SEEMA KHATTER vs ANSAL HOUSING & CONSTRUCTION LTD.

ffi HARERA S- eunGnnrr,l BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision: Za.O]..ZOZ; NAME OF THE BUI LDER ANSAL HO.USING LIMITED (FORMERLY KNOWN AS ANSAL HOUSING & CONSTRUCTION LTD.) AND SAMYAK PROJDCTS PVT.

LTD.

ANSAL HUB B3 BOULEVARD Lase uue , APPEAMNCE PROJECT NAME S.

No.

Case No. cR/4845/2022 cR/s778/2022 Anita Yadav V/s Ansal Housing Limired and Samyak projects pvt.

Sh.

Dinku Yadav Sh.

Amandeep Kadyan for R1 Sh.

Sanya Arora for R2 Sccrna Khatter V/s Ansal flousjng Limited and Samyak Projects pvt.

Rahul Thareja Sh, Amandeep Kadyan for R1 Sh.

Sanya Arora for R2 Complaint No.

4845 of 2022 and anr.

Chairperson Member Member ORDER 1, 'l'his order shall dispose of both the complaints titled as above fled before this authority in form CRA under section 31 of the Real Estate IRegulation and Development) Acr,20'16 (hereinafter referred as,,the Act,,) read with rule 2g of the Ilaryana Real Estate IRegulation and pevelopment.) Rules, 2017 [hereinafter referred as ,,the rules,,J fbr violation of section 11(4) (a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

CORAMT Shri.

Arun Kumar Shri.

Vijay Kumar coyal Shri Ashok Sangwan Page 7 of 23 2.

HARERA M.GURUGRAII The core issues emanating from them are similar in nature and the complainantfs) in the above referred matters are allottees of the proiect, namely, "Ansal Hub 83 Boulevard,, fgroup housing colony) being developed by the same respondent/promoter i.e., M/s Ansal Housing Limited and Samyak Projects Pvt.

The terms and conditions of the buyer,s agreements, tulcrum of the issue involved in all these cases pertains to failure on the part of the promoter to deliver timely possession of the units in question, seeking award of delay possession charges along with intertest. intertest.

The details of the complaints, reply to status, unit no., date of agreement, possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given in the table below: Proiect Name and Location "ANSAL HUB 83 BOULEVARI " Sector-83, Gurugram.

Possession Clause: .?0 of42 months os obove in offering the possession of the unit.,, 15,10.2013 Complaint No.

4845 of 2022 and anr, 3. "30.

The Developer shol offer possession of the unit within 42 months from the obtaining oll the required sanctions and aryroval sanctions and opproval necessary for commencement ofconstruction, whichever is later subject to timely payment ofoll dues by the Buy.er and subjecttoforce majeure circumstances as described in crause 31.

Further there sholl be a grqce period oI6 months afiowed to deverop", or", ona rtor" tn" p"rioa Occupation certifi cate, - Noiobuined Complaint No.

C.R/4Bis/2021 Unit no. and area .i.

125adr]lcasuring,164 admcalruring so. ft 30 of complaint cR/577A12022 G-174 admeasuring 466 sq. ft. .33 of complaint Date of builder buyer 1.4.01.2075 26 ofcomplaint 14.03.2015 29 ofcomplaint Due date ofdelivery oi 1.4.07.2019 74.03.2019 2 0.0 5.2015 59 ofcomplaint MoU with Ansal 20 of com Page 2 of23 IEmphasis supplied) m IARER-1 ffieuRuenRv Total Amount paid by complainant(s)(Ap) The aforesaid complaints ;ere-filed bti -o.pf an-*t "rr.rt if," p--.orot-". on account ofviolation ofthe builder buyer,s agreement executed between the parties in respect of said unit for not handing over the possession by the due date, seeking award of delay possession charges along with interest.

It has been decided to treat the said compiaints as an application for non- compliance of statutory obligations on the part of the promoter/ respondent in terms of section 34[0 of the Act which mandates the authority to ensure compliance of the obligations cast upon the promoters, the allottee(sl and the real estate agents under theAct, the rules and the regulati e regulations made thereunder.

The facts of all the complaints filed by the complainant[s)/allottee(s]are also similar.

Out of the above-mentioned case, the particulars of lead case CR/4845/2022 Anita yadav V/s Ansat Housing Limited and Somyak Projects PvL Ltd are being taken into consideration for determining the rights of the allotteefs] qua deray possession charges arong with interest and compensation.

Proiect and unit related details Complaint No.

4845 of ZO2Z a\d anr. <37 ,59 ,890 / - Isum ofreceipts] Not offered 1.

DPC.

