SUDHIR KUMAR vs DSS BUILDTECH PVT. LTD.

ffi ffi {s{E u{d HARERA GUl?UGRAM BEFORE THE Sudhir Kumar R/o: - Ismailpur, Munda Badli, Bahadurgarh, lhaj j M/s DSS Buildtech private Regd. office: 506, Floor- Time Square Building, Sus Phase-1, Gurugram -IZZC CORAM: Shri Ashok Sangwan APPEARANCE: Vijay Pal Chauhan Harshit Batra 1.

This complaint has been 31 of the Real Estate I the Act) read wittr rule DevelopmentJ Rules, 20 AU A REAI ESTATE REGUIATORY RITY, GURUGMM Complaint no.: Order pronounced on: Complaint No.

321 of Z0Z4 321 of 2024 02.07.2025 (78), Complainant Respondent Member Complainant Respondent ORDER by the complainant/allottee under section tion and DevelopmentJ Act, 2016 [in short, f the Haryana Real Estate (Regulation and 7 (ln short, the Rules) for violation of secion / Page 1 of29 [,Advocate) IAdvocateJ -1,24105.

Versus ffiHARERA ffiGuRUoRAM 11(4)[a) of the Act whr shall be responsible fr under the provisions ol under or to the allottees Unit and project deta The particulars of uni complainants, date of period, if any, have been A.

2. r it is inter a/ra prescribed that the promot I obligations, responsibilities and functior Act or the ttules and regulations made the, rer the agreement for sale executed inter se. e consideration, the amount paid by th osed handing over the possession, dela iled in the fbllowing tabular form: ;l( r rt ar ls ,' pr d 2 0 Sr.

No.

Particulars 1.

Name of the pr:oject "The Melia", Sector-35, Sohna, Gurugram, Haryana.

2.

Area of the project 17 .,11, acres 3.

Nature of project T'-11,-:''g 77 c>f 20L3 4.

DTCP license no.

5.

RERA registered Registered 2BB of 20IT Dated-10 .10.201.7 6.

Allotment letter 27.0t9.201,9 (As ron page no.

29 of complaint) 606,Tower-G, Floo.{* [As on page no.33 of complaint) 7.

Unit No.

B.

Unit Area 873 sq.ft [carpet Area] Page 2 of 29 Complaint No.

321 of Z0Z4 moter ctions there IC t! c/ Details ffi ffiH GUI?UGI?AM HARERA (As on page no.

33 of cornpf aintl Date of execution o for sale 03.10.201e [As on page no. n page no.3L of complaintJ Possession clause Clause-7 POSSESSION OF APARTMENT FOR RESIDENTIAI USAGE 7.7 Schedule for possession of the said Apartment- The promoter agrees and 'understands that timely delivery of po.ssession of the Apartment to the Allottee(s) and the Common Area to the Associotion or the Competent Authority, .,swrtv, t9./, a,s tt\e case may be, es provided under Rule 2(1) (f) of Rules, is the essence of the Agreement.

The promoter assures to hancl over possession of the Aportment on or before ZS,LL.ZLZI unless there is delalt due to "force majeure,,, court orde,"s, government policy/guidelines, decisions affecting the regular tt ofthe reql estate project.

Due date of 125.10.2021, + 6 months on nt of Covid-19l Tri-partite agreemen lwith sBrl 18.10.2019 Total sale considerati Rs.90,60,79L/- (As o,n page no.

35 of complaint) Total amount paid Rs.80,19,563 /- Page 3 of 29 ,/ 9. ement 10.

1,1,.

1,2.

13.

L4. the Complaint No.

32 j. of 2024 ffiIIABEB& ffi"eunuonntrrt complainant I Rs.61,74,563 / -lDisbursed by I bankl I I Rs.18,45 ,000 /- [paid by cornplainant from his own fundsl [Note: Vide proceedings dated 14.05.2025, the same was inadvertently recorded as Rs.61,74 ,563 / -l 15.

Cancellation letter 16.03.2024 [As on page no.42 of reply) L6.

Occupation certificar o 17.

Offer of posses;sion Not offered Fact of the complaint The complainant has m I.

That the ,rerspond namely "The Melia" hereinafter referre officials of the resp respondent the col apartment bearing area of 87il sq. f apartment in :[avour vide Allotment Lette of the said unit was II.

That the complaina rd f, follnurin,r crrhrnicci rr..rl, uur promoter launched a residential project ated at Sector-35, Sohna, District Gurugram,, as the project.

After inquiring from the ent and believing in the assurances of the inant applied for booking of a residential ; - 606, on the Sixth Floor, having a carpet re respondent had allotted the above said re complain;ant, having super area 873 sq. ft. ted 27. t. ted 27.09.20L9.

The total sale consideration ),60,791/-. rd respondent executed the Builder Buyer Page 4 of 29 tll sit I OI 111 c a I o I ol r( )c a t Complaint No.

321 of 2024 B.

3. { Not obtained ffiHARERA ffi" GuRUGRAM ut.

