SURINDER AHLAWAT AND MRS SAVITRI AHLAWAT vs SUPERTECH LIMITED

Complaint no. : First date of hearing: Date of decision : 2361 of ZOZL 02.08.2027 13.05.2025 1.

Surinder Ahlawat 2.

Savitri Ahlawat R/o: - House No.

653/21, Sant Colony, Railway Road, Bahadurgarh, District Ihajjar Versus M/s Supertech Limited M/s Sarv Realtors Pvt.

Ltd.

Registered Office: L114, 11tt' Floor, Hemkunt Chambers, 89, Nehru Place, New Delhi - 110019 CORAM: Shri Arun Kumar Shr:i Vijay Kumar Goyal Shr:i Ashok Sangwan APPEARANCE: None Sh.

Bhirgu Dhami Sh, Rohit Arora Complainants Respondents Chairman Member Member Counsel for ComPlainant Counsel for Respondent no.1 Counsel for Respondent no.2 HARER,$"', W* GUIlUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ORDER 1.

Ther present complaint dated 09.06.2021 has been filed by the conrplainants/allottees under section 31 of the Real llstate fltegulation and Development) Act, 2016 [in short, the Act) read with rule 2B of the Haryana Reral Estate fRegulation and Development) Rules, 2017 [in short, the Rules) for violation of section 11(4)[aJ of the Act wherein it is inter olia prescribed that the Complaint No.

2361 ot 20'21' Page 1 of28 A.

2. ffiHARER* ffi eunuenArv prontoter shall be responsible for all obligations, responsibilities and functions underr the provisions of the Act or the Rules and regulations made there under or to the allottees as per the agreement for sale executed inter se.

Unit and proiect related details The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: S.No.

Particulars Details 1,.

Name of the project Supertech Hues, Sector-68, Gurugrant 12210L 2.

Project area 55.5294 acres 3.

Nature of proiect Group Housing Colon 4.

RERA registered/not registered Registered vide registration no.

1,82 of 201'7 dated 04.09.2017 Validity Status 31,.L2.2021 5.

DTPC License no.

106 & 107 of 2013 dated 26.t0.2013 Validity status 25.12. tus 25.12.2017 Name of Iicensee Sarv Realtors Pvt.

Ltd & Ors.

6.

Unit no.

1001, on 10th floor, (Page no, 2l of complaintJ 7.

Unit tentatively measuring 1180 sq. ft. super area fPaee no.2t of complaint B.

Date of Booking 29.03.201,4 fPage no.21. of comPlaint 9.

Date of execution of Builder developer agreement.

02.02.2016 (page 20 of comPlaint) 10" Possession clause as per buyer developer agreement The possession of the allotted unit shall be given to the allottee/s by the company by IULY 2018.

However, this period can be extended for a further grace period of 6 months.

LL.

Due date of possession ULY 2018 + 6 month5 = fanuary 2019 12.

Basic sale consideration Rs.90,46,680/- [Page 22 of the complaint) 13.

Total amount paid by the complainant Rs.27,35,944/- i _l Complaint No.2361 of 20)1, PageZ of28 L- ffiHARER* ffi.

GUnuGRAM Complaint No, 2361 of 2021, The complainants have made the following submissions in the complaint: I.

I'hat the complainant had purchased a residential unit bearing No.

1QQ l, 1 gtt, floor, admeasuring 1180 Sq.ft. in the said in the project known as "supertech [lues" Revenue Estate of Village Badshahpur, Sector-68, Gurugram -1,22001, for a total sale consideration of Rs.

88,82,660/-.

The said unit was purchased on a possession linked plan and the amount had to be paid to the builder as the work of the project progresses on various stages.

At that time a few installments were due and the complainant had given Rs.

27,35,9441- approximately to the respondent as per possession linked plan.

II.

I'hat as per the demands of the respondent, the complainants had deposited total amounting to Rs.

27,35,9441- in installments.

III. l'hat after taking the money, the respondent failed to deliver the possession as per the terms and conditions of the agreement that the possession of the said premises to be delivered by the developer to the complainants by July, 21018 with grace period of six months. ix months.

The respondent has failed to deliver the possession of the above said unit within prescribed time period.

But still after elapsed many years after taking huge hard earned money from various investors, the respondent has intentionally and deliberately did not deliver the possession of the flats.

IV.

That complainants at the time of booking of the unit and also at the time of signing of the buyer developer agreement on 02.02.2016 were repeatedly etssured that the project would be completed in stipulated time period and the possession of the flat to them would be given as per planned schedule i.e. till July, 201,8 with grace period of six months.

However, the contractual B.

3.

Page 3 ofZB 14.

I Occupation certificate i ruot obtained -- 15.

I Offer of possession i ruot offered ffiHARERE ffi- eunuGRAM Complaint No.

2361 of 2021 delivery of the possession of the unit to complainants by the respondent was f uly,201B.

V. 'l'hat it is abundantly clear by the act and conduct of the respondent that they have not only defrauded the complainants, but also have violated the terms and conditions of the agreenlent.

It is apparent that the respondents have provided deficient services, are guilty of unfair trade practices, and have planned to fleece the complainants of their hard-earned money in a well directed and pre-planned manner.

VI.

I'hat the actions of the respondent are violative of the principles of natural justice and the services rendered are deficient, malafide, unfair, unjust ancl itlegal as have been shown in the preceding paragraphs.

