ALOK KUMAR CHOUDHARY AND KRITIKA CHOUDHARY vs INTERNATIONAL LAND DEVELOPERS PVT. LTD.

HARERA GURUGRAI/ Complaint No.

2485 of 2023 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.

2485 of 2O23 Date offilins comDlaint 09.06.2023 First date ofhearins 70.11.2023 Date of decision 20.o9.2024 1.

The present complaint has been filed by the complainants/allottee under Section 31 ofthe Real Estate (Regulation and Development] Act, 2016 (in short, the ActJ read with rule 29 of the Haryana Real Estate (Regulation and Development) Rules, 2077 {in short, the Rules) 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, responsibilities and functions under the provision of the Act or the rules and regulations 1.

Alok Kumar Choudhary 2.

Kritika Choudhary R/o: 8-129, Sales Office, oox lindal Realty Ltd., Sector-35, So -13100L Complainants M/s International l Office address: I Sector 47, Sohna Respondent Shri Ashok Shri Ajay Kumar Singh Complainants Shri Rishabh Gupta Page 1of23 Versus CORAM: Member APPEARANCE: trHARERA # aiRuGRAM Complaint No.

2485 of 2023 made there under or to the allottees as per the agreement for sale executed inter se.

A.

Unit and proiect related details 2.

The particulars of the prorect, the details of sale consideration, the amount paid by the complainants, date of proposed handing over the possession and delay period, if any, have been detailed in the following tabular form: I S, N, Particulars 1 L.

Name and project 3, Gurugram 2. oiect Nature of the p Group Housing Colony 3.

Project area 77.61 ICres 4.

DTCP license no.

44 of 03.06 04.06.2013 valid upto 5.

Name of AI rh-Sanjeev Ss/o Satbir and 2 s 6.

RERA Registered/ not registered 06 of2019 dated 08.02.2019 valid upto 02.07.2022 7.

Allotment Letter 06.04.20L4 (Page 16 of complaint) 8.

Date of execution of apartment buyer agreement 20.01.2015 fPage 23 of complaint) Page 2 of 23 9.

Unit no.

402, 4fr floor, tower C (Page 27 of complaint) 10. laint) 10.

Unit area admeasuring (super areaJ 1275 sq. ft. (Page 27 of complaintJ 11.

Possession clause q n HAI GURI ,l}r\ {{ 10.

Possession of Apartment 10.1 Subiect to timely grant of all . approvals (including revisions thereo0. ns. certificates.

NOCS, n to operate, full/part ,occupation certificate etc. and further :,subiect to the Buyer having complied -with all its obligations under the terms and conditions of this Agreement, and subject to all the buyers of the apartments in the Prorect making timely payments including but not limited to the timely payment of the Total Sale Consideration. stamp duty and other charses. fees. lAC.

Levies & Taxes or increase in Levies & Taxes, IFMSD, Escalation Charges, deposits, Additional Charges to the Developer and also subject to the Buyer having complied with all formalities or documentation as prescribed by the Developer, the Developer shall endeavor to complete the construction of the Said Apartment within 48(Forty Eight) months from the date of execution of this Agreement and further extension/grace period of 6 [six) months. ffiHARERA #h aiRuGRAM Complaint No.

2485 of 2023 Page 3 of 23 1.2.

Due date ofpossession 20.07.2019 (Calculated as 48 months from date of execution of BBA plus 6 months grace period as the same is unqualified) 13.

Total sale consideration Rs.76,25,975/- (As per payment plan on page 80 of complaint) 1,4. by ,!9, 'a I Amount paid complainants Rs.27,54,064/- [A3 alleged by complainants on page I of complaint) 15.

Occupation certificate Not obtained Not obtained t6. omerornosses3f$f i B.

Facts ofthe complain' 3.

That in 2013, the respo a flat in the residential ail DI; mplainants for booking rh m as "ARETE",situated in ffiHARERA H aiRriGRAM Complaint No.

2485 of 2023 Revenue Estate, Sohna, Gurugram, Haryana 122005. ofthe best and finest in the construction and one of the leading real estate developers of the country in order to lure prospective customers to buy the apartment in the proiect.

