VEDAANTA RESIDENTS WELFARE ASSOCIATION vs RAHEJA DEVELOPERS LIMITED

PHARERA # crrnrcnavr Compl,rnt No.

3175 u, 2010 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUCRAM Comptainrno.

Firurdare ofhearingl Date otdc.ision : Vedaanta Residents Welfare Associ.rtion (Through Sh S.

Ramanathan, Vjce Presrdentl Registration no.

HR-018,2015-01673 dared 05.03.2015 under Haryana Regisr.ation and Regulation ofSocietres Act, 2012 Regd.

Office: Vedaanta Residents Weltare Associanon, Vedaanta Residential Complex, Sector- 108, Gurugram Ilaryana - 122001 Versus Itl/s Rahela Developels Limited.

Regd. omce: W4D,204ls, Keshav }(unj, western AvenLF .dri ,ppr M.irg.

Sdinik !rrm..

New Jelh.- 110062 Corporate office:406, Rectangle One, D 4, Districr Center SaketNewDelhi 110017 Also, at:-Raheja l4all,3i Floor, secror- 47,Sohna Road, Curugram 122001 3175 of 2o2O 12,11.2020 04.0s.2023 CORAMI Shri Vijay Kumar Coyal Shri Ashok Sangwan Shri Sanjeev KumarArora Shr, Aad,tya Vijay Kumar (Advocate) ShriGarvit Cupta Complainant/Association Respondent/promoter I ORDER The present complaint dated 06.10.2020 has been nled by the complainant in Form CRA under sedion 31 ot th€ Real Estate IARERA 2.

GI]RUGRAl\/ [Regulation and Developmeno Act, 2016 (in short, rhe Act] read with rule 28 of the Haryana Real Estate (Regulation and Developmentl Rules, 2017 [in short, the Rules] for violation of sedions 11ia)tal and 11(4)(g) of the Act where,n it is inter alia prescribed that rhe promoter shall be respons,ble for all obligar,ons, responsibitities and iunctions to the allottee as per the agreement for sale executed ir.er Je Unit and proiect related details The particulars ofthe projecf the d€taits ofthe complainanr, etc. have been detailed,n the following tabular form: compld nr No. r 175 of2020 EWS [g.ound floor to 4rh Basement under Block- (Type-A) oC.eceived dared 03.06.2016 for ]F floorl A, B, and s.No 1 "Raheja Vedaanta", Secror 108, Curugram.

Licensed proJectarea 3 Residential group housing colony 204 of 2007 dated 11.08.2007 10.08.

007 10.08.2017 PinDe lndustria I Consu ltanrs Pvt.

Lrd 5.

Total no. of towers in the proiect Occupation certincate oC received dated 17.11.2014 for derails tower/block- > B [ground floor to i IF lType A-7 no's] 3a noorl 19rh floo, 19ih floor) tsround HARERA GURUGRAI\,4 Complaint No.

3r75 ot 2Ur0 IF Type B (ground + 1sr floor and 2M floor) Commercial (Cround fl oo.) Communily Bu,lding (sround + 1sr floo0 HREM registered/ not Complainant herein Not registered (Throush Sh.

Registered vlde no.

HR 018-2015.

01673 dated 05 03.2015 under Haryana Regisratjon and Regulation ofSocieties Act,2012 s.

B.

3.

Iacts ofthe complalnt The complainant/association has made the lollowing submissions in i lhat the preseDt complaint filed on behall ol rhe Vedoanto Residents \|tefore Associdaior'1 The conrplainanr/association has been duly registered on 05.03.2015 under the Haryana Registration and Regulation of Societies Act, 2012 and has irs registered oftice at lvlainienance office, Vedaanta Apartments, Sector I08, Curugram, Haryana. ii.

That the respondent, l.e., "M/s Raheja Developers Limited . r a company incorporated and subsjsting under the provisions of the Companies Act,2013 and is engaged in the business ofconstruction and development of residential and conrnrercial prolects.

I HARERA GURUGRA[/ iii.

That the respondent, after ostensibly obtaining license for the project in the year 2007, began construction ofhigh-rise build,ngs under the name and style of "Vedaanta Residential Complex" consisting of nine residential towers, two villas and ninety four Economically Weaker sect,on atSector 108, Curugram- 122001. iv.

That in the years 2014-2016, despite the project was not formally completed and despite the fact that completion certificates had not yet been ,ssued by the competent authority, the respond€nt provided possession, on the strengtl of the occupation certificate, to the resi.lents of the project. e project.

That fhe possession for a majority of allotteefs) was provided from the year 2016 onwards.

It is pertine.t to mention here, that withln a year ofgranting possession ol the residentlal apartmenls to a number of dllonee(. rnd particularly after the year 2016, several detects in the construction of the project as well as the functloning oithe respondent began to v.

That the defects continue to persiat even as on daie and include issues such as (i) srructural defects in various parts of the project and se.ious seepage,n the basement oftowers C, H and lfor which possession was provided in the year 2016; [ii) collection, misappropriation ofthe maintenance secur,ty paid by the allottees to the responde.t and not handing the maintenance secur,ty to the complainant/association) (iii) failure in provid,ng permanent electr,€ily connection to the allottees; (ivl expenses borne by the complarntNo ll75 or 2020 HARERA GURUGRA]V complainant/association for the maintenance ot the project including essential servicesj (v) electricity power supply deficit, besides other issues.

The alorementioned defects have been brought to the respondent's notice time and againi however, the respondent has intentionally refrained from rectirying the abovementioned defecrs. vi.

That the present matter does not relate ro the redification of the structural defects relating to (i) the rectification work in the basement of the towers and (ii) the issues relating to the rectification otthe fafade as this hasbeen ad€quately addr€ss€d by the authority in the matter lic,ed as "Haryano Real Estate Regulatory AuahoriE 6uo Motu) v.

RoheJo Deyelopers Ltd- in complaint bearingno.

PExr -eRe-1909 ol2O20- vii.

Further, the preseit matter also doas not d€al with issues relat,ng to regularization of the electricity connection and conversion ofthe electricity conDection from commertial to domestic as this issue is being adjudicated by the Ld. by the Ld.

Civil Judge, Gurugram in matter titled as " vedoanta R6uent wetare Assoelatloh v, Rahela Developers ttd.", in complaint bearin e no CS 3416/2021. viii.

The present matter only deals w,th a handiul of issues which are more particularly set out below:' Issucs rclatingto misappropriation olpraintcnanc. sccurit!

Complaint No.

3I75 or2Ur0 Complarnt No 11"5 of 20?0 HARERA -il RUGRAI/ GU That the flat buyer's agreement obligates the allonee of rhe unir to pay "interest bearing maintenance securily or interest lree maintenance security" to the respondent/promoter.

The purpose of the payment of IBMS or IFMS was essentially highlighted in clause 6.2 otthe buyer's agreement which indicates that the amount patd to the respondent as IBMS or IFMS charge is to secure due performance by the auottees in prompt payment ot ma,ntenance b,lls and other charges raised by the maintenance agency or whosoever ,s in charSe of the maiotenance of the society. lt is unde.stood that the IBMS and IFMS)vould be to set off, if requ,red, dgdrnst the maintqnance dues. whrch were liable to be particularly paid bythe residents afterpossessioF had been granted.

That as per the buyer's agreemenf the respondent or the maintenance agenc, appointed by the respondent was responsible to hold the abovementioned seority charges only lor a temporary pe.iod oftime and il was obiigator, on the part otth€ respondent ro relund/orrpr to relund ihe security after adjusting theretrom an) outstanding maintenance bius or any other outgoings of the allotees at any time including upon execution of the conveyance deed.

The buyer's agreement does not state that the IBMS or IFMS deposits were a payment made rimpiicitor or an amount that the respondent could appropriate at its will.

Further, the IBMS or IFMS charges were only to be temporarily held by the respondent until the maintenance responsibility was accepted by the complainant IARERA GL]l]UGRA[/ Complainl No 3l?5ot2020 /association. sociation.

Thus, the IBMS or IFMS deposit being a security against failure to pay maintenance charges by the allonees, ought to be handed over to the complainant/association, who are presently in charge ofthe maintenance charges.

The respondent collected IBMS/IFMS in rwo diferent ways.

From some allotteels), a consolidated demand of the const.uction cost and the IBMS was made and the allottees were directed to deposit the consolidated demand alld the IEMS in the account of the respondent/promoter while some allottees were made to pay rhe construct,on cost seFrately and rhe IBMs/lFMs separately in separate and distlnct accounts in the name of the complainant That the consolidated demand isillqstreted by the palments of Mr.

Aditya Prasad Tiwti (0atA'032), Mr.

Bata Guru G (flat I'173) and Mr.

Kaustubh Barooah and Ms.

Aniali Barooah (flat D-0411, just to name a iew, who were direded bv the resDondenr to depoet rhe IBMS/IFMS money into the respondenfs accounts.

This is also evident from th6 demand letter issued by the respondent /promoter and the statement oi kansaction of Mr.

Adiiya Prasad Tiwariwherein by way olcheque bearing no.577606 an amount of Rs-2,45,062/- for IBI4S/IFMS charges was lransferred to the respondenfs account.

The obligation ol the respondent to segregate the amount paid towards th€ demand for construction and the money received on account oilBMs/lFMS.

