AJAY DOGRA vs ILD MILLENNIUM PVT. LTD

HARERA MGURUGRAM BEFORE THE HARYANA REAL ESTATE REGULA GURUGRAM Complaint no.

3::::l;:H'" Ajay Dogra, S/o Onkar Chand, R/o: DRDO Township, Kanchanbagh, Hyderabad.

Also at: Ward no.7, Brahampuri Mohulla Sujanpur Tira, District- Hamirpur, Himachal pradesh. (Through SPA Holder Shashi Bh Prasad), R/o: E-43, Basement, Panchshe M/s ILD Millennium Pvt.

Ltd.

Regd.

Office at: - ILD Trade Centre, Sector-47, Sohna Road, Gurugram- 122019.

CORAM: Ashok Sangwan APPEARANCE: Shashi Bhushan prasad (Advocate) Rishabh Gupta (AdvocateJ ORDER 1.

The present complaint has been filed by the comp section 31 of the Real Estate (Regulation and Devel short, the Act) read with rule 28 of the Harvana Real Developmentl Rules,2017 (in short, the Rules) fo 11(41[a) ofthe Acr wherein it is inter alia prescribed be responsible for all obligations, responsibilities an provision of the Act or the rules and regulations mad allottee as per the agreement for sale executed inter s laint No.

L422 of 20 22 ORYAUTHORITY, 1422 ot 2022 o8.o4.2022 07.oa.2024 New Delhi.

Complainant Respondent Member Complainant Respondent inant/allottee under pment) Act, 2016 (in istate (Regulation and violation of section at the promoter shall functions under the thereunder or to the f Page 1 of 15 ffHARERA S-euntrennH,r A.

2.

Unit and proiect related details The particulars of unit details, sale consideration, th amount paid by the complainant, date of proposed handing over the poss any, have been detailed in the following tabular form: ion, delay period, if ns, Sector 37 C, ana URE FOR TAKING r based on its and estimates and ll just exceptions, to complete the of the said unit within three date of execution ment, with grace nth, unless there ere shall be failure intNo.

L422 of 2022 Information Name and location of the project ILD Spire G Gurgaon, H Nature of the project Residential up housing project Proiect area 75.4A29 13 of 2008 da 31.01.20 0I Name of license holder /s Iubiliant alls Pvt.

Pvt.

Ltd. and 3 sq mtrs for towers 017 issued on to 16.08.2018 RERA Registered/ not registered 7 g,' xit'i[ t], 5rw Registered For 6462!.10 2,6 and 7 vide no.60 of 1,7.08.2017 t Apartment no.

1503, 14rh flo (page no.

41 r, Tower 6 complaintJ co mplai nt) complaintl Unit measuring 1875 sq. ft. (page no.41 Date of builder buyer Possession clause 10.1 PROCE POSSESSION "The Devel present plan subject to contemplates construction Building/said years from of this agre period of six shall delav or Page 2 of 15 ' S.

No.

I Heads DTCP license no.

9.

10.

F HARERA h aTRUGRAM Coml aint No.1422 of 2022 due to rea: Clauses 11.1, 41 or due to f. pay in time 1 Unit along wi dues in acr schedule of Annexure-C o raised by the to time or any the Allottee(s any of the te this Agreemer (emphasis sr fpase 51 of cc ons mentioned in 11.2, Ll.3 and Clause ilure ofAllottee(s) to he price of the said :h other charges and ordance with the payments given in 'as per the demands )eveloper from time failure on the part of )to abide by all or ms or conditions of t." pplied) mplaint) 11.

Total sale consideration Rs.85,64,375 oI Lated 03.05.2017 on complaint) 12. amountnaid b{t}fom \?Y lated 03.05.2017 0n complaintl 13.

Due date ofposs 18.08.2017 [calculated as clause] (grace period unqualifiedl per possession s allowed being 1,4.

Occupation certificate 02.07.2021. (as per recorc 15.

Offer of possession 02.0a.202L (page 93 of co nplaint) B.

