GANESH KUMAR DWIVEDI vs EMAAR MGF LAND LTD THROUGH ITS MANAGING DIRECTOR AND OTHER DIRECTORS NOW KNOWN AS EMAAR INDIA LIMITED

H,qRERA MGURUGRAM BEFORE THE HARYANA Gane:;h Kumar Dwivedi R/o: - H-705, Emaar Palm Driv Extension Road, Sector-66, G Emaar MGF Land Ltd. presentl Emaar India Ltd.

Regd. office at: Emaar MGF I Mehrauli Gurgaon Road, Sikan Sector-28 Gurugram-122018 CORAM: Shri Vilay Kumar Goyal APPEARANCE: ^r r E.rr\JlrrLE; Shri Gaurav Rawat (Advocate) Shri [shaan Dang [AdvocateJ I 1.

This complaint has been filed of th€, Real Estate (Regulation read with rule 28 of the Ha Rules,2017 [in short, the Rul wherr:in it is inter alia prescribe all obligations, responsibilities a or the Rules and regulations agreement for sale executed r'n Complaint No.

6030 of L ATE REGULATORY AUTHO UR plaint no.: of fi rst hearing: of Order: Golf ourse on- ,, 2 5 t t of 2O2 t 1 .202 )3.202 ainan :nden Co Da Da 603 0 24.

06.

Comp 2078 Res mplainants/allottee under section 3l lopment) Act, 2016 (in short, the Afi) Real Estate IRegulation and Development) for olation of section 11(4)(a) of rhe Acr that the promoter shall be responsible for ctions under the provision of the Act under or to the allottec as per thc Member Complainant Res po nden t the dfu le se Page 1 of 25 (u 2. trHARERA ffieunuennvr A, Proiect and unit related det The particulars of the project, 1 paid by the complainant, date delay period, if any, have been d Lils te dr ofp taile IC",r,prairrtl'lrimoorr0rl tails of sale consideration, the amou oposed handing over the possessi( I in the following tabular form: S.

No.

Particulars Deta ils 1.

Name ofthe project "Pre 66, mier Terraces at Palm Drive", Sector ]urugram, Harvana 2.

Nature ofproiect Gro p housing colony 3.

DTCP License no. l. ll.

228 0f 2007 dated 27.09.2007 yatid up to 26.09 .2079 93 of 2008 dated 12.05.2008 valid up to 11.05.2020 4.

Unit no.

H.?

IAs J5, Tower-H, 7th floor )er paqe no.

52 ofthe complaintl 5.

Unit area 195 IAs ) sq. ft. (Super Area) )er paqe no.

52 ofthe complaintl 6.

Revised unit area 199 IAs INo 199 i.17 sq. ft. (Super Area) )n page no. n page no.

137 ofthe replyl e: Super Area was increased to i.17 sq. ft. from 1950 sq. ft.1 7.

Allotment letter 11.( IAs 2.200t3 )er paqe no.

40 of the complaintl L Date of execution o buyer's agreement 05. (As 3.2 0 0B )cr page no.

49 of the complaintl 9.

Date of tripartit( agreement 28.1 (As 2.2077 rer page no.

167 ofthe replyl 10.

Possession clause 74. ) (a) Subj to tl with agre 0ny coml docr, Com ove, Apo DOSSESSION Time of honding over the Possession ect to terms of this clause and subject te Apqrtment Allottee having complied all the terms and conditions of this ement, and not belng in default under of the provisions of this agreement and pliance with qll provisions, formalities, tmentotion etc., as prescribed by the pany, the Compqny proposes to hand " the possession of the rtment/Villa/Penthouse by fv Page 2 unt on, of 23 3.

Complaint No.

6030 of 2022 HARERA OURUGRAM B.

Facts ofthe complaint Th€,complainant has made the following submissions in the complaint: Thzrt the complainant, Ganesh Kumar Dwivedi is a law abiding citizen and resrding at R/o H-705, Emaar Palm Drive, Golf Course Extension Road, Sector-66, Gurgaon-12 2 018.

That in 2007, the respondent company issued an advertisement anrLouncing a group housing colony project called "Premier Terraccs at Palm Drive' at Sector - 66, Gurugram was launched by Emaar MGF Land Ltd.

I.

It.

December 2070, The Aportment Allottee agrees and understands that the Compoily sholl be entitled to a groce period of ninery (90) dayt for applying and obtoining the occupotion certifrcote in respect of the Group Housing Complex. (Emphasis supplied) fAs on Dase no.

66 of the complaintl 11.

Due date ofpossession March 2011 [As mentioned in buyer's agreement plus srace period of 90 days) L2.

Total sales consideration Rs.1,0 2,91,89 0/- [As per schedule of payments on page no B1 ofthe complaintl 13.

Amount paid by the complainant Rs.1,15,81,610/- (As oer SOA on pase no.58 ofthe replvl 14. replvl 14.

Nomination of unit in the name of complainant only 09.01.2018 [As Der Dase no.

94 of the complain!) 15.

Occupation certificate 25.07.20t8 fAs Der page no.44 ofthe replvl 76.

Offer of possession 08.0 3.2 018 [As per page no.

95 of the complaint) 17.

Indemnity curn undertakins 05.05.2018 [As per Dage no.

133 ofthe replyl 18.

Unit handover letter 23.06.20L8 [As per paqe no.

137 ofthe reply) 19.

