RAJIV GUPTA vs SUNRAYS HEIGHTS PVT. LTD.

HARERA GUl?UGl?AM CORAM: Shri Ashok Sangwan ORDER BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of first hearing: Date of decision: Complaint No.

1010, 1053 and LO79 of ZO24 29.05.2024 76.O4.2025 Member NAME OF THE BUILDER SUNRAYS HEIGHTS PRIVATE LIMITED PROIECT NAME "63 Golf Drive" at sector 634, Gurugram, Haryana Sr.

No.

Case No.

Case title Appearancc t. cR/1.07e/2024 Aman Malhotra Vs.

Sunrays Heights Private Limited Shri Vijay Pratap Sing Shri [-larshit []atra 2. cR/10s3/2024 Rajiv Gupra Vs, Sunrays Heights Private Limited Shri Vijay Prat.ap Sin Shri Harshit Batra 3. cR/1.01,0/2024 Gaurav Antil Vs.

Sunrays Heights Private Limited Shri Sanjeev Sharma Shri Gagan Sharma l I l l h gh 1.

This order shall dispose of the aforesaid complaints titled above f iled befor-c this authority under Section 31 of the Real Estate IRegulation anci Development) Act, 20t6 (hereinafter referred as "the Act") read with Rule 2B of the Haryana Real Estate (Regulation and Development) Ilules, ZO17 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 rcsponsible for all its obligations, responsibilities and functions to the allottees as pcr thc agreement for sale executed inter se between parties.

2.

The core issues emanating from them are similar in nature and the complainant[sJ in the above referred matters are allottees of thc projcct, Pag,e 7 o|22 ,{ ffi ffi flt{,i{ wi ffiHARERA #-GURUoRRti,t Complaint No.

1010, 1053 and 1079 of 2024 namely, "Sixty-Three Golf Drive" situated at Sector-63 A, Gurugram being developed by the same respondent/promoter i.e., Sunrays Heights Private Limited.

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

3. harges.

3.

The details of the complaints, status of reply, unit no., date of agreement, possession clause, due date of posseision, total sale consideration, total paid amount, and relief sought are gi en belora Proiect Name and Location . "63 Golf Drive" at Sector 634, Gurugram, Haryana DTCP License No. and validity 82 0f 2014 dated 08.08.2014 !a!id up to 31.tz.zozg RERA Registered Registered Registration no.

249 of 2017 dated 26.09.2017 valid up to 25.09.2022 Date of approval of building nlans 10.03.2015 Date of environment clearance 16.09.201,6 Possession 4.

Possession "4.L The developer shall endeavour to handover possession of the said /lat within o period years i.e., 48 months from the t of the project, subject io force majeure and timely poyment by the allottee towards the sale consideration, in occordance with the terms stipulated in the present ogreement," *As per affordable housing policy 2Ol3 "7(iv) All such projects shall be required to be necessarily completed within 4 years from the approvol of building plans or gront of environmental clearance, whichever is later.

This date shall be referred to as the "date of Page 2 of 22 9,701,5625 acres HARERA H GUI?UGI?AM Page 3 of zz a Complaint No.

1010, 1053 and 1.079 of 2024 commencement of project" for the purpose of this policy.

The license shall not be renewed beyond the said 4 years from the date of commencement of project." Due date of possession L6.03.2021 fCalculated from the date of environment clearance being later including grace period of 6 months in lieu of Covid-19) Occupation certificate 3L.L2.2024 Sr.

Complaint No., Case Title, and Date of filing of complaint Unit no. & size of Total Sale Consider ation / Total Amount paid by the complain ant Offer of possession Relief sought 1. cR/t079/2024 Aman Malhotra Vs.

Sunrays Heights Pvt.

Ltd.

DOFt26.03,2024 Reply: 01.08.2024 3 T C a 6 Sl 7, ower G iarpet rea- 13.31 q. ft.

I BSP-Rs.

25,00,790/- {P-Rs.

