SENTEC INDIA COMPANY PVT LTD vs RAHEJA DEVELOPERS LTD.

Complai NAME OF THE BI II I,DT]R RAHEJA DEVELOPERS PROJICT NAME "RAHEJA REVAN cr\ / 3a4B /2023 M/s Sentac India Company Pvt.

Ltd. v/s Raheja Developers Limjted M/s Sentac India Company Pvt.

Ltd. vls Raheia Developers Limited HARERA P-OURUGRAI/ BEFORE THE HARYANA REAL ESTATE REGULAT RY AUTHORITY, GURUGRAM Date ofdecisi 07.04.2024 MITED.

APPEARANCE Nilotpal Shyam lAdvocate) and Carvit Gupta (Advocatel cRl3849/2023 Nilotpal Shyam [Advocate) and Carvit Gupta (Advocate) CORAM: Ashok Sangwan Mcmbcr ORDER 1.

This order shall dispose of all the 2 complaints titl as above filed before the authority under section 31 of the Real Es te IRegulation and Act"J read with rule Development) Act,2016 (hereinafter referred as " 28 of the Haryana Real Estate (Regulation and Dev (hereinafter referred as "the rules"J for violation the Act wherein it is inter alia prescribed that t responsible for all its obligations, responsibilities allottees as per the agreement for sale executed in se between parties.

2.

The core issues emanating from them are simil r in nature and the complainant[s] in the above referred matters are lottees of the projcct, using colonyJ bcing /s Raheja Developers namely, "Raheja Revanta" (residential group h Page 1 of 26 .t/ No.3848/2023 and 1 other opment) Rules, 201 7 f section 1 1(a)(aJ of e promoter shall bc and functions to thc developed by the same respondent/promoter i.e., s.

No.

Case No.

Case title 1.

HARERA ffi GURUGRAI/ Limited.

The terms and conditions of the agreemen to sell and allotment letter against the allotment of units in the u ng project of the respondent/builder and fulcrum of the issues invol in both the cases pertains to failure on the part of the pro to deliver timelv possession of the units in question, seeking a of refund the entire amount along with intertest and the compensation. pensation.

The details of the complaints, reply to status, unit n date of agreement, possession clause, due date total sal consideration, total elow: paid amount, and relief sough in the table No.3848/2023 and 1 other Proiect Name and Location 78, Gurugram, Possession Clause: - 4.2 Possession Time qovernment but su Regulatory \uthoriy's \ction, control of the certilicate for the llnit to the Purchaser having com form & Agreement To sell. ln the event of his failure to to ond use the unit provisionolly qnd/or finally ollotted date of intimotion in writing by the seller, then the some ond cost and the Purchaser shqll be liable to comDensati the super area per month os holding charges for the deIay..........;' tog sin 2l ts of the Unit to the 'APAS' Independent 'A TOWER' from the after providing of n the sector bv the qny Government/ reasons bevond the for compensation seller on obtqining ities sholl hond over and subject to the of this applicotion over and /or occupy in 30 doys from the oll lie at his/her risk @ P.t.7/- per sq. fi. of period of such Page 2 of26 Haryanal HARERA GURUGRA[/ Complai t No.

3848/2023 and 1 other Sr.

No Complaint No., Case Title, and Date of filing ofcomplalnt Reply status Unit No.

Date of execution of agreement to sell Due date of osseSsion Total Considerati on/Total Amount paid by the comPlainan ts in Rs.

1. cR/3848 /2023 M/s Sentac India CoInpany Pvt Ltd. v/s Raheia Developers Limited.

Date ofFiling of complaint 28.OA.2023 Reply 28.o2.20 24 I A-2Z5,2zrd floor, Tower/block- q 17.01.2017 (Page no.

35 of the complaint) 7 {i 1 7.07.2019 24 months 'om date of onths Srace period) ladvertently llculated as .07.2021on roceedings dated 2.05.2024\ TSC: - 2,72,21,200 / - L44,89,7 64 / - (As per customef ledgerdated 19.07 .2023 on paSe no.78- T9ofthe complain0 2. cR/3849 /2023 M/s Sentac India Company PvL Ltd. v/s Raheja Developers Limited Date ofFiling of complaint 24.04.2023 Reply 28.02.20 24 A-301,30d, floor, Tower/block [Pageno. k [Pageno.33 ofthe complaint) 17.O7.2017 (Pase no.31 ofthe complain0 al n {i ( 1 7.07.2019 24 months 'om date of reement + 6 onths grace pedod) Edvertently llculated as '.07.2021on roceedings dated 2.0s.20241 TSC|' 2,06,30,249 /. r,43,26,77t/. (As per ledger daled 19-07 -2023 on page no.