Conveyance deed 06.09.2 018 (As per page no.

111 ofthe complaint.) Page 3 of 25 ril Complaint No.

6030 of 2022 HARERA ffiGURUGRAM on the 45.48 acres of land, under the license no.

DS-2007 124799 of 2007 dated 27.09.2007, issued by D'tCP, Haryana and thereby invited applications from prospective buyers for the purchase of unit in the said project.

The respondent confirmed that the project had got building plan approval from the authority.

Tha: the complainant while searching for a flat/accommodation was lured by such advertisements and calls from the brokers of the respondent for buying a house in their proiect.

The respondent conlpany told thc cornplainant about the moonshine reputation of the company alld the replesentative of the respondent company made huge presentations about the project mentioned above and also assured that they have delivered several such projects in the National Capital Region.

That relying on various representations and assurances given by thc respondent company and on belief of such assurances, the complainant booked a unit in the project by paying an amount of Rs.10,00,000/- towards the booking of the said unit bearing no.

TPD H-F07-705, 7d' Irloor, 'l owcr H in Sector 66, having super area measuring 1950 sq. ft. to the respondent and the same was acknowledged by the respondent.

Thz.t the respondent confirmed the booking of the unit to the original allottee providing the details of the project for a total sale consideration of the unit i.e.

Rs. t i.e.

Rs.1,02,91,890/- which includes basic price, plus EDC and IDC, tw() car parking charges and other specifications of the allotted unit and provided the time frame within which the next instalment was to bc paid That a buyer's agreement was executed between the complainant and respondent on 05.03.2008.

As per clause 14[aJ of the buyer's agreenrent, the respondent had to deliver the possession of the unit by December 2 010 with a grace period of 90 days for applying and obtaining ,n" o..T"?j,il25 nt.

IV.

VI.

6030 of 2022 HARIRA ffiGURUGRAIV1 certificate.

The complainant was also handed over one detailed payment plan which was construction linked ptan.

It is unfortunate that the dream of owning a unit of the complainant was shattered due to dishonest, unethical attitude of the respondent.

VII.

That as per the demands raised by the respondent, based on the payment plan, the complainant already paid a total sum of Rs.1,15,26,892/- towards thesaid unit against total sale consideration of Rs.L,02 ,9L,89O /-.

VIII.

That the payment plan was designe{ in such a way to extract maximum payment from the buyers.

The complainant approached the respondent and I asked about the status of constfuctioh and also raised objections towards non-completion of the project. lt is pertinent to state herein that such arbitrary and illegal practices have been prevalent amongst builders before the advent of Act of 2016, wherein the payment/demands/ etc. have not been transparent and demands were being raised without suflicient justilications and maximum payment was extracted just raising structure leaving all amenities/finishing/facilities/common area/road and other thin€;s promised in the brochure, which counts to almost 500/o of thc total proj€rct work.

IX.

That the respondent despite having made multiple tall representations to the complainant, the respondent has chosen deliberately and contc'mptuously not to act and fulfil the promises and have given a cold shoulder to th lder to the grievances raised by the cheated allottees.

The respondent have completely failed to honour their promises and have not providcd the services as promised and agreed through the brochure, buyer's agreement and the different advertisementJ released frorn time to time.

X.

That the respondent has played a fraud upon the complainant and cheated them with a false promise to coq\plete the construction over the prolect site Page 5 of 25 ffiLIAREIA #*eunuennl,r Complaint No.

6030 of 2022 within stipulated period.

The respondent had further nialalfidely failed to implement the buyer's agreement executed with the complainants.

Hcnce, the complainant being aggrieved by the offending misconduct, fraudulent acti'"'ities, deficiency and failure in service of the respondent is l'iling thc present complaint.

XI.

That the complainant has suffered a loss and damage in as much as they had deposited the money in the hope of Setting the said unit For residential purposes.

He has not only been deprived of the timely possession of the said unit but the prospective return he could have got if he had invested in fixerl deposit in bank. 'therefore, the compensation in such cases would nec€'ssarily have to be higher than what is agreed in the buyer's agreement Xll.

Thal. the complainant after many request and emails; received the offer of possiession on 08.03.2018.

It is pertinent to note here that alon8 with the aborre said letter of offer of possession respondent raised several illegal demands on account of the fol)owing which are actually not payable as per the builder buyer's agreement.

XIll.

Thai offering possession by the respondent on payment of charges which the flat buyer is not contractually bound to pay, cannot be considered to be a valid offer of possession.

It would be noticed from the details provided abo'r'e that those charges were never payable by the complainant as per the agreement, by the complainant and hence the offer of possession.

XIV. sion.

XIV.

That the Palm Drive amenities are 24 X 7 Power Back up, 24 X 7 Security, Badminton Court, Basketball Court, Broadband Connectivity, Club House, Covered Parking, Creche, Gym, Health Facilities, Intercom Facility, Kids I'lay Arer, Lawn 'lennis Court, Maintenance Staff, Open Parking, Recreation Facilities, Religious Place, School, Servant Quarters, Shopping Arcade, Swimming Pool, Visitor Parking. pase 6 oj 2s (L ffiHARERA #-eunuGirAN/ Complaint No.

6030 of 2022 XV.

That the complainant requested the respondent to show/inspect the unit before complainant pay any further amount and requesting to provide the car parking space no. but the re$pondent failed to reply.