The said practices are against principal of natural justice and the respondent is liable to be severely deprecated by this Hon'ble Authority.

VII. l'hat the respondent has caused monetary losses to the complainant and has clenied them the right to enjoy the property for which they have already paid rnajor amount.

Even more damaging, they have caused immense mental agony, confusion, insecurity and pain to the complainants.

VIII. nts.

VIII. l'hat the complainants have also further incurred costs towards the legal/documentation and other expenses due to no fault of' their own.

That the complainants have until date deposited Rs, 2 7 ,35,944 / - i.e.35o/o of total amount in furtherance of the terms and conditions of buyer developer agreement with the respondent as per their demands raised.

IX.

That the act and conduct of the respondent amounts to grave deficiency in service and unfair trade practice of the highest degree. 'l'he respondent has caused great mental agony and physical harassment to the complainants.I'he complainants have paid such a huge amount after collecting their life's savings with hope to move into their own apartment in the NCR region.

Page 4 of28 ffiHARER. ffi- sunlrcRAM X. 'l'hat the respondent is guilty of deficiency in service as per Act.

The complainants have suffered on account of deficiency in service by the respondent.

As such the respondent is fully liable to deliver the possession of the above said unit along with penalty of Rs.

5 /- per sq.ft. of super area of the unit per month for any delay in handing over possession of the unit.

XI. l'hat the respondent has retained the hard earned money of the complainant and has failed to render specific service of providing a unit on time to the complainants and now the respondent flatly refused to deliver the possession.

XII.

That in the period following the making of the above stated payments, the r:omplainants gradually came to realize that the promises of timely possession of the above unit were nothing but false assllrances and misrepresentations on the parts of the respondent.

There have been a s;ituation where the respondents have failed to deliver possession of the constructed unit as per the schedule that had been promised by the respondent 36+6 months from the date of execution of the buyer's agreement.

XIII. ent.

XIII. 'fhat it was at this stage that the complainants again contacted the representatives of the respondent to find out status of unit handing over. 'l'he r:omplainants sought information on the tentative timeline for possession by ,way of a clear and firm assurance by the respondent that they shall complete the project on time.

Much to their dismay, the respondent refused to provide iany such assurance.

XIV.

That it is abundantly clear by the act and conduct of the respondent that they have not only defrauded the complainants, but also have violated the terms of the builder's buyer agreement by not offering possession within stipulated time period.

It is apparent that the respondent has provided deficient Complaint No.

2361 of '2021 Page 5 of 28 Complaint No.

2361 of 2021 services are guilty of unfair trade practices, and have planned to fleece the complainant of their hard-earned money in a well-directed and pre-planned manner, Due to this, on the one hand, the complainant is deprived of moving into his own unit in the pre-agreed timeframe and, on the other hand, they are suffering additional loss because of blocked capital of a very heavy amount for no fault of their own.

XV.

That the actions of the respondent are violative of the principles of natural justice and the services rendered are deficient, malafide, unfair, unjust and illegal as have been shown in the preceding paragraphs. 'fhe said practices are against the tenants of ethical business and are liable to be severely deprecated by the Authority.

XVI. l'hat the respondent has caused monetary losses to the complainant and has denied them the right to enjoy the property for which they have already paid major amount.

That the complainants have also further incurred costs towards the legal/documentation and other expenses due to no fault of their own.

XVII. own.

XVII. 'l'hat the complainants have until date deposited Rs.

27,35,9441' in furtherance of the buyer's agreement with the respondent as per their clemands raised.

However, the respondent has failed to deliver/offer possession of their allotted unit to the complainants within the stipulated time.

XVIII.

That the act and conduct of the respondent amounts to grave deficiency in service and unfair trade practice of the highest degree.

The respondent has r:aused great mental agony and physical harassment to the complainant.

I'he complainant has paid such a huge amount after collecting their life's savings with hope to move into their own unit in the NCR region. ffiHARER,-i ffi. eunuennM Page 6 ofZB ffiHARER,':= #- gunuennM XIX.

As per clause no.

E (2$ of the agreement the possession of unit was to be handed over till fuly, 201,8.

So far, the complainant has not been offered possession which is violation of obligations/ responsibility as per the agreement.

XX.

That the respondent is guilty of deficiency in service as per Act. 'l'he complainant has suffered on account of deficiency in senu'ice by the respondent.

As such the respondent is liable to refund the entire amount of Rs, 27,35,944/- along with interest @ 240/o per annum from the date of payment till its actual realization.

XXI.

I'hat the complainants had filed a complaint bearing No.

CR/6779/2019 titled as Surinder Ahlawat Vs, Supertech Limited before Haryana Real E,state Regulatory Authority, Gurugram, whereby the Hon'ble Atrthority was prleased to pass that the complainant is entitled for delayed possession charges Under Section 1B[1) of the Real Estate (Regulation & Development) ltct,2016 at the prescribed rate of interest i,e.

9.300/o per annttm from the clue date of possession till the handing over of physical possession of the allotted unit on the amount deposited by the complainant with the respondent vide order dated 27.1.0.2020. .1.0.2020.

Respondents neither paid the delayed interest amount in compliance of order nor deliver the possession of the unit and there is no scope of handing over the above said unit in near future to the complainant by the respondent.

XXII.

That the complainant is running from pillar to post for her legal and lawful 6;rievances but the respondent did not pay any heed to the request of the r:omplainant and as such the complainant has suffered huge financial [oss, rnental agony, harassment, pain and suffering at the hands of the respondent.