This would have Complarnt No rr75 of2020 RUGRAII HARERA GU ensured a smooth transition and handover of money as and when the complainant/associat,on would have been formed.

That similarly, as stated above, some allottees were depositing their IBMS/IF[.{S money in bank account bearing no.

1514002100038588 in Punjab National Bank Saket, New Delht in the name oithe complainant/association. lllustratively, Mr.

Gautam Sen, the then President of the complainant/assoc,ation paid Rs.

2,63,230/- at the time of linal s€ttlement vide chequ€ bearing no.

035853 dated 11.05.2016, whlch was payable to the new bank ac. w bank ac.ount in Puniab Natjonal Bank That the complainint/association was set up subsequently, it was the respond ent obligation to not only handover money deposited in Punjab National Bank but also hand over money towards IBMS/IFMS which were directly deposited by allottees in the account ol the respondent.

Respondent neither rendered accounts nor handed over the collectioDs bf the IBMS or IFMS to the compla,nant.

That the respondent lever issued a formal demand lor sel off of lhe ahounr collecl€d wnh lhe IBMS/lFMS.

Thus from whichever angle one may look at it, the respondent did not have the right to hold the money or appropriate it.

The respondent thus continued to illegitimately hold the IBMS or IFMS deposits of the That the germane to state that the erstwhile governing body ofthe complainant/association, prior to the administrator being THARERA S- crrnrc,nnv Complaint No ll75 ol 2020 appointed, contained representatives who were acting in connivance with the respondent and was completely dysfunct,onal.

Hence, the erstlvhile governing body oi the complainant /association took no action to request for handover olmoney. xvi.

That the residents, berween 2015-2019, were kept in the dark coupled with the fact that the erstwhile governing body was in connivance with rlle respondent, Mr.

Gautam Sen, the erstwhile president of the complaimnt/association, vide an email dated 14.06.2017 requesting tor informatipn as to (i) who had the actual authority to credit amounts obtainef in rhe new bank accounti [,i] who was ope.atingthe baok account, [iii) who were the custodians oithe amounts obtained [rom the allottees by the respondent (iv) if proper approlai was taken by thb board of management of the then RWA from tlie eligible members of the welfare association; (v) whether annual audit ot the account had been done with the cogn,zanc€ ofthe allottees who wete liable to be members of the welfare associationj [vi] whether the transaction was in line wjth the bye-laws of the ws of the welfare alsociation etc.

The respondent was using the money so collected by it at its whims and fancies and had no real defense to a specific email ,ssued by Mr.

Gautam S€n, the commun,cation was not replied to. xvii.

That the raised suspicions and the members of the association we.e conpelled to file a criminal complaint dated 19.03.2018 to the Commiss,oner of Police, Economic Offences Wing, Gurgaon HARERA GURl]GRAI,I Police against the respondent.

The criminal complaint was filed under Sections 403.

405 and 415 of the lndian Penal Code. lor misappropriat,on offunds, criminal breach of trust and cheating by it xv,ii.

That one of the ma,n priorities of the present governing body was that money collected from residents by it towards IBMS/IFI4S ought to be handed over to the association.

To this end, the association was compelled to issue communications dated 2A.02.2079 to the respondent requesting it to hand over the IBMS/IFMS amount so coll€cted by lt.ln response, the respondent admitted that it hid to handover this amount though it stated that the handover would be made in a joint account and in multiple tranches.

The operhtive portion of the emallls set out hereunderl Complaint No. lI75 of 2020 ''It 6 not po$lble hr the conpdn! dt ftleose onlrhing until and unless the foc\ ore rccohciled, our.eounts plls Realcarc the sbter concen conpony ol RDL ryhich wot nointaintho the ,otpL. thpr tcon ha\ to ptrdt rcrcntlp th? data bcfo,e ne rcn. to on) co4lu-a4, Por whnh o neelho i lt be held E tt not open o joqt account innediotely in cde we dre logging on, new booking onount innediat ly iantlefted to the sad xlx.

That prior to the complainant/association taking over, the maintenance responsibiUty was carried by Realcare Building Maintenance Service Private Limited.

After elections however, RBMSPL was required to hand over maintenance to the complainant/association.

For the purposes of the handover on 21.04. on 21.04.2019, tbe complainant filed a police complaint with the local HARERA GURUGRA[/ police in respect of the handover.

Pursuant to such a complain!

RBMSPL was divested of its responsibility of maintenance ot the campus, but was allowed stay in a limited area to wind up their work arrange their papers, etc. xx.

That in the interreSnum, on 13.11.2019, the complainant applied to Punjab National Bank for a lormal closure of the account.

The account was closed on 03.12.2019 and the r€ma,ning amount of Rs.35,900/- which was existlng ln the account, was rransterred to the compla,nant/associatlorft 'desiSnated account in HDFC Bank, Dharamput Gurugram Branch. xxi.

The Punjab Natiqnal Bank provided the association with the statement of account of the account wherein the IBMs/lFMs charges had been deposited.

When the bank statement lor the peflod 21.05.2016 to 03.12.2019 wds provd€d by bank to the complainant, the statement r€flected the amount of money be,ng deposited and credited in the accou+t, wl le it remained operative.

The statement of account clearly shows that the respondents had been translerring money from the account in the name ol th€ complainant/association to their own personal bank accounts.

The statement oi account reflects that an amount of Rs.1,10,00,000/- was transferr€d into the account maintained by the respondent on 16.10.2017 and a further amount of Rs.1,80,000/- was transferred on 22-06-201A- Those amounts were transferred to the bank account oi the respondent held by it in HDFc bearing account no- aomplarnt No :11"5 oll0?0 HARERA GURUGRA[/ 1514002100038223 and the account held by it in Axis Bank as well.

Therewas absolutely no question oftransfer ofthis amount ro the respondent lor its use since the respondent was only a t.ustee of the amount, which had to be handed over ro the complainant/association. xx,i.

That owing to thls revelation, on 06.01. on 06.01.2020, the complainanr /association filed a complaint with Punjab National Bank and stated that the eotire fun& (IBMS/IFMS) amounting to Rs.1.24 Crores were credited in th€ account from 2016'2019 (except for Rs.35,900/-1, was withdrawn without the consent ot elected govern,ng body culn association.

On receiptofthe complaint bythe complainant/associat,on, Punjab National Bank, immediately requesred the HDFC Bank and Axis Bank to put the respondent account on hold for an amounr of Rs.1,10,00,000/- and Rs.1,80,000/- respectively. uiii.

A bare perusal otthe statement ofaccouots shows that money had been remitted to the respondent account.

Following the repeated quest ol the complainant/assoclation to get the respondent to furnish details, proceeds, and transactions of the bank account through which IBMS or IFMS funds were channelized, the case finally culminated into a case of an economic offence against two officials of the respondent and a flat owner due to a criminal complaint dated 16.03.2020 filed on behalfofPunjab NationalEank against the respondent.

The diary number for the complaint beiore Complarnr No ll75.f lr)r0 #HARERA S- eunrennvr Complarnt No. ll75 of 2lr20 the Delhi Police, Economic Offences Wing to as "EOW" is DCP/EoW - D-1025 dated 17.03.2020. siv.

Despite this the respondent has not deposited the money received by it towards IBMS/IFMS wjth the complainant /association.

The entire amount of IBMS or IFMS is estimated at Rs.8.87 Crore (principal amountJ plus interest accrued thereon, based on the calculation that there are 454 flats currendy taken possession of by the flat buyer's, presently in the project, with a total super area of 887010.81 sq. ft.

The rate as per the flat buyer's agreement oi Rs.100/-per sq. fL has been spplied to th,s total super area, to compute the gross IBMS or IFMS, which is required to be returned to the complainant/associat,on. xxv. t,on. xxv.

Thatthe respondehthas misappropriated money and further failed to even d,sclose tlie total amount accumulated on account of IBMS or IFMS.

The respondents have also diverted money, by way of misappropriadon, which is clear fmm the statement o[ accounts filed above.

To this end, a criminal complaint for lodging an FIR is pendinC beforethe Ilaqa Magistrate, Gurugmm. xxvi.

That the respondent has now cla,med that it will appoint auditors to verify the amounts which are due and payable and had proposed the names of various auditors.

The complainant has however rejected any such appointment as there is no qu€stion of any auditors and the money ought to be simply handed ov€r to the *HARERA $- eunuennv Complarnt No ll75 ol2l)lil svii.

That the compla,nant makes it clear that the compla,nant was only claim,ng money which has been paid in excess by it.

By way of the present petition the €omplainant was no! nor does it seek to address the issue relating to convers,on of the commercial electric,ty meter to domesric meter but by this petition, the complainant only s€eks to recover the excess paid by it on account of the ,nactions ofthe respondent.

The respondent in a statement which has been duly signed and stamped by it, has admitted that Rs.7,55,76,644/- has already been collected by the respondent from 366 allottees However, the.respondent h6 not remitted this amount to the DHPVN, despite it being a speciSc obligation under the buyer's agreement, Further, the respondent has also conveniently not ptoffered an explanation regarding the remittance of this sum to DHBVN for getting a permanent €)ectricity connection for the project, in conformiry with the above-.eferred provisions of the buyer's agreement xxvi[ Even as on dale. tle respondent hds been re(eiving rhe power supply from DHBVN for the project on an odnor basrs of 450 t(VA. which is basically provided by the authorit,es for th€ purposes of construction. struction.