0/- {P-Rs.

18,23,+93/- Not Offered DPC Execute BBA Direct the respondent to provide the active current account to pay the demanded amount as such the payment made by the complainant is getting bounced/retu rned.

Direct the responde'nt to reverse the arbitrary and irrational interest charsed. area- 95.10 sq. ft.

2. cR/1053/2024 Rajiv Gupta Vs.

Ltd. tt7, Tower H Carpet area- 605.10 sq. ft.

01..07,2016 ISP-Rs. t+,67,870/- \P-Rs.

42,46,777 /- Not Offered DPC Direct the respondent to provide the calculation oi interest charged of Rs.7,85,558/- as the same is arbitrary and irrational.

Not Executed ffiHARERA ffiGuRtloRntrl Complaint No.

1.010, 1053 and 1.079 of 2024 4. the promoter on account of violation of the builder buyer's agreement executed between the parties in respect of subject unit for not handing ovcr 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 other facilities including road, water, sewerage and electricity..

5.

It has been decided to treat the said complaints as an application for non- compliance of statutory obligations on the part of the respondent in terms of Section 34(0 of the Act which mandates the authority to ensure compliance Page 4 of ?2 DOF:26.03.2024 Reply: 01.08.2024 Balcony area- 94.94 sq. ft. o Direct the respondent to provide the operational bank account no. in order to pay the balance demanded amount, as such the present bank is being blocked by the authority vide order dated t2.02.2024_ 3. cR/rotO/2024 Gaurav Antil Vs.

DOF: 19.03.2024 Reply: 07.08.2024 1 18, Tower D Carpet area- 605.10 sq.ft.

04.02.2016 BSP-Rs.

14,59,640/- AP-Rs.

L3',,29,290/- Not Offered DPC Note: In the table referred Abbreviation Full fol DOF Date of abbreviatio l^l-l ns have been used. been used.

They are elaborated as follows DPC TSC AP CD Delayed Total sal Amount charges ,/s The aforesaid complaints were filed by the complainant-allottee[s] against ffiHARERA ffi*GURUGRAM A.

7.

The particulars of the project, Complaint No.

1010, 1053 and 1079 of 2024 6.

The facts of all the complaints filed by the complainanr- allortee(s) are similar.

Out of the above-mentioned cases, the particulars of lead case cR/1079/2024 titled as "Aman Malhotra vs. sunrays Heights private Limited" are being taken into consideration for determining the rights of the allottee[s) qua the relief sought by them. of the obligations cast upon the promoters, the allottee[sJ and the real estate agents under the Act, the rules and the regulations made thereunder.

Proiect and unit related paid by the complainant(s), date of proposed handing ovcr the s of sale consideration, the amount possession, delay period, if any, h cR/7079/2024 -' een detailed in the following tabular form: Aman Malhotra Vs.

Sun ts Privqte Ltd." Sr.

Particulars Details 1.

Name of the "Sixty-Three Golf Drive", Sector 63-4, Gurugram" 2. ect area 5.9 acres 3.

Nature of the proiect Affordable Group Housin 4.

DTPC License n validity dated 08.08.2014 Valid upto .08.2019 5.

Name of licensee Sunrays Heights Pvt.

Ltd., Smt.

Kiran W /o Dharam 6.

RERA registration details Registered 249 of 201,7 dated 26.09.2017 7.

Provisional Allotment letter 24.09.2016 (Page 14 of complaint) Builder Buyer Agreement Not executed B.

Unit no.

G-37 , Tower G (As per allotment letter at page 14 of complaint) 9.

Unit area admeasuring Carpet Area- 613.31 sq. ft Balcony Area- 95.10 sq. ft. (As per allotment letter at page 1,4 ot rcomplaint) Page S of 22 ffi ffi HARERA GUI?UGllAM Complaint No.

