VISHAL VERMA vs NANI RESORTS AND FLORICULTURE PVT. LTD.

* HARERi Heunuonnll complaint No.

773 of 2024 BEFORE THE HARYANA REAI ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no. ; Date offiling: Date oforder: Vishal Verma R/O: 120A, Ward no.

3, Sanjay Gram, Gurugram.

Versus M/s Nani Resorts & Floriculture Pvt.

Ltd.

Office At: 1't Floor, Building no.

80, Sector-44, Gurugram CORAMT Shri Vijay Kumar Goyal APPEARANCE: Shri Bhajan Lal Jangra (AdvocateJ Shri Garvit Gupta [Advocate] 773 of 2024 72.03.2024 25.O4.2O25 Complainant Respondent Member Complainant Respondent ORDER 1.

The present complaint has been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 (in short, the RulesJ for violation of section 11(4)(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilitles and functions under the provisions of the Act or the Rules and regulations made there under or to the allottees as per the agreement for sale executed inter se.

Page 1 of 14 * HARER,. #* eu[uennHl Complaint No.

773 of 2024 A.

Proiect and unit related details 2.

The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: S.No.

Particulars Details 1.

Name of the project "R0F AALAYAS" sector- 102, Gurugram 2.

Project area 5 acres 3.

Nature of proiect Affordable Group Housing 4.

DTCP License no. and validity 1.1 of 20L4 dated 10.06.2014 valid up to 09,08.2019 5.

Name oflicensee Nani Resorts & Floriculture Pvt.

6.

RERA registered/not registered and validity Registered vide no.33 of 201q dated 03.0?.201.9 valid up to 4 years frpm the date of environmental clearanFe i.e., 05.01.2015 7.

Allotment Letter 15.09.2015 (Page 20 of complaint) 8.

Unit no. .

Unit no.

F-804, Bth floor, tower/block- F (As per page no.25 ofthe complaint) 9.

Unit measuring 428 sq. ft [carpet area) & 54.08 sq. ft.(balcony areaJ (As per page no.

25 of the complaint) 10.

Date of approval of building plans 26.03.2075 (As per page no.

33-38 of the reply) Page 2 of 74 11.

Date of grant of environment clearance 05.01.2 015 [As per page no.39-48 ofthe reply) t2.

Date of execution of apartment buyer's agreement 02.01.2076 (As per page no.

23 ofthe complaint) 13.

Possession clause 3.

Possessio, 3.1 Unless o longer period is permitted by the DGTCP or in the policy and subject to the force mojeure circumstqnces as stated in clause 76 hereof, intervention of statutory a u tho ritie s, re c eip t of o c c u p atio n c e rtifi cate and timely compliance by the opartment buyer(s) of all his/her/their obligations, formalities ond documentation os prescribed by the developer from time to time and notbeing in default under any part of this agreement, including but not limited to timely payment ofinstqlments of the totql cost and other chorges as per the poyment plan, stamp dury and registrqtion charges, the developet proposes to offer possessron oI the said apartment to the apartment buyer(s) within 4 (Jour) years from the date of apprqval of building plans or grant of envir|nment clearance, whichever is later..... (As per page no.29 ofthe complaint) 1,4.

Due date ofpossession 26.03.2019 [Note; Due date of possession can be calculated by the 4 years from approval of building plans i.e., 26.03.2015, being later.l 15.

Total sale consideration Rs.17 ,4o ,640 / - (As per page no.49 ofthe complaint) *HARERA #-eunuonnl Complaint No.

773 of 2024 (v/ Page 3 of 14 ff HARERA S- ounuennu I.

Complaint No.

773 of 2024 16.

Total amount paid by the complainant Rs.10,00,390/- (As stated by the complainant) 17.

0ccupation certificate Not obtained for Tower-F 18.

Offer of possession Not offered 19.

Demand and reminder letters 08.08.2016, 15.05.2018, 01.06.2018, 15. .2018, 15.06,2 01B (Page 93-97 of reply) 24.

Cancellation 13.07 .2074 ( Page 101 of reply ) 27.

Unit re allotted to other person i.e Mrs.