Th,s amount to a blatant breach of the terms of the occupation ce.tificate, more part,cularly condition l5 which maDdates the respondent to apply for connection oithe electricity services within a period oi 15 days from the date of the ,ssuance of completion certincate.

The respondent has mis-used this provision HARERA GURUGRAII ComplaintNo.

3175 of 2020 by not getting the completjon certificate of the project indefinitely and obtained only the occupation certificate to wriggle out of the obligations that must be fulfilled after the issuance of the completion certificate iDcluding applying for a permanent electricity connection for the proiect thereby causing harassment to the allottees. xxix.

The nonchalance of the respondent towards the flat buyer's basic demand ofessential service of.electricity, may be appreciated from the contents of the DHBVN letter dated 06.09.2019 add.essed to the respondent.

Tiis letter clearly hiShlights how the respondent la,led to deposir the requisite noney to DHBVN and did not took any sincer€ action from August 2012 to Seplember 2019, to obtain a permanent ehcdricity connecdon for Vedaanta project.

While a load requirement dt 2000 t(W was applied for by the r€spondent on 28.2.2012, the required amount ofmoneywas not deposited as per DHBVN'S demand.

The .equisite payment has not been made till date, which manifestly amounts to lack of commitment of the respondent to obtain release of the appropriate load and authorization of permanent electricity connect,on. ).yx.

That the magnitude of the loss has been suffered by th€ members of the complainant/associat,on, due to the inaction of the respondent in applying and getting a permanent electricity connection.

As even after almost 6 years, the project is still not formally completed, and the respondent is in no position to obtain th€ requisite completion Compla nr No. pla nr No.1175 o12020 certificate from the competent authority and is continuing to supply power through a temporary connection at commercial tarill which is Rs.10.125l- being presently paid by the members of the association, as against the charge of less than Rs-6 per unjt ior domestic consumption in the neighboring complexes.

Tbat the power load requirement for the project comprising of 537 flats, and an Economically Weaker Section of 94 flats, is still to be rormally approved by the DHBVN.

Additionally, the failure of the respondent to get the approval for the power load requirement violates the stipulation of obtaining the said approval in a time bound manner i.!., wirhin 2 months from the issuance of the occupation certificate, That with regard to rhe safety clearance of the internal power network and pow+r back-up, the respondent has misled the Chief Electrical Inspector, Government. of Haryana, Chand,garh /Executive Engineer, Electrical Inspactorate, Haryana, and Di.ector Town Planning, Curugram for the purpos€, by projecting a powe. load requirement 6l a hlgher mrgnitude than thecompany dctudlly ,ntended to provide.

Thus, there is a huge deficiency between the approvals obta,ned and the DG setsactually set'up.

That at presently, only tlvo DC sets of 250 KVA and 380 KVA have been provided by the respondent for the entjre proj€ct.

As per the single line diagrams submitted bythe respondent to Chi€fElectrical Inspector, Electrical lnspectorate Haryana, curugram, the latter *HARERA #. eunuennu HARERA authonues i e., Ex rxxrv That the respond dared 15.07.2014. bd.k.upol24 hrs., GURUGRA[/ obtai.ed in 201 aompl.rntNo 1175 ot 2020 50 KVA,2x1000 kryA T/Fs & 1x500 KVA, 1X380 A DC Sets vide their Memo No.

D/2228ICH-3 he DC sets are to be provided as an essential -up for the proiect comprising of 537 flats, the auy less power back up ol 630 I(VA capacity.

S complexes. complexes.

However, the respondent has tion in actual power supply back-up provEion sed supply, while obtaining safety ce(iflcation certificate from the respective competent cutive Engineer, Power Inspectorate, Curugram and Country Planning, Gurugram. nt is contractually obligated to provide power as per clause 6.9[3] olthe buyer's agreement. ln eficiency ofthe essential se.vice ofpower b.rck the violation oi the assurance given by the embers ofthe complainant.

This addition is an ent with respect to the existing and increasing enrs Jnd when viewed against the approvdls - Condition 15 of the occupation certiflcate respondent shall submit the approval of the rement w,thin 2 months ol issuance of the ough the application for saiety clearance of the 'up oi 1130 lffA was filed, but the respondent ntion to provide as p€r the capaciry applied for Complarnt No.

3175 of 2020 h t rg :D Bs v) ng ell ITHARERA $- e"n:emu F"".p"^ Nbr'?s"do,o and salety clearances ,ougt t. rh. ;,,r.rp-ri**., or th respondent has foired lhe complainant to look for quotdtrons I install 500 KvA Dc set. *'. rrre responaent rrld represented that on account of there bein multiple floor5 in fhe 'owers: lift fa.il,t,es would be provided t erch residenr or efch rower This naturdlly presuppos€d lhdr th lifts would be in ploper working condIion rnd order.

Upon rhe u\ of the Iifts rn the ttwers. sev6tEl defecrs were found relating to ( there berns a v,birriotr ln most of (he lifts (ii) it was not cle. whether the (ards were replaced as required: [,ir) wherher lt4Ct and l,ChtinC have Teen 'nstalled properlv inside the lrft shaft:: fr\ dprailFd rnspectio repon rn respect oleach of the lifts were n, available; (v) watJr is coming insid€ the lifr shafts and damagin rhelifts. xwr.

The rcleondent 1as hme and again informed about inoperatr! status or the lifts f1r a con5iderable qmountoftrme, causinsserior rmpediment lo ush of the flats by the residenls.

One such letli dated 0o. dated 0o.rr 201{; addressed to the respondenL rnd rl mainrenance aserlcy.

RB[4SPL. by Mr.

Manish Slnha (Resider r,,le-be. s,tcomJitteel, confirmins that the respondent was wt aware/rnrormed tout rhe )ssues wrth respecr ro [he lifts.

Besrd, rhis.

Vr.

Vani(h linha also urged rhe respondent to clarify rsst', rarsed in the lene4 with regard to paymenl liab'Iiry, replacement lfr( et.

Paae laof4 aombLrint No.317S of 2020 BA RAN/ ARE URIJG PH P"e }clyvii.

The respondent and its designated agency i.e., RBMSPL, had totauy failed to maintain these lifts. lt is noteworthy that the State Government Executive Engineer, Power Inspectorate vide [4emo bearing no.13708 dared 18.10.2018, informed the respondenr rhat the lifts i. the proje€t were in a terrible state on numerous counts and this was a very serious issue.

The mandatory inspection under Sections 7,8 and 9 ofthe Haryana Lift and Escalators Act,2008 has not been complied w,th.

Therespondent has also fa,led to carry out requisite inspection, even aftei a period ol2 months pursuant to the installation ot th€ lifts.

Vide ihe aforementioned Memo; the registration of the+liftswas also cancelled on 18.10.2018.

Mviii.

The complainant/associatlon necessarily had to get the lifts repaired at the risk and expense oftbe respondent.

The respondent was duly inlormed of this fact TiU date, the complainant has incurred a sum oi Rs.

11,00,000/' to €nsure the serv,ceabilty and the safe use of the 18lifts installed in var,ous towers of the proiect.

Th,s amount ought to b€ reimbursed bythe respondent.-This move was done by rhe itatutory authority under the Haryana Lift and Escalators Act, 2008 which is the Executive Engineer I\4rs.

Geetha Rathi who had issues aiter,nspect,on ofLitts at Vedaanta premises and had issued the above'mentioned notice threatening action including seizing of lifts at the 20 storey resident,al flats at Vedaanla premises. *HARERA -s- crrnrnnnvr aomplarnr No ll7t.r lnl0 xr(x,x. l0 xr(x,x.

The respondent had provided rwo Sewage Treatment Plants (STPI in the proiect.one STPwas for n,ne towers (A to F) and another for three towers (C, H, and I) and two sets ofVillas and the EWS flats. xl.

There are also severalworks which areyetto be undertaken which would, in essence, amount to completely overhauling the STP.

Thus, comprehensive snagging (detection ofproblem areas and technical weak points] has to be completed, including automation or the STPS.

In one ofthe STPS, only the blowe. and the garden pumps are in working cond,tions and nothing else.

That apart the following repairs are also estimated: A filter fccd newpump is required; Change ol Iilter pipelines required and the installing ol butterily v.lve 65 mmwith iittinBs; .

Procurement offilter medE o14500 kg.; .

Activared carbon.ontent oi300 kE. .

Repair two sludge re-clrculation pumps (SPlHMl and rhree flushing .

Ultraviolet change with panel:1no,i .

Procure screwpump (cH33lrl no.i .

Procure eledrical .ontrol panel: I no.; . walkways required to be labricated for safety and material procured of1560 kg.; .

Blowermotortobe repaired: 1 no., .

SewaCe pumps to be procured: 2 nos.j .

Flowmeter outlet fittinss required: I no.; .

Pressure vessel: 1 no. xl,.

That the complainant has work orders fo. a sum of Rs.3,40,000/' from the first week of May 2019, which has been informed to the respondent vide notice dated 09.06.2019.

Howeve., after carrying a.

4.

HARERA GURUGRAIV out the required repairs, a sum of Rs.3,15,000/- has been incurred by the associat,on.