1010, 1053 and 1,079 of 2024 Facts of the complaint The complainant has made following submissions in the complaint: That the respondent made advertisement in the newspaper 'Hindustan Times'with regard to the location, specification and amenities and tim es and time of completion of the project under the name affordable group housing colony commonly known as "63 Golf- Drive" floated under Haryana Government's Page 6 of 22 B.

B. a) 10.

Possession clause As per affordable housing policy 2013 - "l(iv) All such projects shall be required to be necessarily completed within 4 years from the approval of building plons or grant of environmental clearance, whichever is later.

This date sholl be referred to as the "date 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 o f p roi ect." 11.

Date of building plan approval 10.03.2015 (Page 28 of reply) L2.

Date of environment clearance 16.09.201,6 (Page 34 of reply) 13.

Due date of possession t6.03.2021. [Calculated from date oI environment clearances i.e., 16.09.2016 being later, which comes out to be 16.09.2020 + 6 months as per HARERA notification no.

913-2020 dated 26.05.2020 for projects having completion date on or after 25.03.2020, on account of force majeure conditions due to outbreak of- Covid-19 pandemicJ 14.

Sale consideration Rs.25,00,790 /- [as per Payment Plan Detail Report dated 31..07.2024 at pase 50 of complaint') 15.

Amount paid by the complainant Rs.18,23,493 /- (as per Payment Plan Detail Report dated 3L.07.2024 at page 50 ol complaint) 16.

31.1,2.2024 [Taken from another iile of the sarne pro;ect) fApplied on 08.12.2023] 17.

Offer of possession Iot offered 18.

Final Reminder sent by respondent to complainant 27.05.2024 (Page 2L of reply) O ccupation certificate HARERA ffiGURUGRAM Affordable Housing Policy, located at Sector 63A, Gurgaon, Haryana.

1'he complainant approached to the respondent for booking of a unit vide application bearing no SGD(A)-6917, in accordance with the afforclable housing policy 201,3 issued by the Govt. of Haryana , having carpet area of 613.31 sq.ft. and balcony area of 95.10 sq. ft.

10 sq. ft. b) That the draw of the said project was held wherein the complainant was allotted unit no.

G-32 at tower G. cJ That despite several assurances made by the respondent, the respondent has not executed the buyer's agreement till date.

The BSI, of thc unit was Rs.25,00,790/- and other taxes and charges payable.

The complainant paid Rs.18,23,4g3/-against demand of Rs.22,76,731/-till the date of filing of case before the Authority as and when the demand were raised by the respondent in time bound manner.

The complainant is not able to pay the demand macle against the said consideration value as such the escrow bank account is being freezed by the Authority vide its order dated lz.0z.zo24. d) That as per clause 4.1- of the buyer's agreement, the respondent was supposed to hand over the actual physical possession of the unit to thc complainant latest by 16.09.2020 (exclusive of the grace period of 6 months).

The complainant has paid towards the sale consideration amount as and when demanded by the respondent in time bound manner. e) That as per section 19 [6) the Real Estate (Regulation and Developmenr) Acr, 201,6 (hereinafter referred to as the Act) complainant has fulfilled his responsibility in regard to making the necessary payments in the manner and within the time specified in the said agreement.

Therefore, the complainant herein is not in breach of any of its terms of the agreement.

0 That the cause of action to file the instant complaint has occurred within the jurisdiction of this Authority as the unit which is the subject matter of this Page 7 ol-22 Complaint No.

1010, 1053 and tO79 of 2024 HARERA ffiGURUGI?AM complaint is situated in Sector 63A, Gurugram which is within the jurisdiction of this Authority.

Relief sought by the complainant The complainant has sought the following relief[s): I.

Direct the respondent to pay interest @ 8.650/o per annum as per the prevailing MCLR plus 2o/o on the paid amount of Ri. unt of Ri.24,98, 4gZ /- for delay period starting from 1,5.03.2021 till the actual handover of physicil possession or offer of possession plus 2 months after obtaining OC, whichever is earlier, as per the provisions of the Act.

II.

