SUNIL KUMAR YADAV vs ANSAL HOUSING LTD

ffi HARERA # arRuGRAr'/ BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Dateofdecision: 15.O4.2025 Complaint No.

5U94 of 202.J rnd NAME OF THE BUI LDER ANSAL HOUSING LIMITED SAMYAK PROIECTS PVT.

LTD.

ANSAL HEIGHTS 86 Case title Sunil Kumar Yadav V/s Ansal llousing Ltd.

Formerly known as Ansal Housing & Construction Ltd. & Samyak Proiects Pvt.

APP T Sh. llimar Sh.

Aman for R1 Sh.

Sanya It,,l*i.t irt,t,r. a r,,.-vr' anrot : rrr .rn Housing Ltd.

Formerly known as Sh.

Anranr Ansal Housing & Construction Ltd. & for I{l Samyak Projects Pvt. t,td.

Sh Sanva PROJECT NAME S.

No.

Case No.

7 cR/5894/2023 2 cR/6087 /2023 COMM: Shri.

Arun Kumar Shri Ashok Sangwan EARANCE rnshu (;Jut.lll) ndccp K.rdv.rn a A rori li)r R2 rnshu (;.r u tJ [r ndccp KJLlyan ior R2 Chairperso n Memhcr ORDER 1.

Thisordershall disposeof both the complaints titled as abovc filctl bclirrt,rhis authority in form CRA under section 31 of the Real Estatc (Regulati0n anil Development) Act,2016 (hereinafter referred as,,the Act,,) reacl with rulc 28 of the Haryana Real Estate Illegulation and Development) lllles, 20]7 (hereinafter referred as "the rules") for violation of scction I 1(4)(a) ol rhc ;\r r wherein it is inter alia prescribed that the promoter shall []e, rcsponsiblc ior .rll its obligations, responsibilities and functions to thc allottecs irs pcr thI agreement for sale executed inter se between parties.

Prgc 1 ol 25 GURUGRA[/ HARERA The core issues emanating from them are complainant(s) in the above referred matters same respondent/promoter i.e., M/s Ansal Housing Limited.

The terms and conditions ofthe buyer's agreements, fulcrum ofthe lssue involved in all thcse cases pertains to failure on the part ofthe promoter to deliver timely possession ofthe units in question, seeking award ofdelay possession charges along with intertest.

The details of the complaints, reply to status, unit no. , unit no., datc of agrccnrcnr, possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given in the table below: "ANSAL H EIGHTS 86" Possession Clause:31 Sector-86, Guru€ram. namely, "Ansal Heights 86" (group housing colony) being developed by the "31.

The deueloper sho olfer possession of the unit ony time, within o periodoI42 months fr::n -t\e dat: ?f execution of the ogreement or within 42 -onih, yro- the dote of obtaining all the required sanctions dnd qpprovol necessary for commencement ol con-struction, whichever is later subject to timely payment of o ducs hy buyer onrl su bltc t to force mojeure circumstances os described in clouse 32. lurther, there :holl bc o urut| period of 6 months ollowed to the developer over ond obove the penod of 42 nto|th., Lts above in offering the possession ofthe unit." Occupation certificate: - Not obtai;ed E-1202 admeasuring 1690 sq. ft. .

31 ofcom laint 20.12.2012 .28 ofcomplaint similar In nature and thc are allottees of the proicct, Complaint No.

5894 of 2023 and anr.

2.

3. (Emphasis supplicd) cR/60A7 /202:t V-02 admcasurinB 44tt) sq ft.

Ipg.:]7 oi complainr I 05.04.201 3 lpg 15 of colnplnrn r] 01.10.2017 'due datc cal.uldrcd lftrnr (tilr ol conrmenccnrcnr r)[ ri)n\lnr( lrirr i t.0l l0 2013 bcrf S l.I.l Proiect Name and Location Complaint No. cR/sa94/2023 Unit no. and area admeasuring Date of builder buyer agreement (signed by Due date ofdelivery of possession 20.72.2076 l']aBc 2 ol 25 ffi HARERA # alnuennti,r Sale Consideration [SC) 162,47,t6B/- .6 3l ofcomnlaintl lno 1e Total Amount paid by the complainant(s)(AP) 169,19,2s8/- r l1.B lpg.

4 4 olcomplainrJ IsOA Jal Not offered Nc _- -i L Possessron 1 nDa z.DPc l; ;:: z, l U\(r .t Lrliga I 11.00 Offer ofpossession Reliefsought 1,25,000 /. c!g!u!artl 1 1 .BB ,29 ,420 I - )A datcd 04 0t1.202.11 Not otlclcd I)PC Posscsston tio n 4. cost- r, , I I r1,0q,000/- The aforesaid complaints were filed by ttre-omplaiants agarn. nts agarn.t thc pronrorcr on account ofviolation ofthe builder buyer,s agrcemcnt exccuted l)etwccn th(, parties in respect of said unit for not handing over the possession by thc drrc date, seeking award of delay possession charges a long wjth interest.

It has been decided to treat the said complaints as an application [or non compliance ofstatutory obligations on the part of the promotcr/ responcit,nt iD terms of section 34[0 of the Act which mandates the authority to cnsL]r!. compliance ofthe obligations cast upon the promoters, thc allottee(s) and the real estate agents under the Act, the rules and the regulations madc thcrcundcr.

The facts of all the complaints filed by the conrplainant(s)/allottcc(s)art. .rlso similar.

Out of the above-mentioned case, the particulars of lcacl casc CR/6087/2023 Manish Kdkkor & anr.

V/s Ansol Housing Ltd.

Formerly known as Ansal Housing & Construction Ltd. & Sdmyak projects pvt.

Ltd. tra being taken into consideration for determining the rights of thc allottcc(s) qLra delay possession charges along with interest and com pcnsation.

Prol'ect and unit related details The particulars ofthe project, the details ofsale consideration, the anlount paid by the complainant(sl, date of proposed handing over thc posscssion, rlclav period, ifany, have been detailed in the following tabular lornr CR/6087/2023 Manish Kakkar & anr.

V/s Ansol Housing t,td.