XVI.

That the respondent asked the complainant to sign the indemnity bond as pre-requisite condition for handing over of the possession.

The complainant raised objection to above said pre-requisite condition of the respondent as no delay possession charges was paid to the complainant but respondent instead of paying the delay possessio4 charges clearly refuse to handover to possession if the complainant do not sign the aforesaid indemnity bond.

Further, the complainant Ieft wi[h no option instead of signing the same. xVII.

That the complainant has nevei delayed in making any payment and have alwzLys made the payment rather much before the construction linked plan attached to the buyer's agreement.

The allottee has approached the company with a request for payment of compensation, despite not making payments on time and on the assurance that he shall make the payment of the rlelay payment charges as mentioned above along with all other dues to the company.

XVIII.

That the complainant after many follow ups and reminders, and after clearing all the dues and fulfilling all one-sided demands and formalities as and when demanded by the respondent got the conveyance deed executed on 06.09.2018.

While this sale deed acknowledges that the complainant have paid the total consideration of Rs. ion of Rs.1,15,2 6,892 /- towards full and final con:;ideration of the said apartment and applicable taxes etc. it makes no provision for compensating the complainant for the huge delay in handing ovel the unit and project.

Thr: complainant was not given any opportunity to negotiate the terms of the said sale deed.

Page 7 of 25 N Complaint No.

6030 of 2022 HARERA GURUGRAIV1 XIX.

That no negotiations were permitted in relation to the buyer's agreement datel 06.02.2008.

The complainant was told that the sale deed will encompass all the relevant issues at hand lt is submitted that this agreement and various clauses therein amount to an unconscionable agreement containing ternls that are so extremely unjust, or overwhelmingly one-sided in favour of the party who has the superior bargaining power, that they are contrary to good conscience.

XX.

Thal the respondent has arbitrarily demanded for payment of interest on account of delayed payment at the rate ol 15a/o-240lo whereas the compensation for delay stipulated for the buyers is merely Rs.5/- per sq ft' The complainant is actually entitled to interest @ 9.30% pcr annum on the total sum paid by them.

XXL Thal, the present complaint sets out the various deficiencies in services, unfe,ir and/or restrictive trade practices adopted by the respondent in salc of their unit and the provisions allied to it.

The modus operandi adopted by the respondent may be unique and innovative from the respondent's point of view but from the allottee's point of view, the strategies used to achieve its objective, invariably bears the irrefutable stamp of impunity and total lack of accountability and transparency, as well as breach of contract and duping of the allottee, be it either through not implementing the services/utilities as promised in the brochure or through not delivering the pro iect in time.

XXII. ime.

XXII.

That the complainant is the one who has invested his life savings in the said proiect and is dreaming of a home for himself and the respondent has not onl;r cheated and betrayed them but also used their hard-earned money for the r enjoyment.

4,, PaBe 8 of 25 ffiHARERA #eLlnuennl,r Complaint No.

6030 of 2022 XXIII.

The complainant after losing all the hope from the respondent company, having his dreams shattered of owning a flat & having basic necessary facilities in the vicinity of the project and also losing considerable amount, are (onstrained to approach this IIon'ble Authority for redressal of their grievance.

XXIV.

That the present complaint is within the prescribed period of limitation.

The complainant has not filed any other contplaint before any othcr forum against the erring respondent and no other case is pcnding in any other courl- of law.

C.

R€liefsought by the complainant: 4.

5. .

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

Dire(:t the respondent to pay the interest on the total amount paid by the complainant at the prescribed rate of interest as per the Act of 2016 from due date of possession till date of actual physical possession.

Direct the respondent to pay the balance amount due to the complainant from the respondent on account oF the interest, as per the guidelines laid in the Act of 2 016.

Direct the respondent company to set aside the one-sided indemnity bond get signed by the respondent from the complainant under undue influence.

0n lhe date of hearing, the authority explained to the respondent /prornoter about the contraventions as alleged to have been committed in relation to section 11(41 [a) ofthe Act to plead guilty or not to plead guilry.

D.

Reply by the respondent: 6.

The respondent has contested ttle complaint on the following grounds: i.

That the present complaint is not maintainable in Iaw or on facts.

The provisions of the Act of ZO16 afe not applicable to the pro.iect in question. question.

The application for issuance of fccupation certificate in respect of the unit page 9 of 25 HARERA Complaint No.

6030 of 2022 ffiGURUGRAM in question was submitted on'.10.06.2017, i.e., well before the notification of the llules,20L7.The occupation certificate has been thereafter issued on 25.0L.2078, prior to notification ofthe Rules.

Thus, the part of the project in which the unit in question is situated is not an'ongoing project" under l{ule 2t1lio) of the Rules.

The project has not been registered under the provisions of the Act.

This FIon'ble Authority does not have the iurisdiction to entertain and decide the present complaint.

The prcsent complajnt is Iiable to be dismissed on this ground alone. ii.

That without prejudice to the foregoing, it is submitted that once an application for grant of occupation certificate is submitted for approval in the :ffice of the concerned statutory authority, the respondent ceases to havr, any control over the same. ]'he grant of sanction of the occupation certificate is the prerogative of the concerned statutory authority over whi(:h the respondent cannot exercise any influence As far as the respondent is concerned, it has diligently and sincerely pursued the mattcr with the concerned statutor-v authority for obtaining of the occupation cert.ficate.