73 T4otthe complaint) r ne compElnants m ure aDove compulnts nave sougnt the to ' il:'#*:,i1T::sufl{urgt?$1ryr 2.

Direct tie respondent company to pay a cost of Rs.1,00, the litisation. owing reliefs: nt along with interest at 00/- towards the cost of Note: In the table referred above, certain abbreviation! are elaborated as follows: Abbreviation Full form TSC Total Sale consideration AP Amount paid by the allotteefsl have been used.

They Page 3 of26 lPage no.37 of the complaint) I HARERA ffiGURUGRAM 4.

The aforesaid complaints were filed against the pr moter on account of violation of the agreement to sell and allotme allotment of units in the upcoming proiect ofthe re for not handing over the possession by the due d t letter against the ondent/builder and refund the entire paid-up amount along with interes 5.

It has been decided to treat the said complaints as a te, seeking award of and compensation. compliance of statutory obligations on the pa application for non- of the promoter/ consideration, the amount paid by the complainant[s), date of propo handing over the possession, delay period, if any, have been deta ed in the following tabular form: CR/3848/2023 case Utled as M/s Sentac India any Pvt.

Ltd.

V/s Rahej a D ev el op ers Li mite d. t No.

3848/2023 and 1 other Particulars Name of the proiect "Raheia Revanta", Sect r 78, Curugram respondent in terms of section 34(0 of the Act authority to ensure compliance of the obliga promoters, the allottee(s] and the real estate agen rules and the regulations made thereunder. sJ qua refu hich mandates the ns cast upon the o consideration for the entire paid-up 6. paid-up 6. s under the Act, the The facts of all the complaints filed by the complai nt[sJ/allottee[s) are :ioned case, the p rticulars of Iead case CR/3848/2023 cdse titled as t/s Sentac lndia ny Pvt.

V/s Raheja Developers determining the righ A.

7.

Proiect and unit related details The particulars of the project, the details of s Page 4 of 26 s.

N.

Details ffiHARERA #- GuRUGRN Complair t No.

3848/2023 and 1 other 2.

Proiect area 18.7213 acres 3.

Nature of the proiect Residential srouD hou ing colony 4.

DTCP license no. and validiw status 49 of 2077 dated 01.0 37.05.2027 i.2011 valid up to Name of licensee Sh.

Ram Chander, Ra Others n Sawroop and 4 6.

RERA Registered/ not registered Registered vide no.

04.0a.2077 2 of ZlU dated 7.

RERA registration valid up to 04.02.2023 5 Years from the Environment Clearanc date of revised B.

Unit no.

1 t nd floor, Tow 37 ofthe cor rrlblock- A rplaint) 9.

Unit area admeasurinK 31]I N .5 7 sq. ft. (super i o.

37 of the cor reaJ rplaint) 10.

Allotmentletter /-jfy ded 11.

Date of execulli / of agreement to sellf D / t7.01.20t7 (Page no.35 of the c( rplai nt) 72.

Possession cla ru HA GUt 4.2 P Th0t give p ss he ld Compensation rcerely endeavor to 'tit to the purchoser onths in respect of Floors and twenqt respect of 'SURYA of the execution of ond after providing lure speciqlly roId he sector by the t to lorce majeure "nment/ Regulqtory ion or omission and ntrol of the Seller.

0ll be entitled for ce period oI six (6) onstruction is not he time period seller on obtaining )n and use by the ;hqll hqnd over the tel ussesrtun uJ Lfic u q lELa.rutr t!ru.Lt u. sewer & wqter in t Government, but subjer conditions or any Gove authoriry's action, inact reasons beyond the cc However, the seller sl compensation free gr(. months in case the t completed within mentioned above.

The cerdrtca@ for occupat, Competent Authorities Page 5 of 26 ffiHARERA ffi eunuarnr,rr Complai t No. plai t No.

3848/2023 and 1 other Unit to the Purchaser fot use qnd subject to tht complied with all the ter this application form & I the event of his failure t occupy and use the un[t lnally allotted within 3t of intimation in writin{ the same shqll lie at his/ the Purchaser shal compensation @ Rs.7/- 1 area per month as hole eitlielteriod of such delt this occupation and Purchaser having ns and conditions of greement To sell.

In ) take over and /or trovisionally and/or doys from the date by the seller, then rcr risk and cost and be liable to er sq. ft. of the super ing charges for the v.-.-......." 13.

Grace period I /3 , x H of fact that the res completed the proj€ allotted unit is situ. obtained the occupal January 2019.

As per the construction oF tt completed by lanuary completed till date.

Ar present case the gr months is allowed. was supposed to be stipulated timeframe 6 months of grace pe lhe agreement to ' the allotted unit offered within a rf 24 months plus ] iod.