Shakuntla Devi 23.10.2020 (Page 103 of reply) Facts ofthe complaint The complainant has made the following submissions in the complaint: That the complainant has been allotted a flat no.804 in the project "RoF AALAYAS at Sector -102, Dwarka Express, Gurugram, Haryana under the scheme of affordable group housing by the respondent.

That the draw of the flats was conducted on 22.08.2021,5 and accordingly, the complainant was turned out to be successful as one of the allottee in the said project whereby a unit/flat no. f-804 in block/tower F having carpet area of 428.40 sq. ft. with 54.08 sq. ft. balcony area against total sale consideration of Rs.

77 ,40 ,640 /-.

Subsequent thereto, the respondent signed apartment buyer agreement dated 02.01.2016 wherein all the terms and condition were incorporated B.

II.

III.

Page 4 of 14 * HARERH HeunuonnHr Complaint No.

773 of 2024 IV. and sum of Rs.

1,00,000/- was confirmed by the respondent which was taken at the time of booking application.

As per group housing policy the project was to be completed and unit/flat was to be handed over within 4 years from date of signing of the agreement.

The respondent mischievously did not mention specific date ofhanding over physical possession of the flat/unit in the apartment buyer,s agreement, That the respondent, without achieving the milestone, kept sending illegal demands upon the complainant under threat of cancellation of the unit/ Rat and forfeiture of paid amount.

That the respondent sent a cancellation letter dated 13.07.201g through courier and invited the complainant to collect the paid amount from office of the respondent but not amount paid till date hence the present complaint for seeking refund along with interest from date of payment.

VII.

That the respondent neglected to refund the amount despite fofllow up by the complainant. mplainant.

The complainant visited to the office of the respondent but of no consequences.

VIII.

That the complainant was lured by false representation and false assurance by the respondent, to invest money in purchasing the said flat and on account of negligence on the part of the respondent to keep up their obligations and the complainant was constrained to withdraw and seek refund of Rs.

10,00,390/- along with interest from date of payment.

IX.

That despite regular follow up, the respondent had refused to refund sale consideration on one pretext or the other, therefore the complainant is left with no other efficacious remedy available except to file the present complaint before this Hon'ble Authority seeking refund of sale consideration.

C.

Reliefsought by the complainant: - VI.

Page 5 of 14 Complaint No.

773 of 2024 D.

5.

I.

IV. tr HARER.\ #,eunuenAl,l 4.

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

Direct the respondent to refund an amount of Rs.

10,00,390/- along with interest as per prevailing rate.

Reply by the respondent.

The respondent has contested the complaint on the following grounds.

That the complaint is neither maintainable nor tenable and is liable to be out- rightly dismissed.

That there is no cause of action to file the present complaint.

That the complainant has no locus standi to file the present complaint.

That the complainant is estopped from filing the present complaint on account of his own acts, omissions, admissions, delays, laches and acquiescence.

That the complainant has not approached this Hon,ble Authority with clean hands and has intentionally suppressed and concealed the material facts in the present complaint.

The present complaint has been filed by him maliciously with an ulterior motive and it is nothing but a sheer abuse of the process of law.

VI. f law.

VI.

That the respondent is a reputed real estate company having immense goodwill, comprised of law abiding and peace-loving persons and has always believed in satisfaction of its customers.

The respondent has developed and delivered several prestigious projects such as ,ROF portico,, R0F Aalayas and ROF Ananda and in most of these projects large number of families have already shifted after having taken possession. vll.

That the complainant is rear estate investor who had booked the unit in question with a view to earn quick profit in a short span of time.

However, it appears that his calculations have gone wrong on account ofsevere slump in the real estate market and the complainant now wants to somehow illegally Page 6 of14 tr HARERA Seunuennttl Complaint No.

773 of 2024 extract benefits from the respondent.

Such malafide tactics of the complainant cannot be allowed to succeed.

VIIL That the respondent had obtained the approval on the building plans from DTCP vide letter bearing Memo no.

Zp_9gZ/AD (RA)/2015 dated 26.03.2015 and the environment clearance bearing no.

SEIAA/HR/ZOIS /51 dated 05.01.2015 from the State Environment Assessment Authority, Haryana for the project in question.

Moreover, the respondent in compliance of all laws including Real Estate (Regulation and Development) Act,2016 has registered the project in question with this Hon,ble Authority and this Hon,ble Authority after scrutiny of all the relevant documents and completing its own due diligence has issued a registration certificate bearing no.