4. roiect.

4.

That the complainants opted for the possession link payment plan as offered by the respondent and at the time ofbooking development was being started on the project and representative ofthe respondent told to the complainants that offer ofhanding overthe possession ofthe said flat v PaEe 4 of 23 ffiHARERA #-dunuennr'r Complaint No.

2485 of 2023 within 48 months from the date of execution of apartment buyer agreement with additional grace period of 6 months.

That the complainants booked a unit/apartment bearing no.

C-402, Tower-C, 2BHK measuring 7275 sq. ft on 28.72.2013 and paid an amount of Rs.

3,00,000/-.

The complainants continued to make payments to the respondent company and paid an amount of Rs.

4,00,000/- and Rs.

4,00,000/- dated r1.02'2074.

That after the payment of apartment vide allotment I /- the respondent allotted the 6/04/2014.

7.

That after this payme ded more amount from the complainants wi t buyer agreement and without reaching and forced to the complainants to which was sanction for the sum of Rs. dated 16.02.2015 in which Rs.

L5,70,40 ent.

L That after the boo respondent executed the 5 in favor of the ndent allotted Unit bearing C-402 on 46Jloor, towe.r:C; with area L275 sq. ft., of "ARETE", situated in Revenu€ Estate, Village Dhunela, Sector-33, Gurugram, Haryana 122005, and total cost ofthe unit was Rs.

76,25,975/- including other charges, Accordingly, a binding contract came into existence in the form ofthe said allotment agreement duly signed by both the parties.

9.

That as per clause "10.1" it was stipulated that the possession was supposed to be delivered in May 2019, however, even after a delay of3 Page 5 of23 5.

6. ffiHARERA ffi euRueRRtr,r Complaint No.

2485 of 2023 year 11 months, the respondent till date has failed to handover the possession of the unit to the complainants.

10.

That according to apartment buyer agreement dated 20.06. ted 20.06.2015, it was specifically and categorically assured by the respondent that it shall handover the said residential unit within 48 monttrs of execution of the apartment buyer agreement dated 20.06.2015 with the grace period of6 months.

It means that, the respondent was supposed to handover the said unit along with the requ es and facilities which are fairly necessitated and promised un d brochure/booking form/letter of allotment/ apartment by 79.06.201,9 and at most 19.12.2019 (lnclu e period).

11.

That after complainants were by the respondent f booking, but the respondent fail to tleir unit within 48 paymenL months and kept 12.

However, after the initial at the tower site, there was no prosress'n .o",r1"fuft1$bfi,fl["1{1r,at respondent with fraudulent intenti"$pf+At, lgr.€tdrpflsua+ the public at large to book and invest inlr;XLa e6J."[hnl6iu*irrition *ork at the tower site, but after receiving substantial amoun! the respondent have abandoned the tower site.

The complainants repeatedly approached the respondent's personally as well as via email communication, requested them to increase the pace of work and handover the booked flat in stipulated time.

But a part of frivolous assurances, nothing constructive was yield out, causing lots of immense mental agony, physical looking for the po in the agreemen on of their unit as co Page 6 of 23 ffiHARERA ffi aIRUGRAM Complaint No.

2485 of 2023 harassment & financial loss to the complainants.

In such scenario, the complainants requested the respondent to refund the deposited amount along with interest.

13.

That the complainants made all the payments from time to time and looking for possession of the said flat as per the agreement but the construction is not as per the agreement, and from the construction work it seems to take 6-7 years for the possession from till now.

14.

That the complainants sum of Rs.

27 ,54,064 /- till L6 / 02 /20L5.

02 /20L5.

The complaina demand time to time and there was no delay in the p but the respondent failed to provide possession C.

Relief sought by 15.

The complainants Direct the res amount along with prescribed rate of D.

Reply by respondent: The respondent by way of written reply made following submissions: 16.That at the outset each and every averment, statement, allegation, contention of the complainants which is contradictory and inconsistent with the reply submitted by the respondent is hereby denied and no averment, statement, allegation, contention of the complainants shall deem to be admitted save as those specifically admitted to be true and correct. lt is respectfully submitted that the same be treated as a specific denial ofthe complaint.