It is a matter I :ondent has not I :t in which the I led and has not I on certificate by I tgreement to sell, e proiect is to be 2019 which is not cordingly, in the ace period of 6 74.

Due date of possession 17 .07 .2019 (Note: - 24 agreement + 6 {inadvertently 22.05.2024,24 48 months in which the due as 17 .07 .20211 month months onp month possess date hi ; from date of grace periodl 'oceedings dated ; was mistyped as ion clause due to rs been calculated 15.

Total sale consideration Rs.Z,72,2r,200 / - (as per customer ledgr complaintl r at page no.

78 of PaEe 6 of2 HARIRA ffi GURUGRAM B.

8.

I.

Facts ofthe complaint The complainant has made the fo That the complainant was Tower A in project of the Gurgaon vide agree consideration of Rs.2,66,67, ng submissio in the complaint: - o.

A225 in 22nd Floor a Revanta" Sector 78, t bearing 17 for a total sale us applicable es against which the 4/- in all. amed "Rah II, That as per clause 4. clause 4.2 of the agreement to sell ted between the parties, the the possession of the of execution of the impugned unit agreement to sell wi III.

That the respondent promised of delivery of the said t to sell and not even complainant has already paid a sum of Rs.1,88,89, bothered to give reason about such unreasonable of possession to the complainant. elays in handing over IV.

That the complainant has paid over 66% of the to demand made as per demand letter issued by the respondent in acco nce with the payment plan annexed in Annexure-A of the agreement o sell.

However, the respondent completely failed to the deliver the ssession of impugned unit even within the extended time schedule also was supposed to completion of the No.3848/2023 and 1 other Amount paid by the complainant Rs.l,88,89,7 64 /- (as per customer led at page no.

79 of occupation certificate Completion certificate Not received Offer of possession Not offered be taken for getting the occupancy certificate Page 7 of26 16.

1l].

VI.

VII.

HARERA GUt?UG]?AM construction.

Now, the respondent has come with new deadline which is nothing but highly farcical and blatant abuse f complainant money who has hoped to get the possession of impu unit.

Due to such an unreasonable delay, the complainant has been wai for the possession of the impugned for almost 4 years now with no ho for the future.

That the respondent was under a contractual o occupancy certificate.

This reason of more three igation to obtain the occupancy certifi cate/possession iqJtself a ground accordance with Haryana T:LI*1" [Regulati ars in obtaining the r refund of money in n and Development) ted as a demand of ject of Respondent(s) d with Section 19(4) ant was compelled to ng with applicable r the impugned flat. ideration for parking ot be sold by the obligation to refund king charges. e service tax charged le Delhi High Court in [43] S.T.R.3(Del.) and ryana High Court in 2016, decision dated No.

3848/2023 and 1 other Rules,2017. ules,2017.

This present complaint shall be refund/intent to withdraw frl-n the impugned p in accordance with Section 18 of RERA Act, 20L6 ofthe RERA Act, 2016. ( ,h' That without pr pay Rs 3,50,000/- charges over and a However, the respondent That respondent company is also liable to refund in earlier demand in view of the judgment of Hon Suresh Kumar Bansal v.

Union of India & Ors.

201 which has been followed by Hon'ble Punjab and Balvinder Singh v.

Union of India CWP No.

23404 25.09.2078.

IE t< a Page 8 of26 HARERA S-GU|iUGRAM C.

9.

The complainant has sought a.

Direct the respondent with interest at the p b.

Direct the re towards the 10.

On the date of /promoter on the relation to section guilty.

D.

Reply by the 11.

The respondent contested th No.

3848/2023 and 1 other VIII.

That in addition to the relief sought in the i complaint, the complainant is entitled to seek inter alia compe on under Section 71 read with Section 72 of the RERA Act.

Accordingly. the complainant shall also be granted liberty to pursue its claim for co pensation before the Adjudicating Authority under Section 71 read RERA Act.

Reliefsought by the complainant: - ef(sJ entire id-up amount along st of Rs.1,00,000/- to the respondent been committed in ty or not to plead g grounds: - th Section 72 of the down in the said Act rovisions of the RERA on no.

32 of 2017 IE' .r l/ - tr\ -ra Iti\ ]l i.

That the agreement to sell was executed the complainant and the respondent prior to the enactment ofthe Real Development) Act,2076 and the provisions laid (Regulation and cannot be enforced retrospectively.

Although the Act,2016 are not applicable to the facts of the pr t case in hand vet without prejudice and in order to avoid comp cations later on, the respondent has registered the pro,ect vide dated 04.08.2017 with the Authority.

Authority.

Page 9 of 26 HARERA GURUGRA[/ That the complaint is not maintainable for the rea contains an arbitration clause which refers to mechanism to be adopted by the parties in the clause 60 of the booking application form and cla agreement. l1l.