No fault or lapse can be attributed to the respondent in the facts and circumstances of the case. iii.

Thar, the complainant has no locus standi or cause of action to file thc pres.ent complaint.

The present complaint is based on an erroneous interpretation of the provisions of the Act as well as an incorrcct understanding of the terms altd conditions of the buyer's agreement dated 05.Cr3.2008, as shall be evident from the submissions made in the following paragraphs of the present reply. iv. reply. iv.

That the complainant prior to approaching the respondent, the complainant had conducted extensive and independent enquiries regarding the project and it was only after the complainant was fully satisfied with regard to all Page 10 of 25 P Complaint No.

6030 of2022 HARERA GUI?UGRAM aspe:ts of the proiect, including but not limited to the capacity of the respondent to undertake development of the same, that the complainant took an independent and informed decision to purchase the unit, un- influenced in any manner by the respondent. v. 'lhat the complainant vide an application form dated 05 02.2008 applied to the respondent for provisional allotment of a unit in the project.

The comlllainant in pursuance of the aforesaid application form, was allotted an independent unit bearing no.'IPD H-F07-705 located ol'] 7rr'floor in Tower H, irL the project vide provisional allotment letter dated 11 02 2008 The complainant wilfully opted for a construction linked plan for remittance of the sale consideration for the unit in question and furthcr reprcsented to the respondent that he would remit every instalment on time as per the payrnent schedule.

The respondent had no reason to suspect the bona-fides of tt.e complainant and undertook to be bound by thc terms and conditions of th e application form. vi.

That the rights and obligations of complainant as well as respondent are completely and entirely determined by the covenants incorporated in the buyer's agreement dated 05.03.2008 which continues to be binding upon the parties thereto with full force and eFfect.

It is submitted that as per clause 14 of the buyer's agreement, the respondent had offered to deliver pos:;ession of the unit in December 2010 with 90 days of gracc period sub'ect to the allottee(sl having strictly complied with all terms and conlitions of the buyer's agreement and not beinB in default of any prouision of the buyer's agreement including rernittance of all amottnts dLtc and payable by the allott the allottee(s) under the agreement as per the schedule of payment incorporated in the buyer's agreement. lt has also been provided therein that the date for delivery of possession of the unit would stand Page 11of 25 Complaint No.

6030 o12022 HARERA GURUGRAM extended in the event of occurrence of the facts/reasons beyond the power and control of the respondent.

It is pertinent to mention that it was catepiorically provided in clause latb)tvi) that in case of any default/delay by th e allottees in payment as per schedule of payment incorporated in the buyer's agreement, the date of handing over of possession shall be extended accordingly, solely on the respondent's discretion till the payment of all outsl-anding amounts to the satisfaction of the respondent' vii. 'lhat, without admitting or acknowledging the truth or legality of the allegations aclvanced by the complainant and without prejudicc to thc contentions of the respondent, it is respectfully submitted that the pro\,isions of the Act are not retrospective in nature 'fhe provisions of the Act cannot undo or modify the terms of an agreement duly executed prior to coming into effect of the Act.

It is further submitted that merely because the,\ct applies to ongoing projects which are registered with the authority' the,\ct cannot be said to be operating retrospectively Theprovisionsofthc Act relied upon by the complainant for seeking interest cannot be called in to zrid in derogation and in negation of the provisions of the buyer's agreement.'l'he interest is compensatory in nature and cannot be granted in derogation and in negation of the provisions of the buyer's agreement This is without preiudice to the submission of the respondent that the provisions of the Act are not applicable to the project in question lt is further submitted that the interest for the alleged delay demanded by thc conrplainant is beyond the scope of the buyer's agreement' viii. ent' viii.

That the respondent had offered possession of the unit in question through lett3r of offer of possession clated 08.03 2018 to the complainant Thc contplainant was called upoll to remit stanlp and registration charges to conrplete the necessary formalities/documentation necessar, 'nt nXll""rtT ^ lx.

HARERA Complaint No.

6030 of2022 ffi.C;UI?UGRAM of the unit to them.

However, the complainant did not takc any step to complete the necessary formalities or to pay the balance amount to be paid by him.

That the respondent has credited an amount of Rs.4,08,301/- and an amount of Rs.36,982/- on account of Early Payment llebate to the account of the complainant as a gesture of goodwill. 'l'he aforesaid amount has been accepted by the complainant in full and final satisfaction of his alleged grievances and accordingly the complainant had executed the conveyance deed after receipt ofthe aforesaid amount.

The instant complaint is nothing but a gross misuse of process of law. 'that after a delay of about three months the complainant executed the unit hanclover letter dated 23.06.2018 whereby the complainant took over peaceful and vacant physical possession of the unit in question after fully satisfying himself with regard to its measurements, location, dimension and dev€rlopment etc.

It was further explicitly stated in the aforesaid letter that upon acceptance of possession the complainant would not be entitled to raiso any claim of any nature whatsoever regarding any variation in the x. size, dimension, area, location or legal status of the unit in question.

Therefore, the instant complaint is barred by estoppel. xi.

That the complaint is barred by Iimitation.

The complainant has alleged that the possession of the unit was to be given not later than December, 2010.

Moreover, conveyance deed iri respect of the unit in question had been consciously executed by the clmplainant on 06.09.2018.

6.09.2018.