The respondent is a leading real estate company lE mplainants: PaEe 7 of 23 &HARERA S-aJRLToRAM Complaint No, 2485 of 2023 aiming to provide state ofart housing solutions to its customers and have achieved a reputation of excellence for itselfin the real estate market.

17.

That the present complaing filed by the complainants, is bundle of lies and hence liable to be dismissed as it is filed on baseless grounds.

18.

That the complainants herein, have failed to provide the correct/complete facts and the same are reproduced hereunder for proper adiudication of the present matter.

That the complainants are raising false, frivolous, misl respondent with intent to ma 19.

That after obtaining authorities comme housing proiect Gurugram, Ha humbly submitted ofthe promotion to the aspiring allotte such general advertisemen less allegations against the ions from the competent pment of the group tuated at Sector 33, ject'J, turther, It is the general practices for allocating the units plainants after perusing the respondent for further details of the project and the respondent placed all the documents pertaining to the pro,ect for the assimilation and satisfaction of the complainant.

20. inant.

20.

That the complainants after comprehending the details of the proiect presented by the respondent, thereby decided to book a unit in the proiect.

Correspondingly, filed the booking application on ZB.L2.Z0|3 and paid the booking amount of INR.

3,00,000/- (Rupees Three Lakhs Only), which was duly acknowledged by the respondent through receipt no.

148 dated 28.12.2073. t/ Page 8 of 23 ffiI]AREIA ffieuRuenRHr Complaint No.

2485 of 2023 21.

That on 06.04.2014, an allotment letter was issued in favor of complainants wherein provisionally allotting the apartment no.

C-402, 4$ floor, tower C situated at ILD Arete, Sector-33, Gurugram, Haryana.

22.That on 20.07.2015, an apartment buyer's agreement (hereinafter referred as 'Agreement') as was executed between the complainants and the respondent wherein the apartment/unit no.

C-402, 4TH Floor, Tower C situated at ILD Arete, s referred as "Unit"), having consideration of Rs.

7 rugram, Haryana (henceforth area of L275 sq. ft and total sale er, the clause 10.1 of the agreement postulate nit was supposed to be handed-over with plementation ofgrace period ofsix (61 on ofthe agreement.

23.

That time is the es the buyer shall timely payment of each payment plan o nsideration as per the escalation charges, securities, additional cha uding any interest or penalty the timelines indicated developer to comp said apartment.

24.

That the construction work of the said project is completed around 40- 50% in totally.

That it is also further pertinent to mention that the majority of prospective buyers in the said project failed to make the payments as per the payment schedule attached to the agreement which eventually resulted in the delay in construction process.

That the ofall his obligations under lete the construction ofthe Page 9 of23 HARERA ffi GURUGRAI\,,I Complaint No. plaint No.

2485 of 2023 respondent with the availability of funds are carrying the construction and the construction of the proiect is at full swing despite the defaults of the prospective buyers, which is a matter of concern and hence the complainants are themselves liable for the said delay in the handing over ofthe possession.

25.

That the project of the respondent got delayed due to reasons beyond control of the respondent.

It was further submitted that major reason for delay for the constructio ion of proiect is lack of infrastructure in the said ar -four- meter sector road was not completed on time.

D ction of the sector road, the Respondent faces project.

For completion of road, the resp t/machinery and the problem is beyon The aforementioned road has been 26.

That the building 014 vide Memo No.

2P370 /AD(RA)/201. and further revised on 27.09.20L5 vide Memo AD[RA)/2015/18145 dated 2r/09 /2075. tt is ilding plan has been due to this reason AM 27.

That in the agreement, the respondent had inter alia represented that the performance by the company ofits obligations under the agreement was contingent upon approval of the unit plans of the said complex by the Director, Town & Country Planning, Haryana, Chandigarh and any subsequent amendments/modifications in the unit plans as may be made chansed for the befiefit 6f tfe thep-roieagotde,GU i?

Page 10 of 23 HARERA ffiGURUGRAI/ Complaint No.

2485 of 2023 from time to time by the Company & approved by the Director, Town & Country Plannin& Haryana, Chandigarh from time to time.