I:ormerly known as Ansdl Housing & Construction Ltd. & Samyak irojects pvt. t.td.

5.

6.

A.

7.

Lomnlarnr No 5t]94 oi 202 i .rrr,l anr Page 3 ol 25 ffiIAEBA ffieunuonnu Complaint No.

5{}94 of 202:l .jnd anr ctor [J6, Curugr.lnl zs.os:otl valid upto he compla inrJ e complaint) mplainr) rhe com pk intJ 'er possession of the Unit -iod of 42 months lrom ofAgreement or within lote olobaoining oll the nd opprovol necessory tt oJ construction, tject to timely poyment of r ond subject io force s os described in clouse I be o groce periotl of 6 te Developer over ond 12 months os obove in n olthe Unit he c Unit he comploint) S.

Particulars Details A,rsut He,gt ts AO", Se 7.

Name and location of the project 2.

Nature ofthe project Group housing colony 3.

Project area 12.843 acres 4.

DTCP license no.

48 of 2011 dated 2 28.05.2017 t',tot regis-tered 5.

RERA Registered/ not registered 6.

Unit no. v-0 5 (As per pagc no.

1B ofth +:OO r.1 r-- (As per page no.

18 ol th 7.

Unit area admeasuring B.

Revised unit number and area as per Ietter dated 15.11.2013 v.02 4410 sq. ft. (as per page no.

37 ofco 9.

Date ofVilla buyer agreement 05.04.2013 [As per pagc no.

15 of rh 10.

Possession clause 31. the Developer shalt olfer ony time, within o perio( the dqte ofexecution ol.

42 monthslrom the dot, required sqnctions ond Ior commencement whichever is loter subjec oll the dues by Buyer c mojeure circ umstonces at 32.

Further, there sholl b months ollowed to the obove the period ol 42 ollering the possession . (As per poge no.

23 ol the P.gc 4 r)l 25 ffi HARERA *&-GLTRUGRANT 11.

Due date of possession 05.04.2017 (calculated from the date including grace period) 12.

Total sale consideration Rs.1,76,83,500/- [As per payment plan o complaint) XrtAAjI,,+ZO.+tj - [as alleged by rhe application dared 23.05.2 13.

Amount paid by tt " complainant t4.

Occupation Certificate Not obtained 15.

Offer ofpossession Not offered Facts ofthe complaint The complainants have ntade the following submissions in thc co nr pla in t: a.

That on 17.03.2012, the first buyer Mr.

Narendcr Kumar bookc(l a bearing unit no.

V-002 (earlier V-0051 adnrcasuring 4.:10() sq. fr in proiect named "Ansai Hejghts 96,, in Sector 96, Gurugrarr. b.

On 07.09.2012, the first buyer translerred all the rights and liabilitics in respect of such allotment to the complainant Mr.

Manislr Kakkar anci l\,1r s Meenakshi Kakkar with due permission of respondent no. l.

Accordingly, the villa bearing unit no.

V-002 (earlier V-005) admcasuring 4:J00 sq.

4:J00 sq. lr rI the project named "Ansal Heights 96,, in Sector g6, Gurugram, was allottc(l to the complainants. c.

That on 05.04.2013, builder buyer agreement (tsBA) was cntercd rn[o between the parties wherein as per clause 30, the developer shotrlci ollu possession of unit within 4g months (42 months + 6 months as gr..c periodJ from date oIexecution of allotment letter or thc datc ofol)tarnll]il all the required sanctions and approval necessary for thc commcnccnrcnt of construction, whichever is later. oi huycr's,rgrccntcnt n page no.

31 of rhc complainant vtde 024 wirhout prooli B.

B, v illa thc Complainr No.5t194 o12023 nd l)J8( 5 (,1 25 ffi HARERA *el arnuennu C.

9. d.

That vide Letter dated 15.11.2013, The respondent no.

1, informed rhc complainants that their unit no. has been revised to V,002 fror.n V 005 antl area of the unit also increased Fromm 4300 sq. ft. to 4410 sq. tt and demanded Rs.

18,43,408.44/-fromthe complainants.

It is pertinen t to nor 0 here that even aflter executing BBA, the respondent no.

I unilatcri]lly revised the layout plan and changed, the unit no. and area ol the unit and put additional financial burden on the complainants by incrcasing thc arca ofthe allotted unit without their consent. e.

That out of the total costofthesaidunitasum ofRs.49,7g,675l,hasbccn paid by the complainants to the respondent no.

1 till no$/ as pcr thc payment plan.

That as per the BBA, the comntitted date of off.cring rho possession was 05.04.201 7 but even after a delay of alnrost 6 ycars a nd 5 months, the project has not yet been completed and thc rcspondcnts .rrt still not offering physical possession of the said villa, which is a clc.r violation ofprovisions ofBBA and amounts to breach of BBA on the part ol the respondents. f.

That the cause of action arose in favour of the conrplainants and ag. ts and ag.rinst the respondents from the date of booking of the said unit and it furthcr arose when respondents fa iled /neglected to deljver possossion ol thc s,rrrl units within a stipulated time period.

The cause of action [urthcr arose when the respondents has not completed the said project with thc assrrr_crl facilities and amenities.

It further arosc and it is con[iDUing and rs strll subsisting on day-to-day basis as the respondents has stir not rcctificd r)is defects and not fulfilled their obligations as per the builder buycr,s agreement.

Reliefsought by the complainants: Complaint No.5{194 of 202:l .rnrJ The complainants have sought following relie(s) Pagc 6 ol 25 ffi HARERA seunuennlir a.

Direct the respondent to handover the physical possession along with rhc delayed possession charges along with conrpound intcrest (., 24o/r 1.,tcr annum to the complainant.

10.

On the date ofhearing, the authority explained to the rcspondent/ pronrotcr about the contraventions as alleged to haye been committed in rclatjon t(i section 11(41 (a) ofrhe act to plead guilty or not ro plead gujlry.

D.

Reply by the respondenr no.

1.

11.

The respondent has contested the complaint on the [ollowirlg grounds: a.

That the present complaint is neither maintajnable nor tcnable by bor h law and facts.