Agreement on 03.10.2 was to deliver the complainant on or be III.

That the complaina raised by the respo complainant has paid allotment of the said u Ioan, the cornplainant i That delay on accoun allotted unit to the com there is a dellay, the co and seek refund of the along with interest ch respondent as perthe p V.

That the cornplainant ,v,i for refund oti the entire of the respondent tried another other and failed VI.

That the complainatrt refund the paid arlp assurances to consider t with senior managemen IV.

That the respondent is complainant illegally, Th hold the hard-earned respondents could not 19.

As per the agreement, the respondent said residential unit to the ession of the 25.10.202L. t had paid as and when the demand was dent without any delay.

Till now, the ,'1,9,563/- to the respondent against the it.

That since the day of sanctioning of the rqgularlll,pzrying the EMIs to the bank. of handing over possession of the said Iainant did not raise further demand.

Since, plainant has a legal right to cancel the said entire deposited amount of Rs.g0, lg,563/_ by the bank on loan amount from the vision of the Act,2016. ited the res;pondent's office and requested mount along with interest but the officials to Iinger on the matter on one pretext or o do the sarne till date. tinuously requested the respondent to unt.

The respondent,s staff gave oral e complainant's request, afterconsultation enjoying the hard-earned money of the respondent had no right to unilaterally money of the complainant and the even complete the structure even after Page 5 of29 HARERA GUI?UGl?AM more than one year of VIII.

That pursuant to t L7.07. o t L7.07.20L9, the offi Agreement (Buyers complainant and the That though rhe paym on the construction u corresponding to the As per the demand payment plan, the Rs.80,19,563 /- towa Rs.90,60,791.,/-.

That during the pen respondent several ti site but it was never any buyer to visir fthb i,r complainant visited thb XI.

That the complainarlt occasions ancl was re respondent was never complainant regarding never definite about the C.

4.

Relief sought by the comp The complainant h:rs sought i.

Direct the res;pondent terms of Secrion 1g (1J( rw{a w{il IX. x.

Complaint No.

321 of Z0Z4 elay in hanrling over the possession unit. issuance of the Allotment Letter dated al Managed Serviced Apartment Buyers Agreement) was executed between the pondent on 05.08.20L9. t was to be made by the complainant based fortunately the demands raised were not al mnCtruction situation on the ground. raised b,y the respondent, based on the mplainant already paid a total sum the said runit against total consideration the complarinant went to the office of the s and requested them to allow visit the lowed saying that they do not permtt site during the construction period, once ite but was not allowed enter the site. contacted the respondent on several Iarly in touch with the respondent.

The Ie to give arny satisfactory response to the the status of the construction and was elivery of trhe possession. nant: llowing relief(s): refund the amount of Rs.80,1,9,563/- in Act 201,6 read with Rule L5 of the ) of the Page 6 of29 q/ ffiHARERA ffi GURUGRAM Haryana Real Estate Direct the resflo{r Rs.1,00,000/- to the c Reply filed by the respond The respondent has submi I.

That the respondent complex approximate situated in village Moh Haryana, privately na obtained license from Department, Govefnrne vide license no. ir',:,[ii IL That the conrplainant after being fully satis t the respondent:aiid su booking of a iL BHK apa sale considelr,ation of and signed thel',pai per Special paFffirefiq Ph III. iq Ph III.

That pursuant to thd respondent iallotted to t Sixth Floor rol' Tower-G 27.09.2019.

IV.

That the complainant obligation to make tim D.

Plan and henr:e, the co PageT of29 complainr No, 321 of 2024 fRegulationrand Development) Rule s ZOIZ. ent to pay litigation charges of mplainant. nt the following by way of written reply: s developing a residential group housing spread over LT.4|B7S4 acres of land madpur Guijar, Sector 35, Sohna, Gurugram ed as 'lThrg Melia".

The respondent has rector General, Town and Country planning t of Haryana for development of the project 13. fter conducting his own due diligence and with the:details of the project, approached mitted an application dated Og.Og.ZO19 for ent adme:asuring 13S0 sq. ft. for the total 90,60,7917'-.

The complainant has agreed plan for payment of installments dues as ubmission of the Application Form, the e complainant flat bearing no.

G-606 on the in the projerct vide Allotment Letter dated s well aware and acutely understood his y payment of demands as per the payment plainant applied for a home loan faciliry ffiHARERA ffi"GuRUGtlRtvt from SBI Bank for mortgaging the same for Sale with the th the bank.

V.

Thereafter, on 03.10.2 L9, the complainant entered into Agreement pondent.

The due date for the offer of possession as per Agr circumstances beyond ment to Sale was subject to force majeure e control of the respondent including but not limited court ord , government policy/guidelines, decisions affecting regular deve which are described he pnneqt..gf ,the real estate project some of Comments I f n airection, of the NGT were again a setback for stone crushers operators who have finally succeeded tu obtoin ,rrrtrory J permissions from the competent authority after the i l order passed by ) NGT on luly 2017.

I Resultontly, coercive action') was taken by *e ! authorities ogoinrrl, Complaint No.

