KUSUM MAHESHWARI vs OCEAN SEVEN BUILDTECH PVT. LTD.

HARERA GURUGRAN1 BEFORI THE & Complai.tNo,5322of 2023 HARYANA REAI, ESTATE REGULATORY AUTHORITY, GURUGRAM 29,.()1.2tl2s Order pronounced onr 15.04.202s NAMIOFTTIEBUII,DT]R o..rn s€v€n Buildrech Pvi.

Lid- E\prossw.y ToBers, 5e.tor- 109, Curu3ram, Haryana cR | \122 /2021 cR/532t/2421 cP/s327/20tt cR/s324 /2423 Pawa.

ABaMal v/s orear s€ven Brildtech Private Lim,ted Ocean Seven lrL,ldtr.h l'jrvare Llm,ted 0.ran Seven Buildtech lt,vate Linrrted BrlmjRahe,a ocean seven Bu,ldte.h P.ivate Lim,ted loEindersinsh T.kas ocran seven Bu dte.hPdvate Lrmied cR/5l2q / 2023 cR/5t30/2021 SagarWadhwani o.ean seven Buildt.ch Private Linited PritiVerna o..:n seven Buildtech Private Linned DliananiaYltuma. o..2n seve.

Buildtech Privat Linit€d sanieevxunar v/s o.H. seven Buildtsh PrIEle Lihit d Manlsh Xum.r Da. o.un s.v.n Buildt€ch Prival€ Linlt d cR/5331/2021 (N/$12/2AZt _l cB/5rrr/202:J 3 5 HARERA GURUGRA[/ t2 I CR/53 t5 / 2023 cR/5316/2021 CORAMI Shri Arun Kumar Shri Vijay Kumar Goyal Shri Ashok Sanswan Shri Rajiv Dewan [Advocate) Shri Arun Kumar (Advocate) ComplaintNo.5322of 2023 ManenderXumar o.ean seven Buildterh priv:te Linired Ritu Sihgh Khokher O.ea n seven Eu il dte.h Priv:te Lin it€d Chalrman complainant[s) l 2 ORDER This order shalldispose of13 complaints titled above filed before thisAuthority undcr section 31 of the Real Estate lRegulation and Development) Act, 2016 [herejnafter relerred rs the Act"] read with rule 28 ofthe Haryana Real Estate (Regulation and Development) Rules,2017 (hereinafter referred as "the rules") for violation ofsection 11(4)(a) oftheActwherein it is inter al,a prescribed that thc promoter shall be responsible for a1l its obligations, respons,bilities and functions to the allottees as per the agreementfor sale executed inter se parties. 'l'he core issues emanating from them are similar in nature and the complainant[s) jn lhe above referred matters are allottees of the projcct, nam. jcct, nam.ly, Expresswa), 'lowers", Sector 109, Gurugram, Haryana being developedby the respon d eni/p ro moter i.e., M/s 0cean Seven Buildtech Private Limited.

The terms nnd conditioDs ofthe allotment letter, buyert agreements, fulcrun ofthe issue involved in allthese cases pertains to tailure on the part of the promoter to deliver timely possession ol the units in question seeking ComplaintNo, 5322 of 2023 RA RAI\,4 RE UG *HA $-cLrn award of possession and delayed possession charges and execute the conveyance deed and others.

Thedetaib ofthecomplaints, unitno., date ofagreement, possession clause, due dateofpossession, total sale consideratiotr, total paid amount, and reliefsought are given in the tablebelow: Proiect Name and Location "E\pres\wayTotr.rs'rt Su dor l0c GuruBEm.

DTCP licens€ no, and other auilding plan approval dat€d tnvironment clearan.€ dated Affordable sroup housinE colony 0'i of2016 dated 16 0rl20 r6 l,trtnsec- Sh, Shr.o Bh3Brvan c/o M/s ocean seven iAs inform.tion obtaincd lrod ihe plann,nE bra.chl 301 0f 2017 d:ted 13.10.2017 ?he Conpanr thelt tiAcereu ehd@vor to @mptete the .onstructlon ant olld the possesion oJ the soid unit wlthin lve yeos lron rhe date ol the t@iving oJ ticense ('connitnqt Peio!,"), bpt subie.t to lEe nojeure ctause ot lhis Agrtehent an.! tinety pdtnent ol instiumenb by the A o6ee(s), Howevet in cose the canpan! mnDletes the,.n tru.har pt o' .a de pe,,ad ots tea^ the A od.. shan not Nt* ony ob,em@ t" Iaking the posesslon alet poynent ol remainins flte p.ice ond other chorges stipulated in the Agr@4t lo Sell.

The Conpon! an.btotnrng certifr.dte lor occuponoh ond rse bt rhe Co lp.te t ilutharides sholl hond averthetuid unitto the Allattee jor h6/her/then a..upotnn dnd use, tuble.r r. he Allattee havtng conplierl |9ith oll rhe brns ond andihans aJ the soi Pahcy oh,1 Agrcehenr b Sell ond poylenE noae as 2013 1(V) olthe Allt.lobte Hotsing Potic!, All such prciect sholl be rcquired .t0 l l 2017 obLnnod froto rhe olanninsb.an.h . nsb.an.h .onplered wthih 4 yeors fiom the o HARERA GURUGRAN/ ComplaintNo,5322of 2023 plons or gront oJ cnvimnnentol cl@Nne. whtchept r I lot.t Thts dotp stdtt be ateied to ar de'da@ all \onq"h ?n?nt al prorI' tor the puryok ol dB poli.y.

Th? | l\"r:6:natl rct hp anew?tl belond rhe sad 4 y@t\ pcnod I frcn the dote ofcon enceheftolprclec| l --------EP!L *HARERA S- GTTRUGRAN/ ComplaintNo.

5322 of 2023 Grl(ulredrom lPape3sor comDh,ntl clearancedat.d lPaqe rs or s/3-?ozo d.@d lompD I '605 r0r0 ror'rre *HARERA S- crrRrrcnAru ComplainrNo, 5322 of 2023 --ctl;tuiNn lur"l" "r Tr HARERA GURUGRAIV ComplaintNo.

5322 of 2023 rcr.rcd abovs (ft in abbrevhrionshave been RepLy .e.aryed by rhe reslsdddt am pard by th.rrrorrtA The lacts of all the complaints filedbythecomplainant[s)/allottee(s) are similar. out of the above-mentioned case, the particulars ot lead case CR/5322/2O23 t. ed r Pawa Agarwal Vs- M/s Orcan Seven Buildtech Pvt.

Ltd. dt. bpng E t.rken rnto consrderruon for derermrnrng the nghts olrhe dllonee(sl. -9'^-*-'1fi PHARERA S- crnLrcnrv ComplaintNo.5322of 2023 5.

Proiect and unit related details The particulars ofthe project, the details ofsale consideration, the amount paid bythe complainanl date ofproposed handingoverthe possession, delay period, ifany, have been detailed in the following tabular form: cR/s322/2022 n ed as Powon Agaryal Vs, M/s Ocarn Sewn Buldtech PvL Ltd.

Proieciarea Registered vide no- 301 13.10.2l)17 644sq. ii. lcarpetarea), 100 sq. it [balconyarea] P:tsq119t conl!lar n tl t4.10.2077 (Pase 39 olcomplaintl Towers,Se.tor 109,Cu.u ttousingproject 06 o12016 dar.d lil 06 2016 13.116.242\ sh.

Sh.ee Bhrs\lan C/.

NIls ocean seven Includins 6 months COVID extension 22.09.2017 URERA resistratbn valid up t2.44 2022 llnlt*." "d*" AB 1101, l3,h Floor, Tower 6 t0 t pe S.2 Possessrun llme The bnpan! \hall sntetelt ehdeovot ta @mplete the . lete the .onstruction ond oJfq the posession of the said unit within fve teo6 fun the ttote ol the receivins of license ("Connltment Period"), but subiect ta force tuojeure claue ol this Aqtenent subte.t ta lorce no)eurc dauP ot this Agrcenent ond tinelr ooynent ol tnstollnelE bt the A otteets).