Relief sought by the complainant: - D.

1,. complainr No.

2361 of 2021 The complainant has sought following relief[s): PageT ofZB I.

HAR[Q,;i GURUGtlAM 'Io direct the respondent with interest @ 24o/o per realization. to refund total amount of I1s.27,35,9441- along annum from the date of payment till its actual 2.

I L Cost of Litigation of Rs.

2,00 ,000 / -.

On the date of hearing, the authority explained to the respondent/promoter about the contraventions as alleged to have been committed in relation to section 11(4) (a) of the act to plead guilty or not to plead guilty.

Reply by the respondent no.1.

The respondent is contesting the complaint on the following grounds:- i.

It is submitted that the matter with respect to jurisdiction of the Hon'ble Authority or the Hon'ble Adjudicating officer is still pending adjudication before the Apex Court, thus no statutory vested jurisdiction being available with either the Hon'ble Authority or the Hon'ble Adjudicating officer, present complaint ought to be adjourned sine die till the final decision on the subject matter by the Hon'ble Apex Court, vesting jurisdiction to adjudicate upon refund matter either upon the Hon'ble Authority or the Hon'ble Adjudicating officer.

It is submitted that the order with respect to the Jurisdiction has been reserved by the Hon'ble Apex Court. pex Court.

That the complainant has already sought relief under section 1B of the Act and was awarded compensation vide order dated 07.1,0.2020 by HREIIA in complaint no.

CRl6779/2019.

Therefore, by the principle of lles-judicata the complainant is barred to make differed claims on the satne cause of action and extraneously benefit from the situation of the respondent.

Further, the Hon'ble Apex court has vide order dated 05.11.2020 issued a stay on the judgment and law as decided/declared by the Hon'ble Punjab and Haryana High Court vide judgment being CWP no.34271 / 2019.

C.

3. ii.

Complaint No.2361 of 2021t iii, Page B of28 iv. ffiHARER.. ffi- GURUGRAM viii. 'that the complaint filed by the cornplainant is not maintainable in the ltresent form and is filed on the false and frivolous grounds.

The bare reading of the complaint does not disclose any callse of action in favour ol the complainant and the present complaint has been filed with malafide intention to blackmail the respondent with this frivolous complaint.

It may be pointed out that the complainants have not been financially prejudiced in any way in as much as besides paying approx.

350/o of the amount, the respondent has not received any other moneys from him 'fherefore, they is not entitled to seek any refund over and above the amount mentioned herein above or any other relief prayed for.

Xt is subrnitted that the complainant after entering into agreements which r:learly specify the rights and obligations of parties cannot wriggle out of its r:bligations merely on its whim and fancies and more over merely on the ground of financial difficulties without substantiating the said averment. 'fhe complainant may be put to strict proof in this regard. vii.

As being the regular benefactor through means of wrongful gains, the ,complainant has strictly failed to abide by the terms of the clause F of the builder buyer's agreement which clearly defines the process of cancellation and loss it can cause to both the buy th the buyer and the developer.

Without prejudice to the afore said, the delay if at all, has been beyond the control of the respondents and as such extraneous circumstances would be categorized as "Force Majeure and would extend the timeline of handing over the possession of the unit, and completion the project.

The delay in construction was on account of reasons that cannot be attributed to the respondent.

The agreements provide that in case the developer/respondent delays in delivery of Linit for reasons not attributable to the developer/respondent, then the developer/respondent vi.

Complaint No.2361 of 202L ix.

Page 9 of 28 ffiHARER,,, #* GURuenArv Complaint No.

2361 of 2021 would be entitled to proportionate extensiotr of time for completion of said project.

The relevant clauses which relate to the time for completion, offering possession extension to the said period is "clause L under the heading "possession of floor/ apartment" of the agreement.

The respondent seeks to rely on the relevant clauses of the agreement at the time of arguments in this regard. x, In view of the force majeure clause, it is clear that the occurrence of delay in case of delay beyond the control of the respondent, including but not limited to the dispute with the construction agencies employed by the respondent for completion of the project is not a delay on account of the respondent for completion of the project. xi.

That with respect to the present agreement, the time stipulated for delivering the possession of the unit was on or before f uly 2018.

However, the agreement duly provides for extension period of 6 months over and above the said date.

Thus, the possession in strict terms of the agreement was to be handed over in and around December, 201,8.

However, the proposed possession date was subject to the force majeure clause. xii.

The project got inadvertently delayed owing to the above noted force majeure events. re events.

Further, since March, 2020, as owitrg to the nationwide Govt, imposed lockdown, no construction/ development could take place at site.

Owing to the lockdown, the construction labour workers were forced to return to their native villages and thus, even at the unlocking stage no conclusive construction/development could take place at site" Such a long break in construction has put the project many milestones back.

However, the respondent has dedicated itself to delivering the projects at the earliest. xiii.

Due to the Covid condition and the its devastating effect on the lndian economy specially the real-estate sector arranging of funds for completion Page 10 of28 ffi ,l!*ffi HARER,,, GURUGI?AM Complaint No.

2361 of 2021 of projects has become an impossible task as the banks and NBFC's have made it difficult for builders to apply for loans for completion of pending projects.

However, the respondent undertakes to handover possession of the subject unit at the earliest. xiv. lt is a known fact that the delivery of a project is a dynamic process and heavily dependent on various circumstances and contingencies.

In the present case also, the respondent had endeavored to deliver the property within the stipulated time.