321 of Z0Z4 purchase of the unit in question, upon n below: NrlT in 0.

6(;7/2019 67'. /2019 67'.9/20L9 directed t'mmediate all' illegal crushers lla,ryona not complied sit,ing ambient, air carrying and health i trilbunal directed initia Page 8 of29 Period of Restriction 24th July, 2019 no. & again the stone in have h the of The ffiHARERA ffiGuRUaRAM complaint No.

321 of 2024 0n account of the passing of the aforesaid order, no construction activity could have been legally carried out by the Respondent.

Accordingly, construction activity has been completely stopped during this period. ./ Page 9 of29 action by prosecution recovery compensatior relatable to of restoration vay of and of he cost the stone operators agoin was the reol sector ( supply ol reduced n, and there sharp incr prices affected of constr 2 L1.10.20L 9 lCommissioner, ,Municipal Cc,rporstion, Grtrugrom has an order datet ,Oct 2019 14 l:h..e c:on:;t ttctivity has 1tr.//ohibited i!1tn Oct/ 2019 Dec 2019.

I s;ptzcifically r,nentioned it afctresaid orde cot'tstructi0n t ulould be com stopped durin passed 1Lth of hereby 'uction been from to 37st WQS the r that ctivity tletely t this 77th Oct 2079 to 37't Dec 2079) 87 days crisiiii which agoin was 0 hit to the reol estate sector as the supply of gravel reduced manifolds and there wes a sharp increose in prices which consequently affected the pace construction. ffi ffi rFqq{ uri PHARERA HI oURUGRntr,t period. ls.

04,11.20L 9 The Hon'ble Court of Indi order 0,4.1.1.2019 p, w'rit petition no.

L3029/L9, drt "MC Me Union of completely ba cctnstruction activities in upreme vide its dated ,ssed in bearing t5 titled tta ys.

India" med all Delhi- lriction 'odified dated I ,d was I ted byl ,prr*, I I order I I ?0.

I 04,1:7,2019 74.()2.2020 102 days These bans forced the migrant labourers tu return to their native towns/states/villa ges creating an acute shortage of lobourers in the NCR Region.

Due to the said shortage the Construction activity could not resume at frtl! throttle even after I the lifting of ban I by the Hon'ble' Apex court ] l 4. urt ] l 4.

3,d week of Feb 2020 rlo'vid-19 pand From Feb.

20201 To date (3 month s Nation wide lockdo wn) Since *e SA *;rril of February 2020, the Respondent I has also suffered devastatingly l because of the I outbreak, spread, and resurgence ol') CTVID-19 in the Page 10 of29 / tmlc HARERA ffiGUI?UGI?AM VI.

That from the established that a Complaint No.

321 of 2024 year 2020.

The concerned stotutory authorities had earlier imposed a blanket ban on construction activities in Gurugram.

Subsequently, the said emborgo hod been lifted to a limited extent.

However, during the interregnum, large-scale migration of labor occurred ond the ovailability of raw materials storted becoming a major cause of concern. ndicated above, it is comprehensively circumstances e power and control of the respondent, ers by the statutory authorities and the Iir d o of 303 days was consumed on account of owing to the passi Page 17 of29 HARERA ffi.GUI?UGI?AM Complaint No.

321 of Z0Z4 Covid-1"9 pandemic.

That the Authority have granted 6 months extension for all ongoing projects rride Order/Direction date d Z6th of May, 202(l on account of 1st wave of COVID-19 Pandemic.

It is pertinent to mention herein that the Hon'ble Haryana Real Estate Regulatory Authority, Panchkula had decided to grant extension of 3 months in addition to waiver granLted during first wave of COVID Pandemic from 1't of April 2021, to i]Oth of fune ZOZI considering the 2nd wave of COVID-19 as a Force Majeure event.

VII.

All the circurnstances stated hereinabove come within the meaning of force majeure, as stated above.

It is relevant to mention here that post Covid period theqe was labour shortage which delayed the construction on the project sit,3, until the respondent was completely operational and could proceed at full speed.

VIII. eed.

VIII.

That the resprondent has been prevented by circumstances beyond its power and control ffom underterking the implementation of the project durling the timd period indicated above and therefore the same is not to be taken lnto reckoni:ng while computing the timeline for handover of possEssion.

It is humbly submitted that vide application dated tz.OIA.ZOZZ before DTCP the respondent has already applir:d for occupation certificate for towers A, D, E & F of ' the said project and will possibly ap,ply for the remaining towers of the said prolect.

W.

That the cornplainant requested the respondent to issue NOC towards ther grant of loan to the complainant by sBI Bank and permission to mortgage of the unit.

The respondent abided by the request of ttre complainant and granted NOC to SBI Bank vide letter Page 12 of 29 t/ MHARERA ffi, GUnUGrtAM XII. dated L8.10.201,9 favour of the bank Complaint No.

321 of Z0Z4 ng permission to mortgage the unit in 'ay of security for repayment of the said loan.