3.

I.

Facts ofthe complaint The complainant has made the following submission: That the present complaint is being filed by the com duly constituted attorney and appointed vide th Attorney Deed dated 25.03.2022. lainant through his Special Power of Page 3 of15 ffiHARERA ffieunLronntr,r U.

That the complainant was allotted a flat bearing no.

Tower 06, in the project of the respondent named Sector 37C, Gurugram vide provisional allotment lett Thereafter, an apartment buyer's agreement da executed between the parties regarding the said allo consideration of Rs. ion of Rs.85,64,375/- against which the c a sum of Rs.74,23,84/- in all.

III.

That the possession ofthe flat was to be delivered wi the date ofexecution ofthe buyels a] has failed to deliver the same on time there bv com agreement dated 18.02.2074.

Moreover, the r illegally demanding additional money from the co no legal and contractual basis thereby making the r terms of the provisions oftheAct,2016.

IV.

That time was the essence of the of the agreement, it was agreed that the responde possession of the said unit within three years with months from the date of execution of this agreeme after the benefit of such grace period, the possessio handed over latestby 77.08.2017.However, the com of completion of work and handing over the posses per the agreement, the complainant has been amount as per the invoice/demand made by the resp time and had already paid about 87o/o of tota 2016.However, the respondent has failed to deliver flat on promised time.

That As the delivery date of the project was delayed 4 years, from the agreed delivery date of 77 .Og.ZO17 , Page 4 of15 ! i\t No.7422 of 2022 1503 on 14th floor, "lLD Spire Greens", r dated 02.1.1.2012.

18.02.2014 was ent for a total sale mplainant has paid in three years from ent.

Ho r, the respondent itting breach of the ondent has been lainant, which has spondents liable in nt.

More , vide clause 10.1 would deliver the grace period of six Accordingly, even ought to have been Iainant saw no sign n, as promised.

As larly paying the ndent from time to cost upto March e possession ofthe y about more than e complainant had VI, HARERA M" GURUGRAM only. no choice but to issue a notice to the respondent on 0 demand of interest and compensation till that time, tax which was payable at the time of possession w of which a total amount of Rs.7,02,815/- is pending IJ DI VIl.

That the complainant has recently called the offi did not receive any reply against the same. the same.

Since th has not been anv reply from the respondent, the complainant agai sent a mail to the unt paid along with respondent asking for a refund oftotal principal am interest @100/o till the issue of this letter, but the received any reply from the respondent. mplainant has not said apartment has 5,000/- being paid 85/-.

This loan was date total interest ite painful to pay possession of the flat/apartment. [t is to be noted that the balance am the bank due to the non-receipt of offer ofpossessiot nt was not paid by by the complainant.

Accordingly, it is to be noted that the balance amoun .01.2021 asking for ut the complainant inclusive ofservice Rs.13,47,258/- out m the HDFC bank enquire about the offer of possession, it was verba of respondent and ly replied that they had already sent a mail dated 05.08.2021 offering e possession of flat but only after the payment of a specified amount.

T mail was sent to a the same was not mail ID, which the complainant does not access a operational at that point of time.

After repeated call nd request to them, the complainant on 3,257/- was shown they just forwarded the e-mail which was received intNo.1422 of 2022 That it is pertinent to mention here that the above been mortgaged with HDFC Bank and EMI of Rs.. been mortgaged with HDFC Bank and EMI of Rs. against the total disbursement amount of Rs.40,97, availed by the complainant in fuly,2017 and till amount of Rs.14,78,666/- has been paid.

It is q regularly the Bank's EMI without even getting thr L4.03.2022, according to which an amciunt of Rs.

32 Page 5 of 15 VIII. c.

4.

D.

6.

HARERA GURUGRAM as payable by the complainant, while as per the ment total balance payable inclusive of service tax was Rs.73,47,258/-.

That it is submitted that the respondent had no complainants physically and mentally by its unscrup deceiving, but also flouted the norms and provisio (Regulation and Development) Act, 2016.