2.

Possession.

3.

Execute CD.

4.

Litigation cost. <25,78,432/- [as per SOA dated 20.08.2022 ar pg.

50 of 2.

Revoke the amounts imposed by the respondent illegally, such as for increased area, cost escalation.

Litigation cost.

6.

Sale Consideration (SC) <36,20,813 / - 48 ofcomplaint 17 6,94,0 42 / - 49 ofcomplaint A.

Page 3 of 23 Offer ofpossession Reliefsought ffi HARER # eunuennu Complaint No.

4845 of 2022 and, anr.

7.

The particulars of the project, the details of sale consideration, the amount paid by the complainant(s], date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: CR/4845/2022 Anita yadav V/s Ansal Housing Limiteil and Samyak proiects pvL Ltd. s.

N.

Particulars Details 1.

Name ofthe project Nature ofthe proiect A"gistered/not ''Ansal Hub 83", Boulevard Sector-83 Gurugram Haryana Lommerclal Tegisterec 09 of 2018 dated 08.01.2018 Valid rill 31.12.2020 2.

Shop No. 'l- 725,464 sq. ft. (Page 30 of complaint) 5 6.

Mou w.r.t.

Assured return Date of builder buye. ag."em*t 1s.10.2013 (Page 20 ofcomplaint) t+.or:ors- - [As per page 26 ofcomplaint] lThe developer shotl oller possessior ol the unit ony time. $tthin a pcriod of 42 monLhs from the dote of execution of the agreement or within 42 Jnonths from the dote ol obtaining all the required san.tions and opproval necessory lor lcommen(ement of Lonslruction. slruction. whichever s later subject rc timely payment of olt dues by buyer ond subiect I o force mojeurp I ircumstonLes Lt\ detcrthed t.t tlou:e 31.

Furthet, there rho be of groce period of 6 months allowed to the developer over and obove the period of42 months as obove in offering the possession ofthe unit. {Emphosis supplied) PaBe 4 of 23 Possession clause HARERA ffi.

GURUGRAM Complaint No.

4845 of2022 and anr.

B.

8.

Facts of the complaint The complainants have made the following submissions in the complaint: - a.

Ihat the complainant signed a memorandum of understand (Hereinafter referred as MOU] with the respondent on lSth October 2 013, wherein the complainant invested 133,21,179/- vide cheque no.

206993 drawn on Canara Bank, in lieu of allotment of developed unit once all the necessary sanctions and approvals of its upcoming commercial project in Sector-83, Gurgaon, Haryana.

As per the MoU the respondent also agreed to pay the assured return of t34,800/- from 29.08.2013 to 28.09.2016 and of <29,000/- from 29.08.2016 to 28.08.2019.

This amounr ofassured rerurn was duly paid by the respondent to the contplainant. b.

That on 14th January 2015, in persuasion of the MOU, unit no.

T-1ZS in project Ansal HUB 83 boulevard in sector-93, Gurugram was allotted to the complainant and subsequently a builder buyer agreement was executed between complainant and respondent.

As per the agreement total consideration of 133,23,400 /- was agreed to be paid by the respondent to B, 9.

Due date of possession Total sale consideration Amount paid 1,4.01,.2019 (Calculated from the date ofthe execution ofthis agreement i.e., 14.01.2015 as date of start of construction is not mentioned.

Crace period is allow(r d being unqualitled.) R,.

J6.20,8I J/. [As per SOA dated 20.08.2022 ar page 51 of complaintl Rs.

35 ,7 8,432 / - [As per SOA dated 20.08.2022 at page S0 of complaintl 10.

11.

0ccupation certificate Not received yet 72.

Offer ofpossession Not oftered Page 5 of 23 Complaint No. plaint No.

4845 of 2022 and anr. on this day <33,21,179/- was already paid to the respondent. c.

That as per the apartment buyer agreement it had been agreed that the possession of the said apartment shall be offered 4g months of date of execution of apartment buyer agrecment which comes to 14th January 2019, but the respondent miserably failed to deliver the possession of the apartment within agreed time frame.

That the complainant has already paid the full and final payment with regard to the sale consideration of the said unit and the same has been reflected in the statement of accounts.

That as of now there has been a delay of more than 3 years 6 months but the possession of the,said unit has not been offered by the respondent.

Such delay on part of the respondent has neither been explained or lu stified.

C.

9.

The complainants have sought following relief(s): - Relief sought by the complainants: a.

A sum of <29,820 /- should be paid by the respondent per month for delay of possession, at the rate of 100/o as per the prevailing MCLR plus 2 per centum, till the rightful legal possession is handed over to the complainants.