The statement of accounts of the Complainant Association for payment towards the NWv and the cheque's bearing no.

000582, 000323, 000009 and 000146, as well as ledger along with details of payment.

In addition, a further amount of Rs.13,03,410/' of Clean Tech Services, Curugram would be Relief sought by the complalnsnt/assoclatlon Tbe complainant has sought following relief(sl. ,. ief(sl. ,.

Direct the respondent to refund and consequently pay the compla'nant/association a sum of Rs.8-87 Cr. 'n respect of IB[.{S/IFMS money [w,th interest at the rate ol18 o/o p.a. thereon from the date tharthe amount felldue till the date of realizationlj ii.

Direct the respondent to refund and consequently pay the compla,nant/association a sum of Rs.11,00,000/- towards the repairs of the lifts of the project (w'lth interest at the rate of 18 0/o p.a. thereon from the date that the amount fell due till the date of realization)i iii.

Direct the respondent to refund and consequently pay the complainant/assoc,ation a sum oi Rs.16,18,410/- towards the repairs ofthe two sewaSe treatment plants ofthe project. iv.

Direct the respondent to .efund and consequently pay the complainant/association a sum of Rs.5,00,00,000/' which is the amount ,ncurred by the complalnant from April 2019 being the difference between the domestic tariff and the commercial tariff Complaint No l1?5 of2020 HARERA D, GURUGRAN/ (with interest at the rate of 18 7o p.a. the.eon from the date that the amount lell due tillthe date ofreal,zation)i v.

Direct the respondent to refund and consequently pay the complai.ant/association a sum of Rs.54,00,000/- lor procurem€nt oftwo DG Sets of500 KVA capacily fwith interest at the rate of 18 o/o p.a. thereon from the date that the amount lelldue till thedate of vi.

Direct the respoDdent to pay comp€nsation to the complainant/ associat,on ,n the sum of Rs10,00,00,000/- on account of the hardship faced by the residents towards structural deflects, defects in lifts, misappropriation, defect in the STP and on account of the lack of DC sets- The r€spondent/prOrnoter put in appearance through company's A.R & Advocate and marked attendance on 13-09.2022, 14.72.2022, 13.04.2023 and 08.05.2023.

Despile Epecific directions it failed to comply with the orders ofthe authority. authority.

It shows that the respondent is intentionally delaying the procedure of the court by avoiding f,ling wrtren reply.

Therefor€, in view of order dated 08.05.2023, the deience ofthe respdndentwas struck oS.

Cop,€s olall the relevant documents haye been nled and placed on the record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submissions made by the complainant. written submission flled by the respondent.

Complarnt No 3175 of2020 7.

The respondent has Rled an application dated 01.06.2023 ior challenging the maintainability of the present complaint cum short HARERA GURUGRANI reply/written submission and contested the complalnt on the followiog grounds: ,.

That the present complaint is not maintainable on the ground that several alleged issues highlighted by the complainant in the present complaint are already pending adjudication b€fore several Civil and Criminal Forums and it is clear that the complainant,s nothing but a forum huDt€r who has a habit of harassing the respondent by spinning a web of litigation prolong,ng to several ii.

The respondent ,s a well-establshed, well known and reputed real estate developer and is in the business of developi.g numerous prestigious residential group housin& commercial aDd other real estate projects in and around Curu$am.

The.espondent has always believed in satisfaction of its &stomer.

The respondent has developed and deliver€d s€veral bresdgious projects such as 'Raheja Atlantis', 'Raheja Atharva', 'F.aheia Shilas' and in most of these projects large number of famities have already been shiited after having taken possession and resident welfare associations have been formed whlch aie taklng iare ofthe day to day needs oi the allo$ees ofthe respective projects. i,i- The present complaint pertainsto th€ "Raheja Vedaanta" project.lt h submitted that the present project is a proiect which was fornulated before the commencement of the Act, 2016.

Act, 2016.

The Department of Town and Country Planning has already issued occupancy certificares dared 17.1r.2014 and 11.11.2016 after completingdue diligence.

ComplaintNo.

3175 oi2020 HARERA GURUGRAN,I C.m.lainrN.

3175of 2020 iv.

That the project in question does not fall under the definition of "On going Project" as defined under the Rules of 2017 as the occupation certificates were received on 17.11.2014 and 11.11.2016 i.e-, pr,or to the notification of the Rules,2017, norifted on 28.07.2017, therefore, does not require any registration under the Rules of 2017.

The correct interpretation of'ongoing project' defined unde.

Rule 2(o) of the Rules, 2017 can.ot be arrived at, inter-alia without reading it in conjunction with Sub- Rule (s) ol Rule 4 of the Rules, 2017. {he State Governmen!

Haryana in exercise of its power under Section 84 of the Acl 2016 framed rules for implementation ofthe provisions oi RERA in Haryana. ln order to supplement the provlsions of the Act, 2016 whe.e it is silent with regard to the definition of'ongoing projects.

The said definirion was incorporated by the Appropriate Covernment in rule 2(o) ofthe Rules,2017 and the samecannot be ignored. v.

That the rules fremed by the app.opriate Government, Haryana, nowhere off,ends or supplants the provisions of the Act, 2016, rather, it supplements the Act, 2016 and a harmonious reading of both would reveal that both complement and supplement each other.

The Rules,2017 were notified on 28.07.2017. lt is a well settled law that the provisions ofthe Act of2016 are prospective in nature aDd cannot be applied retrospect,vely to projects which did not require registration under the rules of 2017.

Since the authority had no jurisdiction to entertain the complaint, therefore, the complaint isl,ableto be dismissed. vi.

That the complainant association has highlighted issues which allesedly persists in the "Raheja Vedaanta" project.

At the outset it HARERA GURUGRA[/ Complaint No. plaint No.3175 or 2020 is submitted that the present complaint filed by the complainant association is nothing but an arm-twisting tactic ro extort money irom the respondent.

The complainantis acting in nexus with some ofthe allottees whose sole aim is to somehow cause wrongfulloss to the respondent and wrongfulgain to themselves.

The said issues can be categorized into sixcategories: - Structural Defl ctencles vii.

That there are no structural deficiencies as alleged by the complainant association in the project in question.

Al1 the allegations as stated in the complaint are denied in toto.

The complainant association has atready filed a complaint bearing no.

1909 of 2020 with the authority and the authority taking cogn,zance ofthe same has direded the respondent association ro submit a report on the allegations of the complainant.

The respondent in the said case has submitied a detailed report ofthe allegations of the structural deficiencies along w,th the photographs and all the necessary documents.

Since the compla,nant has already addressed the allegation of structural deficie.cy iD the said al.eady pe.dlng complaint the complainant cannot claim any reliefin the present complaint on that very cause ol action.

Without prejudice to the rights of the respondent, the report being subm,tted by the respondent along with the documents be read as part and parcelofthe present complaint. viii.

That apart from filing a similar complaint before the authority, the complainant has already filed several complaints against the respondent on the issue of structural deficien€ies with the Directorate olTown and Country Planning, Haryana and the same gHARERA S-eunuennv Complarnt No 3175 of70?0 has been mentioned by the complaina.t i. the present complaint.

As already stated above, the complainant cannot proceed parallelly and seek same reliefs on the same cause olaction against the same partyin two or more forums simultaneously. . neously. .

MisapproprlationofMaintenanc€Security/IBMS Th€re has been no misapproprianon of maintenan€e security /lBltIS by the r€spondent as wrongly alleged by the complainant /association.

There has been no failure of the respondent to comply with the terms and conditions ot the allotment, rules, regulations, law, and the directions issued by the concerned departments.

No lllegality whatsoever has been comm,tted by the respondent in holding the amount deposited by the allottees.

That the conplainant/association has filed several complaints which is also evldent from their own admissions in (para 33) ofthe present complaint wherein it has b4en mentioned that a cr,minal complaint dated 19.03.2018 was addressed to EOW against the respondent for alleged misappropriation olfunds, criminal breach of trust and cheatrnB It is again re-asserted that the complainant/association ,s lndulging in forum hunting against the respondent and is trying to harass the respondent before several Forums in order to cause wrongful loss to the respondent and wrongful gain to ,tselfi Th€ respondent has already filed its replies vide letters dated 02.04.2 022, D7 -05.2022 and 77.06.2022 w,th the EOW Gurugram.

Not only that, but the compla,nant/association has also filed a police complaint against the respondent company and had also filed a complaint with the Punjab National Bank.

The respondeni *HARERA !i-s- cLnLnnlv complarnt No 31?5or2020 has throughout acted w,thin the boundaries set by law and there has been no misappropriation of tunds as alleged by the complainant. lt is submitted that account No.

1514002100038588, held that Punjab National Bank alleged to be the bank account of the Vedaanta Residents Welfare Asso€iation is actually a ioint account opened by the allottees ot Vedaanta Residents welfare Association of the project with the dev€loper ior the deposit oi interest free maintenance secur,ty deposit (IFMS) collected irom the allottees of the said proiect. d proiect.

Th€ bank account held at PNB account was being operated by the said association and Mr.

NauDihalSingh who was authorized bythe RwA itselfon,ts b€half to be the authorized slgnatory ofthe said bank account along with the authorized signatory ot the builder.