It is submitted that the prcsent conrpl;tir)t rs nol maintainable before this Hon,ble Authority, as thc conrpl.rrr.rnr lr,rs admitted that he has not paid the fullamount.

Thc Contplainant has l.rlcrl the present complaint seeking interest.

The prescnt conrplaint is liublC to be dismissed on this ground alone. b.

That even otherwise, the Complainant has no locus_standi and causc ol actlon to file the present complaint.

The present contplajnt rs bascci on an erroneous interpretation of the provisjons of the Act as rvcll as an incorrect understanding of the terms and conditions ol the Allotr)lent Letter/Buyer's Agreement dated 0S.04. ted 0S.04.20,13, which is cvidentrary fronr the submissions made in the l.ollowing paragraphs oi thc prcse nt re pl_!. c.

That the Complainant approached the Respondent somctrnrL, in thc ycrr 201,1 for the purchase of an independent unit l) tts up((,nrnl residential prolect,,ANSAL HEIGHTS,,(hereinafter be relcrrcd ro as rhc "pro.iect"] situated in Sector_g6, District Curgaon (llaryanal.

It rs submitted that the Complainant prior to approaching thc r csponclent had conducted extensive and independent enquirjes rcgardjng tl)e project and it was only after the Complainant was bcinfl fully satisficd i,a8e 7 ot 25 Complaint No.5{194 of 202..t rnd HARERA GURUGRAM with regard to all aspects ofthe project, including but not linr ir0d ro thc capacity of the Respondent to undertakc dcveropnrcnt oI thc sanrc ,rrrrl the Complainant took an independent and informcd rlccision [o purchase the unit, un-influenced in any manner. d.

That thereafter the Complainant applied to the RcspondL.nt for provisional allotment of a unit in the projcct.

Thc 0onrplain,rDt, rn pursuant to the application, was allotted VILLA bearing No.

V 002 in thc pro.iect "ANSAL HEIGHTS" situated at Sector U6, Disrrict (;urgaon Haryana.

The Complainant consciously anci wilfully optccl tor a Construction Linked plan for rentittance of the sale considcrirtl{)n for the unit in question and further represented to the Ilcsponclcnt that tho Complainant should remit every instalment on tin]e as per the payntcnt schedule.

The Respondent had no reason to suspect the bonafidL. of tllc Complainant. e.

It is further submitted that despite there being a nuntber of defaLrltcrs in the project, the Respondent itself infused funds into thc protcct .rn(l has diligently deveroped the project in question.

It is aiso su brn irtcd rrrar the construction work ofthe project is swing on full mode ancl thc work will be completed within the prescribed time period as givcn bv lhr respondent to the authority. f. hority. f.

That without prejudice to the aforesaid and the righ ts of the responden t, it is submitted that the respondent would havc handed ovcr the possession to the Complajnant within time had thcre becn no lorcc majeure circumstances beyond the control ofthe rcspondent, thcrc hacl been several circumstances which were absolutely bcyond antl out ol control of the respondent such as orders dated 16.01.2012,31.O./.2012 and 21-08.20-L2 of the Hon,ble punjab & Ilaryana High Courr cjulv l).rg(,t] (,1 Zs Complaint No.

5894 ol202.l an<l ffi!aRERA ffieunuenntrl Complainr No.

5894 of 2023 and anr. passed in Civil Writ petitjon No.20032 of 20OB through which thc shucking /extraction of water was banned which is rhc backbonc ol construction process, simultaneously orders at different dates passcti by the Hon'bte National Green Tribunal thereby restraining thc excavation work causing Air Quality lndex bcing wo rst, r1r ay bc jt,r rrr lrr I to the public at large without admitting any liability.

Aparr trom rhcse the demonetization is also one of the major Factors to delay in giving possession to the home buyers as demonctization causcd abnlpt stoppage of work in many projects. ]'he sudden rcstrrcti, ., withdrawals led the respondent unable to cope with the labour pressure.

However, the respondent is carrying its business in Iettcr an(J spirit ofthe Builder Buyer Agreement as well as in compljancc of othcf Iocal bodies of Haryana Government. g.

That the respondent is carrying his business in lcttcr and sprrrt ol rhc Builder Buyer Agreement but due to COVID"19 thc lockdown was imposed throughout the country in March, 2020 whtch badly allcctcrl the construction and consequently respondent was not ablc to handover the possession on time as the same was bcyond thc control oi the respondent.

That similar lockdown was imposcd jn tlrc yc. n tlrc yc.rr 102 I which extended to the year ZOZZ wh ich badly alfected [he construcrron and consequently respondent was not abre to hanrrovcr the possession on time as the same was beyond the control oF thc respondcn[. h.

That the ban on construction was imposed by the Iion,ble supronc court of India in the year 2O2l due to the alarnl ing levels of pollution in Delhi NCR which severely affected the ongoing consrruction oi the proiect.

I).rgr.

9 ol 25 HARERA Complaint No.

SB94 of 202..1 anO ] ffi GURUGRAIV l i.

That without admitting or acknowledging the truth o, t"grlity of tl" allegations advanced by the Complainant and without prejudice to thc contentions of the respondent, it is respectfully subnritteci that rhn provisions ofthe Act dre not retrn(np.rir,^ i^ ^^,..-- .", the Act cannor un., ".,"::;:;:,':,.;X j: :;::":l:;; "-:::.: prior to coming into elfect ofthe Act.

It is further subntitted that nrerel_y because the Act appries to ongoing projects which arc rcgrstcrL.d with the Authority, the Act cannot be said to be operating rctrospCCtr\,(,1_v The provisions of the Act relied upon by the Conrplainant sccking refund, interest and compensation cannot be cared into ajd in derogation and ignorance of the provisions of thc Iluildcr BLr1,cr,s Agreement.

It is further submitted that the interest for_ thc allcgccl rlcla_v demanded by the Complainant is beyond the scope of the IJuyer,s Agreement.

The Complainant cannot demanri any interest or compensation beyond the terms and conditions incorporatcd rn thc Builder Buyer,s Agreement.

However, in yiew of th e Iaw as la id clowrr b.v the Hon'ble Bombay High Court in a case titled as Ncclkanral Realtor s Suburban pvt.