The amount is calculated as prescribed in the Real Estate (Regulation and DevelopmentJ Act,2016 and the Haryana Real Estate IRegulation and Development] Rules, 2017. b.

Direct the respondent to hand over the legal and rightful possession ofthe flat to the complainants, after completing the construction of the flat and common area amenities and facilities. c.

Direct the respondent to revoke/waive-off/cancel/withdraw the amounts imposed by the respondent illegally, unlawfully and fraudulently such as tm HARER^ # eunuennvr the complainant and as Page 6 of23 ffHARERA #. euRuennur Complaint No.

4845 of 2022 and anr. amount of increased area and huge cost escalation charges, charged on the flat ol the co m pla ina nts. d.

Direct the respondent to pay legal expenses of {1,00,000/- (one lakhl incurred by the complainant s.

10. ant s.

10.

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) ofthe act to plead guilty or nor to plead guilty.

D.

Reply by the respondent no.

1.

The respondent has contested the complaint on the following grounds; a.

That the present complaint is neither maintainable nor tenable by both law and facts.

It is submitted that the present complaint is not maintainable befbre this Ilon'ble Authority, as the complainant has admitted that he has not paid the full amount.

The complainant has filed the present complaint seeking interest.

The present complaint is liable to be dismissed on this ground alone. b.

That even otherwise, the complainant has no locus_standi and cause of action to lile the present complaint.

The present complaint is based on an erroneous interpretation ofthe provisions olthe Act as well as an incorrect understanding of the terms and conditions of the allotment letter/buyer,s agreement dated 31,.1,2.201,4, which is evidentiary from the submissions made in the following paragraphs of the present reply. c, That the original allottee approached the respondent sometime in the year 20-1.4 for the purchase of an independent unit in its upcoming residential project "ANSAL HUBS" (hereinafter be referred to as rhe ,,proiect,,J situated in Sector-83, District Gurgaon (Haryana).

It is submitted that the complainant prior to approaching the respondent, had conducted extensive and independent enquiries regarding the project and it was only Page 7 of 23 HARERa MGURUGRAII after the complainant was being fully satisfied with regard to all aspects of the project, including but not limited to the capacity of the respondent to undertake development of the same and the complainant took an independent and informed decision to purchase the unit, un_influenced in any manner. ny manner. 'l-hat thereafter the complainant applied to the respondent for provisional allotment of a unit in the project in the year 2015.

The complainant, in pursuant to the application, was allotted shop/office space bearing no.

G_ 002 in the project,,ANSAL HUB,,situated at Sector 83, District curgaon, Haryana.

The complainant consciously and willfully opted for a construction linked pran for remittance of the sare consideration fbr the unit in question and further represented to the respondent that the complainant should remit every installment on time as per the payment schedule.

1'he respondent had no reason to suspect the bonafide of the complainant.

It is furthcr submitted that despite there being a number of defaulters in the project, the respondent itself infused funds into the project and has diligently developed the project in quesrion.

It is arso submitted that the construction work of the project is swing on full mode and the work will be completed within the prescribed time period as given by the respondent to the authority, That without prejudice to tlte aforesaid and the rights ofthe respondent, it is submitted that the respondent would have handed over the possession to the contpiainant within time had there been no lorce ma;eure circumstances beyond the control of the respondent, there had been several circumstances which were absolutely beyond and out of control of the respondent such as orders dated 16.07.2012, 31.07.2012 and page B of23 Complaint No.4845 o f ZOZZ a\d anr. d. e. i HARERA M GURUGRAIV Complaint No.

4845 of 2022 and anr. h.

21.08.2012 of the Hon'ble punjab & Haryana High Court duly passed in Civil Writ Petition No.20032 of Z00B through which the shucking /extraction of water was banned which is the backbone of construction process, simultaneously orders at different dates passed by the Hon,ble National Green Tribunal thereby restraining the excavation work causing Air Quality Index being worst, may be harmful to the public at large c at large without admitting any liability.

Apart from these the demonetization is also one of the major factors to delay in giving possession to the home buyers as demonetization caused abrupt stoppage of work in many projects.

The sudden restriction on withdrawals Ied the respon.lent unable to cope with the labor pressure.

However, the respondent is carrying its business in letter and spirit of the Builder Buyer Agreement as well as in compliance of other local bodies of Haryana Government.

That the respondent is carrying his business in letter and spirit of the Builder Buyer Agreement but due to COVID,,19 the Iockdown was imposed throughout the country in March 2020 which badly aflected the construction and consequently respondent was not able to handover the possession on time as the same was beyond the control ofthe respondent.