The amount was withdrawn iroln the bank account on authorization of all the authorized signatories and with the concurrence ofthe members of the RWA,ncludingthe allottees.

Thisvery fact can be checked from the records ofthe PNB account which would clearly show that the payment was w,thdrawn with the concurrence and authorization oiMr.

Naunihal Singh who was the thorized signatory on behalf of the operational association. xii.

That the matter of mutual performance of contractual obUgations are governed by the duly agreed terms of the apartment buyer agreement which duly provide lor the payment of IFMS.

The respondent €ompany had issued a letter dated 79-07-2022 to Mt.

Gautam Sen, the tben President ofthe association regarding claim oi non-handing over ol IFMS.

To settle the issue pertaining to non handins over of IFMS and several malntenance dues pending i.om HARERA GURUGRA[/ the allottees, it was recommend€d by th€ respondent to get rhe account books audited by one ofthe best audit firms.

It was lurth€r stated in that letter that upon successlul completion of the audit, if any deflcient payment is made out the same shall be paid by either ofthe parties as directed by the reconciliation agencies/auditor.

Bur the compla,nant/association iailed to come forward to arrive et an amicable solution in orderto reconcile the account.

The IFMS amount collected from th€ allottees/res,dents was as per the agreementtosell and maintenance agreement forthe maintenance purposes.

As per CIause 6.2 of the builder buyer agreement and the maintenance agr€ement, it has been agreed that the respondentwould have the sole rightto transler th€ IBMS ofthe allottees to the maintenance agency/association as it may deem flt after ad t after adjusting any outstanding maintenance bills and/or othe. outgoings of the allottees at any time.

Similar case was filed by a group led by lvlr.

Amjt Sagar before tbe National Consumer Disputes Redressa) Commiss,on bearing case No.

73 of 2015 which was settled and was kansformed in the settlement agreement that the money deposited would be used for the acquiring land and conskuction of 24'meter road to the project and payment of vAT cha.ges.

That rhe allottees were liable to pay VAT on the total payments made by them and accordingly the amount was aggr,eved towards the total VAT payable to the said departmeDts.

The Euilde. has been reminding the allottees irom time-to-time to pay the VAT amount, but all the efforts made by the builder have been tut,le.

All the amounts have been taken by the respondent stri€tly as per the a.n.LrrntNn 1175.f 2{i20 HARERA GURUGRAI\I terms oi the contract and the agreement in question which p.ovides for the provisions ofpayment oflFMS and VAT. xiii.

That the complainantwas just try,ngto creare unnecessary cause of action without any locus standi or ground against the respondent despite being aware of all th€ factual facts and circumstances from the very inception.

Furthermore, it is very important to mention here,n that the complainant has also concealed the material lact that the complainaDt has already filed a civil suit against rhe respondent on the said issues m€ntioned tn the present compla,nt and the same is pending before the Court ofSh.

Vikrant, CivilJudge, Gursaon.

The said matter is sub-judice before rot only the said Civil Court but as already mentioned above, it is perding before several oth€r Forums so the complainant cannot get proceed with th€ present complaint under the garb ofthe provisions oftheAct,2016. xiv.

That there has been no breach of the conditions of the occupation c€rt,ficate as wrongly aoeged by the complainant/association. sociation.

Al1 the money has been paid by the respondent to the concerned Authorities including DHBVN and there,s no default whatsoeve. on respondent part in obtaining any electricity connection as wrongly stated by th€ complainant in the present complaint- Rather, the .espondent has gone beyond its purview iD order to make sure that there is no inconv€nience caused to the allottees ol the proj€ct in question.

The complainant/association has addressed thevery same issue relating to the electricity connection in the Civll Suit titled Vedanta Residents Weuare Association versus Raheja Developers Complarnt No ll75 ol20U 0 IARERA GURUGRA[/ Limited and another pendiog before the Court ofSh.

Vikrant, Civil ludge, lunior Division, Gurgaon. la.

That the respondenr had insralled 11 KVA eledricat s€t up in rhe said project and only thereafter the occupation certificate was granted on 17.11.2014.

However in April 2015, the DHBVNL changed ,ts policy and 33 KVA electrical set up was made necessary.

Domestic connection was denied on that basis and a demand of Rs.4.75 crores as bank guarantee was raised.

Thus, it meant that all the expenditure incurred by the respondent in 11 KVA was nullified due to the sudden change ,. policy.

It h pertinent to mention herein that in the nearby projects, domestic connections were given on 11 KVA only.

Till the time the respondent was managing the maintenance, DHBVN was observing difrerent rates.

Later, DHBVN L,mited realized its fault and started raising bills oo domestic rate from 01.03.2021 and continued for one year.

Accordingly, the respondent stop paying the differential amount.

It is submitted that estimated amount of Rs.7.55 crores had been collected from the customers but approximately I crores had been incurred so iar on the electrical infrastructurE.

Theretore, an estimated amount oi Rs.

2-75 crores are yet to be recovered from the customers.

The respondent then started rhe work towards 33 KvA and requ,red 500 sq. ed 500 sq. yards rendered from grid was identined and accordingly DTCP Haryana accorded its NOC vide NOC memo No.

ZP-295IST IDK)/2021/9067 dated 06-04-2021- Furthermore, the DHBVN approved the electrification complaint ofthe respondent vide memo No.

CH-99/SE/R-APDRP/oLNC-HT/GGN-1 /S0L/820 dated 12 01 2021 aomplarnt No Jl ?c or 2020 (omplarnr No 11"5 or20l0 RA RAl\/ ARE URUG il G Accordingl, the respondent entered into a gift deed on 02.0A.2022 in iavour of the Executive Engineer, DHBVN, curgaon to gjft a portion ol the land in the revenue estate ot village Dharampur, Sector 108, Sub'Tehs,l Kadipur, curgaon, Haryana tor the use of proposed site of 33 KVA switching station in accordance with the circulars ruled out by the DHBVN Department as well as the NOC of the District Town Planner Haryana.

Vide the said gift deed, the DHBVN was made as the ex€lusive absolute owner and in possession of a land measuring approximately 571 square yards.

Thus, it ,s clear that the respqndgnt company had fulfilled all the requirements laid down by the statutory departments ofthe State ol Haryana.

As already stated above, the amount collected from the allottees of the project under the contractual terms ofthe agreement have been ut,lized by the builder for the convenience of the allottees oi the pro)ect.

The respondent in lieu of on€ of the orders passed aga,nst them by the Court of Sh.

Vikrant, Civil ludge, lunior Djvision, Gurugram had filed a revision petition before the Hon'ble Punjab and Haryana High cou.t vide,rs order dated 05.05.2022 in cR 902 2022 has directed that no coercive action shall be adopted against . l.cn.( r.l,tinot Dn (er(.. xviii.

That there is no power back-up for 24 hours or that the association is looking for quotations to install the 500 I{vA Dc sets.

There is no need for power back-up as DHBVN has assured 24x7 power supply on 33 KVA.

Complete load has been sanctioned by *HARERA S-cintrnn't compla'nt No. pla'nt No. lr 75 of2rlli] DHBVN ior the entire project in question comprising 537 flats and eco nomically weaker section of94 flats- xix.

Th€re ar€ no defeds in the lifts which can be attributed to the respondent company and it is clear that the complainant was just trying to shift its burden of respons,b,lity upon the respondent under the garb of the present baseless and false complaint.

Yet again, it is evident from a bare perusal of the complai.t that the complainant/associat,on has already approached several forums with respect to the working of the Ufts.

The maintenance of the project has already been handed over to association who pr€sently is demanding and collecting the amount tor the purpose of maintenance of the project as a whole from the allottees residing xx.

That at the time of hand,ng over of th€ maintenance of the maintenance agency, there were no defects on the part of the respondent/promoter.

The regular wear and tear and servicing of the lift is the responsibility ofthe maintenance agency and lat€r on the association who took the responsibility ofthe same from 2019 onwards.

That all the lifts were inspected by M/s.

Otis Elevators Company fron time to time and accordingly were handed over. some of the relevant documents pertaining to the same have been attached by the respondent along w,th the present reply. lt is submitted that these are all maiDtenance related issues and the RWA have to take responsibility to mainta,n the same against the charges levied by them from the allottees under the purview and ga.b of maintenance cha.ges.

PdEe 32 ur47 HARERA GURUGRAN/ .

STP!

3175 o12020 xxi.

That the STPS ,n the project are whoUy defic,ent or that several repair work are r€quired. lt is submitted that for the sake of repetition that after taking over of the maintenance it is rhe responsib,lity oi the RWA to maintain the project ,n question.

The STPS were ,n working co. orking co.dition at the time ofhand,ng over to the ma,ntenance agencies and CTO certificate dated 23.05.201a issued by the Haryana State Pollution Control Board to the respondent validates the same.

The respondent/promoter cannot be burdened with un.ecessary additional cost of maintaining the project when the respondent is not responsible for the same and nor when it is collecting the money from the allottees of the proiect aor the purpose of malntenance. xxii.

The present compla,nt is the gross misuse ofthe p.ocess of law and it is clear that despite availing several benefits before different torums, the compla,nant with complete mala fide motives has approached the authority in order to create pressure and to harass the respondent company.

The said complaints pending beiore several forums are being vehemendy contested by the respondent /promoter and there is no ground at all to adjudicate the present baseless and lalse conplaint before the authority.