In any event, the complainant has stated that thd respondent had purportedly refused to pay the so-called delayed possessi{n charges to the complainant at the time of execution of the conveyance depd.

Therefore, cause of action, if any, accrued Page 13 of 25 rd Complaint No, 6030 of 2022 HARERA GURUGRAI\4 in favour of the complainant on 06 09 2018 Thus' interest and compensation is barred by limitation the complaint seeking xii.

That the allegations of the complainant that possession was to be delivered by December, 2010 are wrong, malafide and result of afterthought in view of the fact that the complainant and Mrs' Jyotsna Dwivedi had made several payments to respondent even after December' 2010' lt is submitted if there was a delay in delivery of proipct as alleged by the complainant' then the complainant would not have remittqd instalments after December' 2010' The allegations put forth by the cbmplqinant qua the respondent are absolutely illogical, irrationdl and irreconcilable in the facts and circumstances of the case. lnstifution of the present complaint after a lapse of more than 3 years from the date of registration of the conveyance deed in favour of the complainant is clearly indicative of the mischievous and malicious intent of the complainant lt is evident that the present complaint is nothing but an afterthought and an attempt to realise unjust gain and to cause undue Ioss to the respondent' xiii.

That the present complaint is bad for non-joinder of SBI Bank as a party' TheComplainanthadavailedahousingloanfromsBlBankbymortgagins the unit question.

The complainant is estopped from claiming any amounts from the respondent in view of the loan availed by the complainant The cornplainant had specifically subrogatcd all his rights for refund/compensation/interest with respect to the unit in question in favour of SBI Bank Therefore, prosecution of the instant complaint without m:.king SBI Bank a party is bad in law' xiv. law' xiv.

That all the demands raised py the respondent with the terms and conditions of the buyer's between the parties.

There is no default or are strictly in accordance agreement dulY executed lapse on the Part of the Page 14 of 25 V ffiHARERA ffieunuennHrr Complainr No.

6030 of 2022 respondent.

The allegations lev(lled by the complainant is totally baseless.

Thus, it is most respectfully subfpitted that the present application deserves to be dismissed at the very thresfrold.

7.

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

Their authenticity is nqt in dispute.

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

E. furisdiction of the authority: 8.

The respondent has raised a preliminary submission/objection the authority has no jurisdiction to entertain the present complaint.

The obiection of the respondent regarding rejection of complaint on ground of jurisdiction stands rejected.

The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the r,:asons given below.

E.l Territorial jurisdiction 9.

As per notification no.

7/92/2077-1TCP doted 14.12.2017 issued by Town and Country Planning Department, the jurisdiction of Rcal Estate Regulatory Authority, Gurugram shall be entire Gurugram District lor all purpose with offices situated in Gurugram.

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

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

E.ll Subiect matter jurisdiction 10.

Section 11(a)(al of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale, Section 11(4J(al is reproduced as hereunder: Section 11 Page 15 of 25 p (4) The promoter sholl- (a) be responsible for all obligq ons, responsibilities ond functions under the provisions of this Act o this Act or the rul4s qnd regulqtions mqde thereunder or to the allottees as per the agreement for sole, or to the ossociotion of ollottees, os the case moy be, till the conveyance pf all the oportments, plots or buildings, os the case moy be, to the allottees, or tke common oreas to the ossociation of ollottees or the competent authoriry, os thq cose may be; Section 34-Functions oI the Authority: 344 of the Act provides to ensufe complionce of the obligotions cost upon the promotert the qllottees ond the feal estate agents under this Act ond the rules and regulotions mode thereunclett n view of the provisions of the Act of 2016 quoted above, the authority complete jurisdiction to decide the complaint regarding non- Complaint No.

6030 of 2022 e promoter leaving aside compensation adjudicating officer if pursued by the tion of the Rules. ised the contention that the said project of 11.

So, has project made prior to notifi The respondent-promoter has make an within a 12. ffiIARERA S- eunuennvr compliance of obligations by which is to be decided by complainants at a later stage.

F.

Finding on obiections ra by the respondent: [.] O bjections w.r.t. application br issuance of occupation certificate of the the rospondent is a pre-RERA p ject as the respondent has already applied for issuance of occupation ificate from the competent authority on 30.06.2017 i.e., before the notifi tion ofthe Rules,2017.

13.

The authority is of the view th as per proviso to section 3 of Act of 2016, commencement of this Act i.e., 01.05.2017 on-going projects on the date r and for which completion certi te has not been issued, the promoter shall application to the au oriry for registration of the said project period of three months om the date of commencement of this Act and the relevant part ofthe Act i reproduced hereunder: Provided that projects thot a on-going on the dote of commencement of this certfcate hos not been issued, the promoter Authority for registration of the saicl project Ac project Act ond for which the completi sholl moke on application to v,)ithin o period ofthree months the dote ofcommencement ofthis Act.

Pa8e 16 of 25 L 1-4.

6030 of 2022 ffiHARERA & eunuow The legislation is very clear in this aspect that a project shall be regarded as an "on-going project" until receipt of completion certificate Since' the completion certificate is yet to be obtained by the promoter-builder with regards to the concerned project, therefore the plea advanced by it is hereby rejected.

F.ll Obiections regarding iurisdiction of authority w r't' buyer's agrecment executed prior to coming into force ofthe Act Another contention of the respondent is that authority is deprived of the jurisdiction to go into the interpretation of, or rights of the parties inter-se in ac'cordance with the buyer's agreement executed between the parties as refetred to under the provisions of the Act or the said rules has been executed inter se parties.