That the complainant had applied for allotment named "Raheja's Revanta" at Sector 78, G booking application form.

Thereafter, an agreeme between the parties for unit no.

A-301 and the bound by the terms contained therein. lv.

That the possession of the unit was supposed complainant in accordance with the agreed te buyer's agreement as stated in clause 21 of the and clause 4.2 ofthe agreement to sell.

It.

That despite the respondent fulfilling all its o provisions laid down by law, the government miserably to provide essential basic infrastru roads, sewerage line, water and electricity supply said proiect is being developed.

Thus, the resp liable on account of non-performance by the co authorities. vl.

That the time period for calculating the due date o only when the necessary infrastructure facilities governmental authorities and the same was kno from the very inception. lt is submitted that infrastructure facilities is beyond the control of Page 10 of 26 t No.

3848/2023 and 1 other n that the agreement e dispute resolution t of any dispute i.e. se 14.2 of the buver's a plot in the project n Haryana vide his t to sell was executed plainant agreed to be to be offered to the and conditions of the king application form ligations as per the agencies have failed re facilities such as the sector where the dent cannot be held cerned governmental possession shall start ill be provided by the to the complainant on-availability of the e respondent and the HARERA GURUGRAII same also falls within the ambit of the definiti condition as stipulated in clause 4.4 of the agreeme VII, That furthermore two high tension cable Iines project site which were clearly shown and visi dated 06.06.2011.

6.06.2011.

Hence, the respondent got the underground at its own cost and only after processes and procedures and handed over the s the same was brought to the notice of District T VIII. dated 28.10.2014 requesting to apprise DGTCP, Ha That as multiple government and regulatory clearances were in involved/required and frequ high-tension supplies was involved, it took co investment and resources which falls within majeure condition.

Further, the GMDA, Office of vide letter dated 3.12.201,9 has intimated the resp sector dividing road77 /7A has not been acquired been laid.

So, the respondent has written on Gurugram Metropolitan Development Authority ( provisioning of the infrastructure facilities at the possession can be handed over to the allottees.

H have paid no heed to or request till date.

That the construction of the tower in which th complainant is located is 800/0 complete and the over the possession of the same to the complain subject to the complainant making the payment lx. amount and on availability of infrastructure facili No.

3848/2023 and 1 other n of 'Force Majeure' t to sell. passing through the e in the zoning plan rhead wires shifted opting all necessary e to the HVPNL and Planner vide letter for the same. agencies and their nt shut down of the derable time/efforts, ambit of the force neer-VI, Gurugram ndent that the land of d sewer line has not eral occasions to the MDA) to expedite the id project site so that r, the Authorities unit allotted to the espondent shall hand t after its completion the due installments s such as sector road PaEe ll of 26 { HARERA ffi GURUGRAM and Iaying providing basic external infrastructure electricity etc. as per terms of the application and due to the above-mentioned conditions whi reasonable control of the respondent, the con question has not been completed and the respo liable for the same. x. e same. x.

That the construction of the tower in which the complainant is located already complete and the over the possession of the same to the complai occupation certificate subject to the complainant the due installments amount as per terms o agreement to sell.

That the respondent cannot be held responsible There is no failure on the part of the respond possession of the plot as per the agreement to Hon'ble Puniab and Haryana High Court vide its o in CWP no.

609 of 2023 has directed the State of coercive steps against the respondent till 20.07.20 Copies of all the relevant documents have been fil record.

Their authenticity is not in dispute.

Hence, decided on the basis of these undisputed docum made by the parties.

Jurisdiction of the authority The authority has complete territorial and subject Copies of all the relevant documents have been fil record.

Hence, 12.

E.

1J. adjudicate the present complaint for the reasons gi n below. t No.

3848/2023 and 1 other such as water, sewer, agreement to sell and were beyond the on of the prorect in dent cannot be held or is allotted to the ondent shall hand ant after getting the king the payment of the application and r no fault of theirs. nt to hand over the ell.

Furthermore, the er dated 12.01.2023 ryana not to take any 3. and placed on the e complaint can be ts and submissions atter jurisdiction to Page 12 of 26 xl.

HARERA ffi GUI]UGRAM 74. t6.

No.3848/2023 and 1 other E.I Territorialiurisdiction As per notification no. l/92/20L7-1TCP dated 1 .12.2077 issued by the jurisdiction of am shall be entire Town and Country Planning Department, Harya Haryana Real Estate Regulatory Authority, Gu Gurugram district for all purposes.

In the presen case, the project in Gurugram district. question is situated within the planning area Therefore, this authority has complete territorial j diction to deal with the present complaint.

E.II Subrect-matteriurisd 15. iurisd 15.

Section 11[4)(a) of the e promoter shall be responsible to the .