The present complaint is liable to be d,smissed on this short ground of maintainability alone.

If this authority is of the opinion that the present complaint is maintainable, then the respondent reserves,ts right to file a detailed reply addressing each aod every averment rajsed by the complainant/association.

HARER GURUGRA[/ E, 9.

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

Hence, the complaint can be decided on the basis ofthese undisputed documents. ,urisdiction of the authority The authority has complete territorial and subject matter jurisdiction to adjudicate the present complaint lor the reasons given below.

E.l Territorialiurisdiction Complaint No 3175 ot2020 10.

As per notification no- 1/92/2077-7'lCP dated 14.12.2017 issued by Town and Country Planni.g D€partment, Haryana the jurisd,ction of Haryana Real Estate Regulatory Authority, Curugram shall b€ entire Gurugram district aor al1 purposes. purposes.

In the present case, the project in question is situated with,n the planning area of Gurugram disrrict.

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

E.II Subiect-matteriurlsdicdon 1r.

Section 11(4lla) olthe Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(al(.rl is reproduced as hereunder: (a) be responsible lor oll obligotions, respontibilities ond Iunctions undet the p/ov&ons oI this Act or the rules dnd regulotions no.le rhqeundet or ta the allo$ees os pet the ogrcenent lor ele, ot ta the osociotion of ollotteet os the cose nay be, till the convelone of oll the opartnents, plots or buildings, as the cose ot be, to the allottees, or the connon oreos ta the osnciotion of ollotEes or the canpetent autho ry, os the S e cti o n 3 1 - Fu n.lid s oJ the Au th onqx r& HARERA GURUGRAII 344 af the Act ptovides to ensure conplionce aI the obligations cost upon th. pronote.s, the ollottees ond the rcol estote ogehts underthis Act ohd the rulesdnd regulations nade thercun.let 1 2 So, in view of the provisions ot the Act quoted above, the authority has conplete jurisdiction to decide the complaint regarding non- compliance ofobligations by the promoter leaving as,de compensation which is to be decided by the adjudicating ofticer if pursued by the complainant at a later stage.

13.

Further, the authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the Hon'ble Apex Court in ivewtech Promoters and Developers Prlvote Llmlted Vs State oJ U.P, ond Ors.

2021-2022 (1) RcR (ctv ), 3s7 and reikrated in case ol M/s sana Reat.on Private Limited & other vs Union of tndlo & others sLP (civil) No.

13005 o12020 decded on 72.05.2022 wherein ithas been laid down "86 Fron the schene of the Act ol which o . which o .letaited teference hos been nade ohd nklng nore ofpowet ofadjudicotion deliheoted with the regulotory authanq ond ddjudicotins aIJicer, whot fnall! culls out 6 that althoush the A.t lndicates the distinct exptessiohs like lefund, intqest', 'penaltt' and '@npenetioa', o conjdnt reoding al sectians 18 ond 19 cleody onllesEthot\9hen it cones to rcfund aI the onouna ond inErest on the rcfund ahount, ot dn.cnho pornent of interest fo. delored d.livety of possession, or pehotty ahd ihtetest therean, it is the tegulatory au ony \|hich hos the power to ^ohine ond detemine the outcone ofa conploinL At the sone ttne, when it cames to a questioh of eeking the retiel ol odjudgihg canpensoion ond interest theteon Lnder sections 1 2, 14, fi on.l 19, the od)udicating oJlcer excluev.lJ hos the povet to deterhih., keeping ihvie'/the collecrite reod ing af section 71reod sith Section 72 oltheAct.iltheadjudicotian under Sections 12,14, 1a ond 19 othet than conpenetion os envitoged, iI extehdetl to the odjudkottng ollcer as prayed thoa in our view, nay ihtend ta expahd the onbt and scope ol the powe6 ond lunctions ol the odjudicating olfcil undet Section 71and thotwould be agoinnthe nondate of the Act 2A16, ConplaintNo.

3175 o12020 HARERA GURUGRA[/ CohplaintNo.

3175 of 2020 Hence, in view of the authoritative pronouncement of the Hon'ble Supreme Court in the case mentioned above, the authority has rhe jurisdiction to entertain a compla,nt seek,ng refund ofthe amount and interest on the refund amount.

F.

Findings on the oblections ralsed by the respondent: F.l Obie.tions rega.ding that the respondent has obt ined the occupation certificate beforc comlng lnto force olRERAr 15.

The respondent/promoter has raised the contention that the said project of the respondent is a pre RERA project as the same has alr€ady obtaining occupation certificate irom the competent authority on 17.11.2014 and 03.06.2016 i.e. .2016 i.e., before the coming into force of the Haryana Real Estate (Regulati6n and Development) Rules, 2017 on 24.07.2017- As per proviso to section 3 of Act of 2016, ongoing projects oD the date of this Act i.e., 28-07.2017 and fo. which completion cert,ficate has noi been issued, the promoter shall make an application to the authority for registration of the said prolectwithin a period of three months from the date of commencement ot this Act and the relevant part of the Act is reproduced hereunde.: - Prcvided thot projects thot ore ongoing an the dote of connencenent of this At ond lor whi.h the .onpletion certilicote has nat been tsLed, the pronotet sholl noke an applicotion to the Authotirt for rcqknation of the tuid ptoject withih a period olthree nonths Iron the dote ol connencenqt ol this Act: 16.

The legislation is very clear in this aspect that a project shall be regarded as an "ongoing project" until receipt of completion cedficate.

Since no completion certificate has yet been obtained by the promoter'builder with regards to the concerned project, the plea advanced by it is hereby rejected.

G.

Findings on th€ reli€fsought by th€ complainant.

HARERA GURUGRA[/ G.l Direct the .espoDdent to refund and consequently pay the complainant/association a sum of Rs.8.87 C.. in respect of IBMS/IFMS money [with iDterest at the rate of 18 % p.a. thereon from the d:te that the amouDt fell due till the dat. of realization).

17.

The Act mandates under section 11(4)(dl, that developer would be responsible for providing and maintaining the essential services, on reasonable charges, till the time, the same is taken over by the association otthe allottees.

On the other hand, section 19(6) oftheAct, states that every allott€e, who has enter€d into an agreement for sale, to take an apartment, plot or building as the case may be, under section 13, shall be responsible lo nrake necessary payments in the manner and within the time as specified in th€ said agreement for sale/the bu ale/the builder buyEr's agreement and shall pay within stipulated time and appointed place, the share of the registration charges, municipal taxes, water and electr,city charger maintenance charges, ground rent and other charges, ifany.

18.

The maintenance charges essentially encompass all the basic infrastructure and amenities like parks, elevators, emergency exits, fire a.d safety, parking faciLjt,es, common areas, and centrally controlled services like electricity and water, among others. lnitially, the upkeep of these lacilities is the responsibility of the builder who collects the maintenance fee from the residents.

Once a .esidents association takes shape, this duty falls upon them, and they are allowed to change or introduce new rules lor consistently ,mproving maiDtenance. ln the absence ofan association or a society, the builder continues to be in charge of maintenance.

Usually, ma,ntenance tees are charged per flat or per square foot basis.

The maintenance chargeson the other hand accounts for the maintenance charges Complarnt No. ll75 of202il HARERA GURUGRAN/ Compla'nt No. ll75 oi2020 thereafter builder incurs whil€ maintaining the project before the liabil,b/ gets shifted to the association of owners.

Builders generally demaDd advan€e maintenance charges tor 6 months to 2 years in one go on the pretext that regular follow up with owners,s not ieasible and practical in case ofongoing projects wherein OC has been granted but CC is stillpending.

19.

Further, section 11[4)(g), prov,des that the developer will be responsible to pay al1 outgoings until he transfers the physical possess,on ofthe real estate project to the allottee or the assoc,ations of allottees, as the case may b9, which he has collected from the allottees, for the payment of outgoings (lncluding land cost, ground rent, municipal or other local taxer charges for water or electricity, mainteDance charges, including mortgage loan and interest on mortgages or other encu mbrances and such other l ch other liabilities payable to competent authorities, banks and financial institutions, which are r€lated to the projec! lt is further provides that where any promoter fails to pay all or any of the outgoings collected by him trom the allottees or any liabiliry, mortgage loan and interest thereon before transferr,ng the real estate projectto such allottees, or the association olthe allottees, as the case may be, the promoter shall continu€ to be liable, even aiter the transfer oi the property, to pay such outgoings and penalcharges, if any, to the author,ty or person to whom they are payable and be liable for the cost of aDy legal p.oceedings which may be taken therefor by such authorty or person.

20.

A quick glance at the provis,ons oithe Act may be taken in this respect to the responsibility of the promoter or project developer for providing and maintaining essential and comnon seraices at a HARERA GURUGRA|\/ reasonable charge payable by the flat purchasers till the time the co-operative housing society or RwA ,s formed.

Section 17(2) ol the Act says that after obtaining OC and handing over physical possessjon to the allottees in terms ofsub section (1), it shall be the responsibility of the promoter to handover the necessary documents, plans, including common areas, to the association of the allottee or the competent authority, as the case may be, as per the 1oca1 laws.

The clause is reproduced below for reference.