Lrd.

Vs.

Union of India published in 2018(tJ R(jR (C) 29{J, the liberty to the promoter/deyeloper has been givcn U/s 4 to rntirtarc fresh date of offer of possession while conrplying tl. plying tl.re provr5jon ol section 3 of RERA Act as it was opined that the sa id n ct na mcd n li rt^ rs having prospective effect instead of retrospecrivc.

I).rra No.u6 ,rrrrl I l(l ofthe above said citations ar i rhar the respondent .",J:";:T,:n1:LJTji]:,:i,-"J,,.",,,,,, documents, if required, assisting the Hon,ble Authority ,n dccr(ling thL, present complaint at the later stage.

That it is submjtted that scvcr_il allottees have defauited in timely remittance of paymcnt of installmcnt I,a8c l0 oJ 25 ffiHARERA # atRuGRAM which was an essential, crucial and an indispensable requirement for conceptualization and development of the project in qucstion.

Furthermore, when the proposed allottees defaulted in their paymenr as per schedule agreed upon, the failure has a cascading effect on the operation and the cost for proper execution ol the project increases exponentially whereas enormous business losses befall upon the respondent.

The respondent, despite the default ofseveral allottces has diligently and earnest pursued the development of the project in question and has constructed the pro.iect in question as expeditiouslv.rs possible.

The construction of the project is contplctecl ancl ready lor delivery, awaiting occupancy certiFicate whjch js likcly to bc coDrpletc(l k.

The Central Government levied such taxes, which are still bcyond thc control ofthe respondent, it is specifically mentioned in Clarrsc 7 & 8 of the Builder Buyer's Agreement, vide which Complainants wcrc agrcc(j to pay in addition to basic sale price of the said Lllrit hc/shc/rlrr,_\,. r\/.ll (. liable to pay EDC, IDC together with all the applicable rntcrcst, incidental and other charges inclusive of all intcrest on the rr.(lL|5rrr. bank guarantees for EDC, IDC or any other statutory cicmand ctc. .l.hc Complainant further agreed to pay h is proportionatc sh a re in il nv lr r t r r r{, enhancement/additional demand raised by authoritics for thL,sc charges even if such additional demand raise after s se after sale decd has bccn executed.

Complainr No.

5B94 of 2023 and E.

12.

Reply by the respondent no. z The respondent has contested the complaint on the following groLrnds: a.

It is submitted that the Respondent No.

2 i.e.

Santyak projects l)rivatc Limited, having acquired the rights to develop thc land on which rhe present Project was to be constructed, entered into a Mcmoranrjurll ol I):gc l l ol 25 b.

HARERA GURUGRAM Understanding "MOU" dated 06.09.2011 wirh Respondcnt No.1 i.c.

Ans.)l Housing Limited with respect to the construction and developntcnt of thc present Project under the name and style of ,,Ansal Ilcights-U6,, wirh respect to the land admeasuring 102 kanals 15 nrarlas (12.84:l acrcsl falling in Rect.

14, t5 & -lg, situated 1n thc revenue cstatc ol vill.rgr Nawada Fatehpur, Tehsil and District Gurgaon, l.{aryana which is prcscntlv part of residential Sector 86 of Gurgaon Manesar ljrban |,lan 2021 ("Scheduled Land") for the development of group housjng socrcr),.

However, superseding the said M0U, the Respondcnt No.

I & 2 cntL.re(1 into a Joint Venture Agreement ,.lVA,, dated 24.05.201 3.

As per the clauses of the lVA, the entire scheme of cievelopnrcnt of thc proposed Project on the said Scheduled property was to be carricd out by Respondent No.1 i.e.

Ansal Housing Limited, at its own cost and cxpL,nsc including development of internar deveropment serviccs, conrnrcrcrar areas and other related developments, aFter taking all nccessary approvals, sanctions/ permissions etc.

It is pertinent to mention that as per the lvlOtl it was the sole responsibility of the Respond ent No..l to develop thc proiccr and handover the possession to the allottees.

It is also subnrirtcd that lt was the Respondent No.1 who received the consideration anrolrnt ironr a the allottees.

That the bare perusal of the clause 9.2 of the M OU clea rly reflccts tha t ir is the sole responsibility / obligation of the Respondent No.t towards rhc buyers / allottees. allottees.

It is pertinent to mention that as per the MOtJ tt was tjrt sole responsibility of the Respondent No.1 to develop the prolect and handover the possession to the alrottees.

It is also subm ittcd tha t rI ulas th e Respondent No.1 who received the consideration amount from all thc Complaint No.5{194 ot 2023 dnd allottees. l'age '12 ol 25 HARERA GURUGRAM Complaint No 5894 ol 20 Jnr.

I 2land I ; d.

That it is also submitted that the Hon,ble Authority in varrous cascs pertaining to the same proiect has arready decided that it is thc responsibility ofthe Respondent No.1 towards rhe allottees.

That rr is also submitted that the Hon,ble RERA Authoriry in 73 cases has decided rhar the sole responsibility to return the amount paid by rhe allottees lies upon the Respondent No.1 i.e.

Ansal.

Moreover, the Authority through Ilon,ble members Sh.

Sanjeev Arora, Sh.

Ashok Sangwan and Sh.

Vijay Kumar (ioyal in the matter of Mr Krishnendu Ghosh Dastidar And Mrs Ananyo Ghosh Dastidar V/S Ms Ansal Housing And Construction Limited (2032/201g) vide its order dated L3.0g.2022 which disposed of 42 other cases with respect to the project namely,,Ansal Heights_g6,,, clearly statcd that thc payments against the allotted units were received by M/s Ansal i lou sing & Constructions Ltd. and Samyal( pro,ects pvt.

Ltd. was not party to thc tilln,s and therefore samyak projects pvl Ltd. cannot be herd rcsprnsibl.

Als, it was held that the sole responsibility to return thc amounr paid by thc allottees lies upon the Respondent no.1/No.1 i.e.

The Authority has in its various decisions have obscrvcd that l\4/s S;rnrvirk Projects is not the primary party, neither has clirect nexus in rcspcct ol the consideration ofthe unit with the decree holder.