III. about the contraventions as alleged to have been committed in relation to section 11(4) (a) of the act to pread guilty or not ro plead guilry.

Reply by the respondent The respondent has contested the complaint on the following grounds.

That the complainant applied to the respondent for allotment of the Lrnit viclc an application form was allotted a unit bearing no.

G-37 in tower I{, type C having carpet area of 613.31 sq. ft. and balcony area of 95.10 sq, ft. together vide allotment letter dated 1,1.01,.2016.

Thereafter, a builcler buycr agreement was executed between the parties. 'l'he agreement was consciously and voluntarily executed between the parties ancl terms and conditions of the same are binding on the parties. bl That as per clause 4.1, of the agreement, the due date of possession was subject to the allottee having complied with all the terms and conditions of the agreement.

That being a contractual relationship, reciprocal promises are bound to be maintained.

The rights and obligations of the allottee as well as Page B of 22 Complaint No.

10L0, 1053 and 1.079 of 2024 C.

9.

Direct the respondent to executg BBA.

Direct the respondent to provide the active current account to pay the demanded amount as such,_!"!rg Eeyrnent made by the complainant is getting bounced/returned'$iir';,,':i1'; - IV.

Direct the respondent to reverse the arbitrary and irrational interest charged.

L0.

On the date of hearing, the authority explained to the respondent/ promotcr D.

11. a) HARERA ffiGUIiUGRAM the builder are completely and entirely determined by the covenants incorporated in the agreement which continue to be binding upon the parties thereto with full force and effect. c) That, as per clause 4.1. lause 4.1. of the agreement, the respondent endeavored to offer possession within a period of 4 years from the date of obtainment of all government sanctions and permissions including environment clearance, whichever is later.

The possession clause of the agreement is on par with clause 1(iv) of the Affordable Housing Policy, 2013. d) That the building plan of the project was approved on 10.03.2015 from DGTCP and the environment clearance was received on 16.09.2016. 'fhus, the proposed due date of possession, as calculated from the date of EC, comes out to be 21.08.2021.

The Ld.

Authority vide notification no.9 /3-2020 dated 26.05.2020 had allowed an extension of 6 months for the completion of the project the due of which expired on or after 23.03.2020, on account of unprecedented conditions due to outbreak of Covid-19.

Hence, the proposed due date of possession comes out to be 16.03.2021. e) That the offer of possession was also subject to the incidence of fo rce majeu rc circumstances under clause 16 of the agreement.

The construction and development of the project was deeply affected by circumstances which are beyond the control of the respondent.

The respondent faced certain othcr force majeure events including but not limited to non-availability of raw material due to various orders of Hon'ble Punjab & Haryana High Court and National Green Tribunal thereby regulating the mining activities, bnck kilns, regulation of the construction and development activities by the judicial authorities in NCR on account of the environmental conditions, restrictions on usage of water, etc.

These orders in fact inter-alia continued till the year 2018.

Similar orders staying the mining operations were also passed by the Pag,e9 of 22 Complaint No.

1010, 1053 and 1079 of 2024 ffiHARERA ffiGURUGRntr,t Complaint No.

1010, 1053 and 1079 of 2024 Hon'ble High Court of Punjab & Haryana and the National Green Tribunal in Punjab and Uttar Pradesh as well. h as well.

The stopping of mining activity nor only made procurement of material difficult but also raised the prices of sand/gravel exponentially.

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

It is to be noted that the developm.n!$U implementation of the said project have been hindered on account of se,veral orders/directions passed by various authorities/forums/courts. *ddtibnAlly, even before normalcy could resume, the world was hit by the Covid-19 pandemic.