17, TrunsIq ol title.-O) The pronoter sholl execute a rcgistered conveyance aeed tn fovout ol tha ollattee along with the undivided praportionote title in the @nnon areas to the o$oclotian ol the allottees or the conpetent outhonE, os the cose noy be, ond hond ove. the physical pa*sion ofthe ploc oportnent of bLilding, os the cose na! be, to the allottees and th. @nnon 4reos to the aseciation of the ollottees ot the conpet t outhority, os the cose no, be, jn o real estote ptujeq and the othq title d@ukents p.. ukents p..tdinihg thereto \|ithin specifed pqiad os per soncnoned plons os provided under the Provided that, in the aben.e ol an! locol law canvetonce deed in lovour oI the ollottee or the associotiaa of the ollottees or the conpetent outhotiA, os the cos noy be, undet this vction sholl be carried aut by the pronote. within three nohths lran date ofissue af a(uPancy centfcote. [2) Ajtet obtoinths the occuponc! cettifcote ond hondins avet phlsical pose$ian to the allaues in terns ol subaectjon O), t sholl be the respansibiliry of the prornotet to hondover the n.cessa.r docunents ahd plant iAcludinq connon drcas, to the ossociotion ol the ollottees ot the conpetent outharitt, os the cose noy be, os p{ the locollows: P.ovided thda in the ab*hce ol dny locollaw, the pronorer tholl hondover the necesry dacLments and plans, inclLding connon oteos, to the association oI the allott es or the conpetent atthority, os the cose noy be, wtthin thny dats alter abtoining the kanpt eti oh 1 certilcote 21.

Also, clause 11 of the Annexure A (Agreement for Sale) to the rules provide ior maintenance ot the project. lt states that "the promoter shall be responslble to provlde and maintoin essential services in the project till the taking over ol the mainEmnce of the project by the assoclatlon of the allottees"- Furthermore, jt provides that the a.h.l.int No 3175.f 2020 IARERA GURUGRAN4 a.mblaint No.

3175 o12020 cost of such maintenance has been included in the total p.ice of the plot/unit/apartment for residential/comme.cial/industrial/lT colony /any other usage.

From aioresaid clause, it is clear that the maintenance charges are included ,n the total cost of, th€ unit and in case, the allottee/associat,on ofallottees lails to take possession, then only the promoter has right to recover such amount as spent on maintai.ing such essential seoices after coming into force ofthe Act.

22. e Act.

22.

The complainant/association in its complaint stat€d that the flat buyer's agreement obligates the allottees of the unit to pay "interest bearing maintenance security or interest free maintenance securty" to the respondent/promoter.

The purpos€ of the payment oi IBMS or IFMS was essentially highlighted in clause 6.2 oi the buyer's agreementwhich is rep.oduced as under for ready reference: 6.2 Maintenance Agreement ''The Purcha*r undertokes to join, wcieE osoctouon al the Aportnent awne6 on.l to po! fees, chdryes rhereol and canplete suth dacunentotian ond lomolines os noy b. deened necqsory by the Seller in iE sals disctetion fu this purpose, The Purchaser upon conptetion aI the sdid conpld and behrc tokins the poseseon of th.

Prenises sho enter into Triqttite Mointenonce Agrceneht oh the seller\ stonda.d fomot with the se d ot on, oseciotion Dody ondoni4tud ol Apot.4.nr ot ony othPr na4ncc osPn,\ /ossoctottoh(s) or other bod! (hercinoftet t4et/ed to as "Moihtenonce Agenc!") os not be oppoinkd/ hodihoted bJ the Selkr lron tine to tine lot the nairbnonce an.l rpkeep olthe soid APottnentin the tuid conplex, and ih cose th.

Purehov. aokes the possesslon vithout sisnins the Mointenonce aareetuent mentioned obove, the Pur.hoser must sign the tuid Agreement within 15.lays otheNise the Pur.hoser sholl be treoted os ilegal occuPant on.l the allotnent witl be conce ed fhePurchasetundertakestopaythe nointenonce bilh os roised bt ke Maihtenance Agenc! tom the dote al the cenificate [o. occupatian ond use sronted bJ th. conpetent outhoritJ an prcrota bosis irtespective olwhether the Purchoset E tn occupation ofthe Aponhent ot not ond constfuction work 6 still in progrcss in od)ocent tawert Conpkx ond inlrastructure lacilities ore not yet full! conpleted.

FLrtheL the Purchoser sholl not noke ont . noke ont .loin[s) pertain)n! to divston of noihEnonce chorges on pra rcta I}HARERA S-arRUGRAr/ ComphrntNo 3175 or20Z0 bosis in retotion ta athet sections of the ptup*r!/praject not havins recetved the Occupotlon Certifcote. ]n ord* to ecure due perfornanc.

W the Purchoer in pronpt poynent of the nointenonce bills and other chorges toied b! the Mojntenance agency, the Purchavr ogrees ta deponL os pq ahe sche.lde ol poynent on.l to ol|9oys keep .leposited with fie Se er or the Mainrenonce Agenc!, noninoted bt the Seler, on lntmst Beonng Maintendnce securiE (tBMs) at the rdte of Rs.

100/- pet sq. ft ol the supet oteo tn .oe ol Ioilure ol the Purchoer to po! the mointenonce bill at other charses on ar befo.e the due date, the Putchaser in odditioh to petnitting the Seler/lttointenonce Asency to d y htn/her to ue such services being nointoined ond ol authorizes the sellet / Motntenonce Agency ta odlusr in the lrst instonce the ihterest occ.ued rponthetBMSogoinst ch deloults in the paynents nointenance btlls and in case such acctued interett lolls shon ol the onount the pltchovt lurthet outhanvs the Conpony/Maintenance Agen.y to odFn the ptindpot dnouht of IBMS asaihst such deloutts t due to su.h odtustnents in the pnnclpal o ount the tB^rs falh below the asteed sm ol k. t00/- pet sq. ft of the supe. oreo ol the soid Apartnent, then the Pu.cha*r hqeby undertdkes to hoke good the .esutton: shoftlall within lfteen (1s) days ol demond by the Seller/Mainrenonce Agenc!. funhea the Sellet reedes its tight ta incrcase IDMSJtun tine ta tine in keeping with the incrcde in the cast aI nointenance seNices ond the Putchoset agrees to pot sl.h incteases \|ithtn lfteen (1s) dats of dmand b! the setter 1f the Purchoserfoils to pot such increostiithe lEt'lS ot to noke qoad the shortfo as oloresaid @ or b{ore iE due date, th.n the Purchoser authari. r authari.es the klbr to recavet the onouht wnh on interest @ 24% po or ot its sale discrctioh to treat the ollotnent os concelled wthout any notice to the Purchdserond to recoeer the shortioll lron the sole prcceeds ol the soid Aparthent and to relunA b the Purchoser onl, the balohce aJ the anount reolized Jron such tule oltet deducting therc lrom the entne eomert naney, b.okerage/ connission patd. tnterest on deloyed palaents, any ihterest paid, due or paroble and all other Auesossetoutin the polnentplon. his ndde spec ilco ll! cieor, ond it is so ogreed by and bet|.en the panies hereto thot this condttton rclotng to |EMS os stipulated in thisclausesho sutuive iffetpective ol the canveronce of title ih lovour al the Purcha*t ahd the selter shatt hore list chorge / lkn on the sad Aportnent in retpect ofony su.h non- poynentolshartfott/ ihneose.osthe cose no! be.

Alsa, the Sellet/Mointenonce Agenc! sholl ot its sole distetion have the tisht to refund/olfe. to refund at their sote aptbn the tBMs (tntercst Bearing Mointenonce kcurity) oftet a.ljustins thete lran ony outstohding haintehance hilb and/or athet autgaings al the Purchater ot ony tme inclu.ling upon etecution of the Conveyahce Deed ond theteupan the Sellet sholl nand codpletel! absalrerl/dischorged ol oll its oblisatiohs ond resPonsibilittes ,''] IARERA GURUGRAIV cohcerhing the IBMS including but not linited ta isstes oJ paynent, refund ond/or ctoiks, if anr al the Ptrchas4, an accou al the tone. ln the oltenative the Seller shall hove the sole ight to tronsJer the |BMS ol the Purchaer(s) to the Mdintenonce Agenct Associotion ol Aportnent ownert os the Seller not deen ft aliet odtusting there lran any ouEtanding nointehonce bilh ond/ar othet autgoirgs of the Purchosr[, at ony tihe even oftet exec\tian of the conveyonce Deed ond there upon the Seller shdll stnnd. dll stnnd.onpletely o btolved/ d isc ho rged ofollits obligoion ond responsi bi lities can cern ins the IBMS including but not timited to issues ol repotnent, rcfund ond/or cloins ol ony aJ the PurchoterG) on ouount of the sone.