28.

That due to ban levied by the competent authorities, the migrant labourers were forced to return to their native towns/states/villages creating an acute shortage of labourers in the NCR Region.

Despite, after lifting of ban by the Hon'ble court the construction activity could not resume at full throttle due to such acute shortage.

29. rtage.

29.

It was submitted that the p completed within time due to the reason mentioned ab to several other reasons and circumstances absolute I of the respondent, such as, interim orders da and 21.08.2012 of the Hon'ble High Co No.20032/2008 on, orders passed whereby ground by National G prevent emission of ber, 2016, adversely affected the progress 30. ln past few years constructio dust in the month o ln past few years construction activities have also been hit by repeated bans by the Courts/Tribunals/Authorities to curb pollution in Delhi-NCR R/2019/L- 49 dated 25.10.2019 banned construction activity in NCR during night hours (6 pm to 6 am) from 26.10.2019 to 30.10.2019 which was later on converted to complete ban from 1.11.2019 to 05.11.2019 by EPCA vide its notification bearing no.

R/2019/L- 53 dated 01.11.2019.

31.The Hon'ble Supreme Court of India vide its order dated 04.11.2019 passed in writ petition bearing no.

73029 /1985 titled as "MC Mehta vs. ., Paee ll of 23 IARERA ffi OURUGRAI/ Union of India" completely banned all construction activities in Delhi- NCR which restriction was partly modified vide order dated 09.12.2019 and was completely lifted by the Hon'ble Supreme Court vide its order dated 74.02-2020.

These bans forced the migrant labourers to return to their native towns/states/villages creating an acute shortage of labourers in the NCR Region.

Due to the said shortage the construction activity could not resume at full throttle even after the lifting of ban by the Hon'ble Apex Court.

32.

The demonetization and n GST, affected the development work of the project.

In stated above it is submitted that the respondent prorect soon for which 33.

Even before the 19 pandemic.

Th was hit by the Covid- t the said delay in the seamless execution o genuine force majeure circumstances and such added while computing the delay.

HARERA 34.

The Covid-19 pandemic has resulted in,serious challenges for the proiect with no available labourers, contractors etc. ctors etc. for the construction of the Project.

The Ministry of Home Affairs, GOI vide notification dated March 24,2020 bearing no.

4O-3 /2020- DM-I(AJ recognized that lndia was threatened with the spread of Covid-19 pandemic and ordered a completed lockdown in the entire country for an initial period of 21 days which started on March 25,2020.

By virtue of various subsequent notifications the Ministry of Home Affairs, GOI further extended the Complaint No.

2485 of 2023 e interest of allottees the respondent is ofthe project.

Page 12 of 23 ffiHARERA S-aiRuGRAM Complaint No, 2485 of 2023 lockdown from time to time and till date the same continues in some or the other form to curb the pandemic.

Various State Governments, including the Government of Haryana have also enforced various strict measures to prevent the pandemic including imposing curfew, lockdown, stopping all commercial activities, stopping all construction activities.

Pursuant to the issuance of advisory by the GOI vide office memorandum dated May 13,2020 regarding extension of registrations ofreal estate projects under isions of the RERA Act, 2016 due to "Force Majeure", the Ha Regulatory Authority has also extended the registration n date by 6 months for all real estate projects whose n date expired and or was supposed to expire 35.

After such obs before the normalcv could resume th pandemic.

There orld wide Covid-19 the said delav in the genuine force majeure seamless execution circumstances. qla{a*{ GFra notification bearing no.

40-3 /2020-DM- I (A) recognized that entire nation was threatened with Covid-19 pandemic and ordered a completed lockdown in the entire country for an initial period of 21 days which started on 25.03.2020.

Subsequently, the Ministry of Home Affairs, GOI further extended the lockdown from time to time and till date the same continues in some or the other form to curb the pandemic. pandemic. [t is to note, various State Governments, including the Government of Haryana have Page 13 of 23 ffiHARERA # aJRTIGRAN/ Complaint No.

2485 of 2023 also imposed strict measures to prevent the pandemic including imposing curfew, lockdown, stopping all commercial activities, stopping all construction activities.

37.