The covid-19 pandemic resulted in serious challenges to the project with no availablc laborers, contractors etc. for 0 That as per lice projects within a spa clearance (EC) since they fall in the category of special time bound project under Section 7B ofthe Haryana Development and Regulation of tlrban Area Act 1,975, it is needless to mention that for a normal Group Housing Project there is no such condition applied hence it is required that 4 years prescribed period for completion of construction of Project shall be hinrirance free and if any prohibitory order is passed by competent authority like National Green Tribunal or Hon'ble Supreme Court then the same period shall be excluded from the 4 years period or moratorium shall be given in respect of that period also. g) 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 1,7.05.2022, wherein Page l0 of 22 ./ re construction. condition, developer are required to complete these n of 4 years from the date of issuance of environmental ffiHARERA ffiGURUGRAM Complaint No. plaint No.

1010, 1053 and 1079 of 2024 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. h) That even the UPRERA Authority at Gautam Budh Nagar has providecl benefit of 1,1.6 days to the developer on account of various orders of NGT and Hon'ble Supreme Court directing ban on construction activities in Delhi and NCR, 10 days for the period 01,.1.1..2018 to 1,01i..201.8, 4.days for 26.70.2079 Lo 30.10.2019, 5 days for the period 04.L1,.2019 to 08.11.2019 and 102 days for the period 04.1,7.2019 to 74.02.2020.

The Authoriry was also pleased ro 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 Hi- Tech Infrastructure Pvt Ltd vide order dated 02.11.2021 has also granted the extension of 116 days to the promoter on account of delay in completion of construction on account of restriction/ban imposed by the Environment Pollution [Prevention & Control) Authority as well vide order of Hon'ble Supreme Court Dated L4.1,1.2019. i) That Karnataka RERA vide notification No.

K-RERA/Secy/ 04 /2079-ZO and No.

RERA/SEC/CR-04/2019-20 has also granted 9 months extension in lieu of Covid-19 pandemic.

Moreover, this Ld.

Authority had in similar matters of the had allowed the benefit of covid grace period of 6 months in a no. of cases, k) Despite there being several defaulters in the project, the respondent had to infuse funds into the project and have diligently developed thc pro;ect rn 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 the Page 11 of22 HARER& W.* GURUG|IAM Complaint No.

1.010, 1053 and 1,079 of 20?4 project.

4 project.

The respondent has already received the FIRE NOC, LIFI' NOC, the sanction letter for water connection and electrical inspection report. l) That the respondent has applied for occupation certificate on 08.12.2023.

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.

The grant of sanction of the occupation certificate is the prerogative of the concerned statutory authority over which the respondent cannot exercise any influence.

Therefore, the time utilized 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. mJ That the complainant has been allotted unit under the Affordable Housing Policy, 2Ot3 which under clause 5(iii)(b), clearly stipulated the payment of consideration of the unit in six equal installments.

The complainant is liable to make the payment of the installments as per the government policy under which the unit is allotted.

At the time 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 payment of installments as agreed as per the BBA. n) That the complainant has failed to make any payment of installment at "within 18 months from the due date of Allotment" "within 24 months from the due date of Allotment" "within 30 months from the due date of Allotment" "within 36 months from the due date of Allotment" which is due from April 20t7.

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.

The non-payment by the complainant affected thc construction of the project and funds of the respondent.

That due to default Page 12 of 22 "r' HARERA P.

HARERA P.* GU|?UG|IAM Complaint No.

1010, 1053 and 1,079 of 2024 of the complainant, the respondent had to take loan to complete the project and is bearing the interest on such amount.

The respondent reserves the right to claim damages before the appropriate forum. o) That it is the obligation of the complainant under the Affordable Ilousing 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 the unit is liable to be cancelled as per the terms of Affordable Housing Polic y,2013. p) That the respondent issued a reminder letter dated L4.05.2024 requesting the complainant to pay the outstanding dues within 15 days failing which as per the policy and BBA the unit stands cancelled.

Thus, the unit of the complainant is liable to be cancelled in terms of clause 5[iii)(i) of the policy and claus e 3.7 of the buyer's agreement. q) That this Hon'ble Authority has adjudicated similar issues of termination/cancellation and has upheld the same noting the default on part of the Complainant.

