MUNNI DEVI WIFE OF LATE SHRI KANHIYA LAL GUPTA vs SUNRAYS HEIGHTS PVT. LTD.

ffiHARERA ffi* GUIIUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision: CORAM: Shri Ashok Sangwan ORDER L.

This order shall dispose of the aforesaid complaints titled above filed beforc. this authority under Section 31 of the Real Estate IRegulation and Development) Act, 2016 fhereinafter referred as "the Act") read with Itule 2B NAME OF THE BUILDER SUNRAYS HEIGHTS PRIVATE LIMITEI) PROIECT NAME "63 Golf Drive" at Sector 63.{, Gurugram, Haryana Sr.

No.

Case No.

Case title Appearance 1. cR/2282/2024 Deepak Mathur Vs.

Sunrays Heights Private Limited Shri Vijay Pratap Singh Shri Tushar Bahmani 2. cR/1,L18/2024 Smt.

Munni Devi Vs.

Sunrays Heights Private Limited Shri Vijay Pratap Srngh Shri Gagan Sharma 3. cR/1321,/2024 Arpita Verma Vs.

Sunrays Heights Private Limited Shri Vijay Pra[ap Singh Shri Lalit Kurnar, AR 4. cR/2326/2024 Kalpana Tyagi Vs.

Sunrays Heights Private Limited Shri Vijay Pratap Singh Shri Tushar Bahmani 5. cR/27e7 /2024 Meena Kapoor Vs.

Sunrays Heights Private Limited Shri Vijay I)ratap Singh Shri Tushar llahmani 6. cR/L902/2024 Rupa Kumari Vs.

Sunrays Heights Private Limited Shri Vijay Pratap Singh None 7. cR/1,918/2024 Lalit Mohan Vs.

Sunrays Heights Private Limited Shri Vijay Pralap Singh N one Page 1 ,t7- Complaint No.

2282, 1118, 1321, 2326, 2797, 1902 and I 91 B of 2024 07.05.2025 Member Complaint No.

2282, 2326,2797, 7902 and 1118,1: l9l8 of 2 2.

3.

Proiect Name and Locatibn "63 Golf Drive" at Sector Gurugram, Harvana Proiect area 9.701,5625 acres DTCP License No. and validity 82 of 2014 dated 08.08.2014 Valid up to 31,.L2.2023 RERA Registered or Not Registered Registered Registration no.

249 of 2017 26.09.2017 valid up to 25.09.2 Date of approval of building plans 10.03.2015 Date of environment clearance 16.09.201,6 Possession Clause 4.

Possession "4.L The developer sholl endea handover possession of the said flat period of four years i,e., 48 months .

8 months . date of commencement of tl!e_p!_qec HARERA ffiGURUGRAM of the Haryana Real Estate (Regulation and Developmenr) Ilulcs, 2017 fhereinafter referred as "the rules") for violation of Section 11[a)(a) of thc Act wherein it is inter alia prescribed that the promoter shall be rcsponsiblc for all its obligations, responsibilities and functions to the allottees as per thc agreement for sale executed inter se between parties.

The core issues emanating from them are similar in naturc and thc complainant[s) in the above referred matters are allottees of the project, namely, "Sixty-Three Golf Drive" situated at Sector-63 A, Gurugram being developed by the same respondent/promoter i.e., Sunrays Ileights Privatc Limited.

The terms and conditions of the buyer's agreements and the fulcrurn of the issue involved in all these cases pertain to failure on the part of thc promoter to deliver timely possession of the units in question, secking possession of the unit along with delayed possession charges.

The details of the complaints, status of reply, unit no., date of agrecntcnt, possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given below: -l 63A, dated 922-__ deavour to lat within a :hs from the ))ecL, subject Pagc 2 of 26 t/ HARERA ffiGUI?UGI?AM Complaint No.

2282, 11,78, 1321, 2326,2797,1902 and 1.918 of 2024 I Page 3 of26 r' to force majeure and timely payment by the allottee towards the sale consideration, in accordance with the terms stipulated in the present agreement." S pofi.V 2Ol3 "L(iv) All such projects sholl be required to be necessarily completed within 4 yeors from the approval of building plans or qrant of environmental clearance, whichever is lqter, This date sholl be referced to as the "date of commencement of project" for the purpose of this policy.

The license shall not be renewed beyond the said 4 years from the date of commencem ent of p roj ec t." 16,03. t." 16,03.202L fCalculated from the date of environment clearance being later including grace period of 6 months in lieu of Covid-191 Due date of possession 3L.L2.2024 Sr.

Complaint No., Case Title, and Date of filing of complaint Unit no. & size Date of execution of BBA Total Sale Consideration / Total Amount paid by the complainant ofi"" nf possession 1.

DOF:22.05.2024 Reply: 15.0L.2025 cP./2282/2024 Deepak Mathur Vs.

Sunrays Heights Pvt.

Ltd.

143, Tower A Carpet area.

605.10 sq. ft.

Balcony area.

94.94 sq. lt ISP-Rs.

25,79,925 /- 'Page 66 of :omplaint) lP-Rs.

22,46,6101- 'Page 67 ol :omplaintl Not Offered 2. cR/tttB/2024 Smt.

DOF:26.03.2024 Replyr 07.08.2024 1.07, Tower E Carpet area.

605.10 sq. ft, Balcony area.

94.94 sq. ft.

0t.07.20r6 (Page 24 of complaint) BSP-Rs.

24,67,870/- Page 38 of complaint) tP-Rs.22,46,777 /- '.Page 17 of reply) Not Offered 20t6 (Page 23 of reply) 3. cR/1321/2024 Arpita Verma Vs.