It is an evident fact the respondent herein had been running behind the complainants for the timely payment of instalment due towards the respective unit in question.

That inspite being aware of the payment schedule the complainants herein has failed to pay the instalment on time.

38.

That the respondent is co mplete the development of the proiect at the earliest fo action is being taken by the respondent.

Th ject was delayed due to the reasons ent, the complainants are not entitled y and the same was agreed into betwe ondent under clause 10.1, 10.2, 10.3, 10. e complainants are not entitled for compens 39.

That, it is evident that the entire case ofthe complainants are nothing but a web of lies and the false and frivolous allegations made against the respondent are nothingbutan afterthought and a concocted story, hence, the present complaintfiled by the complainants deserves to be dismissed with heavy costs.

Hence, the present complaint under reply is liable to be dismissed with cost for wasting the precious time and resources of the Ld.

Authority.

That the present complaint is an utter abuse ofthe process of law, and hence deserves to be dismissed.

40.

All other averments made in the complaint were denied in toto. ay.

PaEe 14 of 23 ffiHARERA =e-aiRuGRAM Complaint No.

2485 of 2023 41.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of those undisputed documents and written submissions made by the parties and who reiterated their earlier version as set up in the pleadings.

E.

Jurisdiction ofthe authority: 42. ority: 42.

The plea of the respondent re lack of jurisdiction of Authority is rejected.

The authority o as territorial as well as subject matter jurisdiction to adjudi nt complaint for the reasons given below.

I Territorial i 43.

As per notificati 4.L2.2077 issued by Town and Cou iction of Real Estate Regulatory Autho District for all purpose with offi n the present case, the project in question is planning area of Gurugram l.lTllT: j::,*lffi ,Rrfq':{-oria'Iiurisdictionto 44.

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

Section 11[aJ[aJ is reproduced as hereunder: Section 77(4)(a) Be responsible for oll obligations, responsibilities and functions under the provisions of this Act or the rules ond regulotions made thereunder or to the ollottees os per the agreement for ssle, or to the association ofollottees, as the Page 15 of 23 HARERA ffiGURUGRAM Complaint No.

248S of 2023 case moy be, till the conveyance of all the opartments, plots or buildingt as the case may be, to the allotlees, or the common areas to the association oJ allottees or the competent quthoriqt, as the case may be; Section 34-Functions of the Authorityl 344 of the Act provides to ensure compliqnce of the obligations cast upon the promoters, the ollottees qnd the real estate agents under this Act and the rules ond regulotions mode thereunder.

45.

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

F.

Findings on the obi dent: interim orders dated 1 01 2 and 27.08.2072 of the Hon'ble High C No.20032/2008 whereby ground rgaon, orders passed F.l Obiections regarding delay due to force maieure: 46. ieure: 46.

The respondent-promoter raised the contention that the construction of the project was delayed due to conditions beyond the control of the respondent such as non-construction of sector road by Government by National Green Tribunal to stop construction to prevent emission of dust in the month ofApril, 2015 and again in November, 2016 along with demonetization and new tax law i.e., GST, affected the development work of the project.

First of all, the orders of High Court in the year 2012 does not have any impact on the project as the same was passed even before the Apartment Buyer's Agreement was executed between the parties.

Further, the orders banning construction and extraction ofground water were imposed for a very short duration and thus, a delay of such a long Page 16 of 23 HARERA @ cr rDr raDAI/ Complaint No, 2485 of 2023 duration cannot be justified by the same.

The plea regarding delay due to GST and demonetisation is also devoid of merit and thus, all the pleas stand rejected.

Thus, the promoter-respondent cannot be given any Ieniency on based ofaforesaid reasons and it is well settled principle that a person cannot take benefit ofhis own wrong.

G.

Entitlement of the complainants for refund: G.I Direct the respondent to the amount deposited by the complainants along with prescribed rate.