Section 11(4)(a) is reproduced as h rrfl{q v.rd Section 11 'iit ro" (o) be and functions under the made thereunder or to sole, or to the as socia tio n of a I lo ttee s, nce ofollthe the qllottees, or the competent 344 of the Act provi obligations cost upon the promoters, the ollottees and the reol estate Act and the rules and regulations mode thereunder.

So, in view of the provisions of the Act quoted a , the authority has complete jurisdiction to decide the complaint ing non-compliance of obligations by the promoter leaving aside compe decided by the adjudicating officer if pursued by later stage. complainant at a sation which is to be Page 13 of 26 F.

77.

HARERA MGURUGRAI/ Findings on the obiections raised by the respo F.l.

Obiection regarding iurisdiction of au w.r.t. buyer's agreement executed prior to coming into fo ofthe Act.

The respondent has contended that the authori is deprived of the of the parties inter- jurisdiction to go into the interpretation ol or righ se in accordance with the buyer's agreement ted betlveen the parties prior to the enactment of the Act and the pr ion of the said Act cannot be applied retrosp e authority i of the view that the Act nowhere provides, no constru that all previous force of the Act. ent have to be read agreements will be re-wri comlng rn Therefore, the provisi and interpreted h dealing with certai has provided for a specific/particular rdance with the Act Act and the rules.

Numerous provisi lo s of the agreements made between the bu said ntention has been No.3848/2023 and 1 other manner, then that and the rules after I Itors Suburbon Pvt. ded on 06.72.201.7 which provides as under: "119.

Under the provisions of Section 18, the delq, honding over the possession would be counted from the dote ed in the agreement for sole entered into by the promoter ond the prior to its registration under REP'I,. er REP'I,.

Under the provisions of the promoter is given o faciliy b revise the date of completion project ond declare the some under Section 4.

The REP.I. does not con plate rewriting of controct between the Jlat purchqser and the We have olreody discussed that above stated ions of the RERA ore not retrospective in nqture, They moy to some retroactive or quasi retro(rctive efect but then extent be hqving 0 thot ground the 122.

PaEe 14 of 26 4 HARERA GURUGRAM 19.

The agreements are s are not unreasonable or exorbitant in nature.

Hen Page 15 of 26 t No.

3848/2023 and 1 other validity of the provisions of RERA cannot be chql The Pqrlioment is competent enough to legislote law hqving ive or retrooctive elfect A law can be even ftamed to affect isting / existing controctual rights between the parties in the public interest We been fromed in the ssion made at the highest level by the Stonding Committee and Committee, which submitted its detailed repor*." 18.

Also, in appeal no.

173 of 2019 titled as Vs.

Ishwer Singh Dahiya, in o Estate Appellate Tribunal "34, Thus, keeping in view opinion thot the extent in o in the olfer, agreement possession 15 of the do not have qny doubt in our mind thot the REP.1. lqrger public interest qfter o thorough study snd Magic 1,7.t2.20 Developer Pvt, Ltd.

9 the Haryana Real on, we re of the considered re quqsi retroactive to some in case of deloy nd conditions of the the interest/delayed as provided in Rule reasonable rote of is liable to be for e provisions which have been abrogated by the Act itseif.

Further, agreements have been executed in the manner that to the allottee to negotiate any of Therefore, the authority is of the viev various heads shall be payable as per the agreed te the agreement subiect to the condition that the s with the plans/permissions approved departments/competent authorities and are not in other Act, rules, statutes, instructions, directions is in the light of above- t is noted that the ere is no scope left cont left contained therein. payable under and conditions of are in accordance the respective tion of anv ed thereunder and 20.

HARERA MGURUGRAM mentioned reasons, the contention of the respo stands reiected. w.r.t. jurisdiction F.II Obiection regarding agreements contains which refers to the dispute resolution agreement arbitration clause The agreement to sell entered into between the p es dated 17.01.2017 contains a clause 14.2 relating to dispute resolutio between the parties.

The clause reads as under: - "All or any disputes touching in relation to the nce Deed including ond the respective terms of this Applicati Sell/ Con the interpretation ond rights and be through qrbitrotion. the Arbitrotion dnd The orbitrotion Conciliation ts/ modificstions be ts no consensus on appoin concerned touching be referred to the rekrence etc. ony oward, the territorial ju os well as of Punjab and H 21.

The authority is of the opi of the authority clause in the buyer's the Act bars the falls within the purview of this authority, or the Real Estate Ap intention to render such disputes as non-arbitrab Also, section 88 of the Act says that the provisions addition to and not in derogation of the provisio of any other law for the time being in force.

Further, the authority puts on catena of ly in National Seeds m mentioned in e terms thereof for held at the proceedings sholl be arbitrotor who sholl Tribunal.

Thus, the seems to be clear. this Act shall be in t No.