Hovevq in @se th. cmpony I {trHARERA S-eunLrsqAM ComplaintNo,5322of 2023 tumOletes the constflctioa pio. to the pqio.l oJ 5 yeofs the Allottee sha notraise oty obje.tbn in toking the posysnon oftq pdtment of rcnoining ele ptice and ather choryet stipuloted in the Agteenent to Sell.

The Conpan! on obrain,ng ceftifcote for occupation ahd use bt the Conpetert Authanies sholl hond aver the soitl uit to the Atlouee fat hk/het/their occupotior ond !se, subject to the Allottee having conplied wlth oll the terns ohd conditians of the said Policy ond Agreetuent ta Sell ond pottnents ndde os pet Possession clause Affordable HorsinA Policy Pown tPlon" 1(iv) Allsuch projects shall be requi.ed to benece$arily compl€ted within a teo6 lron the date ol opprovot ol buitdtng ptons ot sronr ol environm tal clearonce,wnichever is later This date shall be refered to as the "date of commencement of projec( for the purlose ofthe 12 Dare ,,f appro\al oibuildrng Due dare ofpossession 30.11.2017 obtained fron the plannine 25 03.2020 n\ 26.26 000/.

As per BBA oqp38g 30.05.2022 Gnce i.e..l0 I1.2017 as per from the date ofgrant or polky of 2013 + 6 months as per HAREM nor'ilcanon no.9/3'2020 dated 26.05.2020 for the projects having completion date on or alter Rs 24,25,174 / (As aueged by rhe .omplainanr .t pase 33 or Rs.?4,24,Al0 / - (As per receipt information at paEe no-42 to 86 17.

Occupation cenill(ate /Completion cert,fi cate 18.

Ofler ofpossessron 19.

Tflpartite aereement executed berween the 11 HARERA GURUGRAIT/ ComplaintNo.

5322 of 2023 conplainant and Ocean Seven Buildtech Private Limited and the state Bank B. te Bank B.

Facts ofthe complaint 6 The complainanthas made the following sub missions jn the complainr' l. 'rhat relying on the representations, warranties, and assurances of the respondentabout the timely delivery ofpossession, the complainant booked an apartment in the real estate project of the respondent, while being constructed under the name and style of'ExpresswayTowers" at Sector 109, Curugram, under the Affordable Housing Policy, 20l3.Thatthecomplainant after booking ofthe unit in the aforementioned proiect ofthe.espondent has beel hdr".ced dnd dgonized by lhe re5pondenl who i\ Suilry o, nor onl) providing deflcient services has also been most uniair in his conductwith the applicant/complainant and the same stands proved lrom the facts stated in the present complaint.

I1.

That the complainantwas allotted an apartme4tbearing no.1301,13th floor, i n lowe r 6 having 6,14 sq. ft. carpet area and 100 sq. ft. balcony area in project olrespondentnamed Expressivay Towcrs" at Sector 109, Gurugram, under the Affordable Housing Policy, 2013 vide allotment letter dared 22-09 -2077 - 'Ihe bujlder buyer agreement was executed between the pa.ties on 14.10.2017. lll.

That after the allotment ol the unit, to the complainant, the respondent oftered the complainani a builderbuyer agreementwas full ofarbitrary and one sided clauses, terms and conditions without there being aD option ior changing tbe same.

The Complainant was not given a choice to alter or to .hange the one sided clauses terms and conditions in the bu,lder buyer agreement and were made to siSn the same.

That lhe respondent are gullty iTHARERA S- eunuenavr of not following and deviating from the terms and conditions of the affordable housing policy, under the builder buyer agreement a.d but have malafldely attempted to lorce its own illegal and unlawtul terms and conditions on the complainant. mplainant.

For instance, the due date olpossession has bcen malaf,dely extended over the above the timelines mentioned in the affordable hoLrsing policy, 2013.

In case ol delay in payment, 1sEo interest is chargcd lrom the .omplainant under clause 4.5 however, ifthere is deiault on part of the builder, he is not liable to pay interest on the same to the complainant.

The Respondent has alsotaken away the.ights ofcomplainant rvith respect to raising objections in case where there is an alteration rn layout plan and design under clause 4.8 ofthe agreement.

Labour Cess, VAT and WTChavebeen noted unrler Clause 4.9 [iii) however, the same can not be legall)' charged.

Thus, from the above, it is clearthat the respondentis guilty of acting arbitrarily and without authority oflaw.

IV.

That having no other option, the compla,nanl was forced to sign the one , deo dlo d hI dr! bu'lder buy.r rgre"menr due ro r\e illFgrland LnlJsrLl , ondL, r "r 'he re.prndenr the, omplainant booked lhe unrt rn the project o' the respondent as he always wanted to own a residential house for himsell and his family menrbers and dueto pressure and coercion ofthe respondent, executed one sided and arbitrary builder buyer agreement.

V. l'hat under the section l[iv] of the Affordable Housing Policy, 2013, the possession oithe uDit was to be delivered within 4 years irom the approval ol building plan or grant ol environmental clearance, whichever is later.

Ilence, the due date needs to be computed rrom the Aaiordable Housing Policy,2013.

Vl. 'lhat jt is the case ol the complainant that ihe respondent is guilty of delaulting and deficiency ol se.vice as till date, they have not offered ComplaintNo 5322oi2023 vI trHARERA P- cURUGRAT'I ComplaintNo.

5322 of 2023 possession ot the residential unit booked by the complainant and the project is far from being completed. completed.

No occupancy certificate has been applied till date and even the essential services like, sewerage, electrjcity and water supply are yetto be provided 'n the project.

The respondentis notonly guilry ofviolating but has also failed to act in terms ofthe affordable housibg policy, 2013 and has failed the entire aim of creating atlbrdable livingdue to its That the.espondent has tailed to comply with various provisions and his obligations underthe builderbuyeragreement buthasalso actedinviolation and against the law on the subject matter. lhe respondent has aho failed to comply ivith the rules and regulations of various Covernme.t Authorities and the provisions ol Affordable Housing Policy, 2013, due to which the complarnant has faced humiliation, financial hardships and harassment.

Nloreover, the respondent is also gu,lty of make it ialse and labricated statements about the progress of the project ts and when inquired by the conrplainant.

That taking advantage oithe.lominant position and malafide rntention th. rcspondent has committed and resorted to unfair trrde prnctices and are guilty olharassing the complarnant.

The respondent is also guilty ot duping innocent purchase.s like the complainant ol their hard eir ned money and the same would clear from the fact that they makevarious pronrses at thc time olselling their prolect to the consumers however, they iailed to keep their p.omises and deceived thc innocent and bonande consumers like the complainant.

That in case oldelay in the offer olpossession, the compla,nant has a remedy under proviso of section 18 of the Act to seek delay possession charges till drc actualhandover ofpossession.

That accordingly, the respondent is bound to make the payment ofinterest on the anountdePosited bythe complainaDt vU t.

HARERA ComplaintNo.

5322 of 2023 UGuIIITGRAI/ IX. x xt tillthe actualhandover oipossession ofcomplainant's unit is offered by him. ed by him. 'l'hatthe complainant has a statutory right under section 18 oftheAct,which, cannot go unnoticed.

Hence,lor the delay caused in offeringthe possession, the respondent is 1iable to pay the compla,nant delay possession charges under se.tion 18[1J of the Act r/w rule 15 of llaryana RERA Rules and section 11[4J olthe Act, from the due date of possession i.e., 26.09.2020 till actual handover ol physical possession after the receipt of occupancy certificate irom DTCP. 'Ihat it is the failure of the promoter to fullil his obligations, and responsibilities with respect to handing over the possession within the stipulated period.

Accordingly,the non-complianceof the mandate contained in section 11 [a] (a) read with section 18[1] of the Act on the part of the respondent is established.

As such the complainant is entitled to delayed possession at the prescnbed rate of jnterest from the due date till the physical handover olpossession as per provisiJns ofsection 18(1) ofthe Act.