It is hercby speciJicott! ogreed br the Purcho*t thot slch tonskr ol tBt\rs shol not be lihked in on! nonner whoteever to the inplenentdtioh of the llorJano Apartn t Ownethip AcC 1983 bt the Seller lor the soid CanpteN FLtther the Purchayr agre6 thor the Maintehohce Agehcy, upon tronsler ol the tBMs ar in @k oJ fr*h tRMs is sousht fion the Pu.chase. os stipuloted hetuinabow, shall hove the nle right to nodif! / revise all or any ol the tetns of the Ms, T.ipattiE Mointenanu Agreenena including but not linited to rhe anount / rote oI IBMS eE Thatas and when ony Plont & Mdchtnery wthin the soid Buildng/soia Prenises os the cose ndy be, includlng but ^at linite.l ta otr- conditianing plonts, lilts, eyolotof' Dc sets, electic subatoriont pumpt lirefghting equipn@a ont oth* plaint/eqtipnent ol copital nature etc rcquire replocenena up gtadotlo\ dddttiont etc the can thereolsha becon buted byallthe Purchavr(4 in the soid Buildins on pra.rota basis (ie" in propottion to the supet areo of the sald Prenivs ta the total tuper orco ofoll the Prehises in the sotd Dutldinq, os the cose ndt be).

TheSellerotthe operatian/Mointenonce Agenc! shall hove the ele authany b decide the necesiry ol such replocenent, up grodotiaa, o.ldinons etc including its tintngs or cost fhe Seller reseMs its tights to teminore thts ogreenent to vll ond lo[eit ke Eomst Money on occount ol non-execution ol the Mointenonce Agteenent olong with ouEtondiB inter*t, ionl That the Pu.chose.(s) shattjoin the Asocianoh olo\'reB os shotlbe Iomed ond resistered with the @ncened oufionq on behaf ol the OwneB of Aponh B in the eid buildins/compld and to pdy ony leet subscnption cho Res thereo I ond to conplete su ch .locL nentoti on onA lo.nolitiesas no! be deened necesory bt the Selle. the Selle.lot the putpo*.

Applitotion lotn@ ottached herewith os annexute C D, E & F lor enralhns the Purchdser(s) shott be sisned b! the Purchosr(s) ot the tine of executing this Agreen%t to 'ell," 23.

On bare reading ofthe above-mentioned claus€, it can be asce(ained that the amount paid to th€ respondent as lBMS or IFMS charge is to secure due performance by the allottees in prompt payment of Complarnt No 3175 or2020 *HARERA S- crrnrcnnur Complaint No 3175 of2020 maintenance bills and other charges raised bythe maintenance agency or whoever for maintenance of the society.

It is Lrnderstood that the IBI\4S and IFN{S would be set oif, ii required, against the mainrenance dues, whjch were liable to be particularly paid by the residents afte. possession had been granted.

Further, the I8llIS or IFMS charges were only to be temporarily held by the respondent until the maintenance responsibility was accepted by the complainant/association.

Further, it is observed that the complainant/association has been registe.ed under Haryana Registrat,on and Reglrlation otSocieties Act,2012 vide regiskation no. ltR-o18-2015-01673 dated 05.03.2015 having 454 homebuyers as member of the association.

Thus, the IBI\4S or IFMS deposit being a security against failure to pay maintenance charges by the allottees, ought to be handed over to the complainant/association, who are presentlyin charge of th€ ma,ntenance of the project.

G,ll Direct the respondeDt to refund aDd consequently pay the complainant/association a sum of Rs11,00,000/- towards the repalrs ofthe llfts; a sum of Rs.16,18,410/- towards the repairs ofthe two sewage Eeatment pLnts; a sum otRs.54,00,000/- lor procurem€nt of two DG sets of S00 KvA caPacity (along with interest at the rate of 18 yo p.a. thereon from the date that the anount fell due Ull the date ofrcallatlon)j 24.

The above-mentioned relief with regard to payment ol amount towards repair of lift, rwo sewerage plarts and procu. and procu.ements of two DG sets etc has been raised by the complainant/assoc,ation.

However, after peru sal oa documents available on record as wellas submissions made by the part,es it is ascertained that the maintenance of the project has already been handed over to association who js presently demanding and collecting the amount lrom the allottees residing therein for the purpose of maintenance of the proje€t as a whole.

The Authority is of considered view that IFMS is charged to bear with I}HARERA -db- crnrrcnlv ComplcintNo ll75 oi Z0Z0 capital expenditures only and the same has been discussed earlier also in r€1iefno.

G.l, that the same is to be handed overto the association of allottees.

Hence, the said issues cannot be raised at this pojnt of time and it is the complainant-association which is under obligation to carry out the maintenance, repairs, installation etc, if any, towards proper and smooth functioning ofth€ project.

G,lU Direct the respondetrt to pay compensation to the conplaiDant/association ir the sum of Rs.10,00,00,000/- on accouni ot the hardship faced by the residents towards structural defe.ts, dcfects in lifis, misappropriation, defe.t in the sTP and on a..ountofthe lack ofDc sets.

25.

The complainant/association is seeking relier w.r.t. compensation in the above-mentioned reliefs.

Hon'bl€ Supreme Court ol lndia in case M/s Newtech Promotel:s and Developers M- Ltd.

V/s State oJ Up & Ors. (2021.2022(1) RCR (Cr35r, 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 adiudicating omcer as per section 71 and the quantum ofcompensation & litigation expense shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.

The adjudicanng officer has exclusive jurisdiction to deal with the complaints in respect of cornpensation & legal erpenses.

Therefore, for claiming compensation under sections -12, 1. ns -12, 1.4,7a aad section 19 of the Act, the complainants may file a separate complaint before Adjudicating Officer under sectio.

3t .ead with section Tl of the Act and rule 29 ofthe rules.

F.Vl Direct the respondent to refund and corsequ€ntly pay the complainant/association a sum ofRs.5,00,00,000/. which is the amount incurr€d bythe complainantfrom APfl12019 being the difierence between the domestic tarift and the commercial tarlll (wlth irterest at the Ete ot 18 o/o p.a. thereon from the date that the amount fell due till the date of reallzation).

21.

HARERA GURUGRA[/ The complainant submitted that the fact has been admitted by the respondent that an amount equivalent to Rs.

7,55,76,684/- has been collected by it from 366 allott€es but it is pertinent to mention that the same has not been remitted to concerned authority as per clause 6.9 & 3.11(6) of buyert ag.eement and further, has failed to obtarn permanent electricity connection for the concerned project lrom August 2012 to September 2019.

As a result of same, the competent :uthority continues to provid€ electricity through temporary connection resulting in higher tariff i.e., Rs.

10.125l- per unit (at commercial rates) to that of Rs.6 per unit (domestic rate), as charges by neighbouring complexes.

The respondent on the other hand submitted that ,t installed 11 KVA electrical set up in the said proje€t and thereafter, the occupat,on certificate was granted to the respondent on 17.11.2014.

However, in April 2015, the DHB\.I,{L changed its policy and 33 I(VA electrical set up was made necessary.

Domestic connection was denied on that basis and a demand ofRs.4.75 crores as bankguarantee was raised.

Thus, it meant that all the expenditure incurred by the respondent in installation of 11 KVA wasnullified dueto the sudden change in policy.

Till the time the respondent was managing th€ maintenance, it was absorbing the differential in rates.

Late. tes.

Late., DHBVN L,mited realized its fault and started raising bills on domestic rate from 01.03.2021 and cont,nued lor one year.

However. an estimated amount of Rs.7.55 crores has been collected from the homebuyers but approximat€ly an amount oiRs s.rorer has been incurred so far on the electrical infraslructure.

Therefore, an estimated amount ol Rs.2.75 crores are yet to be Complaint No. ll75 of 2020 HARERA GURUGRA[/ recovered from the homebuyers.

Thereafter, the respondent started the work towards electr,cal set up oi 33 I(vA and a land measuring approx.

571 sq. yards was transferred in favou. of the Executive Engin€er, DHBVN through gift deed dated 02.08.2022, for switching station in accordance with the circulars ruled out by the DHBVN department as well as the N0C of the DTCP Haryana vide NOC memo No.

ZP-295/sT IDK)lzo2l/9067 dated 06.04.2021.

Furthermore, the DHBVN approved the electrincation complaint of the respondent vide memo No.

CH-99/SE/R-APDRP/OLNC-HT/CCN-1/SoL/820 dated 72.0r.2021_ 28.

The Authority observes that it has been bought to its knowledge that the above-mentioned rellefsoughtis already pending before the court of Sh.

Vikrant, Civil rudge, lunior Division, Gurgaon in civil suit t,tled Vedanta Reslilents Wewre Assoclatlon ve.sus Rahqa Develope$ Limited ond another.

Hence, the authority has not deliberated the above'mentioned reliefand the same isbarred under section 10 ofthe Code of Civil Procedure 1908.

H.

Directionsoftheauthorlty 29.

Hence, the authority hereby passes this order and issues the following directions under section 37 of the A€t to ensure compliance of obligations cast upon the promoter as per the function entrusted to the author,ty under sect,on 34[f]: i.

The respoDdent/promoter is directed to transfer all the IFMS/IBMS amount received by lt from the allottees in the account of RwA.

Further, il it has received any interest on the IFMS/IBMS deposit, then the. then the.ame shallbe transferred in the account ofRWA.

Complarnt No I175 ot20Z0 *HARERA $- arRuGRArvt ii.

A period of 90 days is given to the respondent directions given in this order and iailing which legal would loUow 30.

Complaint stands disposed ot 31.

F,le beconsigned to registry.

Dated:08.05.2023 Tlllf.

HARERA GURUGRA[V] 5 of2020 I Authoriry, Gu (vi ,-<.2 kumff-covat) ,'\ E (saniecv Kumar Atora) (Ash(