DOF:08.04.2024 Reply: 09.1,0.2024 25, Tower E Carpet area.

366,25 sq. ft.

69.84 sq. ft.

16.08.2019 (Page 20 of complaint) BSP-Rs. t4,99,9201- 'Page 38 ol :omplaint) lP-Rs.

14,18,444/- Page 62 of reply) Not Offered 4. cR/2326/2024 Kalpana Tyagi Vs.

Ltd, DOF:22.O5.2024 Reply: 15.01.2025 16, Tower B Carpet area, 361.89 sq. ft.

Balcony area, 69,84 sq. ft.

2016 (Page 23 of reply) ISP-Rs.

15,50,200/- Page 63 ol :omplaint) lP-Rs.

13,50 ,064 /- Page 63 of complaint) Not Off'ered 5. cR/2797 /2024 Meena Kapoor Vs.

Lrd.

DOF211.06.2024 Reply: 20.t1.2024 43, Tower J Carpet area.

644.55 sq. ft.

Balcony area- 87 .74 sq. fL 29.03.2016 (Page 21, of complaintl ]SP-Rs.

26,22,070/- Page 33 ol ;omplaint) tP-Rs, 24,79 ,377 l- Page 68 of reply) Not Oftered 6. cR/t902/2024 Rupa Kumari Vs.

Sunrays Heights Lrd.

DOF:13.05.2024 Reply: Not Filed Pvt.

81, Tower C Carpet area, 356.18 sq. ft.

Balcony area 69.84 sq. ft.

10.04.2016 (Page 23 of complaint) ]SP-Rs. t) ]SP-Rs. l+,59,6+0/- Page 36 of ;omplaint) lP-Rs.

13,29,280/ .As stated by rhe :omplainant) Not Offered 7. cR/tgtB/2024 Lalit Mohan Vs.

DOF:13.05.2024 Replv: Not Filed 43, Tower G Carpet area.

03.02.20t6 (Page 20 of complaint) ISP-Rs.

24,67,870/- Page 33 ol :omplaint) tP-Rs.

22,46 ,777 /- As stated by :omplainant) Not Offcred ffi ffi HARERA GURUGRAM Complaint No.

2282, 1118, 1321, 2325, 2797, 1902 and 191 B of 2024 Pagc 4 ol26 V HARERA W*GUI?UGI?AM DOF DPC TSC AP CD Complaint No.

2282, 1118, 2326,2797,1902 and 1918 of The complainant herein is seeking the following reliefs: 1.

Direct the respondent to pay interest @ 8.650/o p.a. at prevailing MCLR plus 2olo on paid amou nt of Rs.22,46,670/- for delay period starting from 15,03.2021 till actual handover of physical possession or offer of possession plus two months after obtaining 0C, whichever is earlier and wave of illegal and unreasonable interest etc. raised by respondent.

2.

Directtherespondenttohandoveractualpossessionofthebookedunittothecomplainant.

Direct the respondent to raise last demand as per the Haryana Affordable Housing Policy towards the consideration of unit in order to make the payment.

4.

Direct the respondent to get the copy ofapplication for OC as such the respondent claims that they have applied for OC.

5.

DirecttherespondenttopaylitigationchargesofRs.50,000l-andfinancial lossolRs5,00,000/-in terms of extra interest paid to bank, due to delay in handing over of possession oI the saicl unit Note: In the table referred above certain abbreviations have Ueen usea. rney a.e etif,oiri.J .ir fc,itrws Abbreviation Full form Date of filing of complaint Delayed possession charges Total sale consideration Amount paid by the allottee/s Convevance deed 4. ce deed 4.

The aforesaid complaints were filed by the complainant-allottee[s) against the promoter on account of violation of the builder buyer's agreement executed between the parties in respect of subject unit for not handing over the possession by the due date, seeking the delayed possession charges and further directions to the respondent to complete and seek necessary governmental clearances regarding infrastructural and othcr facilitics including road, water, sewerage and electricity.

It has been decided to treat the said complaints as an application for non- compliance of statutory obligations on the part of the respondent ln terms ol' Section 34(0 of the Act which mandates the authority to ensure compliancc of the obligations cast upon the promoters, the allotteefs) and the rcal esta[c agents under the Act, the rules and the regulations made thereundcr.

6.

The facts of all the complaints filed by the complainant- allottee[s) arc similar.

Out of the above-mentioned cases, the particulars of lead casc CR/2282/2024 titled as "Deepok Mathur Vs.

Sunrays Heights Private Limited" are being taken into consideration for determining the rights of thc allottee[s) qua the relief sought by them.

Page 5 of 26 4 ffi ffi {st{ wi HARERA GURUGRAM Complaint No.

2282, 1118, 1321, 2326, 2797, 1902 and 1918 of 2024 A.

Proiect and unit related details 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: 4 -"Deepak Mathutr Vs.

Sunrays Heights Private Limited" Sr.

Particulars Details 1.

Name of the project "Sixty-Three Golf Drive", Sector 63-A, Gurugram" 2.

Project area 5.9 acres 3.

Nature of the proiect able Group Housi 4.

DTPC License no. and validity 8Z'of 201,4 dated 08.08.2014 Valid upto 07.08.201.9 5.

Name of licensee Sunrays Heights Pvt.

Ltd., Smt.

Kiran W /o Dharam 6.

Dharam 6.

RERA registration details Registered 249 of 2017 dated 26.09.201,7 7.

Allotment letter .3.06.2077 Paee 20 of complaint Builder Buyer Agreement 2016 fPage 23 of complaint B.

Unit no.

A-L43, Tower A fPaee 36 of complaint 9.