That the respondenthas miserablyfailed to iLrlnl its obligation to deliverthe possession oftheapartment in timeand in accoidance with Affordable Croup llousing Policy,2013 thereby, causing mental agony, harassment, and huge losses to the complainant, h ence the present co mplaint. 'lhat it is a nrarte. ol fact that the csT was implemented on 01.07.2017.

Thereatter, w.e.t 01.04.2019, the rates ofrmposition oiGST were revised.

For anAlfordable HousinE Project,the rate that can be charged from the allottee: , 1% without input tax credit or , 8%with inputtaxcrediti 'lhat the pronroter was Eiven an option to eiihcrcharge GST at the new rat.s or continue charging the same at the old rates.lhat ihe promoter has beerr charging CST @ 8% from the complainan! which factstand proved from the demand letter issued to the complainant due by 19.05.2020, however, no Pase 13 or36 xlt *HARERA S-'crnrcnAvr ConplaintNo.

5322 of 2023 XI II input tax credit/l'lC was given to the complainant. mplainant.

The demand letter and ledger annexed herewith show the payment made by the complainant.

That despite having made the payment ofdemands raised by the respondent, no input tax credit, or profi teering benent has been granted to the complainant.

That the respondent has been acting in utmost malafide manner and depriyed the complainant lrom enjoying the benefits .eserved to him in law and by statute.

That the respondent has always attempted to cause nnancial losses to the complainant and take undue advantage by causing wrongful losses to the complainant and w.ongful gains to hinEelf which cannot be accepted, under a ny circumstance whatsoever.

That as per the Affordable Housing Policy,2013 [read with amendment datcd 0,1.01.2021 vide Memo No. vr-ztlvdr-ttl1zozo1z.tcY1+9, tne parkrng space is to be provided at the rate o f hllf equivalent car space (!CSl for every unrt, and it is unclear as to what amountofparking charge has been l,1r"d. loo,{ins J the illegal and unldwful d(r of lhe respondpnl Ih" complaina.t sceks clear bifurcation of the total sale price, including the charges ol parkjng. l'hus, it is clear trom the iacts of the present case that excessive parking cha.ges are being demanded by the respondent, this Authority may kindly be pleased to directthe respondentto refund the same.

That mo.eove., as per clause 4.3 ol the agreeme.t and as per amended Affordable Housing Policy, addltional car parking can be provided at a cost .rfter gain,ng consent of2l3rd olthe totalallottees.

That the builder is guilty ot committing illegal and unlawful acts in violation of Affordable Housing Policy 2013, as the builder js selling car parking at an exo.bitant rates and encroaching upon thc common areas otthe prolect.

That the builde. should be restrnined lrom carrying such illegal, malafide and unlawfulactivities in XIV *HARERA !S-eunuemrr.l violation ofthe Affordable Housing Policy, theAct,2016. complaintNo. mplaintNo.5322of 2023 20I3 as trcll as the provisront ol XVL That it is a settled position ol law that ,n affordable housing projects, the builder is bound to maintain the Project lor a span of5 years from the date of occupaDc'y certiilcate. xvll.

Thrt the respoDdent has been charging the following charges as per clause 25 olthe appl,cation form: , Labou.

Cess: , Se.vice tax: > Powcr backup chrryes; xvl1l. l'hat looking at the utter malafide activities of the respondent, the complainant seeks clear bifurration ofthe tot4l sale price,,ncluding labour cess, VAT, service tax, workcontracttaxand powerbackup charges and other similarcharges.

X1X.

That the complainant had availed a loan faqilily from SBI for a sum of Rs.23,63,000/ and executed a tri partite agresment dated 16.05-2017.

That the bank had to disbu.se the payments to the builder as per the agreed paymcnt plan Despite receiving more than 870/0 oa the total sales consideration, the respondent has failed to complete the constructioD ofthe projectand deliverthe unitto the complainant.

That being aggrieved by such malafide conduct olthe respondent, the complainant asked the respondent to p.ry the delayed penalty to the complainant @15 p a. but till date the complainant has not received any response from the respondent.

That being aggrievcd bysuch malpractices adopted by the respo ndent, the complainant rs leftwith no other option butto file the complaint before thisAuthority. xx. lhat the conduct ol the respondent has been the most arbitrary, unlawful and malaflde since the very beginning.

Despire having gravely defaulted in the construction of the unit, the material being used fo. constructioD being Page 1S of36 ffiHARERA 9-cLrnrcnnv ConpLaintNo,5322of 2023 xxl sub'standard, excess monies are being collected from the allottees, the builder has been commjtting misappropriation olfunds, in violation of the DTCP norms and the mandatory compliance under the Act o12016. ct o12016.

Further, rn September 2022, the DTCP had also recommended the cancellation oithe liccnse oi the proiects of the respondent due to its continuous non- That thereafter, vidc anodrer meeting ol the allottee, held on 04.11.2022, with the Chairman, STP, Gurugram, all oa the aioresaid issues were categorically highUghted.

The Chairman had also suggested the allottees to approach HRERA lor redressal ofbilateral issues ie., forensic financialaudit etc.

Additionally, the respondentwas directed rD not sellcar park,ng overthe connnon areas and was required ro submit thd approved site plan, showing the parking space.

That in light of the above, and in order to safeguard the interests of the complainant fron the unlawiulconduct ofthe respondent and in terms ofthe suggestions of the Chairman, STP. lt is most humbly requested that a local .^r,..s\inre be dppoinr"d to Larry on the tollo$ ing.s\ues. z l'o asc.rtain thc stage ofconstructionolthe projecti z To verily il the .o nsru.rion quality is sub-par; , To venry the illegalcar pa.king being sold bythe.espondenti ; To verily is thc dcvelopment is in accordancewith tie site plan) Additionally, a forensic audit ofthe books ofaccounts be conducted to veri6,l u The tutal amou.tolmonies colle.ted by theallotte.s otthe project; z lhc totalamouft olmonies yet to be colle.ted from the allotteesj - The totalrmout ofmonics unliscd towards the construction /developnent of z The expenditu.{: yrt to be in.urred towards the construction development of z llthc fturd lron thc allottees is being maintained in the esoow account or notl , The records ol'the accountancy vcrirying the disbursement ofmonies towards €xpenditure done Io. the.onstruction devclopmcnt ofthe protecttill datei xxll. xxIt. > Ascertain whether 70% of the deposit by the allonees was being deposited in a separate bank account, xxlv.

That the registration ofthe project has been expir€d since 12.10.2021 and the same has not been renewed till date. till date.

That accordingly, the respondent had committed default of section 6 of the RERA Act and hence, penal proceedings in this regard be initiated aga,nst the respondent Moreover, after an inordinat€ delay in the project no specific date for handlng overor the possession has be€n undertaken by the respondent and hence, the respondent should be directed to provide on affidavit, the date by when the v.rlid rnd legalotfer oapossession shallbe made bythe respondent.

Relietsought by the complainant: - 'l hr L omp,.r'ndnt hd. sought roilowrng relief{s). r.

To r.straD thc rcspondent f.om terminatlng the unit tillthe finaldisposalofthe P.esent .omplaint. ll 'loappornta localcommissionertoc![youtthctasksas mentioned in para 33 ot lll To.onduct a lorcnsicaudit ofthe books olaccounts otthe respondeDt as pe. task r"e1uo .d n fJr I J4 ol he'onipldrnt, lv.

To dirc.t thc respondentto provide on amdavii s date tillwhich a v.lid offer of possession shall be 8iven. lfthe respondent tails to p.ovide the sane, penal pro.e€rlinSsior!iohrioD olsection4t2l(ll(Cl beinitiatcdagajnsttherespondenr.

V To direct the respondenr to providc a valid physi.al possession after receipt of o.cupancy certihcate, vJ To dire.t the respondent to give delayed poss.ssion charges @ MCI-R+20lo trom 26.09.2020 til] fte date of actual physical possession at the prescribed .ate of C.

THARERA S- cuRUGRA[/ vrr.

To direct the respondent to ComplaintNo.

5322 o12023 sive antiproliteering credit/inprt vlll.