Moreover, it is rmportant to mention that it is the obligation of the party who has bcen benefitted by the amount of consideratjon.

Hence, it shall prcjuclicc thc rntcrcsr Respondent No.2 i.e M/s samyak proiects pvt. iects pvt. l,tcr who has ror receivcd any amount toward the completion of the said project by the Ilespondcnt No.

Moreover, it is further submitted that Arbitration procccdrngs wrrll respect to the said project are pending before the sorc n rbitrator lron,r)r(, lustice A.K.

Sikri.

It is equally important to bring to the knowlcclgc of rhrs l,age l3 {)l 2S e. f. ffi!A-RE!A ffiGURUGRAM Hon'ble Tribunal that a status quo has been maintained on the project hy the Sole Arbitrator vide interim order dated 3 t.0g.2021 till the final awa rrl is passed. g.

That there is no privity of contract between the Respondent No.Z and Complainant as it was the sole responsibility of the Respondent No.1 to deliver the units to the allottees.

Moreover, a status quo has been inrposcrl by the learned Arbitrator on the proiect, the unit cannot be handed over to the Complainant.

Copies ofall the relevant documents have been filed and placed on record.

Thcir authenticity is not in dispute.

Hence, the compraint can be decided on thc basis ofthese undisputed documents and submission made by the parties.

In complaint bearingno. s1g4/2023 the respondent no.

2 has not filed the reply till date.

The notice for hearing was duly served to respondent no.

However. despite providing enough opportunity for filing the rcply, no wntter) rcply has been filed by the respondent no.

Thus, keeping in view rhc opportunrty given, respondent no.2 have failed to file the reply in the registry.

Thcrcforc, in viow, of the above-mentioned fact, the defence of the respondcnL no.

2 rs jrcrcbv struck off by the Aurhority.

Iurisdiction of the authority The authority observes that jt has territorial as wcll as sLll)tcct n).rtl(,1 iurisdiction to ad.iudicate the present complaint for the reasons givcn bL.lo\r,.

F.

I Territorial iurisdiction As per notificatio n no.

7 /92 /2017 -1TCp dated -14.12.2017 issued by Tor,r,,n.rnd Country Planning Department, the jurisdiction of Rcal Ist.

Rcal Ist.rtc ltcgulirtor\' Authority, Gurugram shall be entire Gurugrant District fbr all prrr_pose rvitlr offices situated in Gurugram.

In the present case, thc projcct rn (lucsrron rs situated within the planning area oI Gurugram r)isrricr. ,.n,,li[:;; ii,]: 13.

L4.

15.

16.

Complaint No.

5894 of 2023 and anr HARERA ffiGURUGRAM Complaint No.

5894 of 2023 and anr 2016 provides that the promoter shall bc per agreement for sale.

Secrion ll[ )[a) is t7. authority has complete territorial jurisdiction to deal wjth thL, prcsont complaint.

II Subiect matter iurisdiction Section 11(4J(al of the Act, responsible to the allottee as reproduced as hereunder: Section 17 1+1fhe pro-oter snolL (a) be responsible for ollobligations, responsibilities ond functions under the provisions of this Act or the rules and regulations made thereunder or to the ollottees ds per the agreement for sole, or to the association of allottees, us the case may be, till the conveyance of all the aportments, plots or buildings, as the case may be, to the allottees, or the common oreos to the ossociotion of allottees or the competent authority, as the case moy be; Section 34-Functions oI the Authority: 344 of the Act provides to ensure complionce al the obtigotions cast upon the pronoters, the ollottees an(l the reol estote ogents under this Act and the rules ond reg u lotions made thereu nde r.

18.

So, in view ofthe provisions ofthe Act quoted above, the authority has contplerc jurisdiction to decide the complaint regarding non-compliance of ob ligatio ns by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a later srage.

G.

Findings on obiections raised bythe respondent.

G.l,-Obiection regarding there is no privity ofcontract between the complainant and respondent no.2.

19.

The respondent no.z i.e., M/s. i.e., M/s.

Samyak projects pvt Ltd has raised an obiection that there is no privity of contract between the complainant and respondent no.2 as it was the sole responsibility of respondent no.

1 to construct an.l handover the units to the allottees.

The respondent no.z further submitted that as per clause 9.2 of the MOU executed between the respondent no.1 and I)a8c 15 of25 ffi HARERA S- anuennnr respondent n0.2, it was the sole responsibility/obligation of the respondent no.1 towards the allottees to develop the project and handover the possession and all the consideration amount has been received by respondent no.l fronr the allottees.

20.

The Authority observes that the flat buyer agreement dated 05.04.2013 was duly executed between the complainants and respondent no. t, with res pond enr no.2, M/s Samyak proiects pvt.

Ltd., being a confirming party to rhc sni(l agreement.

It is further observed, based on the su bm issions oI respondc n t no.2, that it had earlier entered into a Memorandum of Understanding (N4otrl datcd 06.09.201,7 with respondent no.1, which was subsequently supersecied by a Joint Venture Agreement (JVAJ dated 24.05.2013.

As per rhe rerms of the lvA the entire development of the project, including internal dcvelopnrcnt works, commercial areas, and other anciilary developments, was to be undertaken by respondent no.1 at its own cost, and after obtaining all requisrte approvals, sanctions, and permissions.

21.

Importantly, both the MoU and the JVA were agreements exccuted exclusivcl_r. between respondent no.1 and respondent no.2 and lhc con]plainants \,vrrt neither a party to these agreements nor was the arrangement disclosed to the complainants, nor did the complainants have any role in its cxecution..fhc document establishing the legal relationship between the conrplainant ancl rhc respondents remains the flat buyer agreement datcd 05.04.2013, to rvhrclr respondent no.2 is a confirming parry.

Thereforc, the objection raised bv respondent no. ondent no.Z regarding the absence of privity of contract with th(, complainants is without merit and is accordingly rejectcd.

G.II. obiection raised by the respondent no.

2 in its wr,ttcn subrnissions regarding status quo being imposed by thc Learncd Arbitrator on the proiect.

5894 o12023 and anr Page I6 ot25 HARERA ffiGUI?UGRA|V 22.