IX.

2016.

That in view ofabove facts and circumstances ofthe from the date of booking, the respondent has re, the respondent ondent has been Reply by the respondent.

The respondent/promoter put in appearance thro company's A.R and Advocate and marked attendance on O3.0B.ZOZZ, O and 23.08.2023.Despite specific directions for filing a ly in the matter, the respondent has failed to comply with the orders of t e authority. lt shows that the respondent is intentionally delaying the pro dure of the court by avoiding filing of the written reply.

Therefore, vi e proceeding dated half of respondent nor indulged in cheating and fraudulent practices with order to illegally grab more money from him. only harassed the lous actoflyingand of the Real Estate , it is evident that led to deliver the the complainant in f the unit and to pay te. espondent/promoter itted in relation to guilty. .7L.2022, 15.03.2023 Reliefsought by the complainant: The complainant has sought following relief[s): i.

Direct the respondent to handover possession interest on the paid-up amount at the prescribed 5.

On the date ofhearing, the authority explained to the about the contraventions as alleged to have been co section 11(4) (aJ ofthe Act to plead guilty or not to pl ai\t No.7422 of 2022 possession of the said unit to the complainant, there has not fulfilled his committed liabilitv.

The re 15.11.2023, it was observed that, "None appeared on b Page 6 of 15 HARERA GURUGRAM written reply has been Jiled till ddte despite multiple granted.

Therefore, the respondent of the respondent is Copies of all the relevant documents have been fil record.

Their authenticity is not in dispute.

Hence, decided on the basis of these undisputed documents by the complainant.

Jurisdiction of the authority The authority observes that it has territorial as jurisdiction to adjudicate the Int complaint for th E.

I Territorial iurisdiction 9.

As per notification no. l/92 7.

E.

8.

10. and Country Planning Depr Authority, Gurugram shall be entire Gurugram Distri offices situated in Gurugram.

In the,present case, th situated within the planning area of Gurugram authority has complete territorial jurisdiction to complaint. \s.r>L E.

II Subiect matter jurisdiction Section 11[4][a) of the Act, 20].6 provides that responsible to the allottee as per agreement for sa reproduced as hereunder: Section 11(4)(a) Be responsible for all obligations, responsibilities and provisions of this Act or the rules and regulations the allottees as per theagreementfor sale, or tothe o as the case moy be, till the conveyonce of oll the o buildings, as the cose may be, to the ollottees, or the associotion of allottees or the competent outhoriry, as t, Section 34-Functions of the Authority: 344 ofthe Act provides to ensure compliance of the o the promoters, the qllottees ond the reql estqte ogents the rules qnd regulotions made thereunder. i\t No.

7422 of 2022 opportunities alreddy ffuck off." d and placed on the e complaint can be nd submission made ll as subject matter reasons given below: dated 14.1 2017 issued by Town risdiction of eal Estate Regulatory t for all purpose with proiect in question is ict, Therefore, this eal with the present promoter shall be Section 1.1.(4)(a) is nctions under the ' thereunder or to tion ofollottees, rtments, plots or mon oreas to the cose moy be; otions cost upon nder this Act ond Page 7 of 15 ffi s_ 11.

F.

HARERA GURUGRAI/ So, in view of the provisions of the Act quoted a , the authority has non-compliance of complete jurisdiction to decide the complaint regard obligations by the promoter.

Findings regarding reliefsought by the complaina t.

I Direct the respondent to handover possession f the unit and to pay interest on the paid-up amount at the prescribed 12.

The complainant was allotted a residential apartme bearing no. earing no.

1503 on 14th floor, Tower 06, in the proiect of the respond nt named "lLD Spire Greens", Sector 37C, Gurugram .vide provisional a 02.11.2012.

Thereafter, an a buyer's agree was executed between the parti ing the said consideration of Rs.85,64,375/- against which the c sum ofRs.74,23,84/- in all.