The authority is of the view 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 harrroniously' Ho\ /ever, if the Act has provided for dealing with certain specific pror/isions/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 corring into force of the Act and the rules' Numerous provisions of the Act save the provisions of the agreements made between the buyers and sell:rs.Thesaidcontentionhasbeenupheldinthelandmarkjudgmentof Nee'lkamal Realtors Suburban Pvt' Ltd' Vs' IlOl ond others' (W'P 2737 of 201 7) d,ecided on 06.12.2017 which provides as under: "119.

LJnder the provisions of Section 18, the deloy in handing over the fosses\ion iouta A" ,ourria frrm the Aote mentioned in the ogreemenL Ior sale entered into 't y ti" lri. y ti" lri.or", ird the dllottee l'ro to tts regislrotion under,RLRA' Ilnder the provisilns of REl1., the promoter is given a fodltty rc revi5e.th,e doLc of completion 'ofprol"rt ina auior" ih",on.'" unier Section 4 The RERA does not contemplote iewriiing of contract between the flot purchoser and the pronoter"" 15.

Page 17 of 25 {L Complaint No.

6030 of 2022 ffiHARERA # eunuennvt lZZ.

W" nrr" otr"ody discussed that above stoted provisions of the REM ore not rptrosDective in nature They may lo some extent be hqving o relroqctive or quosi ';';;;;r;;"';ir;;;;,-ih"nL' 'io's'ou'd the votiditv of the prov.isions of.REp* 'riinii'ie ,n'itt*g"a The Parlioment is competenl enough Lo legislqte law hqvnq "*r:r*""iriri,i irrooctive eflect A low con be even fromed to qfJect subsisting / ';',i';i;;i';;;,;;,;;;l;iii* iLun, ,n" oorties in Lhe tarser pubti( inrcrest we do *i"iir"- rii i."u, in our mind thol the REM hos been lromed in the.lotoer ',7iii"',rr"rit, "fr* " thorough itudy ond discussion mode ot the highest level bv ii!"irrri,ri l"^:,i,ti"i or'a Sa"it committee' which submitted its de'toiled reports." lo. efro, iilppeal no.

173 of 2019 titled as Magic Eye Developer PvL Ltd' vs' aforesoid discussion, we ore of the considered Act ore quosi retrooctive to some extent in \7.

Ishwer Singh Dahiyd, in order dated 17 'lZ'2019 the Ilaryana Real Estate Appellate Tribunal has observed: "i4.

Thus, keePing in view qur opinion that the provisions of.lfhe operation ond w! ffi, ,*"ri,iirrl,t "iii"Li'"ik"" r"' s;k the attottee sho.tt be e:titted :1,:,r:e, L(I Ittt uttu tuttutLtvttr -,niLer"st/aebyea pos,"rr1rn rllLlrges on '!: :**:i,hh::: :l-'-:':":::::''"'::,i::, ',iii''i,),7""ii'ii ',,ii"";;i;'',;i;;; sided, unfair .ond. unreQsonqb.te,,rote of 'ro*'iirrii"nk*tioned in the agreement fot solc is liable ra be gnore! ' The agreements are sacrosanct-save and except for the provisions which have been abrogated by the Act itself' F. itself' F.ttl obiections regarding the oomplaint being barred by estoppel' 18. il;; ;;";ient hi"s raisJd an oblection that 'he instant complaint is barred by estoppel as upon execution of conveyance deed dated 06 09 2018' thc conlplainant is now estopped from raising these belated claims/demands as he themselves had acknowledged and accepted thal "that the vendee shall not raise any obiectton or make any claims on account of inconvenience' if any, which may be alleged to be suft'ered by the vendee due to such developmental/ construction or its incidental/related octivities " 19. 'lhe Authority observed that though the conveyance deed has been executed on 06.09.2018 but as per proviso to section 18 of the Act of 2016' if the allottee does not intend to withdraw from the proiect' he shall be paid' V PaBe 18ot 25 20.

6030 of 2022 ffiEARERA #- eunuennvt by the promoter, interest for evqry month of delay, till the handing over of possession, at such rate as may be prescribed.

In the present complaint' as per the possession clause of fhe buyer's agreement, the due date of possession of the unit was M{rch, 2011 but the same was offered on 08.03.2018 after a delay of almpst 6 years.

Therefore, the complainant is entitled for delay possession c$arges for the delayed period as statutory right of the complainant-allottee as per the provisions of section 18 of the Act of 2016. l'hus, in view of the agreed terms and conditions duly agreed bet\reen the parties and the provisions of the Act of 2016, the contention of the respondent stands rejected.

F.lV Objections regarding the complaint barred by Limitation Act' 1963' Anothei contention of the respondent is that the offer of possession was made in March 2018, the period of limitation has come to an end in the year Marr:h 2021.

But the period from 15.03.2020 Lo 28 02 2022 was quoted as zero period vide order dated 10.01.2022 of the flon'ble Apex Court in M A' No. n M A' No.

21 of 2022 of suo-moto writ petition Civil No 3 of 2020 And the complaint is within Iimitation after computing the said zero period allowed by the Supreme Court of lndia Thus, the contention of promoter that the complaint is time barred by provisos of Limitation Act stands reiected' F.V objections non'ioinder of SBI Bank as a necessary party' ih" ."sponct"nt has iaised a contention that the filing o[ present con)plaint without making HDFC Bank as a party to the samc is bad in eyes oI law as the complainant has availed a loan of IIs 18,17,000/- from the financial institution.