10S of 2017.

That the complainant, after checking the veracity of the said project had applied for allotment of an apartment vide his booking application form on 15.04.2015.

The complainant agreed to be bound by the terms and conditions of the booking application form. tion form.

The complainant was aware that all the payment demands towards the total sale consideration were to be demanded by the respondent strictly as per the said policy and only after being completely satisfied about the same, had made the booking with the respondent.

Moreover, the complainant had also perused and signed annexure a of the application form which contained the payment plan which specifically stated the stage of payments.

That after scrutiny of the application under the overall monitoring of the concerned District Town planner and after conducting draw of lots, the respondent vide its allotment letter dated 15.09.2015 informed the complainant about him being a successful applicant in the draw of lots and accordingly allotted to the complainant apartment no.

F_g04 having carpet area of 428.4 sq. ft. accordingly, an agreement was sent by the respondent to X.

PaEe 7 of 74 *HARERA #" eunuennru,r complaint No.

773 of 2024 the complainant.

The complainant signed the agreement only after being fully aware of all the limitations and obligations and after being completely satisfied with the terms and conditions of the said agreement.

Thus, the agreement for sale was executed between the complainant and the respondent on 02.01.2016.

XI.

That the complainant was aware that as per clause 2.5 ofthe agreement for sale, timely payment of the installment amount was the essence of the allotment.

It was understood vide the said clause of the Agreement for sale and as per Clause 5 (iii)(b) of the Affordable Scheme policy, 2 013, that if the allottees fail to remit the payment demanded by the respondent on time, then they would be bound to make payment towards interest @150/o per annum.

Despite being aware of the terms and conditions, the complainant failed to remit the payments on tjme for the reasons best known to them.

XII. them.

XII.

That the respondent strictly as per the terms ofthe aifordable Housing policy, 2013 sent all the demand letters for payment of instalments due from the complainant.

The comprainant had fa ed to remit the dues and make the payments against the said demands despite numerous reminders to the complainant to make the said payments.

The respondent vide demand letters dated 08.08.2016 had requested the complainant to make payment of the due amount.

XIII.

That the complainant miserably failed to make the said payment of Rs.7,37,742/- and the respondent was thus constrained to issue reminder letters dated 15.0S.2018, 01.06.2018 and 15.06.2018 requesting the complainant to make the said due payments.

The respondent has been acting in accordance with the provisions ofthe Affordable Housing policy, 2013 and the provisions of the buyer,s agreement.

Page 8 of 14 trHARERA S eunGnnvr Complaint No.

773 of 2024 XIV.

That the respondent vide several telephonic calls and messages also reminded the complainant of the said dues.

However, the complainant despite all the said reminders failed to make the payment against the said dues.

As per the provisions ofthe Affordable Housing policy, 2 013 and clause 3.1 ofthe agreement, the due date to handover the possession ofthe unit was 4 years from the date of receipt of the building plans or environment clearance, whichever was later.

Thus the due date to handover the possession of the unit, subject to occurrence of the force majeure conditions and timely payment by the complainant was 26.03.2 019.

The respondent has already obtained the occupation certificate for the unit in question on 01.08.2 019.

XV.

That on account of defaults committed by the complainant, the respondent was left with no other choice but to terminate the allotment of the complainant by issuing the cancellation letter dated 13.07.201g with the full and final settlement of the account against the unit no. e unit no.

F-g04 and accordingly requested the complainant to visit the office of the respondent and collect the balance dues, ifany.

Therefore, the complainant is now left with no right, title or lien in the unit after the said cancellation.

The said cancellation has been done by the respondent strictly as per the agreement and the said policy and the same is valid in the eyes of law.

The said cancellation has been done by the respondent strictly as per the provisions laid down by law and no illegality whatsoever has been committed by the respondent.

XVI.

That thereafter, the respondent accordingly, invited booking from the public as per the provisions and guidelines laid down in the Affbrdable Housing Policy.

The unit has been subsequently allotted to Mrs.

Shakuntla Devi vide allotment letter dated 23.lO.2O2O i.e., before the filing of the present baseless, false and frivolous complaint.