The respondent cancelled the unit of the complainant with adequate notices.

Thus, the cancellation is valid. r) That the complainant has not only in breach of the buyer's agrecntent but also in breach of the Affordable Housing Policy and the RERA Acr, by failing to make the due payments for installments.

The unit has been cancelled, and this complaint is bound be dismissed in favor of the responclent. s) That, moreover, without accepting the contents of the contplaint irr any manner whatsoever, and without prejudice to the rights of the respondent, the unit of complainant can be retained only after 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 responclent, or nclent, or Page 13 of 22 ffiHARERA ffi GTJRUGRAM Complaint No.

10L0, 1053 and 1079 of 2024 any payment made by the complainant towards delayed payment charges or any taxes/statutory payments, etc.

12.

Copies of all the relevant documents have been filed 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 submission made by the parties.

E. )urisdiction of the authority L3.

The authority observes that it Authority, Gurugra has territorial as well as subject matter e territorial jurisdiction to deal with the present jurisdiction to adjudicate the p omplaint for the reasons given below.

E.I Territorial iurisdiction 14.

As per notification no.

I 77-7TCP dated 74.72.2017 issued by Town and Country Planning :nt, the jurisdiction of Real Estate Regulatory rtire Gurugram District for all purposes with offices situated in situated within th authority has a com complaint.

E.II Subiect matter iurisdiction 15.Section 11(a)(a) of,,the Act, ', responsible to the allottee as reproduced as hereunder: Section 77 @) fhe promoter shall- (a) be responsible for all obligations, responsibitities 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 case may be, to the allottees, or the common arees to the association of allottees or the competent authority, as the case may be; that the promoter shall be for sale, Section 1,1(4)(a) is Page 14 of 22 ,/ ,:l 201,6 w ffi {iq{q wqi GUl?UGRAM HARERA Complaint No.

1010, 1053 and 1079 of 2024 Section 34-Functions of the Authority: 34(fl of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and regulations made thereunder.

16. under.

16.

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

F.

Findings on the objections raised by the respondent.

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

17.It is contended on behalf of respondent that due to various circunrstances beyond its control, it could not speed up the construction of the project, 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 merit. 'l'he passing of various orders to control pollution in the NCR-region during the month of November is an annual feature and the respondent should have 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.

18.

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 handed over 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-l-9 and thus with same relaxation, even if due date for this project is considered as 16.09.2020 + 6 months, possession was to be handed over by 16.03.2021, but the respondent has failed to handover possession even within this extended period.

I'age 15 of 22 ,{ ffiHARERA ffiouRUGRAM 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 27o on the paid amount of Rs.24,98,493 /- for delay period starting from L5.03. rom L5.03.2021 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.

G.II Direct the respondent to execute BBA.

1"9.

The above-mentioned relief sought by the complainant are being taken together as the findings in one relief will affect the result of the other relief and the same being interconnected.

20.

The factual matrix of the case reveals that the complainant bookcd 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.

1LB, in tower D for a sale consideration of Rs.24,67,870 /-.'fhe possession of the unit was to be offered within 4 years from approval of building plans [10.03.2015) or from the date of environment clearance (16.09.2016), whichever is later which comes out to be 1,6.09.2020.

Further, as pcr HARERA notification no.

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

The completion date of the aforesaid project in which rhe subjecr unit is being allotted to the complainant is 16.09.2020 i.e., after 25.03.2020.

Therefore, an extension of 6 months is to be given over and above the dr-re date of handing over possession in view of notification no.9l3-2020 dated 26.05.2020, on account of force majeure conditions due to outbreak of Covid- 19 pandemic.

As far as grace period is concerned, the same is allowed for the reasons quoted above.

Therefore, the due date of handing over the possession comes out to be 16.03.202L Further, the complainant is always ready and willing to retain the allotted unit in question and has paid a sum of Rs.22,99,51,3/- towards the allotted unit.

Complaint No.