That Tripartite t was executed between the complainant, SBI Bank and the nt on 18.10.201,9.

That the respo respondent requ sent a letter dated 1,8.1.0.202L, to the complainant to come forward to register the Agreement for the same to the rea That as on date, a ut the com;rlainant did not came forward to the respondernt which is duly nst the loan availed by the complainant best known to him.

That the connplain liable to pay the required EMIs to the Bank but the com ly failed to pay the required EMIs pursuant to sought the revocati SBI Bank. vide letter dated LS.O1,.ZOZ4 Tri-Partite l\greement.

The relevant extract from letter dated 1 024 is reproduced herein under for the kind perusal of this ty: "Therefore, you upon to cancel the booking ofcaptioned Jlat as per terms I,ara 7.7 tfor so,le dated 03.10.2019 of shri Sudhir ts receivecl with interest by you on beholf of Kumar and repoy all Page 13 ofZg r' _-l Payment details il Total Sale Consid rration (As pen BBA) Rs. n BBA) Rs.90,60,79L/- ii) Total Amount Fp I by the Allottee Rs.61.,74,563/- Total Rs.6L,74,563/- HARERA GUl?UGl?AM Borrowers to our Ba Partite Agreement The closure amount Kumar is Rs.63,48,94, hundred Jbrty three the captioned housi, into consideration of i remittance offunds to That since the compla against the loan des telephonic calls, legal n was called upon to ca of Clause 7.1 of the dated L6.03.2024, the the unit allotted in f................avo submitted th:at the applicable provisions Development) Act, ZA Agreement fior Sale.

XIII.

XIV.

That the respondent refund tr: such unscru which are clearly outsi conditions of the that the payment re(ei by the bank against respondent in bound by thus has cancelled the a of terms ?DrC conditi complainant.

32 j, of 2024 within 10 doys of receipt of this letter as per Tri- No.4.

Housing Loan A/C No- 38854376332 ofShri Sudhir : (Rs Sixty Three lakh Forty Eight thousands Nine iy) as on 25.01.2024.

Since Interest is applied daily ta loan occount, therefore, you are requested to toke on the ltasis wef 24.01,2024 tilt date of nant failed to clearfpay the required EMIs ite various reminders sent by bank via tiee-q, emails etc., therefore the respondent t"t'lq;gr[Ig"$nrent of the unit as per the terms m,elht for Sale.

That accordingly, vide letter pondent informed the complainant that r of the cornplainant stands cancelled.

It is pondent has duly complied with all of the R.eal Estate [Regulation and 6 and Rules made thereunder and the not be saddled with responsibility to grant ulous allottee with dishonest intentions, e the scope of the stipulated terms and rent to Sale.

It is relevant to mention herein ,d against the unit has duly been disbursed e loan ava,iled by the complainant.

The :he terms of'the Tri-partite Agreement and otment of the unit on account of violation ns of Trii-partite Agreement by the Page 14 of 29 ,/ WHARERA ffiGURUGRntrlt Copies of all the rel record. el record.

The authenti decided on the basis of submissions made by th furisdiction of the au The Authority observes jurisdiction to adjudica below.

E.

I Territorial iurisdicti As per notification no.

Town and Country Regulatory Autho purpose with offices si project in question is District.

Therefore, this deal with the prese E.

II Subiect 6.

7.

8.

9.

Section 11( )(a) of responsible to the al reproduced as herr:und Section 17 'i6 rn, promoter (a) be respon functions under Complaint No.

321 of 2024 t i ments have been filed ot in dispute.

Hence, the undisputerd documents plainants. it has territorial as and placed on the complaint can be as well as written well as subject matter for the reasons given 1201"7-LTC|P dated 14.12.2017 issued by )epartment, the jurisdiction of Real Estate Department, the jurisdiction of Real Estate 'am shall be entire Gurugram District for all in Guru6Jram.

In the present case, the the planning area of Gurugram rity has complete territorial jurisdiction to !he 201,6 provides that the promoter shall be per agreement for sale.

Section 11(a)[a) is all obligations, responsibilities and and of this Act or the rules Page 15 of29 / MHARERA ffieunUGltAM Complaint No.

321 of 2024 regulations made thereunder or t:o the allottees os per the agreement for sale, or to the associtttion of allottees, os the case may be, till the conveyance of all the apartments, plots or buildings, as the cose rnoy be, to the allottees, or the ,o^^on qreas to the association of dllottees or the competent authority, as the cose may be.

10.

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 adjudicatinglofficer if pursued by the complainants at a later stage.

F.

Findings on the objections raised by tlhe respondent.

F. ondent.

F.I obiection regarding deilay in project due to Force majeure circumstances: 11.

The respondent,/promoter raised an o,bjection in its reply that the construction of the project was delayed due to force majeure conditions such as outbreak of Covid-X.9 pandemic, various orders of the court, government polir:ir:s/guidelines.

Further, the Authority has gone through the possession clause of the agreennent and observed that the respondent/deverloper proposes to handover the possession of' the allotted unit on or lbefore ZS.+0.2021.

12.