That similar lockdown was imposed in the year ZOZ1, which extended to the year 2022 which badly affected the construction and consequently respondent was not able to handover the possession on time as the same was beyond the control of the respondent.

That the ban on construction was imposed by the Hon'ble supreme court of India in the year 202j, drc to the alarming levels ofpollution in Delhi NCR which severely affected the ongoing construction of the project.

That it is submitted that the complaint js not maintainable or tenable under the eyes of law as the Complainant has not approached this Hon,ble page 9 of 23 HARERA GIS Ci |) tAt)Afi/ Authority with clean hands and has not disclosed the true and material facts related to this case of complaint.

The Complainant, thus, has approached the Hon'ble Authority with unclean hands and also has suppressed and concealed the material facts and proceedings which have direct bearing on the very maintainability of purported complaint and if there had been disclosure of these material facts and proceedings the question of entertaining the present complaint would have not arising in view of the cas of the case law titled as S.P.

Chengalvaraya Naidu Vs.

Jagan Nath reported in 199a (1) SCC Page-1 in which the Hon,ble Apex Court of the land opined that non-disclosure of material facts and documents amounts to a fraud on not only the opposite party, but also upon the Hon'ble Authority and subsequently the same view was taken by even Hon'ble National Commission in case titled as Tata Motors Vs.

Baba Huzoor Maharaj bearing RP No.2562 of 2012 decided on25.09.2073. j.

That without admitting or acknowledging the truth or legality of the allegations advanced by the complainant and without prejudice to the contentions of the respondent, it is respectfully submitted that the provisions of the Act are not retrospective in nature.

The provisions of the Act cannot undo or modiry/ the terms of an agreement duly executed prior to coming iirto effect of the Act.

It is further submitted that merely because the Act applies to ongoing projects which are registered with the Authority, the Act cannot be said to be operating retrospectively.

The provisions of the Act relied upon by the complainant seeking refund, interest and compensation cannot be called into aid in derogation and ignorance of the provisions of the builder buyer's agreement.

It is further submitted that the interest for the alleged delay demanded by the complainant is beyond the scope of the buyer's agreement.

The complainant cannot demand any Page 10 of23 Complaint No.

4845 of 2022 and anr. ffi HARER' ffi eunuennv L k.

Suburban Pvt.

Vs. tJnion of India published in 2018(11 RCR (C) 298, the liberty to the promoter/developer has been given U/s 4 to intimate fresh date of offer of possession while complying the provision of Section 3 of RERA Act as it was opined that the said Act named RERA is having prospective effect instcad of retrospectivc. para no.g6 and 119 of the above said citations are very much relevant in this regard. is regard.

That the respondent reserves its right to file additional reply and documents, if required, assisting the Hon'ble Authority in deciding the present complaint at the later stage.

That it is submitted that several allottees have defaulted in timely remittance of payment of installment which was an essential, crucial and an indispensable requirement for conceptualization and development of the project in qucstion.

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

The respondent, despite the default of sevetal allottees has diligently and earnest pursued the development of the project in question and has constructed the project in question as expeditiously as possible.

The construction of the pro,ect is completed and ready for delivery, awaiting occupancy certificate which is Iikely to be completed by rhe year 2022.

The Central Government levied such taxes, which are still beyond the control ofthe respondent, it is specifically mentioned in clause 7 & g ofthe pa9e 7t of 23 Complaint No.

4845 of2022 and anr. interest or compensation beyond the terms and conditions incorporated in the builder buyer's agreement.

However, in view ofthe law as laid down by the Hon'ble Bombay High Court in a case titled as Neelkamal Realtors HARER ' GURUGRA[I Complaint No.

4B4S of 2022 and anr. builder buyer,s agreement, vide which complainants were agreed to pay in addition to basic sale price ofthe said unit he/she/they is/are liable to pay EDC, IDC together with all the appricable interest, incidentar and other charges inclusive of all interest on the requisite bank guarantees fbr EDC, IDC or any other statutory demand etc. emand etc.

The complainant further agreed to pay his proportionate share in any future enhancement/additionar demand raised by authorities for these charges even if such additional demand raisc after sale deed has been executed.

12.

Copiesofall th e releva n t docu ments have been filed and placed on reco rd.

Their authenticity is not in dispute.

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

13.

The complainants & respondent no.

2 have fjled the written submissions on 12.12.2023 & 0Z.Ol.ZO2S respectively which is taken on record.

The authority has considered the same while deliberating upon the relief sought by the complainants.

E. turisdiction ofthe authority 14, The application of the respondent regarding rejection of complaint on ground ofjurisdiction stands rejected.

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

E.