Unit area a ng JarpetArea- 605.10 sq. ft 3alcony Area- 94.94 sq. ft. 'Page 36 of complaint) 10.

Possession clause ion "4.7 The developer shall endeavour to handover possession of the said Jlat within a period of four years i.e., 48 months from the dote of commencement of the project, subject to force majeure and timely payment by the allottee towards the sale consideration, in accordonce with the terms stipuloted in the present Qgreement." *As per alfordable hous - "1(iv) All such projects shall be required to be necessarily completed within 4 years from the val of b 4.

Page 6 of26 f HARERA GUl?UGllAM Complaint No, 2282, 1118, 1321, 2326,2797,1902 and 1918 of2024 environmental clearance, whichever is later.

This date shall be referred to as the "daLe of commencement of project" for the purpose of this policy.

The licences shall not be renewed beyond the said 4 years period from the date of commencement 10.03.2015 (Page 43 of reply) 16.09.2016 (Page 49 of reply) 1.6.03.2021, Rs.25,79,925/- (as per S0A dated 24,10.2024 at page 66 ol re [Calculated from date of environment clehrances i.e., 16.09.20L6 being later, which cornes out to be 16.09.2020 + 6 months as per' HARERA notification no. g /3-2020 dated 2'6.05.2020 for projects having completion date on or after 25.03.2020, on account ol force majeure conditions due to outbreak oI Rs.22,46,61,0 / - (as per SOA dated 24.10.2024 a[ page 66 ofi l 2024 (Page 62 of reply) 3L.12.2024 (Taken from another file o[the sarr]c project) B.

8. on 08.12.2023 Not offered Facts of the comp The complainant has made following submissions in the complaint: a) That the respondent made advertisement in the newspaper '[{industan Times'with regard to the location, specification and amenities and time of completio completion of the project under the name affordable group housing colony commonly known as "63 Golf- Drive" floated under Haryana Government's Affordable Housing Policy, located at Sector 63A, Gurgaon, Haryana.

Page 7 of26 / building plan Date of environment clearance Due date of possession Amount paid by the complainant Final Reminder letter sent by respondent to complainant Occupation certificate I ffi ffi Covid-19 Sale consideration HARERA ffiGURUGI?AM b) That the complainant approached to the respondent for booking of a unit vide application bearing no SGD(A)-0135, having carpet area of 356.18 sq. ft. and balcony area of 69.84 sq. ft.

The draw of the said project was held wherein the complainant was allotted unit no.

Il- 19 at tower I I. c) That the buyer's agreement was executed between thc partics on 31.12.2018.

The total sale consideration of the unit was Rs.14,59,640l- along with other taxes and charges payable.

The complainant paid Rs.13,80,371/- against demand of Rs.L3,80,37l/- dl rhe dare of filing ol case before the Authority as and when the demand were raised by thc respondent in time bound manner. d) That the respondent is hereby threatening the complainant that he has to make the payment as per the affordable housing policy without cvcn raising the demand letters by the respondent side as per the agrecd terms of BBA , without considering the amendment with regard to thc timc linked plan substituted to construction linked plan amended in the said policy from month November 202L onward, in other word thc respondent is trying to pressurise the complainant align thc complainant in cancellation pool not even caring the hard fact that as pcr the BBA terms the project is already delayed by more than 3 year from the date of promise. e) That the cause of action to file the instant complaint has occurred within the jurisdiction of this Authority as the unit which is the sutrject nra[tcr oI this complaint is situated in Sector 634, Gurugram, which is within thc within thc jurisdiction of this Authority.

C.

Relief sought by the complainant 9.

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

Direct the respondent to pay interest @ 8.650/o p.a. at prevailing MCLR plus 2% on paid amount of Rs.22,46,610/- for delay period starting fronr Pagc B of 26 Complaint No.

2282, 1118, 1321, 2326,2797,1902 and l9l9of 2024 Y HARERA Complaint No.

2282, 2326,2797 ,7902 and 1118, 1321, 191,8 of 2024 GURUGRAM 15.03.2027 till actual handover of physical possession or offer of possession plus two months after obtaining OC, whichever is earlier and wave of illegal and unreasonable interest etc. raised by rcspondcnt.

II.

Direct the respondent to handover actual possession of the bookecl unit to the complainant.

III.

Direct the respondent to raise last demand as per the Haryana Affordablc Housing Policy towards the consideration of unit in order to make thc payment.

IV.

Direct the respondent to get the copy of application for OC as such thc respondent claims that they have applied for OC.

V.

Direct the respondent to pay litigation charges of I1s.50,000/- ancl financial loss of Rs.5,00,000/- in terms of extra interest paid to bank, duc to delay in handing over of possession of the said unit.

10.

On the date of hearing, the authority explained to the respondent/ promotcr about the contraventions as alleged to have been committed in relation to Section 11(4) [a) of the act to plead guilry or not ro plead guilry.

D.

Reply by the respondent 1,1'.

The respondent has contested the complaint on the following grounds. a) That the complainant applied to the respondent for allotment of the unit vide an application form dated 14.04.2015 and was allotted a unit bearing no.

4-143 in tower A, having carpet area of 605.10 sq. ft. and balcony arca of 94.94 sq. ft. vide allotment letter dated 11.01 .201,6. 'l'he complainant represented to the respondent that they should remit every instalment on time as per the payment plan. ment plan.

The respondent had no rcason to suspect the Bonafide of the complainant and proceeded to allot thc unit in question in their favor. b) Thereafter, a builder buyer agreement was executed between the parties.