Since there wer€) circumstances beyond the control of respondent, so taking into consideration the above-mentioned facts, the respondent be allowed the period during which his construction activities came to stand still, and thr: said period be excluded while calculating the due date.

In the present case, the 'Builder Buyer Agreement was executed between the parties on 03.10.2019.

As per claus e 7 of the Agreement dated 03.10.2019, the respondent proposed to handover possession of the unit to the cornplainant on or before 25.10.2021.. { Page 16 of29 HARERA GUl?UGl?AM 13.

The respondent has sub Authorities and court, the Authority observes that tho curb the environment pollu a short period of time and respondent was very much respondent cannot be given The respondent has further the project was stalled. ' through notification no. provided a six months exter after 25.05.2020 , the d falls within those timilt of Covid-19 is granted handing over possessio G.

Findings on the relief G.I.

Direct the respondent 1 terms of Section 18 (1 the Haryana Real Rules 20L7,, L4.ln the year 2013, the cor booked an apartmLent in thr Sohna, Gurugram.

Vide 1 respondent allotterC an apart G, admeasuring BT3 sq.ft.

Rs.90,60,791,/-.

The Builder I complainant and the respon Complaint No.

32i. of 2024 tted that due to various orders of the nstruction activities came to standstill. tandstill.

The gh there have been various orders issued to on, shortagr: of labour etc but these were for are the events happening every year.

The of these event and thus, the prom oter / ny leniency, based on the aforesaid reasons. stated that due to the outbreak of Covid-19 Authority i:; of the view that the Authority J -2020 dated 26.05,2020, had already r for projrects with completion dates on or :e of posserssion in the present complaint, us, the grace period of six months in lieu e respondent.

Therefore, the due date of s out to be 25.04.2022. t by the complainant: r refund the amount of Rs.80,19 ,563 /- in (a) of the l\ct 2OL6 read with Rule 15 of Estate (Regulation and Development) lainant approached the respondent and project "The Melia" situated at Sector-35, lotment lretter dated 2T .09.201,9, the nt bearing no.

G-606, on 6th floor, Tower- carpet-areal for a sale consideration of uyer Agreement was executed between the ent on 03.n0.2019.

As per clause 7 of the Page 17 of29 ,/ ffiHABEB& ffiCUnUGttAM Complaint No.

321, of 2024 agreement dated 03.10.2019, the respondent undertook to deliver possession of the unit to the complainant on or before zs.o4.z0zz.

15.

That the complainant has deposited an amount of Rs. j.8,45,000/- as part payment and the receipts of the same are issued by the respondent in favour of the compllainant and the same is annexed with the complaint.

A Housing loan was sanctioned by the SBI [lank of Rs.61,7 4,563 /- in favour of the complainant, which was transferred by the sBI Bank to the respondent-promoter.

That a Tri-partite Agreement was executed between the comprlainant, the respondent and the bank on 18.10 .2019 and the complainant was liable to pay the required EMIs to the Bank.

16.

The respondent has submidt{d;that es.fer ttre tri-Partite Agreement, the complainant was liable p {ry the rdQuired Etvfls to the Bank but the complainant deliberately fai[ed to pay t.he required EMIs pursuant to which SBI Bank vide letter pated 15. pated 15.01 2024 sought revocation of the Tri-partite Agreement da 18.10,2019 and called upon to the respondent to cancel the all$tment of the unit in terms of Clause -7.1. of the Agreement for Sale.

17.

That on L6.03.2024, the respondent issued a cancellation letter in respect of "unit no.

G-606" irp the project "The Melia" situated at sector- 35, Sohna, Gurugram to the complainant stating that due to continuous failure of the comLplainant to pay the rnonthly EMIs against the loan sanctioned by ttre Bank and consequently, the account of the complainant is classified as a "Non-Performing Asset (NpA)" by the Bank effective from 08.01.2024. $iirce, the complainant has not respondent to the legal notices, emails andltelephonic reminders served by the Bank, Page 18 of29 \/ Complaint No.

321, of Z0Z4 ffiHARERA ffieunt;dRAM and have failed to repay the irregular dues/EMIs, the Bank, vide its letter dated L5.0'J,.2024, had directed the respondent to cancel the booking/allotment of the complainant's unit in accordance with the terms of para 7.\ of the Agreement For Sale.

By obeying the direction of the Bank, the booking/allotment of the complainant's unit stands cancelled.

18.The respondent has denied the receipt of an amount of Rs.

18,45 ,0oo/- from the complainant and has contendecjt that no such payment was ever received.

Vide order dated +4.05:2025, the respondent was directed to file an affidavit ol'its Director, duly supported by a Board Resolution, addressing the prr:sent prooeedings before the Debt Recovery Tribunal [DRT), the status of settlempnt of dues with the Bank, and the specific issue of the alleged deposif of Rs.

18,,45,000/-, which is the subject matter of the conrplainant'q claim and is referred to in the payment request letter dated 18.10.2019.