Page 9 of 14 HARERA GURUGRA[/ Complaint No.

773 of 2024 E.

6. xvll. copies ofall the rerevant documents have been fired and placed on the record.

Their authenticity is not in dispute.

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

7.

Jurisdiction of the authority The authority observes that it has territorial as well as subject matter jurisdiction to adiudicate the present complaint for the reasons given below.

E.l Territorial iurisdiction As per notification no.

7/92/2017-7TCp dated 74.12,2077 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Curugram District for all purpose with offices situated in Gurugram.

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

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

E.ll Sublect matter iurisdiction Section 11. ection 11.(4)(a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)[aJ is reproduced as hereunder: Section 11 ill rne promoter snotl [a) be responsible for all obligotions, responsibilities ond functions under the provisions ofthis Act or the rules and regulotions maie thereunder or to..the ollotte.es os per the ogreement for sole, or to the associotion of allottees, os the cose may be, till the conveyonce of olt the apartments, plots or buildings, as the case moy be, to the allottees, or the common orleas to the association of ollottees or the competent outhority, os the case may be; Section 34-Functions of the Authority: 344 of the Act provides to ensure complionce of the obligotions cast upon the promoters, the allottees ond the real estati ogents inder this Act ond the rules ond regulotions mode thereunder.

8.

Page 10 of 14 Complaint No.

773 of 2024 of the Act quoted above, the authority has 9.

In the present complaint, the complainant intends to withdraw from the project and is seeking return of the amount paid by him in respect of subject unit along with interest as per section 1g(1) of the Act and the same is reproduced below for ready reference: "Section 1B: - Return ofamount ond compensqtion 1B(1). lf the promoter foils to complete or is unoble to give possession oJ on aportment, plot, or building.- (q)in qccordance with the terms olthe ogreementfor sale or, os the cose may be, duly completed by the date specilied therei;; or (b)due to discontinuance of his busiress os o developer on qccount of suspension or revocqtion ofthe registrotion under this Act or for ony other reoson, he shall be lioble on demand to the qllottees, in case the allottee wishes to withdraw from the project, without preju(lice to any other remedy avoiloble, to return the omount received by him in respe ofthat apori_"rt, ptot, building, as the case m. he case m.ry be, with inter;$ at-such rlte as may be prescribed in this beholf inclucting compensotion in the manner os provided under this Act: Provided that where on allottee does not intend to withdrow from the project, he shall be paid, by the promoter, interest for every month of delay, tili the honding over of the possession, qt such rote os moy ie prescribed.,, 10. clause 3 or the apartmenr buyer,s ':;:!X;;i';i::3,^es the rime period or handing over possession and the same is reproduced below: 3.

P0S.t ',SS/ON 3.1.Untess o longer period is permitted by the DGTC7 or in the policy and subject to the force majeure circumstances os stated in clouse 16 hereof, intervention of statutory outhorities, receipt of occupotion HARERA GURUGRAM So, in view of the provisions complete jurisdiction to decide the complaint regarding non_compliance of obligations by the promoter leaving aside compensation, which is to be decided by the ad,udicating officer if pursued by the complainant at a later stage.

F.

Findings on the relief sought by the complainant.

L Direct the resporrdentto refund an amountofRs.

10,00,390/_ alongwith interest as per prevailing rate.

Page 11of14 Complaint No.

773 of 2024 certilcate ond timely compliance by the oportment buyer(s) of oll his/her/their obligotions, formalities ond documentotion os prescribed by the developer from time to time ond not being in defoult under any part of this agreement, including but not limiid to timely pqyment of instolments of the totql cost ond other charges os per the poyment plan, stomp duty ond registration chorges, the developer proposes to olfer possession of the soid opartment to the apartment buyer(s) within 4 Uour) years from the dqte of opprovol of building plans or grant of environment cleorance, whichever is loter," 11. oter," 11.

The complainant booked a unit in the affordable group housing colony proiect of the respondent known as ,,ROF Aalayas,, situated at sector 102, Gurgaon, Haryana and was allotted a unit bearing no. g04 on gth floor in tower- F of the proiect vide allotment Ietter dated 15.09.2015.

The apartment buyer agreement was executed between the complainant and the respondent or 02.01.2016 for a total sale consideration of Rs.lZ,4O,640 /_ out of which the complainant had paid an amount ofRs.