I Territorial iurisdiction 15, As per notification no. l,/gZ/2017_lTCp dated 14.12.201.7 issued byTown and Country Planning Department, the iurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with oFfices situated in Curugram.

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

Therefore, this PaEe 12 of 23 HARERA GURUGRA[/ Complaint No.

4845 of 2OZ2 and anr. l6 section 11(aJta) of the Act, 2016 provides thar the promoter shal be responsible to the alloftee as per agreement for sale.

Section 11[4J(a) is reproduced as hereunderr Section 11 ig rhe pronoter snal- ^ (a) be responstble Ior oll obligotionr, responsibilities ond functions under the provisions of"this Act ii tie rutes ona regulcttions mode thereunder or to the allottees as per the agreement for sole, or to t_he ossociation ofqllottees, os the case may be, ti the conveyonce of a . nce of a .-the apartnlnts, ptoti ir'AuiUings, as the case may be, to the qllottees, or the common iieas to the qssocqtion ofallottees or the competent (ruthority, os the cose may be; Section g4-Functions of the Authority: 34U) oJ the Act provitles to ensure cimpliance of the obligotions cast upon the promoters, the dllottees oncl the riul estate agents under this Act and the rules qnd regulations mode thereunder.

17.

So, in view of the provisions of tle act quJted abou",i-n" "r,fr".iry fras 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 relief sought by the complainants.

F.l.

A sum of 129,820/- should -be paid by the respondent per month for delay of possession, at the rate of lOyo.as p-er-the prevailing MCLR plus 2 per cent;m, till the rightfur legal possession is hanied ou".io,rr" complainants.

The amount is calculated as prescribed in the Real Estate lRegulation and Development) Act, 2016 and the Haryana n""f Ertrt" [Regulation and Development) Rules, 2017.

F.ll.Direct the respondent to hand over the legal and rightful possession of the flat to the comprainants, after compreting" ," .on.i.".ii"n of the flat and common area amenities and facilities. authority has complete territorial jurisdiction to deal with the present complaint.

II Subiect matter iurisdiction Page 13 of 23 Complaint No.

18.

In the present matter the complainant was allotted unit no.

T-125, admeasuring 464 sq. ft. in the prolect "Ansal Hub 83 Boulevard,, Sector g3 by the respondent_ builder for a total sale consideration of 136,20,a13 /- and they have paid a sum of <25,78,432/-.

A buyer's agreement dated 14.01.2015 was executed between the complainant and respondent no. l wherein respondent no.2 was the confirming party.

As per clause 30 of the BBA, respondent no. ondent no.

1 was obligated to complete the construction ofthe project and hand over the possession ofthe subject unit within 42 months from obtaining all the required sanctions and approval necessary for commencement ofconstruction, whichever is later.

The period of 42 months expires on 74.07.201g.

As far as grace period of 6 months is concerned the same is allowed being unqualified.

Accordingly, the due date of possession comes out to be 14.01.2019.

The occupation certificate for the project has not yet been obtained from the competent authority.

19.

As per the BBA, respondent no.2[land owner) and respondent no.

1[developerl entered into a MoU dated 12.04.2013 whereby the development and marketing of the project was to be done by the respondent no.

1 in terms of the license/permissions granted by the DTCp, Haryana.

Upon failure of respondent no.

1 to perform its obligations as per MoU and complete the construction ofthe project within the agreed timeline, respondent no.

2 terminated the said MoU vide notice dated 10.11.2020 and issued a public notice in newspaper for termination ofthe MoU.

The matter pursuant to the dispute was referred to the Delhi High Court under section 9 of the Arbitration & Conciliation Act, 1996 and vide order dated 22.0t.2021 Hon'ble High Courr ofDelhi appoinred the Hon,ble Justice A.K.

Sikri, former fudge of the llon'ble Supreme Court of India as a sole arbitrator of Arbitral I'ribu nal. ffi HARERi *&.eunuennll Page 14 of23 M HAREBA ffi eunueRav Complaint No.

4845 o f 2022 and, anr.

20.

The complainant i.e., Ansal Housing pvt.

Ltd. in the petition sought various reliefs including to stay the operation of the termination letter dated 10 71 2020 and the pubric notice dated 1,6.72.2020 ti the finar arbitrar award is given.

The Arbitral 'l'ribunal vide order dated 31..0g.2021, granted no stay on termination notice dated lO.1l.2OZO and no restraining order in this regard was passed against the M/s Samyak projects pvt. jects pvt.

Further, vide order dated 13.10.2021of the sore arbitrator respondent no.

1 was directed to handover the aforementioned project to the respondent no.2.

Following the directive outlined in the order dated 13.10.2021, of the sole arbitrator, respondent no.