19' In compliance r,rril.h the saifl direction, the respondent submitted an affidavit along with the requisite Board Flesolution in the Registry of the Authority on 04.06,.2025. .06,.2025.

Through the said affidavit, the respondenr has stated that the respondent is not unaware of any proceedings before the DRT in relation to the present dispute having been initiated.

It has further reiteratecl its denial of having received the alleged sum of Rs.

1.8,45,000/- from the complainant, as mentioned at page 70 of the complaint.

The respondent asserted that no such amount has been Page 19 of29 ffiHARERA #* GUIIUGRAM Complaint No.

321" of 2024 deposited into, transfe the complainant has , or credited in its bank account.

Moreover, furnished any proof of payment nor intimated the responde ut the purpoptsd transaction.

20.

With respect to the t process r3oncerring the dues payable to the Banh the respondent su{mitted that such settlement discussions are ongoing and have not a conclusiive stage.

It has also stated that the total amount rece it till date stands at Rs.

61.,74,563f -, which was directly disbursed arrangement availed by []ank of India under the loan r Issue with amount paid by the complainant.

21.

The Authority o Rs.

80,19,563 f -, on record frrtm (il an amount of Rs. from his personal (ii) an amount of sanctionecl by the e respondent has received a total sum of rcomponents: 5,000/- paid directly by the complainant 61,,74,563/- disbursed through a loan : Bank of Inrlia, availed by the complainant. pri The respondent oter has i:ssued corresponding advance payment recei owledging the said payments.

These receipts have exed with the complaint and are available s.64 to 69.

Page 20 of29 r' and Page no.

65 of complaint ffiHABEBA ffi euntlcttAM Complaint No.

321 of 2024 22.

As p 18.10.2019 Rs.2 00,000/- 66 of complaint 18.10.2019 Rs.2,00,000/- 67 of complaint 18.10.2019 Rs.l 45,000/- 68 of complaint 1.8.10.2019 Rs.4,00,000/- 69 of complaint er the "Payment Requ Letter" dated LB.1 201.9, issued by the respondent-promoter and placed on record at page no.

70 of the complaint, a demand for an amount of Rs.

62,47,386/- was raised by the respondent. espondent.

The said letter explicitly acknowledges the receipt of Rs.

18,45,000 /- as advance payment llrom the complainant.

This documentary evidence. cleariV Substantiates that the complainant had, in Rs.62,47,386/- was trea{ed {s outstanding against the complainanr. o Issue with respect to pancellation of the unit I 23.

The respondent has recei a sum of Rs.61,74,563/-, which was disbursed by the Statei,Ba4{ of India pursuant to a loan sanctioned in favour of the complainant.

A fripartite Agreement dated 18.10.2019 was executed among the complaifrant, the resipondent, and the State Bank of India, under which, a loan afi[ount of Rs.

74,sz,sll/- was availed by the complainant.

The pertinent terms and conditions of the said agreement are reproduced hereinbelow: " 2.

That the Builder/Developer ogrees that it has no objection to the Borrower(s) mortgaging the said ftat with proportionate share in land to the SBI as securitTt for the said loan agreed to be advanced by the SBI for the purpose of purchase/construction of the said flat.

In the event of default in the / Page 2l of 29 Complaint No.

321 of 2024 24.The complainant had avail Borrower qgrees and,Fc made by the Builder wnder creq$el on the said flat.

The Borrower hereby event;oi,dafault in either repayment of loan or any dated 15.01.2024, sought revocation of the 1.8.10.201!).

In consequence thereof, and Lication, the respondent proceeded to cancel a housing loan in respect of the subject unit to make timely payment of the equated monthly instalments to the lendling bank.

However, due to the complainant's failure to ho r the said repayment obligations, the State Bank of India, vide its lette Tripartite Agreemql't"dh ,', 1 acting upon the said contmir the allotment of the compl{i 25.

The Authority is of the vi that the cancellation of the subject unit by pursuant to the request made by the State the respondent was effect Bank of India, vide letter da 15.07. da 15.07.2024, which was issued due to the ing timely EMI payments to the Bank.

It is nt's unit orr 16.03.2024.

HARERA GUI?UGl?AM repayment of loan and the Borrower committing any other default which makes the 's) liable for the repayment of the entire omount outstanding in the said loan as per the terms of the Loan Agreement executed the Bo,rrower(s)and the SBI, the Builder shall, at the request af be under ob'ligation to not deliver possession to the Borrower and/or the booking and pay all the amounts received by the Builder on amountpaid by the of the Borrower(s) to SBI including also any to the Bu'ilder.

However, the Builder/Developer shall be entitled to recover by the Borrower under the cellation and/or any other charges, if any payable erms of application form for purchase of the said flat and/or agreement to sale/, out of the Borrower's contribution.

Upon payment of the amounts b. the Builder/Developer to SBI as aforesaid, the SBI and the Borrower will not ave any claim, charge, lien, mortgage, right, title and interest etc. whatsoever, the said fiot:.