The occupation certificate the unit of complainant is situated was obtained 02.07 .2027 and thereafter, possession of the unit w letter dated 02.08.202 Lwhereby the complainant wa -r-, outstanding amount as per the SOA attached with it date of that letter.

On proceedings dated 22.05.202 lotment letter dated ent dated 18.02.2014 otment for a total sale mplainant has paid a r the Tower in which y the respondent on offered to him vide requested to clear the thin 30 days from the , the counsel for the .r.t the same has been ove, the claim of the respondent has submitted that despite 4 reminders, e complainant has not dues.

The counsel for the complainant has submi ent of outstanding that unreasonable demands were made by the respondent alongwi without giving any explanation.

However, while filin there are any pleadings in this regard, nor any proof placed on record by him.

Therefore, in view of the offer of possession the complaint neither complainant that the respondent is making unrea nable demands along with offer of possession stands rejected.

The complainant has failed to make the provision of section L9(6) of the Act and as requisite payment as per the of the Act to Page I of15 i.nt No.1422 of 2022 13. per sect n 19[7) HARERA (E Ct tDt taDA[I pay the interest at such rate as may be prescribed for towards any amount or charges to be paid under sub- section 19[6) and 19(7] reads as under: "Section 79: - Right ond duties of allottees. - (6) every allottee, who hos entered into on sgreem apartment, plot or building as the case may be, shall be responsible to moke necessary poymen within the time as specifred in the said agreem poy at the proper timeond ploce,the sha ce,the share ofthe municipol taxes, chqrges, ground (7) the allottee shall be prescribed,Ior ony to be poid un!2{91\- 14.

The authority obserr*gq complainant on 02.08.2027 and forward to clear the outstanding dues and to take Section 19(6) & 19(7) of the Act provides that responsible to make necessary payments as per agr with prescribed interest on olrr take physical possession of the apartment as per Therefore, in view of the above, the complainant outstanding dues as per the buyer's agreement as possession of the unit.

15.

The complainant intends to continue with the proje possession charges at prescribed rate of interest on them as provided under the proviso to section 18[1) as under: - "Section 78: - Return oI qmount and compensation 18(1). lf the promoter Iails to complete or is unable to aportmenC plot or building, - int No.

7422 of 2022 interest, ot t towards a ny delay in payments ion [6).

Proviso to tfor sole to take an under section 13W in the manner ond t for sale qnd shall istrotion chorges, rges, mqintenance ch rate as may be amount or chorges on of the u it was offered to the eated remi rs he is not coming ssession of the unit. ry allottee shall be ment for sale along payments m the allottee and to 19(10) of the Act. liable to p the is willing to take and is seeking delay ount already paid by f the Act which reads ive possession of on v )al to lon is he Page 9 of 15 HARERA GURUGRAM Provided thot where on allottee does not intend project, he shall be paid, by the promoter, interest for till the handing over ofthe possession, ot such rqte 1,6.

Clause 10.1 of the apartment buyer's agreement fin dated 18.02.2014, provides for handing over posse reproduced below: 10,1 Procedure lor Toking Possession: "The Developer bosed on its present plans and estimo exceptiont contemplates to complete the construction of ulithin three years Fom the dqte oI execution of th period of six month, unless there shall deloy or there sha mentioned in Clouses 71.7, 11.2, 11.

11.2, 11.3 and Clouse 41 or du poy in time the price ofthe said Unit along with other cha with the schedule of payments given in Annexure-C or os p, Developerfrom time to time or any failure on the part olth or any ofthe terms or conditions ofthis Agreement." 17.

The authority has gone through ihe possession claus the outset, it is relevant to comment on the pre-set agreement wherein the possession has been subj and conditions of this agreement and the complainan under any provisions of this agreement and in provisions, formalities and documentation as pres The drafting of this $arye gd ipqrHrrtipqgf s.1ph vague and uncertain but so heavily loaded in favou against the allottee that even a single default by formalities and documentations etc. as prescribed make the possession clause irrelevant for the purp commitment date for handing over possession k incorporation of such clause in the apartment buy promoter is just to evade the liability towards timely and to deprive the allottee of his right accruing after d Page 10 of 15 ilrt No.7422 of 2022 withdrqw from the ry month oI deloy. be prescribed." hort, the agreement) ion and the same is and subject to all just e said Building/said unit agreement, with grace be failure due to reosons to failure of Allottee(s) to s and dues in occordonce the demonds raised by the Allottee(s) to obide by oll of the agreement.