The respondent no.2 has raised an objection that since the arbitration proceedings are going on between the respondent no.1 and respondcnt no.2, status quo has been imposed by the Learned Arbitrator on the projcct ancl thus the unit cannot be handed over to the complainant.

23.

The Authority observes that the respondent no.z terminated the Mou and the JVA that was executed between the respondents vide notice dated 02.02.2021 and issued a public notice in respect of the termination of the MOU.

The matter pursuant to the dispute was referred to the Hon,ble Delhi High Court under Section 9 of the Arbitration and Conciliation Act, "1996 and vide order datctl 22.01.202t, Hon'ble fustice A.

K.

Sikri, former judge of the Hon,ble Supremc Court of lndia has been appointed as a sole arbitrator of the Arbitral Tribunal by the Hon'ble Delhi High Court.

As per the order dated 31 .08.2 021 , rhc I ton.blc Tribunal observed that the construction of the project is almost conrpletc .lnd the respondent no.1 has applied for occupancy certificate.

As per the prcscnt status ofthe pro.iect, it would be apt that the respondent no.2 also cloes not rlc.rl with the project by entering into any arrangement wjth thir.l partics dur llrg thc pendency ofthese proceedings and/or till further orders.

24.

The Authority is olthe view that the order dated 31.0g.2021 is rimited to rhc extent ofthe dispute inter se the respondents and does not bar thc ju ris(l i( tror.r of this Authority to grant relief to the complainant under tlre provrsrons ol thc Act,20t6.

H.

Findings on the reliefsought by the complainants.

H.l. ants.

H.l.

Direct the respondent to handover the physical posscssion along with thc delayed possession charges along with compound interest @ 24o/o per annum to the complainant.

25.

In the present matter the complainant was initially allotted villa no.

V_05, admeasuring 4300 sq. fr. in rhe proiect ,,Ansal Heights 86,, Secror U6 by thc Complaint No.

5t]94 of 202.1 and l>agc 17 ol2lt ffi HARERA #atnuennrvr respondent-builder for a sale consideration of i1,61,25,000/-.

A buvcr,s agreement was executed with the compiainant on 05.04.2 0 1 3.

As pcr thc Il ljA landowners assigned their entire rights, entitlements and intcrost in tho lan(i and the resultant FSI of the entire project to respondcnt no.

2 i.e., Sarn_val< Projects Pvt.

Further, respondent no.

I entered into an arrangenrcnt !vitlr respondent no.

2 to jointly develop and marl(et the said prolcct.

26.

Theauthorityisoftheviewthatthebuilderbuyeragreenrentdaterl 0S.04.2013 was signed by the complainants and the respondent no.

1. .l.he respor]dcnt no.

2 was the confirming party to that BBA.

In the builder buyer agrecment, ir was specifically mentioned that respondent no.

1 and rcspondent no.

2 enler(,(l iDt o an agreement whereby the development and marketing of th c p rojcct was to bc done jointly by the respondent no.

1 & 2 in terms of the liccnsc/pcr_lrissrons granted by the DTCP, Haryana.

Although the respondent no.2 i.c., Santyak Projects Pvt.

Ltd. cancelled the agreentent vidc termination noticc rl.)l(,.i 02.02.2021and the mafter is subjudice before the arbitral tribLrnal appoinl(,(l by Delhi High Court vide order dated ZZ.OI.202t.lt is retevant ro refcr thc definition of the term .promoter, under the section 2(zk)of thc Ilcal Irstatc (Regulation and Development) Act, 2016.

Denni ons.- (zk),,ptomoter', means (, o person who constructs or cquses to be constructed on independent building or o building ,ourisang ol op-nrru,"tr, u, converts an existing building or o port thcreoftnto olto t tntents, lor the , lor the purpose of selling olt or snme oJ the "r.,i_"rir',. ,rn., per:ons ond includ$ hiS osstqn(c5; or (i0 o person who clevelops land into o project, tvhethet or noL the person olso constructs structures on any ol the p-,i,i., 1", ,tr" purpose ofselling to other persons oll ot some ofthe Dlots tn the said project, whether with (,r without *rurtur", th", "ou,. ,,, {iii) .rxxxxx.yx 27.

Theauthorityobservesthatlandowneriscoveredbythcdcfinitionol pro.rotcr under sub clause (i] or (ii) ofsection 2(zkJ.

A person who consrrLrcts or c,rLrs(,s Complaint No.

S894 o f 2023 and l'agc 't8 ol 25 Conrplarnt No.

5tr9+ ot 2nZ r .rrrrt ] anr. ]j to be constructed a building or apartments is a promoter if such buildrng or. apartments are meant for the purpose of selling to other persons.

Similarly, a person who develops land into a project i.e., land into plots is a promotcr rn respect of the fact that whether or not the person also constructs structu res on any of the plots. lt is clear that a person deverops land into plots or constructs building or apartment for the purpose ofsare is a promoter.

The words.,,causos to be constructed" in definition of promoter is capable of covenng the Iandowner, in respect of construction ofapartments and buildings.

Therc ntay be a situation where the landowner may not himself develops la nd in to plots or constructs building or apartment himseli but he causes it to be constructed or developed through someone else.

Hence, the landowner is expressly covered under the definition of promoter under Section 2 (zk) sub clause IiJ a nd (ii ).

28.