SBI shall issue a certificate to release ony mortgage/charge/li expressly agrees that in other default by the 't $BI shall be entitled to request the Builder to cancel the booking aid the,.amounts received by the Builder and the that any such request by SBI and poyment is clause to'SBI sholl be binding upon the Borrower.

IEmphosis supplied] complainant's def;ault in ma Page22 of29 and was accordin;gly ffi ffi {qiE u{i HARER& Complaint No.

321 of 2024 evident that the said cancel tion did not arise from any default on the part of the complainant in The relevant contents of the lation to payments due to the respondent. resaid letter are reproduced below: " Deer Sir, We advise that Shri Sudhir Distt-J hajj ar (H aryana) - 1 2 GUl?UGl?AM not repaid the irregular not given the possession Moreover, you'r project on 18.10.2019 on the basi, and undertaking by the Bank (SBI). ank (SBI).

Borrowers has not adhered to Bankt: clarifted as "Non requested the boircow@rs rough tregal notices in past and various notices, E- mails & telephonic remi but has no,t yield any result and Borrowers has t or EMil till date stating that builder have as per oigreementfor sale. not yet completed os on today.

As per the agreement o.f sale da handover possessfon 3.10.2019, para 7.7."The Promoter assure to there is delay due to apartmer,tt on or before 25.10.2027 unless majeure"', court order, government policy, thereby violating Tr Condition5: of the agreement of sale.

Therefore, you are terms Para 7.1 of agrr repay all amlunts with interest by Wu on behalf of Borrowers to our Bank within .la days of no.4. ipt of this letter as per tri-Partite Agreement Clause The closure amount of Kumar is Rs.6,3,48,943/- hundred forty three only) captioned housing loan Loan A/C No.-38854386332 of Shri Sudhir Sixty three lakh Forty Eight thousonds Nine on 25.01.202,*.

Since lnterest is applied daily to the consideration,of interest remittance oJ'funds to SBL IEmphasis supplied] 26.

After consideration of the d ments plarced on record, the Authority is plainant hers made a total payment of fu rnar, S./o Shri S u khb i r, Vi ll ag e - I s m a i I p u r, P O - B a d t i, 105 Wt,,s sat,lc,tioned a Home Loan of Rs.74,52,511/- o; f@gd,te t Agreement dated 1g.10.201g signed rower, The Builder M/S DSS Buildtech Pvt Ltd, and to pW EMI aJ- Rs.51,063/- per month but borrowers ,:dnciatl dlsclp,tine and his borrowal account has been Assets (NPA)" with effect from 08.0L.2024.

We hove ,on to cancel the booking of captioned flat as per for sale dateal 03.10.2019 of Shri Sudhir Kumar and unl thereftrre, you ore requested to take into the daily basis w.e.f 24.0L.2024 till date of of the view that the co Page 23 of 29 ,/ ffiHARERA #houRllGRnrr,l complaint No.

321. of 2024 Rs.80,19,563/- to the resp{ndent.

Out of this amount, Rs. mount, Rs.18,45,000/- was paid directly by {hu complainan! while the remaining Rs.61,74,563/- was disbursed directly to the respondent by the State Bank of India pursuant to a housing lo,an sanctioned in favour of the complainant.

27.As per Clause 2 of the Tripartite Agreerment dated 18.10.2019, in the event of a default in payment by the complainant, the respondent was entitled to withhold possession anfl/or cancel the booking, with an obligation to return the amqunts receivr:d.

The said clause also entitles : the Bank to request cancellation of the booking and refund of the disbursed amount in case of default in repayment of the loan or any other breach by the complai4ant.

28.

In the present ca:;e, the Bafrk issued a letter dated 15.01,.2024 to the respondent, seekittg cancellqtion of the complainant's unit on account of the complainant's failure to pay EMIs in a timely manner.

It is noted, however, that the complain{nt has allegred that the respondent failed to deliver possessiorr in accordance with the terms of the Agreement for Sale, and that the project rennains incomplete as on date.

Acting upon the Bank's letter, the respondent proceeded to cancel the complainant's unit on 16.03.2024.

29.The Authority observes that the said cancellation was a consequence of the complainant's default in EMI payments to the Bank.

However, the complainant is not in default with respect to any payment obligations Page?4 of 29 ,/ Complaint No,321 of 2024 HARERA ffiGUI?UGI?AM owed to the respondent.

The records inclicate that the complainant paid all amounts as per the demands raised by the respondent.

The respondent has acted solely on the instructions of the Bank in cancelling the unit.

30.

The Authority observes that the payment[ plan for the unit of the allottee was "Construction Linked Payment Plan" but the financing bank i.e., SBI released the entire loan amount of Rs.

6L,7 4,563 /- in a single tranche on 24.70.201,9, after the execution of the Tri-partite agreement on 18. ent on 18.L0.2019 which is not understandable and could be a subject-matter of investigation for which this Authority does not have the competent jurisdiction.

Further, the Bank's letter dated 1,5.01,.2024, requesting cancellation of the unit, also fecords the r:omplainant's position that non- payment of EMIs was due io the respondent's failure to complete the I 31.