Though a tri-partite a8reement daled 2812 2017 was executed bet,reen the complainant, resPondent and SBl bank and in lieu of the same the complainant has approached the financial institution to avail a loan of Rs.:t8,17,000/-.

But no loan agreement has been executed between the 21,.

Page 19 of 25 d'e HARIRA Complaint No.

6030 of 2022 ffiGTJAUGRAM parties and no loan amount was disbursed by the bank to the complainant as per the documents available on record.

Therefore, there is no privity of contract between the parties and there is no need to make the SBI bank a party to the present complaint.

Thus, the contention of the promoter stands rejected.

G, Finding on the relief sought by the complainant: G.l Direct the respondent to pay the interest on the total amount paid by the complainants at the prescribod rate of interest as per the Act of 2016 from due date ofpossession till date ofactual physical possession.

G.ll Direct the respondent to pay the balance amount due to the complainants from the respondent on account of the interest, as per the guidelines laid in the Act of 2016.

22.

The above-mentioned reliefs sought by the complainant are taken together being inter-connected.

23.

In the present complaint, the complainant intend to continue with thc project and is seeking delay possession charges as provided under the proviso to section 18(1) ofthe Act.

Sec.

Act.

1B(1) proviso reads as under. "Section 7B: - Return ofamount qnd compensotion 1B(1). lf the promoter fails to complete or is unable to give possession of on apL-rtmcnr. plot, or bulclinq, - Provided thot where an ollottee does not intend to withdruw from the project, he shall be paid, by the promoter, interest for every month of deloy, till the honding over ofthe possession, at such rate as may be prescribed," 24, Clause 14(a) of buyer's agreement dated 05.03.2008 provides for handing over of possession and is reproduced below: 74.

POSSESSTON (a) Time of handing over the Poqsession Sltbject to terms of this clouse pnd subject to the Aportment Allottee having complied with all the terms ond conditions of this ogreement, ond not being in default under ony of the provisiqDs of this agreement ond complionce with oll ptovisions, formalities, document|tion etc., os prescribed by the Compony, the Company proposes to hand over the possetsion of the Apartment/villa/Penthouse by December 2070.

The Aportment Allottee agrees ond understqnds thot the Company shall be entitled to o grace period ofninety (90) Page 20 of 25 IU Complaint No.

6030 of 2022 ancl obtaining the occupotion certiJicote in respect of the Group (EmPh,sis suPPlied) 25.

The Authority has gone through the possession clause ofthe agreement and HARERA ffiOURUGRAM dctys, for applying Housing Complex. observes that the respondent-developer proposes to handover the possession of the allotted unit by December, 2010 with grace period of 3 monlihs.

26.

The said grace period is allowed in terms of order dated 08.05 2023 passed by the Hon'ble Appellate Tribunal inAppeal No.

433 of 2022 tilted as Emaar MGF Land Limited Vs Babia Tiwari and Yogesh Tiwori wherein it has been held that if the allottee wishes to continue with the project, he accepts the term of the agreement regarding grace period of three months for applying and obtaining the occupation certificate.'[he relevant portion of the order dated 08.05. ted 08.05.2023, is reproduced as under: ",1s per aforesaid clquse of the agreenent, possession of the unit wos to be delivered u,itiin 24 months Irom the date oI execution of the ogreement i e byA703'2014 4s per the above said clquse 11(o) of the agreement' o groce period of 3 months for 'obtqining 1ccupation Certilicate etc. has been provided The perusol of the (tccupation Cer;ifrcote dated 11.112020 ploced at page no 317 of the poper book reveals thot the oppellant-prcmoter has opplied for grant of Occupation Certificote an 21.07.2020 which wos ultimotely granted on 1111 2020' lt is also well known that it takes time to apply ond obtain Occupation CertificaLe fron the concernecl authority.

As per section 18 of the Act, if the project of the promoter is deloyed ond i,'the qilottee wishes to withdrow then he has the option to withdrow from Lhe (,rojectondseekret'undoftheamountoriftheallotteedoesnotintendtowithdraw 'Jrom the project ond wi;hes to continue with the project, the allottee is to be poid i.tterestbyt'hepromotert'oteochmonthofthedeloy'lnoutopinioniftheollottee wishes to continue with the project, he occepts the tern ofthe ogreement regording ltrace period of three months for opplying and obtoining the occupcttion iertif;cate.

So, in view ofthe above soid circumstsnces, the appellant'promotet is e; ed to avail the grace period so provided in the ogreement Jor applying ond obtaining the Occupotion Certilicate' Thus' with inclusion of grace period oJ :l months os per the provisions in clouse 71 [o) of the agreement, the total t:ompletion period becomes 27 months Thus, the due t{ote of clelivery oJ possessnn comes out to 07.06-2074." 27.

Therefore, in view of the above judgement and considering the provisions of the Act, the authority is of the view that, the promoter is entitled to avail Page 21of 25 & Complaint No.

6030 of 2022 HARERA MGURUGRAM the grace period so provided in the agreemcnt for applying and obtaining the c,ccupation certificate. rtificate. 'l'herefore, the due date of handing over of posserssion comes out to be March, 2011 including grace period of 90 days' 28.