To di.ectthe respondentto execute the [email protected] deed after offenngvalid ofter of possession to the.omplainant; lx.

Direct the respondent to refund the excess amount paid bythe emPlainant over and above the totalsale price- x.

To restrain the respondent trom denandin8 kbour Cess, VAT, work Contract Tax and Power Ba.kup charBes, xl Direct the respondent to Bive bifurcation of the toial sale p.ice ircluding the clarification ofcost olpa. cost olpa.kinE under the Affordable Housing Policy,2013, u HARERA ComplaintNo, 5322 of 2023 GURUGRAN4 xll To restrain the r€spondent lrom cha.ging any haintenan.e charges in future as the cooplainant is not bound to pay the same under the Affordable Housing Polky,2013; xrrl To restrain the respondent fron demanding ca. pa.king char8es fron the xlv.

To take action for violation ofsection 5, r,e., non-extension of reg,stration ofthe on the date of hearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11[4] [a) oithe actto plead guilryor notto p]ead guilty.

Reply by the respondent Thc respondent is contestjng the complainton the iollowing grounds: i.

That this Authority lacks jurisdiction to adludicate upon the present ,omplJinr a\ vrdp rlauqe 16.2 of(he builder buver agreement both the p,rrrro\ hrv. , npqurvocdlh dgreed to resolve any d.sputes through ii. 'lhat the complainant is a williul defaulter afd deliberately, intentionally and know,ngly have not paid timely instalme4ts. iii.

That starting from February 2023, th€ consiruction activities have been severely impacted due to the suspension of the license and the fre€zing of accounts by the D'l CP Chardigarh and HRERACurugram, respect,vely.

This \Uspe.l..or d10 lreezing of dccounl\ represent d rorce mdleure evenr beyond the control or the respondent.

The suspension of the license and treezing olaccounts, starting tiom Feb 2023 till date, have created a zero_ time sccnario for the respondent.

Further, there is no delay on the part ol the respondent project as it is covered under clause number 5.5 force Majeure, which is beyond cont.ololthe respondent. iv Thatthe finalEC is CTE/CTo which has been received bytherespondent in February 2018.

Hence the start date ofproject is Feb 2018 and rest details rre as follows.

D, 9. t HARERA GURUGRAN/ ComplaintNo,5322of 2023 covid and NGT Restri.ti.tions Proie.t .

Proie.t .omnletio n Drte Feb 22 Covrd lock down warver NCl stay (3 months approx. for every year)i.e 6'3 Toral Time.xtended to he extend.d (lu+181months aurther time to be extended tillthe unfi eezing of the accounts i.e Feb- Nov 36 months Accounts lreezed & li.ense susDended Ireb 2023 tiu date 2023 (10 months) As per the table given above, the final date for the completion oi consiruction is lreb 25 in case the accountsard unfreezed bythe competent authority on the date offiling this reply.

Erom Feb 2023, the lic€nse has been suspended and accounts have been lieezed by the DTCP Chandigarh and HRLItA Gurugram. '0, ot,,". n dl rfp rplpvrnr docum.nrs havF been filed dnd placed on lhe rp.o,d Their authenticity is not in dispute.

Hence, the complaint can be decided on the basrs ofthese und,sputed documcnts and submission nrade bythe parties.

11.

The complainanthas filed the writtensubmissions 9n 04.04.202S, which is taken on record and has been considered by the Authorit/while adjudicating upon the relief sought by the conrplainant.

E. lurisdiction ofthe Authority 12.'l'he authority observes that it has terrltorial as well as subject mafter lurisdiction to adjudicaie the presentcomplaintfo. the reasonsgiven below.

Final project completion date fin case proiect is unfreezcdl turth.rtime would b. d..l-Llr.llunlrrc/inl-lh.accounr< Nov.Z\ E.l Ter.ito.ial ju.isdictlon 13.

As per notification no.

1/92/2077-1TCP ttoted 74,72.2077 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Nov-2: Authority, Curugram shall be ent,re Gurugram Distrjct for all purpose with offices situated in Curugram.

In th€ present case/ the proiect ln question is situatedwithin the planniog area ofCurugram District.

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

E.ll Sub,ectmatteriu.isdlctlon la.

Section 11(41[a) oftneAc!

2015 provides thatthepromotershallberesponsible to the alloftee as per agr€ement lor sale. lor sale.

Sectlor 11(4)(a) is reprodu€ed as Section 11 [4) fhe p.ahatet shatt- (o) bc responsibk lot oll obligoriont responsibilities ond lunctions Mder the p..visiahs ol this Act or the /ul* and .egulations node thereunde. or tothe allatteesos per the ogrcznent for sole, ot to the a\sociatioh q allonees, os the cose md, be nll he canrelonce aloll the . po ntne n ts, p I o ts o r bu i kl t 1gs, o s the case nay be ta thc al lattees, a. th e Lon ma n areus to the os soc i aoon ol o I lottees o r the coh petent o uthona, as the co\. nldt be: Seetion 34-Functions ol the Authonry: 31(f) ofthe Act praides to ensurc compliahc.olthe obliqotions @st rpoh the pnnnaters, the allaneesond the reol estate ogents undet this ,1.r o nd thc tules and.e!t ukttians nlode thercundet 15.

So, in view ofthe provisions oftheAct quoted above, the authorityhas complete ju.isdiction to decide the complaint regarding non-complia.ce ofobligations by thc promoter leaving aside compensation which is to be decided by the adiudicating officer ifpursued by the complainant at a later stage. r.

Findingson obiections raised bythe respondent F.l obje.tion r.garditrg complainant is in breach of agreement for non- invocation of arbitration, l6 l he respoDdent has submitted that the complaint is not maintainable for the reason that the agreement contains an arbiiration clause which refers to the disputc resolution mechanisn to be adopted by the parties in th€ event olany dispute.

The authority is of the opinion that the jurisdiction ol the authority cannot be tettered by the existence of an arbitration clause in the buyer's ComplaintNo.

5322 of 2023 agreement as it may be noted that section 79 ofthe Act bars the jurisd,ction of civil courts about any matter which faus within the purview ofth,s authoriry, o. the Real Estate Appellate Tribunal.

Thus, the intention to render such disputes as non-arbitrable seems to be clea.. be clea..

Also, section 88 of the Act says that the provisions oithis Act shallbe in addition to and not in derogat,on ofthe provisions olany other law for the time being in force.

Further, the authority puts reliance on catenaofjudgments olthe Ho n'ble Supreme Courl particulady tn Notionol Seeds Corporation Limited v.

M.

Madhusudhan Reddy & Anr. (2012) 2 SCC 506,'rhercin jt has been held that the .emedies provided under the Consumer Protection Act are in addition to and not in d€rogation oi the olher laws in force, consequendy the authority lvould not be bound to reier padies to rrbitration even if the agreement bdtween the parties had an arbitration clause.

Tberefore, by applying same analogy the presence of arbitration clause could not be construed to take away the jurisdiction olthe Authority I l-rt m tn Altdb Singh and ors. vs.

Lmaar MAF Land Ltd amt ors., Cot surller t orp no.70t ol 20tS d?.i.tcd on 13.07.2017 rhe Ndrrondl Con.umer Dr.pLr, ' Red ressa I Com mission, New DelhiINCDRC] has held that the arbitration clause in agreements between the complainants and builders could not circums.ribe thc jurhdiction of a .onsume.

Further, while consider,ng the issue of rnaintainability ola conrplaint before a consumer forum/commission in the lact of an cxisting a.bit.ation clause in the bu,lder buyer agreement, the Hon'ble Sufrenre Court in cdse tit ed as M/s Emaar MGr Land Ltd- Y.

Afrab Singh in revision petition no.2629-30/2018 in civit oppeol no.23S72-23573 ol2077 decided on 10.72.201a has upheld the aforesdid judgemeDt oTNCDRC and as provided in Article 141 oi the Constitution oi India, the law declared by the SLrpreme Court shall be brndrng on all courts within the ter.itory oflndia and ComDlaint No.

5322 of 2023 ComplainiNo.