The agreement was consciously and voluntarily executed bctwccn thc parties and terms and conditions of the same are binding on the parties. c) That as per clause 4.t of the agreement, the due date o[posscssion was subject to the allottee having complied with all the terms ancl condrtions of the agreement.

That being a contractual relationship, rcciprocal Pagc 9 ot-26 ffi ffi vs{q wi GURUGllAM HARER& Complaint No, 2282, 1118, 132i, 2326,2797,1902 and 7978 of2024 promises are bound to be maintained, The rights and obligations of the allottee as well as the builder are completely and entirely determincd by the covenants incorporated in the agreement which contirrue to bc binding upon the parties thereto with full force and effect. d) That, as per clause 4.1, of the agreement, the respondent endeavored to offer possession within a period of 4 years from the date of obtainmcnt of all government sanctions and permissions including environmcnt clearance, whichever is later.

The possession clause of the agreement is on par with clause 1(iv) of the Affordable Housing Policy, 201,3. e) That the building plan of the project was approved on 10.03 .2015 from DGTCP and the environment clearance was received on 16.0g.2016.

Thus, the proposed due date of possession, as calculated from thc datc of' EC, comes out to be 21,.08.202L.

The Ld.

Authority vide notification no.9/3-2020 dated26.05.2020 had allowed an extension of 6 months for the completion of the project the due of which expired on or aftcr 25.03.2020, on account of unprecedented conditions due to outbreak of' Covid-19.

Hence, the proposed due date of possession comes out to be 16.03.202t.

6.03.202t.

0 That the offer of possession was also subject to the incidence of forcc majeure circumstances under clause 1,6 of the agreement. l'hc construction and development of the project was affectcd by circumstances which are beyond the control of the respondcnt. 'l'hc respondent faced certain other force majeure events including but not limited to non-availability of raw material due to various orders of Hon'ble Punjab and Haryana High Court and National Green 'l'ribunal thereby regulating the mining activities, brick kilns, regulation of thc construction and development activities by the judicial authorities in Page 10 of Zlz ffiHARERA ffiGURUGRAM Complaint No.

2282, 7118, 1321, 2326,2797,1902 and 1918 of2024 NCR on account of the environmental conditions, restrictions on usage oI water, etc.

These orders in fact inter-alia continued till the year 2018, Similar orders staying the mining operations were also passed by the Hon'ble High Court of Punjab and Haryana and the National Green Tribunal in Punjab and Uttar Pradesh as well.

The stopping of mining activity not only made procurement of material difficult but also raised the prices of sand /gravel exponentially.

It was almost for 2 years that thc scarcity as detailed aforesaid continued, despite which, all efforts werc made, and materials were procured at 3-4 times the rate and thc construction of the Project continued without shifting any extra burden to the customer.

It is to be noted that the development and implementation of the said project have been hindered on account of several orders/directions passed by various authorities/forums/courts.

Additionally, even before normalcy could resume, the worlcl was hit by the Covid-19 pandemic.

The covid-19 pandemic resulted in serious challenges to the project with no available laborers, contractors ctc. for the construction. struction. g) That as per license condition, developer are required to complete thcsc projects within a span of 4 years from the date of issuance of environmental clearance since they fall in the category of special time bound project under Section 78 of the Haryana Development and Regulation of Urban Area Act 1,975, for a normal Group t{ousing project there is no such condition applied hence it is required that 4 years prescribed period for completion of construction of Project shall bc hindrance free and if any prohibitory order is passed by competent authority like National Green Tribunal or Hon'ble Supreme Court then Page 1 7 of26 ffiHARERA ffiaJRUGtlAM Complaint No.

2282, 1118, 1321, 2326,2797,1902 and 1918 of 2024 the same period shall be excluded from the 4 years period or moratorium shall be given in respect of that period also. h) That in a similar case where such orders were brought before the Ld.

Authority was in Complaint No.

3890 of 2021 titled "shuchi Sur and Anr. vs.

M/s.

Venetian LDF Projects LLP" which was decided on 17.05.2022, wherein the Hon'ble Authority was pleased to allow the grace period and hence, the benefit of the above affected 166 days need to be rightly given to the respondent. ' i) That even the UPRERA Authoris at Gautam Budh Nagar has provided benefit of 1'16 days to the deVeloper on account of various orders of NGT and Hon'ble Suprerne Court directing ban on construction activities in Delhi and NC& ro dlys ior the period ot.t1,.zot 8 to i.0.11 .zot},4 days for 26.70.2079 to 30.10.20L9, 5 days for the period o4.1r.zo1,g ro 08.11.2019 and 102 days for the period 04.t7.2019 ro 74.02.2020.

Thc Authority was also pleased to consider and provided benefit of 6 months to the developer on account of the effect of COVID also. i) That the Hon'ble UP REAT at Lucknow while deciding appeal No.

541 of 201,1 in the matter of Arun Chauhan Versus Gaur sons lli- 'fcch Infrastructure Pvt Ltd vide order dated 02.1,1,. d 02.1,1,.2021 has also granted the extension of 176 days to the promoter on account of delay in completion of construction on account of restriction/ban imposed by thc Environment Pollution (Prevention & Control) Authority as well vide order of Hon'ble Supreme Court Dated 1,4.1,1,.2019. k) That Karnataka RERA vide notification No.

K-RERA/Secy/04/2019-20 and No.

RERA/SEC/CR-04/201,9-20 has also granted 9 months extension in lieu of Covid-19 pandemic.

Moreover, this Ld.

Authority had in similar Page 12 of 261/ ffiHARERA ffiGURUGRntv matters of the had allowed the benefit of covid grace period of 6 months in a no. of cases. l) Despite there being several defaulters in the project, the respondent had to infuse funds into the project and have diligently developed the project in question.