Inviewoftheabove,theliabilityunderprovisionsofsectionlU(1)ofther\ct& Rules read with builder buyer agreement shall be bo rne by thc respo ndcn t. .l.hc complainant intends to continue with the project and are sceking tlclav possession charges interest on the amount paid. ount paid. proviso to section l B pr0vidcs that where an allottee does not intend to withdraw from thc project, hc sha ll bc paid, by the promoter, interest for every month of delay, rjll thc ha nd iIlg ur,,c r ot possession, at such rate as may be prescribed and it has been prcscribed Lrnclcr rule 15 of the rules: ffi HARERA #ouRUGRAN,l "Section 1B: - Return ofomount ond compensation 18(1). lf the-promoter foils to complete ir is unoble ro .qtve possession ofon oportment, plot, or building. - in, occordonce with Lhe terms ol the ogreefient Ior sole t)r, o: Lhe cose moy be, duly completed by the dote spicfied theren. or due to discontinuance of his business as o developer on occount ofsuspension or revocotion ofthe registrotion under lhis AcL ot Jor ony other reoson, he sholl be liable on demond to the allottees, tn cose the ollo pp wishes to withdrow from the project, without prejudice to onv I'r8e l9 ol 25 HARERA MGURUGRAM ?:h-r^r-:::"0! ,*o,hbte, to return the umounr recetved b), htm t.n,resp_e.ct ol _thot opanment, plor, building, os th" ,or. _'oy h"i_ w-ttn .tnterest ot such t ote as moy be prc;cnt"a in *,, ;lnotl tncludtng compensation in Lhe monner os provided under thts Provided that where on alloLLee does noL tntend Lo wllhLlrLtw lrom the proiec.L,.he sholt be poid, by the promoLcr. tnLe, e\t [ol "-i!^7 -!!rll "f tulry.ti Lhe hondris over ot the poese:sion'. ot sucn rarc os moy be prescribed.

2e crause310ftheBBAprovidesforhandingove.:t#*:',:i'li':",']lisreprotruccrl below; ,.CIquse 31 The developer shalt offer passession ofthc unit Qny tDn,:, taithin q period of 42 m?lths lron tn" aot" o1 "*"rutiio-r'o1 tn" ag reement or within 42 months lrom t hi dat e o/ obrotn ing dll the required sdnctions "ri oppirot -n"i""r,-*"ry So, commencement of cons.truction, whichever is loter su hlaLl to timely payment of oll dues by buyet untl ,rrt1",r',,, 1,,r." mqjeure circumstances os deso iied n claL,u .lzi. t ui.nr, . t ui.nr, . ,n,,, r, shall be a groce period of 6 months allorea to ti",t"u)"topu over ond obove the p.er.tod of42 nonths us ot or" ,n oy1"ri,rg tn" possession oI Lhe unit 30.

Due date ofpossession and admissibility ofgrace period: As per clause .i 1 ofthe BBA, the possession of the allotted unit was su pposerl to bc otfr.rcrl ivir h rrr a stipulated timeframe of within a period of 42 months from the datc of execution of the agreement or within 42 months fro m the date of obta in ing a ll the required sanctions and approvar necessary for c.mmcnccnrcnt ol construction, whichever is later.

The period of 42 months is calculatcd fro,r tho date of commencement of construction i.e., 01.10.201:.1 bcin{.1 Iatcr. n s l.rr .ts grace period of 6 months is concerned the same is allowed bcing unqualificil.

The occupation certificate for the project has not yet been obtaincd fronr thc competent authority.

The following table concludes the time perio(j for whir h the complainants-allottees are entitled to delayed possession cl.targcs in tcl.llrs ofproviso to section 1g(1) olthe Act: l-l I Complajnt No.

S894 oi 202:J anr.

I)a8e 20 r)l 25 HARERA GURUGRAIV Complainr No_ 5894 o1202:t and anr.

Period for which the complainants are entiUed to DpC \N e.f.-2012.2016 rill valid offer of posscssron plus 2 :^o.:1]ll1g l.*p",'"n- cerrificare from rhc (ompercnl actual handing over of possession, whichf;";;.'Ja.r;; We.f.

01.10.20t7 till valrd ofler ot possessron plu.

2 ootatnrng occupatjon certificdte from thc compclcnt actual handing over of possessjon, whichevcr ts c.t rltc r rnonrh s iltcr a uthorl ty or mon ths .rlicr 31' Payment of deray possession charges at prescribed rate of interest: Th(. complainants are seeking delay possession charges at the prescribed ratc of interest.

Proviso to section 1B provides that where an a ottcc docs not inten(J to withdraw from the pro. m the pro.iec! he shar be paid, by the promorcr, intercst for every month ofdelay, till the handing over ofpossession, at such rate as may bc prescribed and it has been prescribed under rure 15 of thc rules.

Rurc i 5 h;rs been reproduced as under: Rule 15. prescribed rote of interest- [proviso to sec.tton I2 section jB and sub-sectio.n (4) ond subsicti_ tzl "fr"rii";, jrt For the purpose of proviso to section 1z; seciiin iA, ora ,,,n section_s (4) ond (7) of section 1g, the,_tnterest;r;r;,';;,, prescribed', sholl be the Stote Bonk ol tnan ht.qhest ,nt,t'totn'ot cosl oflcnding rote + Zo/a.: Provided that in case the SLote Bonk ol tndio mrrrolnul .ott ot I,ending rate (MCLR)is nor tn ure,,t,nott t " , "i|n, ri t,r ,,,, t oenchmork lending t otes which the Stole Bonk o[ lndttt ritov fir Jrom Ltme to timc for lcndin.u to thegcnctal pLtbit, r ne teglslature in its wisdom in the subordinate legislation undcr tlrc provisrorl ofrule 15 of the rules, has determined the prescribed rate of interesr. .l.hc rltc of interest so determined by the legisratu re, is reasonabre an d if thc sa id ru rc is followed to award the interest, it will ensure uniform practicc in all thc c.rscs.

Consequently, as per website of the State Bank of India i.c., https://sbi.co.in. t h c marginal cost ofrending rate (in short, MCLR) as on date i.e., r5.04.2025 rs 32. cR/s894/2023 cR/6087 /2023 33. l'agc 21 ot 25 CR no.

5U94 ol202.i rnd an r.

9.1070.

Accordingly, the prescribed rate of intercst will [)c n]lrgini)l (ost ol lending rate +2% i.e.,7]..L\o/o.

34.

The definition of term ,interest, as deFined un.ler section 2(za) oF rhc Act provides that the rate of interest chargeable from the allottcc by thc promotcr, in case ofdefault, shall be equal to the rate ofinterest whjch the prorlrotcr sh.rll be liable to pay the allottee, in case of clefault.

The relevant section rs reproduced below: "(z't),,interest" means the rates of interest poyohle by the promoter or the allottee, os the case mav be. se mav be.

