to withdraw from the project, he shall be paid, by the promotcr, interest for every month ofdelay, till the handing over ofpossession, at such rate as may be prescribed and it has been prescribed under rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 15.

Prescribed rate of interest- [Proviso to section 72, section 7B and sub-section (4) qnd subsection (7) oJ section 791 (1) For the purpose of proviso to section 12; section 18; and sub-sections (4) ond (7) ofsection 19, the "interest at the rate prescribed" sholl be the Stote Bank of lndio highest moryinal cost oflending rote +2ak. rote +2ak.: Provided that in cqse the Stote Bank of lnd@ marginol cost of lencling rcte (MCLR) is not in use, it shall be replacecl by such benchmark lending rotes which the State Bank of lndio may fx from time to Lime for lending to the general public.

25.

The legislature in its wisdom in the subordinate legislation under the 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 Page 19 of23 26.

27.

29. ffiHARER,q #eunuennnt Complaint no.

7964 of 2022 and 14 others and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases.

Consequently, as per website ofthe State Bank oflndia i.e., hfips://sbi.co.in, the marginal cost of lending rate (in short, MCLR] as on date i.e.,24.07 .2024 is 9%0.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate -t2 o/o i.e.,lLo/o.

The definition of term 'interest' as defined under section 2(zal of the nct provides that the rate of interest chargeable from the allottee by the promotet 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.

The relevant section is reproduced below: "(zo) "interest" means the rqtes of interest payable by the promoter or the ollottee, as the cose may be.

Explanotion. -Fot the purpose ofthis clause (i) the rctte of interest chargeable from the allottee by Lhe promoter, in cose of default, sholl be equal to the rote of interest which the promoter sholl be lioble to poy the allottee, in case ofdefault; (ii) the interest payable by the promoter to the ollottee shall be from the dote the promoter received the qmount or any part thereof till the dote the qmount or pqrt thereof ond interest thereon is refunded, and the interest payoble by the qllottee to the promoter shall be from the date the allottee defaults in payment to the promoter till the dqte it is poid;" Th poid;" Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., 11% by the respondent/promoter which is the same as is being granted to the complainant in case of dclaycd possession charges.

0n consideration of the documents available on record and submissions made by both the parties, the authority is satisfied that the respondent is in contravention of the section 11(4J(a) of the Act by not handing ovcr possession by the due date as per the agreement.

By virtue of clause 1 (iv) of the Affordable Housing Policy, 2013, the respondent/promoter shall be Page 20 ot23 ffiH #-e ARER URUGRA[/ 30. necessarily required to complete the construction of the proiect within 4 years from the date of approval of building plans or grant of environmental clearance, whichever is later.

Therefore, in view ofthe findings given above, the due date of handing over of possession was 30.05.2022.

However, the respondent has failed to handover possession of the subject apartment to the complainant till the date ofthis order.

Accordingly, it is the failure ofthe respondent/promoter to fulfil its obligations and responsibiljties as per the agreement to hand over the possession within the stipulated period.

Further, the authority observes that there is no document on record from which it can be ascertained as to whether the respondent has applied for occupation certificate or what is the status of construction of 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 section 11(4)(al read with proviso ro section 18(1) of the Acr on the part of rhe respondent is established.

As such, the allottee shall bc paid, by thc promoter, interest for every month ofdelay from due date ofpossession i.c., 30.05. c., 30.05.2022 till valid offer of possession plus 2 months after obtaining occupation certificate from the competent authority or actual handing ovcr of possession whichever is earlier, as per section 1g(11 of the Act of 201 6 read with rule 15 ofthe rules.

Further, as per section 11(a)(l and section 17(1) of rhe Acr of 2016, rhe promoter is under an obligation to get the conveyance deed executed in favour of the complainant.

Whereas as per section 19(11J of the Act of 2 01 6, the allottee is also obligated to participate towards rcgistration of the. conveyance deed of the unit in question.

However, therc is nothing on thc record to show that the respondent has applied for occupation certificate or what is the status of the development of the above-mentioned project. ln 31.

Complaint no.

7964 of2022 and 14 others Page 21 of 23 't/ MHARER. # eunuennu view of the above, the respondent is directed to handover possession of thc flat/unit and execute conveyance deed in favour of the complainant in terms of section 17 (7) 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.

H.

Directions ofthe authority 32.

Hence, the authority hereby passes this order and issue 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 authoritv under section 34(0: i.

The respondent/promoter is directed to pay interest to the complainant(sl against the paid-up amount at the prescribed rate of 11% p.a. for every month of delay from the due date of possession i.e.,30.05.2022 till valid offer of possession plus 2 months aFter obtaining occupation certificate from thc competent authority or actual handing over of possession, whichever is earliet as per section 1g(1) of the Act of 201 6 read with rule l5 o[ the rules. ii.

The arrears of such interest accrued from 30.05. rom 30.05.2022 till the date of order by the authority shall be paid by the promoter to the allottee(sl within a period of90 days from date ofthis order and interest for every month of delay shall be paid by the promoter to the allottee(s) before 1Oth of the subscquent month as per rule 16(2) ofthe rules, The respondent/promoter shall handover possession o[ thc flat/unit and execute conveyance deed in favour of the complainant(sl in terms of section 17(1) of the Act of 2016 on payment of stamp duty and registration charges as applicable, r' Complalrt no.

Z9O+ ofZ0ZZ ana f+ ott e.s I lr.

Page 22 of 23 ffi HARERA S*eunuennn,l iv. within three months after obtaining occupation certificate from the competent authority.

The complainant(s) are directed to pay outstanding dues, ifany, after adjustment ofinterest for the delayed period.

The respondent/promoter shall not charge anything from the complainant(sJ which is not the part of the apartment buyer,s agreement or provided under the Affordable Housing policy, 2073.

The rate of interest chargeable from the allottee(s) by the promoter, in case of default shall be charged at the prcscribcd rate i.e., 110lo by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottee(s), in case ofdefault i.e., the delayed possession charges as per section 2(zal ofthe Act.

33.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order.

34.

The complaints stand disposed off.

35.

Files be consigned to registry.

Haryana Real Estate Regul#ory Authority, Gurugram Dated: 24.07 .2024 Complaint no.

7964 of 2022 and 14 othcrs PaBe 23 of23 I