Despite the default caused, the respondent got sanctioned loan from SWAMIH fund of Rs.

44.30 Crores to complete the project and has already invested Rs.

35 Crores from the said loan amount towards thc project.

The respondent has already received the FIRE NOC, LIFI' NOC, the sanction letter for water connection and electrical inspection report. m) That the respondent has applied for occupation certificate on 08.12.202:1.

Once an application for grant of occupation certificate is submitted for approval in the office of the statutory authority concerned, respondent ceases to have any control over the same.

Therefore, the time utilizcd by the statutory authority to grant occupation certificate to the respondent is required to be excluded from computation of the time utilized for implementation and development of the project. n) That the complainant has been allotted unit under the Affordablc Housing Policy, 201,3 which under clause 5(iii)[b), clearly stipulated thc payment of consideration of the unit in six equal installmcnts. 'l'hc complainant is liable to make the payment of the installments as per the government policy under which the unit is allotted. allotted.

At thc tinrc of application, the complainant was aware of the duty to make timely payment of the installments.

Not only as per the Policy, but the complainant was also under the obligation to make timely paynrent of installments as agreed as per the BBA. o) That the complainant has failed to make any payment of installment at "within 36 months from the due date of Allotment" along with partial I)age 13 of 26 ( Complaint No.

2282, 1718, 1'321, 2326,2797,1902 and 1.918 of 2024 HARERA Complaint No.

2282, 1118, 2326,2797,1902 and 1918 of GUl?UGl?AM payment towards previous instalments.

The complainant cannot rightly contend under the law that the alleged period of delay continued even after the non-payment and delay in making the payments. 'l'he non- payment by the complainant affected the construction of the project and funds of the respondent.

That due to default of the complainant, the respondent had to take loan to complete the project and is bearrng thc interest on such amount.

The respondent reserves the right to clairl damages before the appropriate forum. p) That it is the obligation of the complainant under the Affordable Housing Policy, 201.3 (as on the date of Allotment) and the Act to make. timely payments for the unit.

In case of default by the complainant thc unit is liable to be cancelled as per the terms of Affordable Housing Polic y,20I-). q) That the respondent issued a final reminder letter dated 05.08.20 24.via email requesting the complainant to pay the outstanding dues. ln complete default, the complainant failed to make the paymcnt in 15 days.

Thus, the unit of the complainant is liable to be cancelled in terrns of' clause 5(iii)[i) of the policy and clause 3.7 of the buyer's agreement. r) That the complainant has not only in breach of the buyer's agreerrent but also in breach of the Affordable Housing Policy and the IIEI1A Acr, by failing to make the due payments for installments. tallments.

The unit has been cancelled, and this complaint is bound be dismissed in favor of thc respondent. s) That without prejudice, assuming though not admitting, relief of delayed possession charges, if any, cannot be paid without adjustment ol outstanding instalment from due date of instalment along with interest @1,5o/o p.a.

That, moreover, without accepting the contents of thc complaint in any manner whatsoever, and without prejudice to the rights I)age14ol26./ ""1 zozq I ffi ffi sdqqn iBi HARERA Complaint No.

2282, 1.118, L321., 2326, 2797, lg}zand t g 18 ot 2024 ffiGUI?UGI?AM of the respondent, the unit of complainant can be retained only aftcr payment of interest on delayed payments from the due date of instalment till the date of realization of amount.

Further delayed interest if any must be calculated only on the amounts deposited by the complainant towards the sales consideration of the unit in question and not on any amount credited by the respondent, or any payment made by thc complainant towards delayed payment charges or any taxes/statutory payments, etc l}.ltis pertinent to note that complaint case no.

1.902 of 2024 and complaint case no.

1918 of 2024 mentioned above were filed on 13.05.2024 in thc Authority.

Further, the respondent was granted opportunity to put in appearance and file a reply in both the complaint cases.

I{owcvcr, dcspitc giving specific multiple directions and providing an opportunity of being heard, no written reply has been filed by the respondent.

In view of the samc, the matter was proceeded ex-parte against the respondent vide order clated 02.04.2025 in both these complaints.

13.

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

Their authenticity is not in dispute.

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

E. )urisdiction of the authority 14. hority 14.

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

E.l Territorial i urisdiction 15.

As per notification no.

7/92/2077-7TCP dated 74.72.2017 issued by 1'own and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purposes with offices situated in Gurugram.

In the present case, the project in qucstion is [)age lSo|26 y HARERA Complaint No.

2282, 11,18, 1321, 2326,2797,1902 and 1918of 2024 ffiGURUG|IAM situated within the planning area of Gurugram District, 'l'hereforc, this authority has a complete territorial jurisdiction to deal with the present complaint.

E.ll Subiect matter iurisdiction 16.Section 11[a)(a) of the Act, 2016 provides that the promoter shall bc responsible to the allottee as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section 17.... ft) The promoter shall- (a) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to the association of allottees, as the case may be, till the conveyance of all the apartments, plots or buildings, as the cose may be, to the ollottees, or the common areas to the association of allottees or the competent authority, as the case may be; Section S4-Functions of the Authority: 3a(fl of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agenLs under this Act and the rules and regulations made thereunder.

17.

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

F. stage.

F.

Findings on the obiections raised by the respondent.

F.I Obiection regarding delay due to force maieure circumstances.

18.

It is contended on behalf of respondent that due to various circuntstanccs beyond its control, it could not speed up the construction of the projcct, resulting in delays such as various orders passed by NG'f and Hon'ble Supreme Court.

All the pleas advanced in this regard are devoid of mcrit.