3848/2023 and 1 other e jurisdi judgments of the Hon'ble Supreme Court, pa PaEe 16 of 26 IIARERA P*GURUGRAM Corporation Limited v, M, Madhusudhan Reddy 506, wherein it has been held that the remedies Consumer Protection Act are in addition to and no other laws in force, consequently the authority w refer parties to arbitration even if the agreement be an arbitration clause.

Therefore, by applying same of arbitration clause could not be construed to take of the authority.

22.

Further, in Aftab Singh and Consumer case no. r case no.

701 of 20lS decided on 13.

Consumer Disputes Redressal Commission, New D that the arbitration clause in agreements betlveen builders could not circumscribe the jurisdiction of while considering the issue of maintainability of consumer forum/commission in the fact of an exist in the builder buyer agreement,.the hon'bie Sup as M/s Emaar MGF Land Ltd.

V.

Aftab Singh in 2629-30/2018 in civil appeal no.23512-23573 10.12.2018 has upheld the. aforesaid judgemen provided in Article 141 of the Constitution of Ind the Supreme Court shall be binding on all courts India and accordingly, the authority is bound Therefore, in view of the above judgements provision of the Act, the authority is of the view th within his right to seek a special remedy available i as the Consumer Protection Act and RERA Act, 20 Complai No.3848/2023 and other Anr. (2012) 2 SCC provided under the in derogation of the uld not be bound to en the parties had nalogy the presence way the jurisdiction r MGF Land Ltd and ors., ,2017, the National hi (NCDRC) has held e complainants and consumer.

Further, complaint before a ng arbitration clause Court in cose titled on petition no.

2017 decided on of NCDRC and as the law declared by ithin the territory of the aforesaid view. nd considering the t complainant is well a beneficial Act such 6 instead of going in Page 17 of 26 ( ffiHARERA #- arRuGRAr',t which were beyond the co advanced in this regard are d the unit in question was taken in getting gove as reason for delay, above are of routi required to take Thus, the promo aforesaid reasons take benefit of his own No.

3848/2023 and 1 other for an arbitration.

Hence, we have no hesitation authority has the requisite iurisdiction to enterta that the dispute does not require to be referred to F.III Obiections regarding the circumstances being 23. being 23.

The respondent has contended that the project w the 'force mareure' situations like delay on authorities in granting approvals, passing of HT lin in holding that this the complaint and itration necessarily. maieure'. delayed because of art of government over the project etc. ndent.

H r, all the pleas ts.

First o all, the possession of 9.

Further, the time cannot be attributed e events mentioned and the promoter is unching the project. lenienry on based of t a person cannot the respondent that force maieure stands the entire id-up amount along withdraw from the by it in respect of as provided under roduced below for the project was delayed due to circumstances being rejected.

G.

Findings on the relief sought by the complainant Direct the respondent to with interest at the prescribed rate.

24.

In the present complaint, the complainant intends project and is seeking return of the amount pai subject unit along with interest at the prescribed section 18[1) of the Act.

Sec.

18(1) of the Act is ready reference.

Page 18 of 26 HARERA ffiGURUGIiAM Provided that where project, he shall be till the handing 25.

Clause 4.2 of th handing over of po 4.2 Possession That the Seller the purchoser ,SURYA sell ond ofier & water in conditions or or omtsston "Section 78! - Return ol qmount and compensqtion 18(1).

II the promoter fails to complete or is unqble to g qpartment, plot, or building.- possession of on le or, as the cose (a) in accordonce with the terms oJ the qgreement for moy be, duly completed by the dqte specified therein; (b) due to discontinuonce of his business os a deve suspension or revocation of the registration under other reason, he sholl be liqble on demqnd to the ollottees, in case to withdrqw from the projec, without prejudice to avoiloble, to return the by him apartment, plot, building, be, rote qs moy be prescribed including manner as provided under on account of Act or for any e allottee wishes ny other remedy respect of thqt interest at such dto w fr h dto w from the month ofdeloy, be prescribed," t) .2017 provides for of the Unit to oJ ,TAPAS, Independent Floors (24) in respect of Agreement to ially roqd sewer to force mojeure 's action, inaction the ler.

However, the seller shall be entitled for compensotion free period of six (6) within the time months in cose the construction is not period mentioned above.

The seller on obtain certificate for occupation and use by the Competent Authorities ll hond over the Unit to the Purchaser for this occupotion and use nd subject to the Purchqser having complied with all the terms an application form & Agreement To sell. ln the event conditions of this his failure to take over and /or occupy ond use the unit provision and/or finally in writing by the No.3848/2023 and 1 other IT({frfq -qia allotted within 30 days from the dote of intima Page 19 of 26 HARERA ffiGURUGRAI,I 26. government/regulatory authori reason beyond the control incorporation of such conditi heavily loaded in favou even a single defaul may make the po the commitment incorporation of just to evade the li deprive the allottee just to comment as to how :H'ffi::HH[i 27.