The respondent earnestly has endeavored to deliver the properties within the stipulated period but for reasons stated in the present reply could not complete the same. xv.

It is submitted that the timeline stipulated under the agreements was only tentative, subject to force majeure reasons which are beyond the control of the respondent.

The respondent endeavour to finish the construction within the stipulated time, had from time to time obtained various licenses, approvals, sanctions, permits including extensions, as and when required.

Evidently, the respondent had availed all the licenses and permits in tinte before starting the construction. xvi. tion. xvi.

Despite the best efforts of the respondent to handover timely possession of the residential unit booked by the complainant herein, the respondent could not do so due to certain limitations, reasons and circumstances beyond the control of the respondent.

Apart from the defaults on the part of the allottees, like the complainant herein, the delay in completion of project was on account of the following reasons/circumstances like: i.

Implementation of social schemes like National Rural Employment Guarantee Act ("NREGA") and |awaharlal Nehru National Urban Renewal Mission ("|NNURM"), there was a significant shortage of labour/ workforce in the real estate market as the available labour Page 11 ofZB LHRERra had to return to their respective states due to guaranteed employment by the Central/ State Government under NREGA and INNURM Schemes.

This created a further shortage of labour force in the NCR region.

Large numbers of real estate projects, including that of the Answering Respondent herein, fell behind on their construction schedules for this reason amongst others. 'l'he said fact can be substantiated by newspaper articles elaborating on the above mentioned issue of shortage of labour which was hampering the construction projects in the NCR region.

This certainly was an unforeseen one that could neither have been anticipated nor prepared for by the Respondent while scheduling their construction activities. ii.

That such acute shortage of labour, water and other raw materials or the additional permits, licenses, sanctions by different departments were not in control of the respondent and were not at all foreseeable at the time of launching of the project and commencement of construction of the project.. 'Ihat the intention of the force majeure clause is to save the performing party from the consequences of anything over which he has no control. o control. 'fhus, in light of the aforementioned it is most respectfully submitted that the delay in construction, if any, is attributable to reasons beyond the r:ontrol of the Answering Respondent and as such the Answering Respondent may be granted reasonable extension in terms of the Agreement. , ent to the above, it is public knowledge, and several Courts and quasi- judicial forums have taken cognisance of the devastating impact of the Demonetisation of the Indian economy, on the real estate sector.

The real Complaint No.

2361 of 20'2L iii.

Page 12 of 28 GURUGI?AM HARER,.',*r W* GURUGRAM erstate sector, is highly dependent on cash flow, especially with respect to Jrayments made to labourers and contractors.'l'he advent of demonetization led to systemic operational hindrances in the real estate sector, whereby the Answering Respondent could not effectively undertal<e construction of the project for a period of 4-6 months. lJnfortunately, the real estate sector is still reeling from the aftereffects of demonetisation, which caused a delay in the completion of the project.

The said delay would be well within the definition of 'Force Majeure', thereby extending the time period for completion of the project. 'lhat the complainant has not come with clean hands before this Flon'ble Forum and have suppressed the true and material facts from this Hon'ble Forum.

It would be apposite to note that the Complainant is a mere speculative investor who has no interest in taking possession of the apartment. 'Ihat the project "HUES" is registered under the Haryana Real Estate Regulatory Authority vide registration certificate no.

182 of 2017 dated 04.09.2017.

The Authority had issued the said certificate which is valid for a period commencing from 04.09.2017 to 3L.1,2.2021-.

Thus, in view of the said registration certificate, the respondent hereby undertakes to complete the said project by June 2022. vi.

2022. vi.

That the possession of the said premises was proposed to be delivered by the respondent to the Complainant by fuly 2018 with an extended grace period of 6 months which comes to an end by December, 2018.

The completion of the building is delayed by reason of Covid - 19, non- availabiliry of steel and/or cement or other building materials andf or water supply or electric power andl or slow down strike as well as insufficiency of labour force which is beyond the control of Answering Complaint No.

2361 of 2021 iv.

V.

Page 13 of28 ffi'HARERT+ ffi. gunUGRAM Complaint No.

2361 of 2021, Respondent and if non-delivery of possession is as a resLllt of any act and in the aforesaid events, the Answering Respondent shall be liable for a reasonable extension of time for delivery of possession of the said premises as per terms of the agreement executed by the complainant and the Respondent.

The Answering Respondent and its officials are trying to complete the said project as soon as possible and there is no malafide intention of the Answering Respondent to get the delivery of project, ctelayed, to the allottees.

It is also pertinent to mention here that due to orders also passed by the Environment Pollution (Prevention & Control) Authority, the construction was I has been stopped for a considerable Jreriod of days due to high rise in Pollution in Delhi NCll.

That the enactment of RERA Act is to provide housing facilities with modem clevelopment infrastructure and amenities to the allottees and to protect the interest of allottees in the real estate sector market.

The main intention of the Answering Respondent is just to complete the project within stipulated time submitted before the HIIERA Authority.

According to the terms of Agreement also it is mentioned that all the amount of delay possession will be completely paidl adjusted to the complainant at the time of final s;ettlement on slab of offer of possession. viii. ion. viii. 'lhat in today's scenario, the Central Government has also decided to help llonafide Builders to complete the stalled projects which are not constructed due to scarcity of funds.

The Central Government announced 11s.25,000 Crore to help the Bonafide Builders for completing the Stalled/ unconstructed projects and deliver the homes to the I-lomebuyers.