Admissibility of delay possession charges at prcscribed rate of interest: The complainant is seeking delay possession charges however, proviso to section 18 provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for ever)' month ol delay, till the handing over of possession, 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- lProviso to section 12, section 18 and sub-section (4) ond subsection (7) ofsection 791 O For the purpose of proviso to section L2; section 18; ond sub-sections (4) a;d [7) of section 19, the "interest ot the rate prescribed" sholl be the State Bonk of 1t;dio highest marginol cost of lending rate +20k.: Provided that in case the State Bonk of lndia mqrginal cost of lenditlg rote (l.\CLR) is not in use, it shollbe repldcecl by such benchmark Iending rctes which the irate Bank of lndia moy frx from tine to time for lending to the general public' 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 and f the said rule is tollowed to award the interest, it will ensure uniform praclice in all the cases.

Consequently, as per lvebsite oF the State Bank of India i e , https://sbi co in, the rnarginal cost of lending rate (in short, MCLR) as on date i e , 06 03 2025 is @ 9.10%.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2o/o i.e., 1l.l0o/o.

The definition of term 'interest' as defined undcr section 2(za) of the Act provides that the rate of interest chargeable from the allottee by the 29.

30.

31.

PaBe 22 of 25 rr Complaint No. plaint No.

6030 of 2022 HARERA #GURUGRAM promoter, in case of default, siraft Ue equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default' 32.

Therefore, interest on tlie delay payments from the complainant shall be charged at the prescribed rate ie, 1110% by the respondent/promoter which is the same as is being granted to them in case of delayed possession charges.

33.

The respondent in its reply has submitted that an amount of Rs 4'08'301/- and Rs.36,982/- has already been credited on account of Early I'ayment Rebate as a gesture of goodwill and the same has been accepted by the complainant in full and final satisfaction of his alleged grievances' 34.

On r:onsideration of the documents available on record and submissions mad e by both the parties regarding contravention of provisions of the Act' the authority is satisned that the respondent is in contravention of the section 11(4J(a) ofthe Act by not handing over possession by the due date as per the agreement.

The due date of handing over of possession is March' 2011 but the offer of possession was made on 08032018 and the conveyance deed was executed on 06092018 Accordingly' the non compliance of the mandate contained in section 11(41(a) read with proviso to section 18(1) of the Act on the part of the respondent is established As such the allottees shall be paid, by the promoter' interest for every month of delay from the due date of handing over the possession i e ' March' 2011 till offer of possession (08.03.2018J after obtaining occupation certificate plus two months i.e., 0s.05.20lB or actual taking over of possession ie'' 23.06.20LS,whicheverisearlieratprescribedrateie'11107opaasper proviso to section 1B(1) of the Act read with rule 15 of the rules' Offer of possession plus two months which comes out to be 08052018 is the earlier date.

Thus, the complainant is entitled for delayed '"tt""r:tjr"l,, ffi HARERA & eunuennvt charges from March, 2011 till Rs.

1 till Rs.4,08,301/- and Rs.36,982/-) Comptaint No.

6030 of 2022 p8.05.2018.

The amount of Rs.4,45,283/-[ already paid on account of Early Payment Rebate shall be adjusted.

G.lll Direct the respondent company to bond get signed bY the resPondent set aside the one-sided indemnity from thc complainants under undue influence.

35.

The Authority has already taken a view in Cr' No 4031/2015 and others titled as yarun Gupto V/s Emoar MGF Land timited ond others and obse'rved that the execution of a conveyance cleed does not conclude the relalionship or marks an end to the Iiabilities and obligations of the promoter towards the subject unit and upon taking possession' and/or executing conveyance deed, the complaints never gave up their statutory right to seek delayed possession charges as per the provisions of the said Act.

36.

Therefore, after execution of the conveyance deed the complainant-allottee cannotseekreliefsotherthanStatutorybenefitsifanypending.0nccthc conveyance deed is executed and accounts have been settled' no claim remains.So,nodirectionsinthisregardcanbeeffectuatedatthisstaSe' H.I)irections of the authority: 37.

Hence, the authority hereby passes this order and issues the following dirr:ctions under section 37 of the Act to ensure compliance of obliSations cast upon the promoter as per the function entrusted to the authority under section 34[0: i.

The respondent is directed to pay interest to the complainant against the paid-up amount at the prescribed rate ie' 11 10y0 pa for every month of delay from the due date of handing over of possession ie' March, 2011 till offer of possession (08 03 2018) after obtaining occupation certificate plus t"vo months ie ' 08 05 2018' being earlier' fi/ Page 24 of 25 f c*rthin.

N" 6030 "f 'zotl gHARERA e eunuGnAt'l as per section 1'8(1) of the Act of 2016 read with rule 15 of the rules after adjusting an amount of Rs'4,45,2831- already paid on account of delay compensation/Early Payment Rebate' ii. ebate' ii.

A period of 90 days is given to the respondent-builder to comply with the directions given in this order and failing which legal consequences would follow.

38.

Complaint stands disPosed oi 39.

File be consigned to registry' v.t_/ Dated: 06.03.2025 tviiay Kuffar Goyal) Member Haryana Real Estate RegulatorY AuthoritY, Gurugram Pase 25 of 25 Complaint No.

6030 of 2022 ffiHARERA & eunuennri,l