1 handed over the project to respondent no.

2 via a possession letter dated L4."l0.2021, for the purpose of undertaking the remaining construction tasks.

Subsequently, on 02.09.2022, the Sole Arbitrator directed respondent no.

2 to finalize the project within the stipulated timeline, specifically by the conclusion of June 2023 and to collect funds from the allottees with a condition that the amount so collected shall be put in escrow account_ 21.

The authority is of the view that the buildbr buyer agreemenr dated 14.01.2015 was signed by the complainants and the respondent no.

The respondent no.

2 is a confirming party to that tsBA, In the builder buyer agreement dated 1,4.0-1.201.5 it was specifically mentioned that respondent no.

2[land owner] and respondent no.

1(developer) entered into a MoU dated 72.04.2013 whereby the development and marketing of the project was to be done by the respondent no.

1 in terms of the license/perm iss ions grantecl by the DTCp, Haryana.

Although the respondent no.2 i.e., Samyak projects pvt.

Ltd. cancelled the agreement vide termination notice dated r0.11.2020 and the matter is subjudice before the arbitral tribunal appointed by Delhi High Court vide order dated 22.01,.2021.

It is relevant to refer the delinition of the term ,promoter, Page 15 of 23 Complaint No.

2fzk)of the Real Estate (Regulation and Development) Act, 2016.

Defnitions.- (zk) "promoter,' means (0 o person who constructs or cquses to be constructed on independent building or a building consisting of aportments, or converts on existing building or o part thereofinto oportments,for the purpose of selling all or some of the opartfients to other persons ond includes his ossione is ossionees; or (iA a person who develops lond into o project, whether or not the person also constructs structures on any of the plots, for the purpose of selling to .other persons Oll or some of the plots in the said project, wheLhelwith or without structures thereon; ur [iii) xxxxxx.lx 22.

The authority observes that landowner is covered by the definition ofpromoter under sub clause (i) or [iiJ ofsection Z(zkJ.

A person who constructs or causes to be constructed a building or apartments is a promoter if such building or apartmeDts are nteant lor the purpose of selling to other persons.

Similarly, a person who develops land into a project i.e., land into plots is a promoter in respect of the fact that whether or not the person also constructs structures on any of the plots.

It is clear that a person develops land into plots or constructs building or apartment for the purpose ofsale is a promoter.

The words, ,,causes to be constructed" in definition of promoter is capable of covering the landowner, in respect of construction of apartments and buildings.

There may be a situation where the landowner may not himselfdevelops Iand into plots or constructs building or apartment himself, but he causes it to be constructed or developed through someone else.

Hence, the landowner is expressly covered under the definition of promoter under Section 2 (zkJ sub clause (i) and [ii).

23.

The Authority further observes that the Occupation Certificate for the project has not yet been obtained and that the project has since been transferred to Respondent No.

2, who now assumes the responsibility for its completion.

In light of the fact that the project is currently the subject of arbitral proceedings Page 16 of 23 ABEBi URUGRAII the section ffiE *o. e under Complaint No.

4845 of 2022 and anr. and the final arbitral award has not yet been rendered, it is not feasible at this stage to ascertain the precise apportionment of financial liability among the respondents. spondents.

Accordingly, in view of the foregoing, the liability arising under Section 18(1) of the Act and the applicable Rules, as read with the terms of the Builder-Buyer Agreement, shall be borne by Respondent No.

1 and Respondent No.

2 jointly and severally.

The responsibility for handing over possession of the unit shall rest solely with Respondent No.

24.

The complainants intend to continue with the project and are seeking delay possession charges interest on the amount paid. proviso to section 1g provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month ofdelay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules: ffiHARE!

S- eunuennvr "Section 78: - Return ol amount and compeasotion 1B(1).

If the promoter fails to complete or is unable to give possession ofan aportment ploC or building, - (a) in occordance with the terms ofthe qgreement for sale or, os the case moy be, duly conpleted by the dau specifted therein; or(b) due to discontinuance of his business as o developer on account ofsuspension or revocation ofthe reg[strotion under this Act or for any other reqson, he sholl be liable on demand to the allottees, in case the ollottee wishes to withdraw from the project without prejudice to ony other remedy ovoilable, to return the qmount received by him in rcspect of that aportment, plot, building, qs the cqse may be, with interest qt such rate as may be prescrtbed in this behalf including compensation in the manner os provided under this Act: Provided thatwhere on ollottee does not intend towithdrawfrom the poelt he shall be pqid, by the promoter, interest for ivery month ofdelay, till the handing over ofthe possession, at such rote os may be prescribed." (Emphqsis supplied) PaEe l7 of 23 # HARER.., ffieunuennrr,l Complaint No.4845 o t 2022 and anr.