It is submitted that the Answering llespondent/Promoter, being a bonafide Builder, has also applied for llealty Stress Funds for its Gurgaon based projects.

The said news was also published in Daily News/Media. vii.

Page 14 ofZB HARER,i:' ffi- GURUGRAM ix. 'fhat the project is an ongoing project and orders of refund at a time when the real-estate sector is at its lowest point, would severally prejudice the development of the project which in turn would lead to transfer of funds which are necessary for timely completion of the project.

It is most humbly submitted that any refund order at this stage would severally prejudice the interest of the other allottees of the project as the diversion of funds would severally impact the project development.

Thus, no order of refund may be passed by this Hon'ble forum in lieu of the present prevailing economic crisis and to safeguard the interest of the other allottees at large.

That the complainant cannot unilaterally cancel/withdraw from the project at such an advance stage as the same would fly in the face of numerous judicial pronouncements as wellas the statutory scheme as proposed under the Real Estate [Regulation and Development) Act, 201,6.

That the Hon'ble Supreme Court in its judgment of Pioneer Urban Land and Infrastructure Limited & Anr.

Union of India & Anr., the Supreme Court has nuanced a balanced approach in dealing with legitimate builders.

Furthermore, the Court has laid emphasis on the concept of "legitimate/bonafide buyers" whereby one cannot be considered a homebuyer if he/she is not willing to see the project to its end or is investing in the proj n the project with a speculative mindset, to withdraw his,/her money before giving credence to the project.

The said reasoning has also been used by the Hon'ble National Company Law Appellate 'l'ribunal in its judgment titled "Navin Raheja v.

Shilpi Jain and Ors.". 'fhe Hon'ble NCLAT was even more strenuous in its approach whereby it called these speculative investors as trigger-happy investors who ignite the flame which may very well lead the genuine developer company to its death.

Complaint No.

2361 of 2021.

X. xi.

Page 15 of28 HARER,.I ffi" GUI?UGI?AM xii.

That when the parties have contracted and limited their liabilities, they are bound by the same, and relief beyond the same could not be granted. xiii.

Further, compounding all these extraneous considerations, the Hon'ble Supreme Court vide order dated 04.1,L.2019, imposed a blanket stay on all construction activity in the Delhi- NCR region.

It would be apposite to note that the "HUES" project of the respondent was under the ambit of the stay order, and accordingly, there was next to no construction activity for a considerable period.

Similar stay orders have been passed during'winter period in the preceding years as well, i.e.

2017-2018 and 2OlB-2OIg.

A complete ban on construction activity at site invariably results in a long- term halt in construction activities.

As with a complete ban the concernecl Xabor is let off and the said travel to their native villages or look for work in r:ther states, the resumption of work at site becomes a slow process ancl a steady pace of construction in realized after long period of time. xiv. 'that Graded Response Action Plan targeting key sources of pollution has been implemented during the winters of 2017 -LB and 2OIB-19, these short- term measures during smog episodes include shutting down power plant, industrial units, ban on construction, ban on brick kilns, action on waste burning and construction, mechanized cleaning of road dust, etc. dust, etc.

This also includes limited application of odd and even scheme. xv. lJnfortunately, circumstances have worsened for the respondent and the real estate sector in general.

The pandemic of Covid 19 has had rlevastating effect on the world-wide economy.

However, unlike the agricultural ancl tertiary sector, the industrial sector has been severally hit by the pandemic. '[he real estate sector is primarily dependent on its labour force and consequentially the speed of construction.

Due to government-imposeri lockdowns, there has been a complete stoppage on all construction Complaint No.

2361 of 2021, Page 16 of28 HARERit ffi, GURUGI?AM activities in the NCI1 Area till |uly, 2020.

In fact, the entire labour force employed by the respondent was forced to return to their home towns, leaving a severe paucity of labour.

Till date, there is shortage of labour, and as such the respondent has not been able to employ the requisite labour necessary for completion of its projects. l'he Hon'ble Supreme Court in the seminal case of Gajendra Sharma v.

UOI & Ors, as well Credai NICHI & Anr. v' UOI & Ors, has taken cognizance of the devastating conditions of the real estate sector, and has directed the UOI to come up with a comprehensive sector specific policy for the real estate sector.

In view of the same, it is most humbly submitted that the pandemic is clearly a 'Force Majeure' event, which automatically extends the timeline for handing over possession of the apartment.

Hence, the complainant is not entitled for any compensation or refund claimed except for delayed charges as per clause 25 of the agreement.

0n 10.1,2.2024, the respondent no.2 was directed to file the reply within stipulated time period.

Further, on 11,.03.2025, the respondent was again directed to file reply to the main complainant within L5 days, However, despite specific directions, the respondent no.

2 failed to file the written reply and has failed to comply with the order of the Authority.

Authority.

It shows that the respondent is intentionally delaying the proceedings of the Authority by non-filing of written reply, Thus, the defence of the respondent was struck off for not filing reply and is being decided on basis of facts and documents submitted with ther complaint which are undisputed.

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

I'heir authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission made by the parties. )urisdiction of the Authority Complaint No.

2361 of 2021 4.

5.

E.

Page1^T ofZB I{ARERPe ffi. su[ucttAM The Authority observes that it has territorial as well as suhject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.l Territorial iurisdiction As per notification no.

1/92/2077-7TCP dated 74.72.2077 issued by.fown and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram District.'l.herefore, this authority has complete territorialjurisdiction to deal with the present complaint.