I'hc passing of various orders to control pollution in the NCR-region during thc month of November is an annual feature and the respondent should havc Page 1 6 of26 ffiHARERA ffiouRUGRAM Complaint No.

2282, 1,718, 1327, 2326,2797,1902 and 1978 of 2024 taken the same into consideration before fixing the due date.

Similarly, the various orders passed by other Authorities cannot be taken as an excuse for delay as it is a well-settled principle that a person cannot take beneFit of his own wrong.

19.

It is observed that the respondent was liable to complete the construction of the project, and the possession of the said unit was to be handcd ovcr by 16.09.2020 and is claiming benefit of lockdown amid covid-19.

In view of' notification no.

9/3-2020 dated 26.05.2020, the Authority has allowed six months' relaxation due to covid-19 and thus with same relaxation, even if due date for this project is considered as 16.09.2020 + 6 months, posscssion was to be handed over by 16.03.2021, but the respondent has failed to handover possession even within this extended period.

G.

Findings on the relief sought by the complainant G.I Direct the respondent to pay interest @ 8.650/o per annum as per the prevailing MCLR plus 2%o on the paid amount of Rs.13,B 0,371/- for delay period starting from 15.03.2021 till the actual handover of physical possession or offer of possession plus 2 months after obtaining OC, whichever is earlier, as per the provisions of the Act.

20. e Act.

20.

The factual matrix of the case reveals that the complainant booked a unit in the affordable group housing colony project of the respondent known as "63 Golf Drive" situated at sector 63-A, Gurugram, Haryana and was allotted unit no.

143, in tower A for a sale consideration of Rs.25,79,925/-. trurthcr, thc complainant is always ready and willing to retain the allotted unit in question and has paid a sum of Rs,22,46,6t0/- towards the allotted unit.

21.

During the course of proceedings dated 02.04.2025, learned counsel for thc respondent submitted that the complainants have instituted procccdings before the Hon'ble National Company Law Tribunal (NCLl') in Case No.

49 of 2025, seeking a refund along with interest at the rate of 240/o per annum.

It was further submitted that in the said NCLT proceedings, the date of default PagelT of26 ,z ffiHARERA ffiGURUGRntrl Complaint No.

2282, 1118, 1,321, 2326,2797,1902 and 1918 of2024 has been stated as 31.03.2023, whereas in the present complaint(s) before this Authority, the complainants have asserted the due date as 16.03.202i, and have sought relief in the form of delayed possession charges and delivery of possession.

In response, learned counsel for the complainants submitted that the matter before the Hon'ble NCLT is at the admission stage and that no order has been passed therein as ofyet.

22.Upon considering the submissions made by both parties, it is observed that the matter before the NCLT is currently at the stage of admission and no order has been passed as on date.

Therefore, at this juncture, therc cxists no bar under law that prevents this Authority from proceeding to adjudicatc thc present complaint[sJ on merits.

Z3.ltis pertinent to note that a final reminder letter dated 22.07.2024 and an c- mail dated 05.08.2 024 was being sent to the complainant-allottcc, thcrcby affording him an opportunity to clear the outstanding dues.

24. dues.

24.The Authority notes that the complainant has paid approximately 91,% of thc sale consideration, and the respondent was required to hand over thc projcct by 16.09.2020 under the Affordable Housing Policy, 2013, excluding thc COVID-19 grace period.

Even with a six-month grace period in lieu of Covid- 19 pandemic to 1,6.03.2021, the respondent failed to complete the project.

More than three years later, the project remained incomplete, ancl thc respondent has obtained the occupation certificate from the competcnt authority on 31,.12.2024.

The interest accrued during the clelay period significantly reduces the amount payable by the complainant.

Upon adjustment of this interest, the respondent would, in fact be liable to pay the complainant.

25.

Additionally, as per Clause 9.2 of the Agreement for Sale, annexcd as Annexure A to the Rules,2017, the allottee has the right to stop making Page 1B of 26 ,/ HARERA Complaint No.

2282, 2326,2797,1902 and ffiGUI?UGI?AM further payments if the promoter defaults on its obligations.

The relevant portion is reproduced below: 9.2 In case of Default by Promoter under the conditions listed above, Allottee is entitled to the following: [ii) Stop making further payments to Promoter as demanded by the Promoter.

If the Allottee stops making payments, the promoter shall correct the situation by completing the construction/ development milestones qnd only thereafter the Allottee be required to make the next pqyment without any interest for the period of such delay; or... (Emphasis Supplied) 26. the present case, the promoter was obligated to complete the construction within four years from the date of either the environment clearance or the building plan approval, whichever was later, i.e., by 16.09.2020. l.lowevcr, the promoter failed to complete the project within this timelinc. liven aftcr granting a six-month extension due to the Covid-19 pandemic, extending thc deadline to 16.03. to 16.03.2021,, the promoter did not complete the construction, Thus, in accordance with Clause 9.2, the allottee was fully justified rn stopping further payments.

27.Herein, the complainant intends to continue with the project and is seeking delay possession charges at a prescribed rate of interest on the antount already paid by him as provided under the proviso to Section 1il[1) of thc Act, which reads as under:- "Section 78: - Return of amount and compensation 18(1).

If the promoter fails to complete or is unable to give possessi o/l of an apartment, plot, or building, - Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interestfor every month of delay, till the handing over of the possession, at such rate as may be prescribed." 28.

Due date of handing over possession: The project was to be developed under the Affordable Housing Policy, 2O!3, which clearly mandates that rhe Page 19 ol26 HARERA l Complaint No.