25. d anr.

25.

Clause 30 ofthe builder buyer agreement (in short, agreement] provides for handing over ofpossession and is reproduced below: 30.

The developer sho oJfer possession of the unit within 42 months from the obtaining all the required sanctions and approval sqnctions and approval necessdry for commencement of construction, whichever is later subject to timely payment oJ all (lues by the lluyer ond subJect to Jorce mojeure circumstances as tlescribed in clouse 31. iurther there shol.l be.t grace period of6 months allowed to developer over qnd ebove the period of 42 months os obove tn offering the potse\sio4 oI thc un .

26.

Due date of possession and admissibility of grace period: As per clause 30 of the agreement dated 14.01.201S, the possession of the allotted unit was supposed to be offered within a stipulated timeframe of 42 months from obtaining all required sanctions and approvals necessary for commencement of construction, whichever is later.

Further, grace period of 6 months is sought.

The date of start of construction is not known.

Therefore, the due date is calcu lated from date of execution of builder buyer agreement i.e., 14.012015.

Hence, the due date comes out to be 14.01.2019 including grace period of 6 months as it is unqualiFied.

27 .

Payment of delay possession charges at prescribed rate of interest: The complainants are seeking delay possession charges at the prescribed rate of interest.

Proviso to section 1g provides that where an allottee does not intend to withdraw from the proiect, he shall be paid, by the promoter, interest for every month ofdelay, till the handing over ofpossession, at such rate as may be prescribed and it h:rs been prescribed under rule 15 ofthe rules.

Rule 15 has been reproduced as under: Rule.15. ,P_rescribed rqte of interest- [proviso to section 72, s_ection 18 ond sub-section (4) qnd subsection (7) oI section 191 (1) For the purpose of proviso to section 12; section 18; ond sub-sections (a) and (7) of section 19, th ion 19, the .,interest at thi rqte Page 18 of 23 HARER Complaint No.

4845 o ( 2022 and anr, ffiGURUGRAI/ prescribed,'shqll be the Stqte Uqnk of In(lta highest marginol cost oJ lending rate +2a/0.: provided that in ^c,o^s,e the Stote Bqnk ol lndia morginol cost of l.ending rate (MCLR) is not n use, tt siall tte replicea ry sucn benchmark lendtng rates.which the Starc aonk ifinin moy Jix from time Lo time [or lending to the general public.

2B The legislature in its wisdom in tt e-ruuo.iinat" Ilgirir,ion ,na"r the provision of rule 15 of the rules, has determined the prescribed rate of interest.

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

29.

Consequently, as per website ofthe State Bank oFlndia i.e., httpsl/sbr.eoja, the marginal cost of lending rate (in short, MCLR) as on date i.e., 2g.01.2025 is 9.100/o.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2 o/o i.e.,7L.LOo/o, 30.

The definition of term ,interest, as defined under section Zlzal of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default. .Ihe relevant section is reproduced below: "(za) ,,interest,, means the rotes of interest payoble by the promoter or the allottee, os the case mav hp I xptonot ion. _ f.orthepu,rrra.l rhirilause ti) the rote of interest chargeoble from the qllottee bv the promoter, in t ose oJ dpfoult. shqll be equol to the rote of tnieresr which the promoter sholl be liable to pay the o ottee, in cose oJ defqult; 0i) the interest payable by the promoter to the ollottee shalt be from the date the promoter received the amount or any port thereof till the dote the emount or porr thereof ond interest thereon is ret'unde(l and the interest poyable by thi allottee t allottee to the promoter shall be jiom the dotc the ollottee iefauks tn payment .

Io rhe promoter lill the dote it i5 poid:-- 31.

Therefore, interest on the delay pryrn"ni, from the complainants shall be charged at the prescribed rate i.e., 11,1oyo by the respondent/promoter which is the same as is being granted to them in case of delayed possession charges.

Page 19 of23 Complaint No.

4845 of 2022 and anr, 32.

On consideration of the documents available on record and submissions made by the parties regarding contravention as per provisions of the Act, the authority is satisfied that the respondent is in contravention of the section 11(4)[a) of the Act by not handing over possession by the due date as per the agreement.

By virtue of clause 30 of the buyer,s agreement, the possession of the subject unit was to be delivered within stipulated time i.e., by 1,4.01,.2019.

However, till date no occupation certificate has been received by respondents and neither possession has been handed over to the allottee till date.

33.