E.ll Subiect matter jurisdiction Section 11(4)[aJ of the Act,201.6provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(a)[a) is reproduced as hereunder: Section 11 ft) The promoter shall- (a) be responsible for all obligations, responsibitities and functions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the ogreement fir sale, or to the association of allottees, as the case may be, till the conveyance of all the apartments, plots or buildings, as the case may be, to the allottees, or the common areas to the association of allottees or the competent autho,,ity, as the case may be; Section 34-Functions of t tions of the Authority: 3a(fl of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and regulations made thereunder.

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 decicled by the adjudicating officer if pursued by the complainant at a later stage.

Further, the Authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgment passed by the 6.

7.

B.

9.

10.

Complaint No, 2361 of 2021 Page 1B of28 lt.

F.

12. ffiHARERT, #" eunuennrv complaint No.

2361 of 2027 Hon'ble Apex Court in Newtech Promoters and Developers Private Limited Vs State of U,P. and Ors.' SCC Online SC 7044 decided on 77.11.202I wherein it has been laud down as under: 86.

From the scheme of the Act of which a detailed reference has been made and taking note of power of adjudication delineated with the regulatory authority and adiudicating officer, what finally culls out is that althctuglh the Act indicates the distinct expressions like 'refund', 'interest', 'penalty' and 'compensatiott', a conjoint reading of Sections 1B and 19 clearly manifests that when it comes to refitnd of the amot)nt, and interest on the refund amount, or directing payment of interest for delayed delivery of possession, or penalty ond interest thereon, it is the regulatory authority which has the power to examine and determine the outcome of a complaint.

At the same time, when it comes to a question of seeking the relief of adjudging compensation and interest thereon under Sections 12, 14, 18 and 19, the adjudicating officer exclusivery has the power to determine, keeping in view the collective reqding of Section 71 read with Section 72 of the Act. f the Act. if the adjudication under Sections L2, 14, 1B and 19 other than compensation as envisaged, tf extended to the adjudicating officer as prayed thot, in our view, may intend to expand the ambit and scope of the powers and functions of the adjudicating officer under section 71 and that would be against the mondate of the Act 2016.

Hence, in view of the authoritative pronouncement of the Hon'ble Supreme Court in the cases mentioned above, the Authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

Findings on objections raised by the respondent no.

1 F.l Obiections regarding force majeure.

The respondent-promoter alleged that grace period on account of force majerure conditions be allowed to it.

It raised the contention that the construction of the project was delayed due to force majeure conditions such as demonetization, and the orders of the FIon'ble NGT prohibiting construction in and around Delhi and the Covid-L9, pandemic among others, but all the pleas advanced in this regard are devoid of merit. 'the flat buyer's agreement was executed between the parties on 02.02.2016 and as per terms and conditions of the said agreement the due date of handing over of trlossession comes out to Page 19 of28 HARERIT GUI?UGr?AM Complaint No.

13.

But all the pleas advanced in this regard are devoid of merit.

Therefore, it is ffi ds be f anuary 2019, which was prior to the effect of Covid-l9 on above project could happen.

The Authority put reliance judgment of Hon'ble Delhi High Court in case titled as M/s Halliburton Offthore Services Inc.

V/S Vedanto Ltd. & Anr. bearing no. o.M.P (I) (comm.) no.

Bs/ z0z0 and I.As 3696-3697/2020 dated 29.05.2020 which has observed that- "69.

The past non-performance ofthe contractor connot be condoned due to the CovlD-19 lockdown in March 2020 in India.

The contractor was in breach since September 20L9. mber 20L9.

0pportunities were given to the contractor to cure the same repeatedly.

Despite the same, the contractor could not complete the Project.

The outbreqk of a pandemic cannot be used as an excuse for non- performance of a contract for which the deadlines were much before the outbreak itself," ': ; nothing but obvious that the project of the respondent was already delayed, and no e;<tension can be given to the respondent in this regard.

The eve,nts taking place such as restriction on construction were for a shorter period of time and are yearly one and do not impact on the project being developed by the respr:ndent.

Though some allottee may not be regular in paying the amount due but the interest of all the stakeholders concerned with the said project cannot be put on hold due to fault of some of the allottees.

Moreover, the respondent pronloter has already been given 6 months grace period being unqualified to take case of unforeseen eventualities.

Therefore, no further grace period is warranted in account of Covid-19.

Thus, the promoter/respondent cannot be given any leniency based on aforesaid reasons and the plea advanced in this regard is untenable.

F.ll Obiection regarding CIRP against respondent no.

1 and consequent moratorium against proceedings against respondent no.1.

1,4. l{espondent no. t has stated that vide order dated 25.03.2022 passed by the Hon'ble NCLT, New Delhi Bench in case titled as Union Bank of India Versus M/s Supertech Limited, the Hon'ble NCLT has initiated CIRP respondent no.1 and Page 20 ofZB Complaint No.

2361 of 2021 impose moratorium under section 14 of the IllC, 201,6. 'l'he Authority observes that the project of respondent no.2 is no longer the assets of respondent no.

1 and admittedly, respondent no.2 has taken over all assets and liabilities of the project in question in compliance of the direction passed by this Authority vide detailed order dated 29.1,1.2019 in Suo-Moto complaint.

HARERA /GGNL/ SBOZ/2OL9.