5322 oi2023 ITHARERA co-p,o,.,\o.s,,,o,2ozJ J -db* eLn-e neu 'nd Ir utmr ' accordingly, the authority is bound by the aforesaid view. said view.

Therefore, inview of the abovejudgements and co nsidering the provision ot the Act, the authority is ot the view that complainant is well within his right to seek a spec,al remedy available in a beneficial Act such as the Consumer ProtectionActand RERAAct.

2016 jnstead ol going in for an arbitration.

Hence, we have no hesitation in holding that this:uthor,ty has the requisite jurisdiction to entertain the complaint and that the dispute does not require to be refe.red to arbitration F.ll obiections .egardi ng force maleure, The respondent/promoter has raised the contention that the construction of thc proiect has been delayed due to lorce maieure circumstances such as ban on construction due lo orders passed by NCT, major spr€ad ofCovid'19 across worldwide, suspension ol license by the DTCP, Chandigarh and freezing oi accounts by HREM Gurugram etc. which is beyond the control ol the respondent and are covered under clause 5.5 ofthe agreement.

The respondeDt has lurther subnlitted that suspension olthe license and ireezing ofaccounts, starting from Feb 2023 till date have created a zero_time scenario for the respondent.

Furthermore, the nnal EC is CTE/CTO which has been received by the respondent in February 2018, hence the start date of proje€t is Feb 2018.

Nloreover, the respondent company has filed the representat,on that the final completion date (incase p.oject is unfreeze) further nme would be added till unlreezing the accounts as the due date of possession may be considered as l\4rr.h 2026.

The counsel for the respondent during proceeding dated 19.11.2024, stated th.rt the due date ofpossession may be calculated i.on the datc ol coDsent to establish i.e.

05.02.2018 which comes out to be 05.02.2022 and futher requests to allow the grace period due to torce maieure circumstances i.e.

Covid-2019, ban imposed by NGT from time to HARERA CoFplainr No.

5322 of 2023 P" GURUGIIAI/ time.

IAI/ time. tvloreover, the delay was happened due to agitation by the members of Association ofallottees who obstruct the construction work at site as a result the DTCP has ca.ceued the license on 23.02.2023, vide Memo No.

LC-3089-PA IVA]-2023l5475 and even the Authority had frozen allthe bankaccounts ofthe respondent company.

The counsel for the respondent has placed on record a report of chartered EnSineer dated 14.05.2024 vide which bringing out the ilnancial losses caused by the delayed paymeDts and escalated mater,al costs due to delayed payment by the allottees.

IIowever, all the pleas advanced in this rcsard are devoid ol merits.

The Authority is of considered view that the provisions oi zero perjod is ne,ther provided in the Act of 2016 nor in the Aftordable Croup Housing Policy 2013.

Therefore, the due date ofpossession is calculated as per clause 1{jvl of the Affordable Housing Policy, 2013 it is prescribed that ",4// suclr projecrs shall he required to be necessotilt conpleted wjthin 4 years from the date of approval ol building plans or grant ol q | 4 l4mcrt ol.

I aararce- wh \ hpvpt t 10t pt.

Th s do tP.\all be reJcrrcd I o a" t hP ''dote afcanmencement ol project" for the purpose of this policy.

The respondent hr nbrdined environrnent (redrd1.p and burlorng p.dn dpprovJl in rerpe' t o, thr said prolecton 30.11 2017 and 26.09.2016 respectively.

Therefore, the due datc ofpossessjon is beingcalculated f.om thedate ofenvironmental clearance, berng later.

Further, an extension ol6 months is granted to the respondent in view ol notification no.

9/3"2020 dared 26.05.2020, on account ofoutbreak ol Covid 19 pan d emic.

Therelore, the due date of possessio n was 30.05.2 02 2.

As far as othe. contentions ol the respondent w.r.t delay in construction of the project rs concerned, the same are disallowed as firstly the orders passed by NGT banning construction in the NCR region was tbr avery short period oltime and thus, cannot be sa,d to impact the respondent_build dent_builder leading to such a dehy in thc completion.

Secondly, ihe license oithe project ofthe respondent *S HARERA P GURUGRAN/ ComplaintNo.5322oI2023 was suspended by DTCP, Haryana vide memo dated 23.02.2023, due to grave violations made by it in making compUance ofthe terms and conditions ofthe liccnse.

In view olthe same and to protect the interest ofthe allottees, the bank account ol the respondent rclatcd to thc protect was frozen by this Authoriry v e o.der dated 24.02.2023. lt is well settled principle thar a person caDnot t.rke benefit olhis own wrong.

C.

Fjndings on the reliet sought by th e complainant, C.l Direct th€ respondeot to givc dclayed possession .harges ar the pres(ribed .ate i.e.i MCI,R+zo/o lton 26.09,2020 till the date of acrual physical possession at the prescribedrate ofinterest.

C.ll Direct the respoldent to execute the .onveyance deed after offering valid offer ofpossession to the complainant.

19 The complainant intends to continue with the project and are seeking delay possesslon charges as provided under the provjso to section 18(1) ofthe Act.

Sec.

1u(1) proviso reads as under ''section 1A: - Return oI onount ond compensation 13(1) tlthc p.anater fotls to canpletc otkLnableto give possesionafon t '-- fa r '-t t bL t.l nt Prorde.l that where on allattce does nat intend ta wtharow han the p.ataLt, hc shali Ltc pai.l, by the pra otet,tntercstforeverymohthofdeloy, t1|l lhc hdnd r! avct afthe possesion, ot such rote o\ rnay be p.e{nbed.

20.

As pcr clause 5.2 talks about the possessjon ofthe unit to the complainanis, the r elevant portion is.eproduce as underr Thc conpon! shall sin.erely cndeavor to cmplete the.onstu.ilon M.l olle' the po*es on ol the taid unit within fi\ ye@ Iron the dote oJ thp re(etvins olti.Pnse (''tomnitnent Period"). but.ublect to lor<e nojeure ctouse olthis Agreenent on.l rimel! poyment olinstdllnqrs by the Allottee(s). lloweve. . lloweve. n cose the Conpony compleres the connructian p ar to the period aI 5 tears the Allottee shall @t ruiv any objection in taking the possession ofre. pot ndt oJ mainlng sole priee on.l otht chorges stiptlote.l in the Agreenentto Se . fhe Contpan! on abtointng tertlcdte for accupotion dnd ue by the C.npetznt Autho ties shall hond over the sad untt to the Allaltee lot his/her/then occupotion ond use, sLuect ta the allottee hoving conplie.l with all the tern s o nd con d it io ns af the so id Pol i cy a nd Ag r@n e n t to sell ond poynents nade os per Poydent Plon. *HARERA -&*eLnusqAM 21 At the outset, it is relevant to comment on the preset possession clause ofthe agreement wherein the possession has been subje€ted to a1l ki.dsofterms and conditions ofthis agreementand application, and the complainant not being in delnult under any provisions of these agreements and compliance with all p.ovisions, lormalities and documentation as prescribed by the promote..

The dralting ofthis clause and incorporation olsuch conditions are not o.lyvague and uncertarn but so heavily loaded in favour olthe promoter and against the allottees that even a sinSle default by the allottees in fulfilling fo.malities and do.umentations etc. as prescribed by the promoter may make the possession d.use irrelevant lor the purpose oi allottees and the commitment date for handing over possession loses its meaning.

The incorporation ofsuch clause in rl. b r)?r,,Brremcnr hy ihFpromoler is not onlyin Crdve violdtion of cldu " 1{ivl oithe Affordablc Housing Poli.'y, 2013, but also deprive the allottees of their right accru ing after delay in possession.

This is just to comment as to how thc builder has misuse.l his dominant position a;d dralted such mischievous clalsc in thc agrcemcnr and the allottees are leftwith no option but to sign on drc dotted lines.

22.

Cl. s.