1010, L053 and 1,079 of 2024 Page 16 of 22 n' HARERA ffi GURUG|IAM Complaint No.

1010, L053 and 1079 of 2024 21. f 2024 21.

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

If the promoter fails to complete or is unable to give possession of on apartment, plot, or building, - Provided thatwhere 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 the possession, at such rate as may be prescribed." ZZ.Moreover, the project was to be developed under the Affordable I-lousing Policy, 2013, which clearly mandates that the project must be clelivered within four years from the date of approval of the building plan or environmental clearance, whichever is later.

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

2 3.

Admissibility of delay possession charges at prescribed rate of interest: The complainant is seeking delay possession charges till the date of delivery of possession to the complainant.

Proviso to Section 1B provides that where 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 prcscribed under Rule 15 of the Rules, ibid.

Rule L5 has been reproduced as under: "Rule 15.

Prescribed rate of interest- [proviso to section 72, section 78 and sub-section (4) and subsection (7) of section 191 (1) For the purpose of proviso to section 12; section 18; and sub- sections (4) and (7) of section 1"9, the "interest at the rate presqibed" shall be the State Bank of India highest marginal cost of lencling rate +Zo/0. ate +Zo/0.: Provided that in case the State Bank of India marginal cost oJ' lending rate (MCLR) is not in use, it shart be replaced by such benchmark lending rates which the State Bank of India may fix front time to time for lending to the general public.,' PagelT of22 ffiHARERA utii{t ffiOUnUGRAM Complaint No.

1010, 1053 and 1079 of 2024 24.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 legislature, is reasonable and if the said rule is followed to award interest, it will ensure uniform practice in all cases.

25.

Consequently, as per website of the State Bank of India i.e., https : f f sbi.co.in, the marginal cost of lending rate (in short, MCLR) as on date i.e., 1,6.04.2025 is 9.10%.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +20/o i.e., 1 1..1.00/0.

26.

The definition of term 'interest' as defined under Section Z(za) of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default. '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- (i) the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default. (ii) the interest payable by the promoter to the allottee shall be from the clate the promoter received the amount or any part thereof tilt the clate the amount or part thereof and interest thereon is refunded, and the interest payable by the ollottee to the promoter shall be from the date the allottee defaults in payment to the promoter till t ter till the date it is paid;" 27.Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., 1L.10 o/o by the respondent which is the same as is being granted to them in case of delayed possession charges.

28.

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 Page 18 of22, HARERA GURUGRAM Complaint No.

1010, L053 and 1079 of 2024 the Act by not handing over possession by the due date as per the agreement.

By virtue of clause 4 of the buyer's agreement, the possession of the subject apartment was to be delivered within 4 years from the date of commencement of project fas per clause 1(iv) of Affordable Housing Policy, 2073, all such projects shall be required to be necessarily completed within 4 years from the approval of building plans or grant of environmental clearance, whichever is later.

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

In the present case, the date of approval of building plans is L0.03.2015, 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 clearance being later.

Therefore, the due date of handing over of possession comes out to be 16.09.2020.

Furthcr as per HARERA notification no. g/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 the aforesaid project in which the subject unit is being allotted to the complainant is 16.09.2020 i.e., after 25.03 .2020.

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

913-2020 datcd 26.05.2020, on account of force majeure conditions due to the outbreak of Covid-19.

Covid-19.

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

29.|t is the failure of the promoter to fulfil its obligations and responsibilities as per the buyer's agreement to hand over the possession within the stipulated period.

Accordingly, the non-compliance of the mandate contained in Section 11(4)(a) read with Section 1B(1) of the Act on the part of the respondenr is established.

As such the complainant is entitled to delay possession chargcs at the prescribed rate of interest i.e., @ 11.L0% p.a. w.e.f.

16.03.2021 till Page 19 o[ 22 ,/ ffi ffi iltdis itqi ffi ffi HARERA GUl?UGllAM Complaint No.