Responclent no. nclent no.2 has stated in the reply that the MDA was cancelled by consent of respondent no.1 and respondent no.2 vide cancellation agreement dated 03.10.2019.

Thereon, respondent no.2 i.e., SARV Realtors Pvt.

Ltd. admittedly took responsibility to develop the project and started marl<eting and allotting new units under its name.

In view of the above, respondent no.Z remains squarely responsible for the performance of the obliSJations of promoter in the present matter.

So far as the issue of nroratorium is concerned, the projects Hues & Azalia stand excluded from the CIRP in terms of affidavit dated 19.04.2024 filed by SH.

Hitesh Goel, IRP for M/s Supertech Limited.

However, it has been clarified that the corporate debtor i,e., respondent no.1 remains under moratorium, Therefore, even though the Authority had held in the Suo-Moto proceedings dated 29.11,,2019 that respondent no.

1, &2 were jointly and severally Iiable for the project, no orders can be passed against respondent no.1 in the rnatter at this stage G.

Findings on the relief sought by the complainants.

G.l Direct the respondent to refund total amount of Rs.

27,35,9441- along with interest@Z4o/o per annum from the date of payment till its actual ffi,HARER," #. grnuennM realization.

G.ll Cost of litigation of Rs.2,00 ,000 /- The complainants have submitted that they initially filed No.

CR/6779/20L9, titled Surinder Ahlawat vs.

Supertech Limited, before the l\uthority in Gurugram.

The Authority, vide order dated 27.10,2020, held that the complainants are entitled to delayed possession charges unrler Section 1B[1) of the Act,2016, at the prescribed interest rate of 9.300/o per annunt, 15. a complaint bearing Page 2l of 28 ffiHARER,.', #- eunllbRAM calculated from the due date of possession until the actual handing over of physical possession of the allotted unit, on the arnount deposited by the complainants with the respondent. espondent.

However, the respondent has neither paid the delayed interest amount in compliance with the order nor handed over possession of the unit.

Furthermore, there appears to be no likelihood of possession being delivered in the near future.'fherefore, the complainants now wish to withdraw from the project. 'fhe initial complaint was filed Limited, for violating the provisions of The Real Estate [Regulation and Development) Act, 2016.

Where all the assets and liabilities whatsoever in nature, in the project "supertech Hues and Azalia" in the name of Supertech Ltd. be sLrifted to Sarv Realtors Pvt.

Ltd./DSC and others.

The relevant portion of the said order is reproduced here: vi.

All the assets and liabilities including customer receipts and project loans of whatsoever nature, in the Project "supertech Llues and Azalia" in the name of Supertech Ltd. be shifted to Sarv Realtors Pvt. l,td./DSC and others.

However, even after the rectificetion, Supertech Ltd. will continue to remain iointly responsible for the units marketed and sold by it and shall be severally responsible if Sarv Realtors Pvt.

Ltd./DSC and others fail to discharge its obligations towards the allottees 16.

The ,Authority further observes that vide registration bearing no.182 of 201,7 daterl 04.09.2017 valid upto 31.12.2021, for License bearing no.

106- 107 of 201,3:', 89 of 201.4 and 134-1,36 of 201,4 issued by the Department of'Town and Courrtry Planning, Haryana for an area 32.83 acres Group Housing Colony ["Hues Towers- A,B,E,F,G,H,M,N,K,T,V,W,O,P,C and D and Azalia Towers T-1,T- 2,T-3i,T-4,T- 5,T-6 & T-7) situated in Village Badshapur, Sector 68 are registered with the Authority.

In view of the same M/s Sarv Realtors Pvt.

Ltd, /DSC and others are bound to follow the order of the authority along with Supertech Ltd. as they are liable for all the assets and liabilities of Supertech Ltd. in connection to project Supertech Azalia and Supertech Hues.

Complaint No. plaint No.

2361 of 2021 Page22 ofZB ffi' d& HARER,*r GURUGt?AM Complaint No.

2361 of 2021 1B, 17.

Moreover, on hearing dated 1,1.03.2025, the counsel for the complainants clarifies that the refund is being sought from the M/s Sarv Realtors pvt. t,td. to whom the project has been handed over and impleadment has already been allowed by the Authoriry on 10.12.2024.

In the present complaint, the complainants intend to withdraw from the project and are seeking return of the amount paid by her in respect of subject unit along with interest.

Sec.

1 B(1) of the Act is reproduced below for ready ref'erence:- "Section 7B: - Return of amount and compensation 18(1)' lf the promoterfails to complete or is unable to give possession of an aplrtment, plot, or building. - (a)in occordancewith the terms of the agreementfor sale or, as the case may be, duly completed by the date specified therein; or (b)due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reeson, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: Provided that where an allottee does not intend to withclraw from the proiect, he shall be paid, by the promoter, interest for every monti of de,lay, till the handing over of the possession, at such rate as may lte prescribecl." (Emphasis supplied) As perr clause 1 of the buyer's developer agreement talks about the possession of the unit to the complainants, the relevant portion is reproduce as under:- POSSESSION OF UNIT: - 1.

The Possession of the allotted unit shall be given to the Allottee/s by the Company by July, 2018. uly, 2018.

The possessron clause is subject to the timely payment of oll instalments and other dues by the Allottee/s and the Allottee/s agrees to strictly abide by the same in this regard." Due date of handing over of possession and admissibility of grace period: As per clause 1 of the buyer developer agreement, the possession of the allotted unit rvas supposed to be offered by the luly 2O1B with a grace period of 6[six) months.