47. [n the present complaint, the ts intend to withdraw from the project and are seekin paid by them in respect of subject unit along rate as provided under section 18(1.J of ready reference. roduced below for "Section 1B: - 18(1). tfthe give possession of an aportment, Pl (o) inaccordonce tfor sole or, os the case may be, duly comp therein; or (b) due to discontinuance os a developer on occount of wishes to withdraw from the prqiect without preiudice to ony other remedy availoblg,..to return the g. urn the g.rhitnit received by him in respect of that qpdranent, plot, building, as the case may be, with interest at such rdte as may be prescribed in this behalf including compensotion in the monner as provided under this Act: Provided thot where on ollottee does not intend to withdraw ftom the project, he shall be paid, by the promoter, interest for every month of deloy, till the handing over of the possessio4 ot such rote as may be prescribed," (Emphasis supplied) 48.Clause 1.0.1 of the apartment buyer agreement dated 20.01.2015 provides for handing over of possession and is reproduced below: suspension or revocation other reoson, he shall be liable on dem PaEe 17 of 23 ffiEAREBA ffieunuenRtrl 4.2 Possession Time and Compensation 10.1 Subject to timely gront of oll opprovals (including revisions thereoJ). permissions. certificqtes.

NOC|, permission io operot", full/pqrt occupation certifrcate etc. ond further subject to the Buyer hoving complied with olt its obligations under the terms ind conditions of this Agreement, and subject to all the buyers of the apartments in the Projectmaking timely poyments including butnot li.mited to the timely payment of the Total Sale Considerotion. stamp duty ond other charges, feet IAC.

Levies&Taxes or increase in Levies &_Tqxes, IFMSD, Escalotion Charges, deposits, Additional Charges to the Developer and also subject to the Buyer having complied wTth all Iormolities or documentotion os prescribed by the Devetoper, the Developer shall endeavor to the construction of the Said months from the date of Aportment within executionofthis er ex te n s i on/g r ace perio d of 6 (six) months.." 49.

At the outset, it is rel the preset possession clause of the agreement has been subjected to providing necess sewer & water in the sector by the gove re conditions or any government / on or omission and reason bevond th ng of this clause and incorporation ofsu e and uncertain but so heavily loaded in favour and against the allottee that even a at even a single defa nt as per the plan may make the purpose of allottee and the commitm The incorporation of such a clause in the agreement to sell by the promoter is just to evade the liability towards timely delivery of subject unit and to deprive the allottee of his right accruing after delay in possession.

This is iust to commentas to howthe builder has misused his dominant position and drafted such a mischievous clause in the agreement and the allottee is leftwith no option but to sign on the dotted lines.

Complaint No.

2485 of 2023 t, but subj Page 18 of 23 HARERA MGURUGRAI/ 50.

Due date of handing over possession and admissibility of grace period: As per clause 10.1 of the apartment buyer agreement, the possession of the allotted unit was supposed to be offered within a stipulated timeframe of 4g months from the date of execution of agreement plus 6 months ofgrace period.

The due date ofpossession is calculated from the date ofagreement which comes out to be 20.07.2019 including grace period of 6 months as it is unqualified.

51.

Admissibility of refund cribed rate of interest: The complainants intend to wi the proiect and are seeking refund of the amount pai ect of the subject unit with interest at prescrib e 15 ofthe rules.

Rule 1S has been reprodu Rule 75, 12, section 18 and sub- el (1) For th ion 78: and sub- sections at the rate prescri highest marginol cost oflending Provided of lndio marginal cost of lending rate it sholl be replaced by suci from of Indio moy fix 52.

The legislature in i provision of rule the rules, interest.

The rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases.

53.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in. the marginal cost oflending rate (in short, MCLRJ as on Complaint No.

2485 of2023 ned the prescribed rate of Page 19 of 23 HARERA possession of the Complaint No. plaint No.

2485 of 2023 GURUGI?AI/ date i.e., 76.10.2024 is 9.10ol0.

Accordingly, the prescribed rate interest will be marginal cost of lending rate +2% i.e. ,l1',1-:0o/o, 54.

On consideration of documents available on record as well as submissions made by the parties, the authority is satisfied that the respondent is in contravention of the provisions of the Act. tsy virtue of clause 10.1 of the apartment buyer agreement executed between the parties on 20.01.20L5, the possession of the subiect unit was to be delivered within a period o from the date of execution of es out to be 20.01.2019.