At ssession clause of the to all kinds of terms s not being in default compliance with all d by the promoter. nditions are not only of the promoter and allottee in fulfilling the promoter of allottee and es its meaning. 's agreement by elivery of subiect unit ay rn possesslon. may . the The the. ffi& 18.

19.

20.

HARERA OURUGRAI/ The respondent/promoter has proposed to hand the possession of the subject apartment within a period of 36 months p months from the date of execution of the apartment grace period of 6 uyer agreement.

The apartment buyer's agreement was executed b n the parties on 18.02.2014.

8.02.2014.

Further a grace period of 6 months is all to the respondent being unqualified.

Thus, the due date of possess on come out to be t8.oa.2077 . does not intend to withdraw from the project, he promoter, interest for every month of delay, till all be paid, by the e handing over of possession, at such rate as may be prescribed and i has been prescribed under rule 15 of the rules.

Rule 15 has been reproduc 12, section 18 and nd sub-sections (4) ribed" sholl be the rote +2%.: Provided that in case the State Bonk oflndio mo inql cost oflending The complainant is seeking of interest.

However, provis ion charges t the prescribed rate 18 provides t where an allottee as under: benchmark lending to time for lending egislation under the e prescribed rate of slature, is reasonable t will ensure uniform i.e.. httos: //sbi.co.in. n date 07.08.2024 is rote (MCLR) is not in use, it shall be reploced by suc rotes which the State Bonk of Indio moy fixfrom tin to the generol public.

The legislature in its wisdom in the subordinate provision of rule 15 of the rules, has determined interest.

The rate of interest so determined by the I and if the said rule is followed to award the interest, practice in all the cases.

Consequently, as per website of the State Bank of Ind inr No.

1422 of 2022 2L. the marginal cost of lending rate (in short, MCLR) as Page 11 of 15 ffi HARER I d*, ounuennlr 9010.

Accordingly, the prescribed rate of interest lending rate +2% i.e., 11% per annum.

22.

The definition of term 'interest' as defined under provides that the rate of interest chargeable promoter, in case of default, shall be equal to the r promoter shall be liable to pay the allottee, in case section is reproduced below: "(za) "interest" means the rates of interest payoble allottee, as the case may be.

Explanotion. -For the purpose ofthis clause- O the rate ofinterest chorgeablefrom the allottee b.

23.

Therefore, charged at is the same charges. e charges. ofdefoult, sholl be equalto the rote ofinterest be lioble to pay the allottee, in cose ofdefault; (il the interest payable by the promoter to the oll the promoter received the amount or any port t amount or part thereofond interestthereon is pqyoble by the qllottee to the promoter sholl be defaults in payment to the promoter till the dote i interest on the delay payments from the prescribed rate i.e., 11%o by the res as is being granted to the complainant in 24.

0n consideration of documents available on record made by the parties, the authority is satisfied contravention of the provisions of the Act.

By virt agreement executed between the parties on the booked unit was to be delivered by certificate was granted by the concerned thereafter, the possession of the subject flat was o vide letter dated 02.08.2021.

Copies ofthe same ha The authority is of the considered view that there is respondent to offer physical possession of the subje Pagc 12 ol 1 5 plaint No.

1422 0f2022 18.0 2.

18.08 ill be marginal cost of ction 2(za) of the Act thc thc the allottee bv of interest which f default.

The relevant the profioter or the the promoter, in cose ch the promoter sholl sholl befrom the dote )f till the date Lhe nded, ond the interest the dote the alhttee is paidi' complainant shall be ndent/promoter which ase ofdelay possession as well as submissions t the respondent is in 2017.