2282, 2326,2797,1902 and 1118,1321 19lB of 2024 GURUGt?AM project must be delivered within 4 years from the date of commenccmcnt of project (as per clause 1(iv) of Affordable Housing Policy,2013, all such projects shall be required to be necessarily completed within 4.years fror.n the approval of building plans or grant of environmental clearance, whichever is later.

This date shall be referred to as the "datc of commencement of project" for the purpose of this policy).

However, the respondent has chosen to disregard the policy provision.

Clause 1[ivJ of thc Affordable Housing Policy, 2013 is reproduced as under: "7(iv) All such projects shatl be required to be necessarily completed within 4yearsfrom the approval of buitding plans or grant of environmental clearance, whichever is later. l'his date shall be referred to as the "date of commencement of project" for the purpose of this policy.

The licences shall not be renewecl beyond the said 4 years period from the date of commencement of project. f project." 29.|n the present case, the date of approval of building plans is 10.011.201 5, and the date of environment clearance is 16.09.2016.

The due date of handing over of possession is reckoned from the date of environment clearancc tlcing later.

Therefore, the due date of handing over of possession comes out to be 1,6.09.2020.

Further as per HARERA notification no.

9/3-2020 dated 26.05.2020, an extension of 6 months is granted for the projects having a completion date on or after 25.03.2020.

The completion date of thc aforcsaid project in which the subject unit is being allotted to the complainanr is 16.09.2020 i.e., after 25.03.2020.

Therefore, an extension of 6 nronths is to be given over and above the due date oI handing over possession in view of notification no.

9/3-2020 dated 26.05.2020, on account of force majeurc conditions due to the outbreak of Covid-19.

As such the due date for handing over of possession comes out to be 16.03.2021.

30.

Admissibility of delay possession charges at prescribed rate of interest: The complainant is seeking delay possession charges till the date of delivery I')age 20 o|26 ,v ffi ffi {aId{ w{i HARTRA Complaint No.

2282, 1118, 7321, 2326,2797, L902 and 1.91.8 of 2024 ffiGUI?UGIIAM of possession to the complainant.

Proviso to Section 1B provides that wherc an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of possession, at such rate as may be prescribed and it has been prcscribcd under Rule 15 of the Rules, ibid.

Rule 15 has been reproduced as under: "Rule 15.

Prescribed rate ofinterest- [Proviso to section 72, section 78 and sub-section (4) and subsection (7) of section 191 (1.) For the purpose of proviso to section L2; section 1.8; and sub- sections (4) and (7) of section 19, the "interest at the rate prescribed" shall be the State Bank of India highest marginal cost of lending rate +2a/0. ate +2a/0.: Provided thot in case the State Bank of lndio marginal cost of lending rote (MCLR) is not in use, it shalt be replacecl by such benchmark lending rates which the State Bonk of tndict may fix from time to time for lending to the generol public." 31.The legislature in its wisdom in the subordinate legislation under the provision of Rule 15 of the Rules, ibid, has determined the prescribed rate of interest.

The rate of interest, determined by the Iegislature, is rcasonable and if the said rule is followed to award interest, it will ensure uniform practicc in all cases.

32.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLR) as on date i.e., 07 .05.2025 is 9.10%.

Accordingly, the prescribed rate of interest will be marginal cost o[' lending rate +20/o i.e., 11.1,00/0.

33.

The definition of term 'interest' as defined under Section 2(za) of the Act provides that the rate of interest chargeable from the allottcc by the promoter, in case of default, shall be equal to the rate of interest which thc promoter shall be liable to pay the allottee, in case of default. 'l'he relevant section is reproduced below: '(za) "interest" means the rates of interest payable by the promoter or the allottee, as the case may be, Explanation. -For the purpose of this clause- Page2l ol26 / HARERA GURUGRAM Complaint No.

2282, 2326,2797,1902 and 1118,1321, 1918 of 2024 (i) The rate of interest chorgeable from the allottee by the promoter, in case of default, shall be equol to the rate of interest which the promoter shall be liable to pay the allottee, in case of default. (i0 the interest payable by the promoter to the allottee shall be from the date the promoter received the amount or any part thereof till the date the amount or part thereof and interest thereon is refunded, and the interest payoble by the allottee to the promoter shall be from the date the allottee defaults in payment to the promoter till oter till the date it is paid;" 34.

Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., 11.10 o/o by the respondent which is the same as is being granted to them in case of delayed possession charges.

35.

On consideration of the documents available on record and submissions made regarding contravention of 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 agrccmcnt, 36.

It is the failure of the promoter to fulfil its obligations and responsibilities as per the buyer's agreement to hand over the possession within thc stipulatcd period.

Accordingly, the non-compliance of the mandate contained in Section 1,1(4)(a) read with Section 1B(1) of the Act on the part of the respondent is established.

As such the complainant is entitled to delay possession chargcs at the prescribed rate of interest i.e., @ t1.100/o p.a. w.e.f.

16.03 ,2021till thc offer of possession plus 2 months or actual handing over of possession whichever is earlier as per provisions of Section L8(1) of the Act rcad with Rule 15 of the Rules, ibid.

G.II Direct the respondent to handover actual possession of the booked to the complainant.

37. the present complaint, the grievance of the complainant is that thc physical possession has not been handed over by the respondent to thc complainants.

The authority observes that the respondent-promoter has obtained occupation certificate of the said project from the competent Page 22 ol-26 ffi ffi {.q{s isi HARERA GUl1UGl?AM Complaint No.

2282, 1118, 1321, 2326,2797,7902 and 7918 of 2024 authority on31.12.2024.

Further, Section t7(I) of the Act of ZO16 obligares the respondent-promoter to handover the physical possession of thc subject unit to the complainant complete in all respect as per specifications mentioned in BBA and thereafter, the complainant-allottee is obligated to ta ated to take the possession within 2 months as per provisions of Section 19(10) of the Act, 2016.