It is also noted that the respondent has failed to obtain the Occupation Certificate for the complainfnt's unit till date.

The Authority is of the view that the financial institution, i.e., the State Bank of India, does not fall within the punriew of the Real Estate (Regulation and Development) Act, 20L6, and hence no directions may be issued against it under the provisions of the said Act.

32.

Since the complainant has m[de timely payments to the respondent and has not defaulted in that regard, and given that the respondent has failed to complete the project and deliver possession, the complainant should Page 25 of29 ./ MHARERA ffieunuennrr,t Complaint No.

321 of 2024 not be made to suffer the consequences, including loss of the allotted unit and the burden of a substantial outstanding loan.

In the interest of justice, the complainant is entitled to a refund of the entire amount paid to the respondent.

The filnancial institution is at liberty to seek appropriate legal recourse {srinrt the complainant for non-payment of EMIs before a competent forum.

33' The legislature in its wisdom in the subordinate legislation under the provision of rule 15 of the rules, has det.ermined the prescribed rate of : interest.

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

34' consequently, as per wehsite of the state Bank of India i.e., https://sbi.co.in, the marfinaf cost of lencling rate (in short, MCLR) as on date i.e., 02.07.2025 is 9.

2025 is 9.L Accordtingly, the prescribed rate of interest will be marginal cost [f lending rorte +2o/o i.e., 1 L.loo/o.

35.

The definition of term 'in t' as definecl under section Z(za) of the Act provides that the rate of intbrest chargeable from the allottee by the promoter, in case c,f default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: "(za) "int:erest" means the rates of interest payable by the promoter or the allottee, as the case may be, Explanotion. -For the pwrpose of this c:lause_ (i) the rate of interest chargeable from the allottee by the promoter, in cose qf default, sho,ll be equal to the rate of Page 26 of 29 ffi ffi".

HARERA GUl?UGl?AM interest which in case of default; (ii) the interest paya from the date the thereof till the thereon is refu to the promoter payment to the 36.

In view of the foregoing provisions, the respondent by the complainant i.e., R 1L.1,00/o fthe State Bank of IMCLR) applicable as on Haryana Real Estate (Regu the date of each payment till the timelines provided in rul G.lI Direct the respond Rs.1,00,000/- to the 37.

The complainant is seekin mentioned relief.

Hon'ble S 6745-6749 of 2021 rirled e Pvt.

Ltd.

V/s State of Up & claim compensation & litiga Section 19 which is to be Section 71 and the quantum be adjudged by the Adjudicar mentioned in Section 72.

321 of 2024 promoter shall be liable to pay the allottee, by the promoter to the allottee shall be promoter received the amount or any part te the amount or part thereof and interest ', and the interest payable by the allottee 'll be from the date the allottee defaults in till the date it is paid;" I circumstances and applicable legal directed to refund the entire amount paid ,19,553/- along with interest at the rate of ndJA',higltest marginal cost of lending rare +20/o) as prescribed under rule 15 of the tion and Dr:velopment) Rules, 2017, from the a from the actual realization of the amount within L5 of the Haryana Rules 2017 ibid. t to paJ/ litigation charges mplainant. relief w.r.t. compensation in the above- preme Court of India in civil appeal nos, M/s Newtech Promoters and Developers rs., has hekl that an allottee is entitled to ion charges under Section s LZ,1,4,lB and ded by the adjudicating officer as per f compensation & litigation expense shall ng officer having due regard to the factors The Adjudiicating Officer has exclusive of Page 27 of 29 ,/ ffiHARERA ffi GUIIUGRAM jurisdiction to deal wi Iegal expenses.

Therefo L4, 78 and Section 19 complaint before Adjudi 71, of the Act and Rule H.

Directions of the autho 38.

Hence, the Authority h directions under obligations cast upon the authority under ser The respondellt i Rs.80,19,563/, 1:t- ii.

1,1..t0o/o on each payment timelines provid of the tota Bank/financial i balance amcrunt complainant.

The respondent/ from the concern of the complainan complainant, Complaint No.

321 of 2024 complaints in respect of compensation & r claiming compensation under Sections 12, e Act, the complainant may file a separate Officer under Section 31 read with Section Rules F passes thi,s order and issues the following 37 of the Act to ensure compliance of 0romoter as per the function entrusted to to ref'und the full paid-up amount of ;with interest at the prescribed rate i.e., paid by the complainant, from the date of ual realization.of the amount within the Haryana Rules 20LZ ibid. out ter is further directed to obtain the NOC financial institution of the allotted unit a copy of the same be provided to the will be refunded in the bank and the interest, if any will be refunded to the Page28 of29 / so assesseld, the amount paid by the ffiHARERA ffi GUttUGttAM iii.

A period of 90 directions given would follow.

39.

Complaint stands di 40.

File be consigned to Dated: 02.0Z. ed: 02.0Z.ZOZS given to the respondent to comply with the order and failing which Iegal consequences Haryana Rf[l nstate Regulatory Authority, Gurugram Page 29 of 29 complaint No.

321 of 2024