The Authority is of considered view that there is delay on the part of the respondents to offer of possession of the allotted unit to the complainants as per the terms and conditions of the buyer,s agreement dated 14.01.2015.

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

34.

Accordingly, the non-compliance ofthe mandate contained in section 11[4)(a) read with section 18(1) of the Act on the part of the respondents/promoters is established.

As such, the allottee shallbe paid by the promoter interest for every month of delay from the due date of possession i.e., 1,4.01.2079 till the date of valid offer of possession plus 2 months after obtaining occupation certificate from the competent authority or actual handing over of possession, whichever is earlier; at prcscribed rate i.e., 11.100/o p.a.

100/o p.a. as per proviso to section 1g(1J of the Act read with rule 15 of'the rules, F.lll.

Direct the respondent to pay legal expenses of {1,00,000/- incurred by the complainants.

35.

The complainants in the above reliefs are seeking litigation expenses & monthly rent reimbursement.

Hon'ble Supreme Court of India in civil appeal nos.

6745_ 6749 of 2021 titled as M/s Newtech promoters and Developers pvt.

Ltd, V/s ffiI]ARERA # eunuenRvr Page20 of 23 36. ffiHARER Sgunuenntr,r Complaint No.

State of llp & Ors. [supra], has held that an allottee is entitled to claim compensation & litigation charges under sections 12,14,18 and section 19 which is to be decided by the ad,udicating officer as per section 71 and the quantum of compensation & Iitigation expense shall be adjudged by the adjudicating officer having due regard to thc factors mentioned in section 72.

The adjudicating officer has exclusive jurisdiction to deal with the complaints in respect of compensation & legal expenses.

Therefore, the complainants may approach the adjudicating officer for seeking the relief of Iitigatlon expenses.

F.lV.

Direct the respondent no 2 to execute and register the sale deed in the concerned sub registrar office in favour of co:mplainants of the booked unit.

As per section 11(al(fJ and section 17(1) of the Acr of 2016, the promoter is under an obligation to get the conveyance deed executed in favor of the complainant.

Whereas as per section 19(1 1) of the Act of 2016, the allottee is also obligated to participate towards registration ofthe conveyance deed ofthe unit in question.

As per the interim order ofthe soleArbitrator the said project has now been physicaly handed over to the respondent no.

2 and there is nothing on the record to show that the said respondent has applied for occupation certificate or what is the status of the completion of development of the above-mentioned project.

In view of the above, the respondent no. ondent no.

2 is directed to handover possession of the flat/unit and execute conveyance deed in favor of the complainant in terms of section 17(1) of the Act of 2016 on payment of stantp duty and registration charges as applicable, within three months after obtaining occupation certificate from the competent authority.

Directions of the authority: Hence, the authority hereby passes thjs order and issues the folrowing directions under section 37 of the Act to ensure compliance of obligations cast G, 37.

Page 27 of 23 HARER GURUGRAII upon the promoter as per the function entrusted to the authority under section 3 4 (r): a.

The respondents/promoters jointly and severally are directed to pay interest at the prescribed rate of 11.10% p.a. for every month of delay from due date of possession i.e., 14.0L.ZO1g till the date of valid offer of possession plus 2 months after obtaining occupation certificate from the competent authority or actual handing over of possession, whichever is earlier; at prescribed rate i.e., 1,1.lOo/o p.a. as per proviso to section 1g(1.) of the Act read with rule 1S of the rules. b.

2 is further directed to hand over the actual physical possession of the u nit to the complainants within Z months after obtaining occupation certificate upon payment of outstanding dues, if any after adjustment of interest for the delayed period and thereafter execute conveyance deed in favor of the complainant in terms of section 17(1] of the Act of 2016 on payment of stamp duty and registration charges as applicable, within three months after obtaining occupation certificate from the competent authority. c.

The rate of interest chargeable from the allottees by the promoter, in case of default shall be charged at the prescribed rate i.e., 11.100/o by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottees, in case of default i. default i.e,, the delayed possession charges as per s ection Z(za) of the Act. d.

The respondents are directed to pay arrears of interest accrued within 90 days from the date oforder ofthis order as per rule 16(21 ofthe rules. d.

The respondent shall not charge anything which is not the part of BBA.

38.

This decision shall mutatis mutandis apply to cases mentioned in para 3 ofthis order. complaint No.

PaEe 22 of 23 HARER .

P* GURUGRAM The complaints stand disposed of.

Files be consigned to registry. (Ashok Sa Membe Haryana Real Dated: 28.01.2025 Complaint No.

39.

40. u., z2__- (Viiay Kumar coyal) Member (Arun Kumar) Chairperson Estate Regulatory Authorify, Gurugram {*-r.

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