Cl.ruse 1(rv) olthe Affordable Housing Policy,2013 provides for completion of all srch projects licenced under it and the same is reproduced as under lor readJ, reference: 1[ir) 'All such prcje.ts shdll bc rcqutred to be necestatit!.anpleted wthin 4 I ca B fram t tu tlote aI u pp tnva t aI bui td ihp Pla ns at srant of envn ohneh tol t leatahce, whichevet is lotef, 7'h6 date shall be rclercd to os the "dote of ..rnne"ceiertalprcject lo. the puQae olthe potic! ' 23 Due date ofhanding ove. orpossession: As per clause 1[iv) olthe Aifordable Housing Policy, 2013 il is prescribed that',4// such projects shall be required to be necessarily completed within 4 years Fom the dote of approval of building t)lons ar gront ol enironmentol cleorunce, whichever is loter-This date sholl be """1::'l"i :,',11."' ^" &HARERA P" GURUGRAI/ rcleied ta as the 'dote al con rnencenen t ol projec( Ja r the purpase of thit policy.

The respondent has obtained environment clearance and bu,lding plan !pproval in respect of the said project on 30.11.2017 and 26-09-2016 .espectively Therelo.e, the duedatc ofpossession is beingcalculated from the date ofc.vironmental clearance, being later Irurther, an extension of6 months is granted to the respondent in view of notification no- 9/3-2020 dated 26.05.2020, on account of outb.eak ofCovid-19 pandemic.

Therefore, the due date olpossessjon comes out to be 30-05.2022.

24 Admissibility ofdelay possession charges at prescribed rate ofinterest: Proviso to section 18 provides that where an allottee does not intend to NjLhdr.rw trom the project, heshall be paid, bythepromoter, interest lor every nronth of delay, till the handing over of possess,on, ai such rate as may be prcs.ribed and it has becn prescrib.d under rtrle 15 of the rules.

Rule 15 has been rep.oduced as under: Rute 15.

P.escibe.t rate oI iaterest- lPrcvlso to section 72, sectiot 18 and sub.section (4) on.t subse.tton [7) ql Nctio, 191 lt) Far the puryose al proviso to section 12) se. on 12) se.tian la; and sub secttans (4) ond (7) al secttan 1e, the 'tnterest at the tate presc.t b )l shott he t he stote Bonk ol tntln hig h6t narginol cost ol lendtngrcte+2%.: Provded that in .a* the state Dank of India norsinol cost af lendin! rate (MC|R) is not in ue, it sholl te rcptoced b! such b.nchndtk lendtng roteswhich the State ltonk ollndio noy rN l/oh un e tu nn)e lot lending to the ocnerulpubhc.

25. lhe legidature rn rts wisdom in dre subordinate legislation under the provision ofrule 15 ofthe rules, hrs determined the prescribed rate oiinterest.

The rat€ of inte.est so determined by the legislature, is reasonable and ifthe said rule is followedto awardthe interest, it will ensur€ uniform practi€e inall the cases.

Consequently, as perwebsite ofthe State Eank oflndia i.e., htt marsinal cost of lendins rate (in short, MCLRI as on date i.e., 15.04.2025 is ConplaintNo.

5322 of 2023 &HARERA &oTJRTJGRAI/ ComplainrNo.5322of 2023 2t 9.10%.

Accordingly, the prescribed rate of interest w,ll be marginal cost of lending rate +2% i.e., 11.10olo.

The definition of term 'interest' as denned under section z(za) of the Ad provides thatihe rate otint€rest chargeable from the allottee by the promoter, in case ofdefault, shau be equalto the rat€ of interest which the promoter shall be liable to pay the allottee, in case of delaulL The relevart section ls reproduced [it) ke ntercst pdrabk by rhe pronot4r Io rhe oltattee shal be fron the dote the prcnntet.eceived the onountor any port thereol il the dutu rhe onount ot port thereaf ond intcrcst thercoh is efuh.1q1,andthe tntetest poloble bt the allattee to the pronoter sholl be t'rcn the dote the allottee delatlts in potnent to the prcnatu till the .lute tt ispoid) 211.'l'heretore, intereston thedelaypaymentsfromthecomplainantshall becharged at dre prescribed rate i.e., 11.10% by the respondent/promoter which is the sanro as is being granred to the complainant in case of delayed possession charges.

2.1. rges.

2.1. on coDsideration ofthe documents available on record and submissions made by both the partles, the authorily is satisfied that the respondent js in .ontravention olthe Se.tjon 11(4)(aJ olthe Act by not handing over possession by the due date as per the agreement.

By virtue oiclause 1(ivl oithe Affordable lloueng Po1icy,2013, the respond ent/pronroter shall be necessarily required to coDrplete the construction olthe project within 4 years from the date ofapproval ol building plans or grant of environnental clearance, whichever is later' 'Iherelore, in view olthe findines given above, the due date of handing over of ''ko)'i n te.en" meons the.ote\ ol interest polobte b! the pronoter or the alla ee, os t]1e .ase no! bc E\pldnation t:at the purpoe ofthisclduse (, rhe tuteal tnLeteadloryeablefro thc olottcc by the ptonote., in cose af d,loulr shull be equal ta the roLe ol interest which the pto ot.t shall be hoble to Doythe allattee, in.ase oldelouttj possession was 30.05.2022.

However, the respondent has failed to handover ComplarntNo.5322of2023 | and 12 othe6 I possessionolthe su bject apa rtment to the complainanttillthe date ofthisorder.

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

Moreover, the authority observes that there is no document on rccord from which it can be ascertained as to whether the respondent has applied for occupation certilicate or what is the status of construction of the project.

Hence, this p.ojectisto betre:ted ason go,ng projectandtheprovisions of the Act shallbe applicable equally to the builder as wellas allottees. :10.

Accordingly, the non .ompliance of the mandate contained in section l l(4)(al re.rd with proviso to section l8[1) otthe Act on the part of the respondent is cstJblished. tJblished.

As such, the allotteeshall bepaid, bythe promoter, interest forevery nroDth of dclay from dre date ol possession i.e.,30.05-2A22 till valid offer ol possession plus 2 months alter obtaining occupation certificate from the competent authority or actualhaDding over ofpossession whichever is earlier, as per section 18(1) ofrhe Act oi2016 read with rule 1s ofthe rules.

31.

Iiurther, as per sectidr 11(4)(0 and section 17(1) of the Act oi 2016, the promoter is under an obligation to get the conveyance deed executed in favour otrhe complainant.

Whereas as per section 19(111 oftheAct of2016, theallottee is also obligated to pa.ricipate towards r€g,stration of the conveyance deed of th. unit in question. llorvever, there is nothing on the record to show that the respondent has applied ior occupation certificate or what is the status ol the development or the above-mentioned project.

In view of the above, the respondent is directed to handover possession of the flatlunit and execute conveyance deed in favour of the complai.ant in terfts olsection 17(1J oithe Act oi 2016 on payment of stamp dury and registration charges as applicable, within ihree months alter obtaining occupation certificat€ lrom the competent ffiHARERA S- GURUGRAI\,I Complaint No.

5322 of 2023 G,lll To restrain thc r.sponde nt from terhina ting thc unit till the final disposal of the presentcomplaint, 32.

The complainant in the pr€sent matter is seeking possession of the unit along with delay possession charges and the authority has already deliberated the sane 'n the rindrngs !!.r.t. relielno.

1 & 2 in the above paragraphs accordingly, 'D v'e!v of the same lhe presenl relief nands.edundant.

G,lV To appoint a lo.al commissioner to carry out the tasks as mentloned ld para 33 olthe conrplaint; G.V To conduct a torensi. audit ofthe books ofaccounts ofthe respondentas pertask mentioned in para 34 of the complaint.

G.VI To take action for violation ofsection 6, i. tion 6, i.e,, non-extension ofregistration otthe A.t, C,VII Directthe respondentto provide on am davil a date till whichavalid offer dfposlession shall be given.lfthe r€spondent fails to provide the same, penal proceedings tor vlolauon ofsection 4(2)(l)(C) be ltrltlated against thc rcspordcnt.

33.