Dlte aate or nanG [g situated and has not obtained the occupation certi t No.

3848/2023 and 1 other seller, then the some sholl lie at his/her risk and cost nd the Purchaser sholl be liable to compensation @ P,s.7/- per sq. ft. e super oreo per month as holding charges for the entire period of de\ay..........." At the outset, it is relevant to comment on the pres possession clause of bjected to providing the agreement wherein the possession has been s necessary infrastructure specially road, sewer & ter in the sector by the government, but subject to force majeure conditions or any s action, inacti n or omission and The of this clause and only vague and uncertain but so nst the allottee that as per the plan rpose of allottee and ses its meaning.

The ll by the promoter is f subject unit and to elay n possession. ossession.

This is misused dominant position t and the allottee of grace period: As per clause 4.2 of the agreement to sell, e possession of the allotted unit was supposed to be offered within a ulated timeframe of 24 months plus 6 months ofgrace period, in case complete within the time frame specified.

It is a respondent has not completed the proiect in whi the allotted unit is te by January 2019. construction is not of fact that the Page 2o of 26 / HARERA MOURUGI?AI/ However, the fact cannot be ignored that there beyond the control of the respondent which led to the pro.iect.

Accordingly, in the present case the gra is allowed.

Admissibility of refund along with prescribed complainant intends to withdraw from the project of the amount paid by it in respect of the subject Rule 75, Prescribed rate ol interest- [proviso to and sub-section (4) qnd subsection (7) ofsection 7gl A) Fot the purpose of proviso to section 12; section ft) and (7) oI section 19, the .,interest ot the ro the State Bank of lndio highest marginal cost ofle Provided that in case the State Bank of tndio m prcscribed rate as provided under rule 15 of the ru reproduced as under: rate IMCLR) is not in use, it shall be replaced lending rates which the State Bonk of India mqy for lending to the general public.

29.

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

The rate of interest so determined b reasonable and if the said rule is followed to awa ensure uniform practice in all the cases.

30.

Consequently, as per website of the State https://sbi.co.in. the marginal cost of lending rate (i date i.e., 07.08.2024 is 9o/o, Accordingly, the pres will be marginal cost of lending rate +Zo/o i.e.,l1.o/o.

31.

On consideration of the documents available on submissions made by the parties, the Authority Page2lof26, Complai t No. plai t No.

3B4B/2023 and other were circumstances elay incompletion of period of 6 months te of interest: 'fhc d is seeking refund unit with interest at es.

Rule 15 has been 12, section 1B B; ond sub-sections prescribed" sholl be ding rote +20/a.: in0l cost oflending by such benchmork Irom time to time gislation under the e prescribed rate of the legislature, is the intcrest, it will ank of India short, MCLR) as on bed rate of interest record as well as satisfied that the HARERA OURUGRAM 32.

Keeping in view the fact withdraw from the proiect an by the promoter in promoter to compl accordance with the date specified the Act of 2016.

JJ.

The due date of pos table above is 77 .07 .2 after a passage of 5 years construction of the project. ln view of the ab t No.3848/2023 and 1 other respondent is in contravention of the provisions the Act.

By virtue of clause 4.2 of the agreement to sell executed be 17.01.2017 , the possession of the subject unit was a period of 24 months from the date of execution n the parties on which comes out to be 17.01.2079.

As far as grace period is concerned, .

Therefore, the due the same is allowed for the reasons quoted a date of handing over of possession rs 77.07 .?0L9. ottee/co plainant wishes to return o the amount received ln on failure of the sse on of the unit in of agreement r duly completed by ls er section 18(11 of as mentioned in the ', obseryes that even er the con on is complete be delivered within f buyer's agreement been made to the is of the view that nor the offer of posseSsion of the allotted unit h allottee by the respondent/promoter.

The authori the allottee cannot be expected to wait endlessly fo the unit which is allotted to it and for which it taking possession of paid a considerable amount of money towards the sale consideration. ideration. rther, the authority observes that there is no document place on reco from which it can be ascertained that whether the respondent has a lied for occupation is the status of certificate/part occupation certificate or w mentioned fact, the Page22of26 ' MHARERA #eunuennvr consideration and as ob Grace Realtech PvL Ltd, Vs, 5785 of 2079, decided "....

The occupa cleorly amo to wait nor cQn project......." Further in the j cases of ,fvewtech of U.P. and Ors.

2027- Sana Realtors (Civil) No.

13005 No.3848/2023 and 1 other allottee intend to withdraw from the project and is well within the right 16. to do the same in view of section 18(1) of the Act, 2 34.