1010, 1053 and 1079 of 2024 actual handing over of possession or valid offer of possession plus two months after obtaining occupation certificate from the competent Authority, whichever is earlier as per provisions of Section 1B[1] of the Act read with Rule 15 of the Rules, ibid.

30.

Further, as per Section 17(1) of the Act of 201,6, the respondent is obligated to handover physical possession of the subject unit to the complainant as the occupation certificate for the project has already been received on 31,.1,2.2024.

G.III Direct the respondent to provide the active current account to pay the demanded amount as the payment made by the complainant is getting bounced/returned.

31.The Authority is of the view that the complainant shall deposit the last demand raised by the respondent, if any outstanding rentains aftcr adjustment of the delayed possession charges as and when the escrow account of the respondent is de-frozen by the Authority.

G.IV Direct the respondent to reverse the arbitrary and irrational interest charged.

32.

The Authority is of the view that the respondent/promoter shall not charge anything from the complainant(s) which is not the part of the builder buyer agreement and under the Affordable Housing Policy, 2013. icy, 2013.

Further, the rate of interest chargeable from the allottee by the promoter, in case ol default, if any shall be charged at the prescribed rate i.e., ll.l0o/o by 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., the delayed possession charges as per Section Z(za) of the Act.

H.

Directions of the authority 33.

Hence, the authority hereby passes this order and issues the following directions under Section 37 of the Act to ensure compliance of obligations Page 20 of2)' ./ ffiHARERA ffi ouRUGttAM Complaint No.

1010, 1053 and 1079 of 2024 cast upon the promoter as per the function entrusted to the authority under Section 3a[f): I.

The respondent is directed to execute the builder buyer agreement with the complainant in terms of Section 13[1) of the Act,2016.

The respondent is directed to pay delay possession charges to the complainant against the paid-up amount at the prescribed rate of interest i.e.,11.100/o p.a. for every month of delay from the due date of possession 1,6.03.2021 till actual handing over of possession or valid offer of possession plus two months after obtaining occupation certificate from the competent Authority, whichever is earlier as per proviso to Section 18(11 of the Act read with Rule 15 of the Rules, ibid.

III.

The arrears of such interest accrued from due date of possession of each case till the date of this order by the authority shall be paid by the promoter to the allottees within a period of 90 days from date of this order as per Rule t6(2) of the Rules, ibid.

IV.

The respondent is directed to issue a revised statement of account aftcr adjustment of delayed possession charges, and other reliefs as pcr above within a period of 30 days from the date of this order. 'l'he complainants are directed to pay outstanding dues if any remains, after adjustment of delay possession charges within a period of next 30 days, V.

0 days, V.

The respondent is directed to offer the possession of the allotted unit within a period of 30 days from the date of this order, since occupation certificate has already been obtained by the respondent-promoter on 31.12.2024.

VI.

The rate of interest chargeable from the allottee by the promoter, in casc of default shall be charged at the prescribed rate i.e., 71.70o/o by the respondent/promoter which is the same rate of interest which the Page 2t or zz7 ffiHARERA fficutltlcRnH,t promoter shall be liable to pay the allottee, in case of default i.e., the delayed possession charges as per section Z(za) of the Act, vll.

The complainant shall deposit the rast demand raised by the respondent, if any outstanding remains after adjustment of the delayed possession charges as and when the escrow account of the respondent is de-frozen by the Authority.

The respondent shall not charge anything from the complainant which is not part of the buyer's agreement and under the Affordable Ho 013, 34.

This decision shall mutatis mutandii apply to cases mentioned in para 3 of this order except for directi 33fl) which applies only to lead complaint case no.

1010 of 2024.

1010, L053 and 1OT9 of Z0Z4 Page 22 of 22 sposed of.

True certified copy of this order shall be 35.

The complaints stand disposed of.

True certified copy of thi placed in the case file of matter.

36.

Files be consigned to the regis / / Dated: L6.O4.2025 Ashok Mr Harvana Haryana lteaY Estate Regulatory Authority, Gurugram