Thc conrplarnants h.ve sought sonrc odr€r relieli mch as appoi.tment of L.C, corrduct fori sic aLrdil ofthe books olaccounts olth. rcspondent, initiation ol penal p.ocecdinss for !jolation ol Section a[2](11[c), Section 6 of the Act, 2016 .l. the Authoriry observes that due to several continuing violations ot the provisions ol the Acl, 2016 by the respondent, the Authority has already taken Suo nrotu cognizance ofthe projectvide complaint be at g no- REM-GRG-70A7- 2023 and ircezed the baDkaccount olthe respondent related to theprojectvide or(ter dated 24.02.202:1.

Therefore, the authority is p.oceeding to decide only thc main relief sought by the complainant in the present complaint i.e., delay possession drarges, possession and execution ol coDv.yance deed on the basis otdocuments available on record as wellas submission made by the parties. c.vlll Direct the respondcntto provide a valid physical possession afterrec€ipt of o.cupancy certifi cate, 34.

Thc respoDdent is legally bound to nreet the pre-rcquisites for obtaining occuprtion cerhficate from the cornpctcnt Authorjty. lt is unsatiated that even attcr the lapse ol more than 2 years lrom the due date of possession the #LIARERA S- cuRUGRAtu complaint No.

5322 of2023 .espondent has lailed to complete the const.uction and apply for OC to the competent authority lhe promoter ls duty bound to obtain OC and hand over possession only after obtaining 0C.

C,lX Direct the respondent to refund the excesr amount paid by th€ cohplaina.t over and above the total sale p.ice.

35.

As per clause 4.1 ofthe buyer's agreement the sale consideration/sale price ol Rs. ice ol Rs.26,26,000/ shall be payable as per the payhent plan annexed as annexure ll, GST, service T:n, VA'I', and other levies, duty ilappl,cable shall be payable by the .rllottee over and above the nrle consjderation. l-urther it was also agreed thc servjce tax/VAT and other applic:ble taxes and charges of any n:ture whatsoever, which may be levied by the Gover.ment Authorities with prospective and retrospective effect shall be payable by the allottee over and above sale consideration mentioned herein above.

The relevant clause 4.1olthe IIBA is reproduce hercin below: ARTICLE4 SALE CONSIDEIIATION 4,l Sale Price Thnt n1e otlaxec d!)rccs to pa! the.onpany lor the pu.chase of the nid fot/ uht . sunt ol Rs,26,26,o00/. o.ltueasuting 644 sq.

Ja koteutoted @ Rs,4,ooo/ per stt, ft olcoryet oreo ol the soid vnit, odmeasuring 1o0 sq, ft and bdlconr drea .ateutoted @ Rs.soo/ per sq. ft. ouached with the Jlat odmeosuing .,,,,,,,,,.,.,,,,. sq, ft,), I hereinafter refere.l to os 'Sote Price/sole conn !mnon") sholl be poyobte os per the poyment plan dhnde.l as 'Annqurc 'B' (hereinoJter reletred os "poynent pldn ), C,S.T, Service tot vaT orly other levies dut! itapplicdble shall be patoble by the o ottee over ond ohove the sdle.onsiderotion, EDC shott be polable ds pet the nid palicy. fhe teovheelet potkn)g shall be tdernled and olloL0ted br the conpon! at the tinealhanding ovt alpasesionaJthcrnittotheAttaueeThekrvi..tot/vAlandallotherappllLuble to\s ohd chotlt* ol ant nature trhotsoevet, whtch hoy be levied bt the Gav.

Autho.ity wxh Frospe.tire ond ret.aspectiee eJlect shall be pa)toble bJ the dllattee ove.ond above sot..ansiderotion tnentioned hqein abore. l6 In view olthe above clause, the Autbority observes that the sale consideration is cxclusive of CS f, Servjce Tax, VAI-, and other levies, duty if applicable and the respondent rs well withnr right to claim such amount as agreed between the prrtres . prrtres .rnd the same sball be payable by the allottee over and above the sale consideration.

Howeve., the respondent is directed to furnish the details of payment of such taxcs paid to the concerned Authoriry.

If the respondent /pronroter lailed to provide the details oftaxes as wellas applicable charges as per the law olland then the respondent shall refund the excess amount.

G,X Dircct the respondent to give bifurcation ofthe total sale price lncluding the clarification of cost ofparking under the Atfordable Housing Policy, 20r3.

G.xl To restrain the respondentfrom demanding .a r pa rki ng charges from the cohPlainant5.

37. since, the said project is the affordable housing project and as per the latest anrendment dated 04.01.2021 in th€ said Policy 2013, which it is reproduce as 4.

The.taur. no.4(iii)ojt11eAlJordoble Housing Pahc! dated 19thAupust,2A1j related ta porkin! na.n1s shull be subsuruQd |/nh the fatloqing: '4(iii) Parking Norns: o lilo nlutory noh..hargeobte 0.s ECs parking spdce t. t"landotory pa.king spo.e atthe rote olhollEquivalehtCar 'po@ (ECS) hr euch dwettihg unit shol I be provided it only onc ^eD-\|heeler pa.kinlt site shull be eamurked lor eoch Jlot,which sholl bc nliatted anly to the flat.aqne\ The p.tktng bd! aftwa-wheele6 sltdll bc a 8Dr \ 2.5h unlessothetusespecilied tn the2antngplon tit lhe balon& uvailoble porkihg space, tl ony, beland the ollocated r*a wheele. porking sites,con be eomotued dslree vsitor-cotparking tpoce b Opti.nolond.hargeablc pa.knsspace atthe tute olA s ECS perdwelling unx. i. the calanzer may provtde ah addtiohal and optionol porking space, tnoxtuuh ta the drent olhoI Equieahnt ca. spdce (Ecs) pet dseltins unn ii. tn.ote skh optianalporking spacexprcided bythe calaniet: notinutn alare cot pdrking space per dwellnlguhtr.on be ollotted b! the calanke., at o .ote hot efc*dihg s% olthe cott ol lot to sr.h attottee.

L Mts.elloneots i tn coseswhe.e licenses untte. ses untte.AHP 2a13alruod! stond gronted ohd builtlihg p I a n! no n I d p p ro ve d \| i tha r t o va i I i n g th e a ptrcn o I A.

5 ECS per dwel I ing uni t porking spocc, thc.olonket shall be rcquired b athnit thc conent af ot lean dla Lhnt\ al the utk)tt.e: as pet thc p.ov,ans aJ Sectioh 14 ofReal €no? lR.gutati.n and Dcvelopnent) Act, 2A16 far the pltpose af on)endnentn bundinu plan\ Jot ovoiting ,uch addltionaland aptiohol As ECS pe. d\|e ing unit porlljng spacc.

Funher, this benelt sholl not be a vo i ta ble lo, t h e prcle cts w h e ren a( u po ti on cetttico te al o I I the residenti a I Lawets hos oteody been abtothed. ti. ^dtlinandl parkin!! hahs ond tomtneter, ifdn!, can be speciled ih th.

2antngptan' gHARERA S- crnrcnnrr,r ComDlaintNo.

5322 of 2023 *HARERH -&- cLrnLrc,nll,r Lomplarnt No 5322 of202l 3a.

In view ofthe above provisions, the respondent/promoter is bound to comply the terms and condition of the Affordable Group Housing Pollcy, 2013 accordingly, no direction w.r.t. the same can be delibeiated by the authority at this stage. the complainant.

39.'lhe.omplainanthassoughtthereli.lwithregardtodrrecttherespondentto grv.anti-profiteering credit/nrputtax creditto the conrplainants :nd chargethe GS'l ns pe r ru les and regulatio ns, the attention oi the authority was drawn to the hct thatthe legrslature while framingthe GST law specilically provided for anti protitccring measures as a check and to maintain the balance in the inflation ol cost on thc product/services due to change in migration to a new ta-x reginre i.e. csl', by incorporating section 171 in Central Coods and services Tax Act, 2017lHaryana Goods and Services Tax Act,2017, the same is reproduced herein 'Senton 171 l1) Ant reduction in mteoftuxnn ony ltPpl!ofgoodsarseni.es ot the bcnett al inpur tox credit sholl be possed on to the recipient bt wav aJ con nc n s u ra t e t. d u ctian in prtces. .l0. tces. .l0.