Moreover, the occupation certificate/completion ce ficate of the project by the respondent allottee cannot be where the unit is situated has still not been obtai /promoter.

The authority is of the view that th expected to wait endlessly for taking possession the allotted unit and for which he has paid a considerable amou towards the sale Supreme urt of India in lreo Khanna & civil appeal no. s on date, which cqnnot be made ollotted to them, Phose 1 of the urt of India in the Limited Vs Stote rel ated in case of M/s India & others SLP observed: 25.

The unquolified right of the ollottee to seek refund r.

1B(1)(o) ond Section 19(4) of the Act is not Under Section on any contingencies or stipulotions thereof. lt oppears that legisloture hos consciously provided this right of refund on demond an unconditional obsolute right to the ollottee, if the promoter fails to ive possession of Vs Union t ,05.2022. it the apartment, plot or building within the time sti terms of the agreement regardless of unforeseen even the Court/Tribunal, which is in either woy not o lated undet the or stoy orders oI ibutable to the qllottee/home buyer, the promoter is under an oblig to refund the qmount on demand with interest qt the rate bed by the Stote under the Government including compensation in the manner p Page 23 of 26 HARIIA GURUG RIIA GURUGRAM 36.

Act with the proviso that il the qllottee does not wish the projecC he shall be entitled for interest for the honding over possession ot the rqte prescribed.,, The promoter is responsible for all obligations, functions under the provisions of the Act of Z0 regulations made thereunder or to the allottee as p under section 11( l(aJ.

The promoter has failed to give possession of the unit in accordance with the sale or duly completed by the date specified the promoter is liable to the allottee, as the allottee wi the project, without prejudice to any other remed the amount received by it in respect of the unit wi as may be prescribed.

37.

Accordingly, the non-compliance of the mandate 11[4)(a) read with section 18(1J ofthe Act on the p is established.

As such, the complainant is entitled t amount paid by it at the prescribed rate of interes State Bank of India highest marginal cost of I applicable as on date +270) as prescribed under Real Estate (Regulation and Development) Rules, Z each payment till the actual date of refund of th timelines provided in rule 16 of the Haryana Rules Z G.

Il Direct the respondent company to pay a towards the cost of the litigation. 'lhe complainant is seeking above mentioned reli Hon'ble Supreme Court of India in civil appeal no titled as M/s tvewtech Promoters and Developers Up & Ors, (supra), has held that an allottee 38.

Complai t No.3848/2023 and other to withdrow fron riod of deloy Lill responsibilities, and 6, or the rules and agreement for sale omplete or unable to of agreement for in.

Accordingly, the es to withdraw from available, to return interest at such ratc ntained in section of the respondent refund of the entire i.e., @11% p.a. [the nding rare (MCLR) e 15 of the Haryana 17 from the date of amount within thc 17 ibid. ost of Rs.1,00,000/- w.r.t. compensation.

67 45-67 49 of 2021 Ltd.

2021 Ltd.

V/s State of s entitled to ciaim Paga 24 of 26 v ffiHARERA ffi eunuennl,l compensation and litigation charges under section 19 which is to be decided by the adjudicating office the quantum of compensation and litigation expens the adjudicating officer having due regard to the section 72.

The adjudicating officer has exclusive ju the complaints in respect of compensation.

There advised to approach the adiudicating officer for compensation and litigation expenses.

H.

Directions ofthe authority 39.

Hence, the authority hereby passes this order directions under section 37 of the Act to ensure co cast upon the promoter as per the function en under section 34(l): i.

The respondent/promoter is directed to received by it from each of the complainan at the rate of 11% p.a. as prescribed under r Real Estate (Regulation and Development) date of each payment till the actual date of amount. ll.

A period of 90 days is given to the respond directions given in this order and failing whi would follow.

The respondent is further directed not to rights against the subject unit before full rea amount along with even if, any transfer interest thereon is initiated with lll. respe Complai t No.3848/2023 and 1 other 72,14,18 and section as per section 71 and shall be adiudged by ctors mentioned in sdiction to deal with , the complainant is seeking the relief of issues pliance the following of obligations the authority ed to to th refund the amount ) along with intercst le 15 of the Haryana ules,2017 from the fund of the deposited to comply with the legal consequenccs eate any third-party ization of the paid-up complainant(s), and to subiect unit, the PaEe 25 of 26 1/ HARER} MGURUORAII receivable shall be first utilized allottee/complainantIs).

40.

This decision shall mutatis mutandis apply to ofthis order.

41.

Complaint stands disposed off.

42.

File be consigned to registry.

Dated; 07.08.2024 HARE GURUGI clearing dues of mentioned in para 3 No. para 3 No.3848/2023 and 1 other ) Flstate atory Gurugram PaBe26 ol26