Explonot ion. _ For Ihe put pose ol t his itouv the rate of interett chorgeoble fron thc o ,ttie. br Ltjt promoter, tn cose oIdclou]1, sholl be equdl to t hc ,,tre ot t,t t, ,.,r1 which the promoter sholl be lioble to poy the olloLtee. tn case ol default; the interest poyable by the promoter to the ollottee sholl be from the date the promoter received the omount or ony port thereof till the date the omount or port thereof ontl tntercst thereon is refunded, and the interest poyoble hy the ollatteL. to the promoter shall be from the date the olliLtec del.tutts in payment to the promoter till the date it is poid;,, 35.

Therefore, interest on the delay payments fiom the con)plainanrs sh.rli [)1, chargedattheprescribedratei.e.,TL.l,\o/obytherespondcnt/pron)otcr!vhich is the same as is being granted to them in case of delavecl possession ch:r rgcs 36.

0n consideration ofthe documents available on record ancl sublnrssions nr.rrlc by the parties regarding contravention as per provisions of thc nct, thc authority is satisfied that the respondent is in contravention ot thc scct,on 11(4J(a) of the Act by not handing over possession by the duc datc as pcr thc agreement.

By virtue of clause 31 of the buyer,s agreement, the posscssro n ol the subiect unit was to be delivered within stipulated time.

However. ti darc no occupation certificate has been received by respondents and ncithcr possession has been handed over to the allottee till date. ffiEABERA ffi,eunuennnl Com pla in t Pi1!1' 22 t)l 25 ffi HARERA ffi GTJRUGnAM 37.

The Authority is of considered view that there is dclay on rhc parr ol rhl, respondents to offer of possession of the allotted unit to the complainants as per the terms and conditions of the allotment letter. n ccord ingly, it is thc ia rlu rc ofthe resp o ndent/pro mo te r to fulfil its obligations and rcsponsibilitics,ls poI the agreement to hand over the possession within the stipulated pcriod.

38. criod.

38.

Accordingly, the non-compliance of the mandate contained in secrion 1 1 (4)(a) read with section 18(1) of the Act on the part of the responclcnt/promotcr is established.

As such, the allottee shall be paid by th e pro n)otcr rn to rcst to r (,vo rV month of delay from the due date of possession till the datc of valid offer ol possession plus 2 months after obtaining occupation ccrtifjcate fronr thi' competent authority or actual handing over of possession, wh ich cvcr rs ca rlic r at prescribed rate i.e., 11.100/op.a.asperprovisotosectionlBIl)ofthcActri,ad with rule 15 ofthe rules.

39.

As per section 17(2) of the Act of 2016, the promoter is u n der a n o bligat ion ro handover the physical possession of the said unit to the contplainant. ln vrc\v ot the above, the respondents are directed to handover posscssio n of t hc fl at /U n il to the complainant in terms ofsection 17(2) ofthe Act of 2016, with in a pcriod of 2 months after obtaining occupation certificate lrom thc con]pctcnl authority.

H,ll.

Litigation Cost- {1,00,000/-.

40.

The complainant is also seeking relief w.r.t. litigation expcnsc.

It is obscrr.,cil that the Hon'ble Supreme Cou rt of India in civil appeal nos.

6./ 4S_(r7 49 ot 2t) 21 titled as lvl/s Newtech promoters ond Developers pvt.

V/s Stote ol Up & Ors.2027-2022(1,) RCR(c1,357 has held that an allottec is ortitled ro cl.rnl compensation under sections 12,14,19 and section l9 ,,\,hich rs to bc ilt,crrlt ri b' the adjudicating officer as per section 71 and thc quantunr oI corrrpcnsatron shall be adjudged by the adjudicating olficer having duc regard ro thc factors Complaint No.

5894 of 202:l ;rnd anr. l'agc 23 ol 25 ffiHARERA #ounuonnll mentioned in section 72.

The adjudicating officer has exclusive jurisdicrion ro deal with the complaints in respect of compensatjon.

I.

Directions of the authority: 41. ority: 41.

Hence, the authority hereby passes this order and issucs thc follo,,r,ing directions under section 37 of the Act to ensure contpliance ot obligations cnsr upon the promoter as per the function entrusted to the authority Ltndcr scctiorl 3 a (fJ: a.

The respondents/promoters iointly and severally are directcd to pity interest at the prescribed rate of 11.10y0 p.a. for every mo rr t h of d elav fro m due date of possession till the date of valid offer of posscssron plus 2 months after obtaining occupation certificatc frorn thc c{)nrpctcDt authority or actual handing over of possession, whichever is carlier; at prescribed rate i.e., 1 1.10%o p.a. as per proviso to section 1g[1 ) ol thc A( I read with rule 15 ofthe rules. b.

The respondents are directecl to l.tand over the acttral physical posscssron of the unit to the complainants within 2 mo nths a ltc r o [) La rn rng occU l).r t ro ]l certificate c.

The rate ofinterest chargeable From the allottees by tltc prornotcr, rn crse of default shall be charged at the prescribed ratc i.o., I t.t0o1, b_r,. thr. respondent/promoter which is the same rate of intcrost n,hrch thc promoter shalr be liabre to pay the alottees, in casc of defaurt i.c rhc delayed possession charges as per section 2 [za] of the Act. d.

The complainants are directed to pay outstanding ciucs, if anv, ,rltcr adjustment ofinterest for tlte delayed period. e.

The respondents are directed to pay arrears oFinterest ilccrucd witltin 90 days from the date of order of this order as per rule 1 6(21 of th c ru lcs. f.

The respondenrs shall nor charge anything which is nor the 0.,,1.,11,?ll; ,l; Complaint No.

SU94 of 202:l ind ffi HARERA ffi olJnuennrr,r 42.

This decision shall mutatis mutandis apply to order.

43.

The complaints stand disposed of.

44.

Files be consigned to registry.

Haryana Real Dated:15.04.2025 Estate Regulatory Auth oriry, Conrplaint No.5894 ol 202:J rn(l anr. cascs ntentioncd in para. d in para.l ol tlri\ 4r,,-o (Arun Kumar) Chairperson Gu rugra nr (Ashok Sa l)agr 25 ol 25 Mombbn