As per the above provision, the ben€fit of tat reduction or'lnput Tax Credit'is required to be passed onto the customers in view olsection 171oiHCST/CGST Act,20l7.1n the event, the respondent/promoter has not passed th€ benefit of ITC to the buyers oithe unit in contravention to the provisions olsection 171[1] otlhe HCSTAct, 2017'lheallottee is atlibertyto approach theStateScreening Comnittee llaryana for initiating proceedings under scction 171ofthe HCS l Act against the respondent_promoter' G.xlllTo restraln tlle resPondent from charglog ary mairtenance charges ln tuture as tie complalnant ls not bound to pay the samc urde. the Affordable HousiDg Policy, 2013.

41.

As per the clarification regarding maintenance charges to be levied onaffordable sroup housins projects being given by DTCP, Haryana vide clariffcation no.

PF c.xll Direct the respo.dent to give anti-profiteering credit/iDput HARERA [email protected] GI]RUGRA|!4 27 A/2o241367 6 dded3L01.2024, it is very clearly mentioned that the utility charges (which includes electricity b,11, water bill, propertytax waste collection charges or any repair inside the individual flat etc) can be charged from the allottees as per coltsumptions.

42.

Accordingly, the respondent ls directed to charge the maintenance/use /utility charges from the complainants_allottees as per consumptions basis as has been clarified by the Directorate of Town and Country Plannin& Haryana vide cl.rif ication dated 31.01.2024. c,xlvTo restrain thc respondent from demandin8 Labou.

Cess, vAT, work Contra.t Tax and l'owerBa.kup charges 4ll.

Th. complainant has sought th. reliel to restrain the respondent from dcmanding l,abour Ccss, vAT, WCT aDd powerbachrp charges.

A)though, as per rc.ord no demand unde. the above said heads have been made bv the rcspordent tilldatc, however rn clause 4.9 (iii) and (ivl otthe buyer's agreement d.rted 17. d.rted 17.062017 rt has been mentioned that the allottee is Uable to pay scparately the above-said charges as per the demandsraised by the respondcnt conlpany.

Thcrefore, iD the interest ofjustice and to avoid iurther litigation, the Authority rs delib..ating its ilndi.gs on the above said charges. .

Labour Cess: - The Labour cess ls levied @ 1% on the cost of construction nrcurred by an employer as per the provisions olsections 3(1) and 3(3) of thc Euikiing and Otber Construction Workers'Welfare Cess Acl 1996 r€ad with Notitication No.

S.o 2899 dated 26.9.1996.

It is levied and collected on the.ostoiconstruction rncurred byemployers,ncluding contracto.s under spccific conditions.

Moreover, thjs issue has already been dealt with bv the autlro.ity in complaint bearing no.962 of 2019 titled Mr' Sumlt Kumar Gupta dnd Anr- Vs Sepset Properties Privote limited wherein it was held that since labourcels is to be paid by the respondcnt, as such no labourcess should be separately charged by the respondent.'l he authority isoithe view Page 33 of36 Complain!No,5322of 2023 *HABEBA P- GI]RUGRAM ConplajntNo.

5322 of 2023 that the allottee is neither an employer nor a .ontractor and labour cess is not a tax but a fee.

Thus, the demand of labour cess raised upon the complainants is completely arbitra.y and the complainants cannot be made liable to pay any labour cess to the.espondent and it is the respondent builder who ls solely r€sponsible lor the disbu rsenlent ol sald amount .

VAT: - The promoter is.ntitled to charge VAT from the allottees where the same was leviable, at the applicable rate, if they have not opted ior composition scheme.

However, ilcomposition scheme has been availed, no VAT is leviable.

Furthe., the promoter shall charge actual VAT from the allottees/prospe.tive buyers paid by the promoter to the concerned d.partment/authority on pro'rata basis i.e. depending upon the area ofthe nnt allottcd to the . d to the .omplainant vis- a'vis the total area of the particular project. llowever, thc complninnnt would also be entitled to prooi of such payments to the concerned depa(ment along with a computation propofionate to the allotted unit, belore making payment under the . wTC (work contract tax)r The complainant is seeking above mentioned relief with respect to reskaining the respondent lrom demanding Work Contract Tax.

At this stage, it js important to stress upon the definition ol t.rm $,ork contracC under Section 2(1191 of lhe CGST Acl 2017 and the same is reproduced below lor reidy relerence: ' (119) wa.k!..htoctneantacohtoctlotbuildns c.nstruction fobricotian conpleton,etecrion, lstallotion, JittinI out, tnprov.nent" modilcotiotL rcpan muntehonce, novatioh, alterution ot connksoning ol onv innovoble pr.p t! \|hnain nander of p.apettt in gaods (whether os gao.ls ot in sone athcr fonn) i\ inwtvetl in the exe.utian alsu.h cohtrodi' After considering the above, the Autho.ity js of the view that the complainant/allotlc. is neither an employernor a.ontractor and the same &.HARERA GURUGRAN/ is notapplicable in the present case.

Thus, the complainant /allottee cannot be madeliable to pay the sarne to therespondent. .

Power Backup Chargess The issue ofpower back-up charges has alreadv been clarified by the office of DTCP, Haryana vide omce order dated 31.01.2024 wherein it has categorically clariffed the mand.tory services to be provided by the colonizer/developer ,n affordablegroup housing colon'es and services for which maintenance charges can be charg€d fiom the allottees as per consumption.

Accordin& the promoter can only charge maintenanc€/use/utility charges ftom the complainant-allottees as per consumption as prescribed in category_ll of the omce order dated 11 01.2024. nx H.

Directions of the Authority 44. hority 44.

Hence, the authority hereby passes thisorderand issue the following directions under section 37 oithe Act to ensure compliance of obtigations casted upon the promoter as per the functlons entrusted to the authority under section 34(0 of i. 'lhe respondent/promoter is directed to payint'rest to the complainant{s) against the paid_up amount at the prescribed rate of 11'10% p'a' for every rnonth ol delay from the du€ date of possession i'e', 30 05 2022 till valid offer of possession plus 2 months after obtaining occupat'on certificate from the competent authoritv or actual handing over of possession' whichever is earli.r, as per section 18(11 olthe Act of2016 read with rule 15 ofthe rules. ri.

The an cars of such interest accrued f.om 30'05 2022 till the date olorder by the auihority shall be pard bv the promoter to the allottee(s) w'thin a period ol90 days lrom date oithis order and interest for every month of codplaint No.

5322 of2023 HARERA GURUGRAIU ComplaintNo,5322of 2023 delay shall be paid by the prontoter to the allottee[s] befo.e 10th of the subsequent month as perrule 16(2) ofthe rules. iii.

The respondent/promoter shall handover possession of the flat/unit and execuie conveyance deed in fnvou r ol the complainant(sJ in terms of section 17(11 ofthe Act of2016 on payment olstamp duty and registration charges as applicable, withrn three months after obtain,ng occupation cert,ficate from lhe competent authoritY. rv.

The complainant(sl are directed to pay oLttstanding dues, if any, after adiustment olintcrest ior the delayed per,od v The respondent/p.omoter shall not charge anything from the complarnant(sl which isnotthepartof theAflordable HousingPoliry, 2013. vi 'lh e rate of interest chargeable from the allottee(s) by the promoter, in ca se ol delault shall be charged at the prescribed rate i.e., 1110% bv the respondent/pronroter which is the sam€ rate of interest which the promoter shall be liable to pay the allottee(sl, in case of default i-e. fault i-e., the dclayed possession charges as per section 2(za) ofthe Act. ,!5.

Thjs decision shall mutatis mutandis apply to cases mentioned iD para 3 of this order wherein details olpaid up amount is mentioned in each ofthe complaints' 1c, ftDrplaint as wellas applications, ifany, stand disposed off accordingly (Ashok sa Haryana D2red:15.04.2025 d"'r u,. lArun Kumar) Chairman Estate RegulatoryAuthority, Gurugram u) -:2-) [vllay Kum.r Goyal)