As far apartment buyer's agreemen as grace period is con wed for the reasons quoted above.

Therefore, over of possession is Z0 .07 .2079 .

The a passage of more than 5 years till plete nor the offer of the allottees by the respondent/prom 55.

Keeping in view the lottees wish to withdraw from the proiect and de f the amount received by the terest on failure ofthe of ive possession of the unit in or duly completed by the date specified therein.

The matter is covered under section 1g(1J of the Act of 20t6.

56.

Moreover, the occupation certificate/completion certificate of the project where the unit is situated has still not been obtained by the respondent /promoter.

The authority is of the view that the allottees cannot be expected to wait endlessly for taking possession ofthe allotted Page 20 of23 I w& HARERA GURUGRAM Complaint No.

2485 of 2023 unit and for which they have paid a considerable amount towards the sale consideration and as observed by Hon'ble Supreme Court of India in Ireo crace Realtech PvL Ltd.

Vs.

Abhishek Khanna & Ors., civil appeal no.5785 of2019, decided on 77.07.2027 "....

The occupotion certificate is not dvoilqble even qs on date, which clearly amounts to deficienq of service.

The allottees connot be mqde to wait indefinitely Ior possession of the oportments allotted to them, nor can they be bound to toke the oportments in phase 1 ofthe proiect......." 57. ....." 57.

Further in the judgement of Supreme Court of [ndia in the cases of Newtech Promo Private Limited Vs State of U.P. and Ors.2027-20 357 reiterated in case of M/s Sana Realtors of India & others SLP (Civil) No.

1s005 it was observed that: 25.

The unquali. referred Under Section 1B(1 on any contingenci t the legislature demand os on has con unconditionol promoter foils to give possession ng within the time stipulated under rdless of unforeseen events or stay orders which is in eitherwqy not attributable oter is under on obligotion to at the rote prescribed b in the manner if the allottee does not wi. be entitled for interestfor ot the rate prescribed." 58.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunder orto the allottees as per agreement for sale under section 11(4J(a).

The promoter has failed to complete or unable to give possession ofthe unit in accordance with the terms ofagreement for sell or duly completed by the date specified therein.

Accordingly, the PaEe 2l of 23 (1) RcR I ffiHARERA ffi aiRuGRAM Complaint No.

2485 of 2023 promoter is liable to the allottees, as the allottees wish to withdraw from the project, without prejudice to any other remedy available, to return the amount received by it in respect ofthe unit with interest at such rate as may be prescribed.

59.

Accordingly, the non-compliance of the mandate contained in section 11(4)(aJ read with section 18(1) ofthe Act on the part ofthe respondent is established.

As such, the complainants are entitled to refund of the entire amount paid by them at the prescribed rate of interest i.e., @11.70o/o p.a. (the State B ighest marginal cost of Iending rate (MCLRJ applicable prescribed under rule 15 of the Haryana Real Es ent) Rules,2017 from the date of each p ti refund of the amount within the timelin ded na Rules 2017 ibid. v H.

Directions ofthe Autho 60.

Autho 60.

Hence, the authori directions under d issue the following ensure compliance of obligations cast upon the p the functions entrusted to the Authority under S*t&& of 2016. i.

The responderltDrgnldrylislc,lltc[eq $o rqfund the entire amount receivedbyitrr\frhl".S;bi,\1,1.\L.,\,hi,sn,ount-aronswith interest at the rate of 11.100/o p.a. as prescribed under rule 15 ofthe Haryana Real Estate (Regulation and Development) Rules, 2017 from the date of each payment till the actual date of refund of the deposited amount.

Page 22 of 23 ffiHARERA #-a;RUGRAM ii.

A period of90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences would follow.

The respondent is further directed not to create any third-parry rights against the sub.iect unit before full realization of the paid_up amount along with interest thereon to the complainants.

Even if, any transfer is initiated with respectto subject unit, the receivables shall be first utilized for cl mplainants/allottees.

61.

Complaint stands disposed o 62.

File be consigned to the Haryana Datedt ZO.O9.2OZ4 ority, Gurugram HARERA URUGRAM PaEe 23 of 23 esn'ot sanlw*n Membbr