10,00,390/_.

12.

As per the possession clause the possession of the unit was to be offered within 4 years from the date of approval of building plans (26.03.201S) or From the date ofenvironment clearance (05.01.2015J, whichever is later.'Ihe due date is calculated from the date ofapproval of building plans as it is later which comes out to be 26.03.2 019.

13.

The respondent vide reminder/demand letters dated 08.08.2016, 15.05.2018, 01.06.2018, 15.06.2018, intimated the complainanr for paymenr of the outstanding dues but he failed to adhere the same.

It is observed thar the complainant failed to pay the remaining amount as per the schedule of payment and which led to issuance of notice for cancellation bv the respondent/builder dated 13.07.2018.

14.

It is observed that the complainant failed to pay the remaining amount as per schedule of payment and which led to issuance of notice for cancellation by the respondent/builder dated 13.07.2 018.

In line with the aforesaid facts. rhe PaEe 12 of 14 ffiHARER,A #" ounuonnvr ffHARERA s-eunuennnr Complaint No.

773 of2024 documents and submissions placed on record, the main question which arises before the authority for the purpose of adjudication is that ,,whether the said cancellation is a valid in the eyes of law?,, 15.

Clause 5(iii) (iJ ofthe Affordable Group Housing policy, 2013 talks about the cancellation. cellation.

The relevant part of the clause is reproduced below:_ "lfany successful opplicont fails to deposit the instollments within the time period as prescribed in the allotment letter issued by the colonizer, o reminder moy be issued to him for depositing the due insta ments within o period of 15 doys from the dote of issue of such notice. lf the ollottee still defoults in making the payment, the list ofsuch defoulters moy be pubtished in one regional Hindi newspaper hoving circulation of more thon ten thousand in the Stote for payment of due omount within 1S doys Jron the date ofpublicotion ofsuch notice,foiling which ollotment moy be concelled. ln such cases olso on omount of Rs.2S,O00/_ may be deducted by the coloniser ond the balance amount sholl be refunded to the applicont.

Such flats mqy be considered by the committee for offer to those opplicants falting in the woiting list,,.

16.

However, in the present case, it is evident from the material placed on 18.

As per cancellation clause of the affordable housing poliry of 2013 the respondent can deduct the amount of Rs.25,000/- only and the balance amount shall be refunded back to the complainant.

Till date no amount has been refunded back by the respo ndent-bu ilder to the complainant/allottee.

Thus, it has been using the funds of the complainant.

In view of aforesaid record that the respondent company has issued reminder/demand letters dated 08.08.2016, 15.05.2018, 01.06.2018, 15.06.2018.

Thereafter, the respondent issued cancellation notice dated 13.07.201g.

The respondent has also published a list of defaulters of payments in the daily Hindi newspaper.

17.

The authority is of the considered view that the respondent/builder has followed the prescribed procedure as per clause s(iii)(iJ ofthe policy, 2013 and in view of the same, the cancellation letter dated 13.07.2018 is held to be valid.

Page 13 of 14 ffi HARERi Heunuonnu complaint No. plaint No.

773 of 2024 circumstances, the respondent is directed to refund the amount paid by the complainant after deduction of Rs.25,000/- as per clause s(iii)[i] of the Policy 2013 along with interest on such balance amount from date of cancellation of unit i.e., 13.07.2018 till the actual realization of the amount.

G.

Directions ofthe authority 19.

Hence, the authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of obligations casted upon the promoter as per the functions entrusted to the authority under section 34(0 of the Act; i.

The respondent is directed to refund the paid-up amount of Rs.10,00,390/- to the complainant after deduction of Rs.25,000/- as per the provisions of clause 5(iiiJ(i) of the Affordable Housing Policy, 2013 along with interest on such balance amount at the prescribed rate i,e., 11.10% per annum as prescribed under rule 15 ofthe Rules, 2017 from the date ofcancellation i.e., 13.07.2018 till its actual realisation. ii.

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

20.

The complaint stand disposed oi 21.

File be consigned to registry.

V.t Dated: 25.04.2025 Viiay Kf-mar Goyal Member Haryana Real Estate Regulatory Authority, Gurugram Page 14 of 14