38.

In view of the above, the respondent is directed to handover the possession of allotted unit to the complainant complete in all respect as pcr specifications of buyer's agreement Within a period of one month from datc of this order after payment of outstanding dues, if any, as the occupation certificate for the project has aheady been obtained by it from the competent authority.

G.III Direct the respondent to raise last demand as per Affordable Housing Policy towards consideration of the said unit in order to make payment.

39.

The Authority is of the view that the respondent/promoter shall nor chargc anything from the complainant which is not the part of the builder ttuycr agreement and under the Affordable Housing policy, 2013.

40.

It is pertinent to mention here that the Authority, vide its order dated 29.04.2024,had already directed the de-freezing of the respondcnt's bank accounts to a limited extent, thereby permitting the receipt of inconting fu ncls and authorizing the respondent to withdraw amounts from thc cscrow account for the specific purpose of discharging statutory liabilities, including renewal of license, furnishing of bank guarantees, and payment of fees l-o RERA/DTCP.

41.

Accordingly, the complainant is directed to deposit the amount raiscd in thc last demand by the respondent, if any outstanding dues remain aftcr adjusting the amount towards delayed possession charges.

Page 23 of 2 ,/ HARERA Complaint No.

2282, 1118, 1321, 2326, 2797, 1902 and 1978 of 2024 ffiGUl?UGtiAM G.lV Direct the respondent to get the copy of OC as such the respondent claims that they have applied for OC.

42.

As per the submissions made by the counsel for the respondent, thc Authority finds that the respondent has obtained the occupation certificate for the said project on 31,.12.2024.

43.

As per Section 11(4)tb) of Act of 201. ct of 201.6, the respondent is under an obligarion to supply a copy of the occupation certificate/completion certificatc or both to the complainant-allottee.

The relevant part of section 1 1 of the Act of 2016 is reproduced as hereunder: - "77(4),,,, @) fhe promoter shalt be responsible to obtain the completion certiftcate or the occupancy certificate, or both, o.s applicable, from the relevant competent authority as per local laws or other laws for the time being in force and to make it available to the qllottees individually or to the association of allottees, as the cese may be." 44.Even otherwise, it being a public document, the allottee can havc acccss to the it from the website of DTCP, Haryana.

G.V Direct the respondent to pay litigation charges of Rs.50,000/- and financial loss of Rs.5,00.,000/- in terms of extra interest paid to bank, due to delay in handing over of possession of the said unit.

45.

The complainants are seeking the above-mentioned relief with respect to compensation.

The Hon'ble Supreme Court of India in Civit Appeal nos.

6745-6749 of 2027 titled as "M/s Newtech Promoters and Developers Ltd, V/s State of UP and Ors." has held that an allottee is entitled to clainr compensation and litigation charges under Sections 12, 1.4,78 and Section 19 which is to be decided by the adjudicating officer as per Section 7.1 and the quantum of compensation and litigation expense shall be adjudged by the adjudicating officer having due regards to the factors mentionecl in Section 72.

The adjudicating officer has exclusive jurisdiction to deal with thc complaints in respect of compensation and legal expenses. ?aga 24 ol 26 -, ffiHARERA ffi outlt"tGtlAM Complaint No.2282, 1118, 1:121, 2326, 2797, 1902 and 7978 ol 2024 H.

Directions of the authority 46.

Hence, the authority hereby passes this order and issues the following directions under Section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the author the authority undcr Section 3a(fl: I.

The respondent is directed to pay delay possession charges to thc complainant against the paid-up amount at the prescribed rate ol interest i.e.,1L.1,00/o p.a. for "vg.Iy month of delay from the due date of possession16.03.2021 till offerof possession plus 2 months or actual handing over of ever is earlier, as per proviso to Section 1B(1) of the Act read with Rule 15 of the Rules, ibid.

The arrears of interest accrued so far shall be paid to the contplainant within 90 da' the date of this order and interest for every month of delay shall 6e paid by the promoter to the allottee before 1 0th of thc subsequent month as per R ; per Rule L6(2) of the Rules, ibid.

The complainant shall deposit the last demand raiscd by rhc respondent, if any outstanding remains after adjustment of the delayed possession charges. .

The rate of interest ble from the allottee by the promoter, in case of default shall be charged at the prescribed rate i.e., 17.70o/olty the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottee, in case of default i.e., Lhc delayed possession charges as per Section Z(za) of the Act.

The respondent is directed to issue a revised statement of account after adjustment of delayed possession charges, and other reliefs as pcr above within a period of 30 days from the date of this order. 'l'hc Page 25 of 26 HARERA GUl?UGI?AM complainants are directed to pay outstanding dues if any remains, after adjustment of delay possession charges within a period of next 30 days.

The respondent is directed to handover the possession of the allotted unit to the complainant complete in all aspects as per specifications of buyer's agreement within one month from date of this order, as the occupation certificate in respect of the project has already been obtained by it from the competent authority. authority.

The respondent shall not charge anything from the complainant which is not part of the buyeri5., igreer.nt and the provisions of the Affordable Housing Policy,'201 3.

47.

This decision shall mutatis mutandis apply to cases mentioned in para 3 ol this order.

48.

The complaints placed in the case Dated: 07.05.2025 Gurugram Page 26 ol 26 Complaint No.2282, 1118, 1321, 2326,2797,1.902 and 1918 of 2024 VI.

VII. disposed of.

True certified copy of this order shall be Haryana\fl.eal Estate Regulatory Authority, Asho ngwan ber