The occupation ty on 02.07.2021 and red to the complainant been placed on record. delay on the part of the flat and it is failurc on autho HARERA ffi"GURUGRAI/ part of the promoter to fulfil its obligations and re buyer's agreement dated 18.02.2014 to hand over t stipulated period.

25.

Section 19(10) of the Act obligates the allottee ro subject unit within 2 months from the date of certificate.

In the present complaint, the occupation by the competent authority on 02.07.2021.

2.07.2021.

The possession ofthe unit in question to the complainan it can be said that the complainant came to kno certificate only upon the date ofoffer ofpossession. of natural justice, the complainant should be given date ofoffer ofpossession.

These 2 months ofreaso to the complainant keeping in mind that even after i practically he has to arrange a lot of logistics an including but not limited to inspection ofthe compl is subiect to that the unit being handed over at the ti is in habitable condition.

It is further clarified th charges shall be payable from the due date of po months from the date of offer of possession (02.08. to be 02.10.2021.

26.

Accordingly, the non-compliance of the manda 11(41(al read with section 18[1) ofthe Act on the p established.

As such the complainant is entitled to prescribed rate of interest i.e., 110lo p.a. w.e.f.

18.08. months from the date of offer of possession [02.08. to be 02.1.0.2021as per provisions of section 18( 1) 15 of the rules and section 19(10) of the Act. plaint No.

1422 of 2022 nsibilities as per thc possession within thc take possession of the receipt of occupation certificate was grantcd spondent offered the only on 02.08.2021, so about the occupation erefore, in thc intcrcst months time front thc ble time is being givcn timation of possession requisite documents ly finished unit but this e oftaking possession the delay possession sion till the expiry ol 2 021J which comes out contained in scction rt of the respondcnt is delayed possession at 017 till the expiry 021) which comes the Act read with of2 out ru le ,f' Page 13 ot 15 * HARER^ *&- eunuerur'r G.

Directions ofthe authority: - 27.

Hence, the authority hereby passes this order a directions under section 37 of the Act to ensure co cast upon the promoter as per the functions entru sec 34(fl of the Act: - i.

The respondent is directed to pay interest to the paid-up amount at the prescribed rate i.e. rate i.e., 1 month of delay from due date of possession expiry of2 months from the date ofoffer ofpo upto 02.10.2021 only.

The respondent is directed to supply a copy of account after adjusting the delayed possession of 15 days to the complainant.

The complainant is directed to pay outstand adjustment ofdelay possession charges within lv. the date of receipt of updated statement ofacco The respondent is directed to handover posse question to the complainant in terms of Sectio and the complainant is also obligated to take allotted unit under Section 19(101 of the Act, Z0 v.

The respondent shall not charge anything from is not the part of the apartment buyer's a respondent-promoter shall not charge holdi complainant-allottee at any point of time even builder buyer's agreement as per law settled by in civil appeal nos.3864-3889 /2020 on l4.7Z.Z vi.

The rate of interest chargeable from the allottee lll. of default shall be charged at the prescribed plaint No.

1422 of 20 22 d issue the following pliance of obligations to the authority under e complainant against %o per annum for every .e., 18.08.2017 tiu the ssion (02.08.202 1) i.c., e updated statement of harges within a period ng dues, if any, aftcr period of 30 days front nt. on of the unit/flat in 17(1) of the Act, 2 016 ical possession of the 6. e complainants which ent.

Further, the g charges from thc fter being part of the on'ble Supreme Court 20. y the promoter, in case rate i.e., 11% by rhe v' Page 14 of 15 *HARERA e eunuennl,r respondent/promoter which is the same rate promoter shall be liable to pay the allottee, in delayed possession charges as per section Z(za) 28.

Complaint stands disposed off.

29.

File be consigned to the registry.

Dated: 07 .08.2024 HARERA GURUGRAM 6U M K*4 M No.7422 of 2022 interest which the of default i.e., the the Act. atory Authority, Gurugram Page 15 of 15