Since in the present matter the IIBA incorporates unqualified reason 1,9.

20.

Page 23 of28 21. ffiHARERT, ffi.a;RuennM Complaint No.

2361 of 20ZL for grace period/extended period of 6 months in the possession clause accordingly, the grace period of 6 months is allowed to the promoter being unqualified' l'herefore, the due date of possession comes out to lle January 2019.

Admissibility of refund along with prescribed rate of interest: I'he complainants are seeking refund the amount paid by them along with interest prescribed rate of interest.

The allottee intend to withdraw from the project and are seeking refund of the amount paid by them in respect of the subject unit with interest at prescribed rate as provided under rule 15 of the rules.

Itule 15 has been reproduced as under: Rule 75' Prescribed rate of interest- [Proviso to section I2, section 78 ond sub-section (4) and subsection (7) of section l9l (1) I"or the purpose of proviso to section 12; section 18; ancl sub-sections ft) anrl (7) of section 19, the "interest at the rate prescribed" shall be the State t3anl< of tndia highest marginal cost of lending rate +2?6.: Provided that in case the State Bank of lndia morginal cost of lencling rate (MCLR) is not in use, it shall be replaced iy such bencimark tending rates which the State Bank of tndia may fix from tinte to tinte for lending to the generol public. ol public.

The lergislature in its wisdom in the suborclinate legislation under the provision of rul: 15 of the rules, has determined the prescribed rate of interest.'l'he rate of inttlrest so determined by the legislature, is reasonable and if the said rule is follorn'ed to award the interest, it will ensure uniform practice in all the cases.

23. consequently, as per website of the state Bank of India i.e., ht_t marginal cost of lending rate fin short, MCL,R) as on date i.e., 13.05.2025 is 9'tvo/o' Accordingly, the prescribed rate of interest will be marginal cost of lending rate +Zo/o i.e., 1l.LTo/o.

24' The definition of term 'interest' as defined under section Z(za) of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall 22.

Sb.i.co.in, the Page24 of28 ffi'L.{ARER #-, eunuennHl be liable to pay the allottee, in reproduced below: case of default. 'fhe relevant section is "(za) "interest" meons the rates of interesL payable by the promoter or the allottee, as the case may be.

Explanation. -F'or the purpose of this clause_ (i) the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default; (ii) the interest payable by the promoter to the allottee shall be from the date the promoter received the amount or any part thereof till the date the amount or part thereof and interest thereon is refunded, and the interest payable by the allottee to the prontoter shalt be from the date the allottee defaults in payment to the promoter tiil the date it is paid;,, 25.

0n consideration of the documents available on record ancl submissions made by both the parties regarding contravention of provisions of the Act, the authr:rity is satisfied that the respondent is in contravention of the section 11(4)(a) of the Act by not handing ot handing over possession by the due dare as per the agreement.

By virtue of clause 1 of the agreement executed between the parties on 011.02.201,6, the due date of possession is f uly 2018.

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

Therefore, the due clate of handing over possession is Janua ry 201,9.

26.

It is ;rertinent to mention over here that even after a passage of more than tl years; neither the construction is complete nor the offer of possession of the allotted unit has been made to the allottee by the respondent/promoter. 'l'he Auth,crity is of the view that the allottee cannot be expected to wait endlessly fortakingpossession of the unitwhich is allotted to him and forwhich he has paid a considerable amount of money towards the sale consideration.

It is also to mention that complainant has paid almost 370/o of total consideration.

Further, the Authority observes that there is no document placed on record from which it can be ascertained that whether the respondent has applied for Occupation Certificate/Part Occupation Clertificate or what is the status of construction of the project.

In view of the above-mentioned facts, the allottee Complaint No.

2361 of 2021, Page 25 of28 27.

HABERP W"- GURUGI?AM intends to withdraw from the project and are well within the right to do the same in view of section 1B(1) of the Act,201,6.

Further, the occupation certificate/completion certificate of the project where the unit is situated has still not been obtained by the respondent/promoter. 'l'he authority is of the view that the allottees cannot be expected to wait endlessly for taking possession of the allotted unit and for which he has paid a considerable amount towards the sale consideration and as observed by Hon'ble Supreme Court of India in lreo Grace Realtech pvt.

Ltd, Vs, Abhishek Khanna & ors., civil appeal no. sTBs of 2019, decided on 77.07.2027 "....

2027 "....

The occupat'ion certificate is not available even as on date, which clearly omounts to deficiency of service.

T'he allottees cannot be made to wait indefinitely for possession of the apartments qllotted to them, nor can they be bound to take the apartments in phase 1 of the project,......,, Moreover, the Hon'ble Supreme Court of India in the cases oJ- Newtech Promoters and Developers Private Limited Vs State of U.p. and Ors. fsupra) reiterated in case of M/s sana Realtors Private Limited & other vs llnion of India & others SLP (Civil) No.

13005 of 2020 decided on 12.05.

ZOZ2.observecl as under: - "25.

The unqualified right of the allottee to seek refund referred IJnder Section 1B(1)(a) and Section rc@) of the Act is not dependent on ony contingencies or stipulations thereof.

It appears that the legislature has consciously provided this right of refund on den'tand as an uncon4itional absolute right to the allottee, if the promoterfails to give possession of the apartment, plot or building within the time stipulated under the term.s of the agreement regardless of unforeseen events or stay orders of the Court/Tribunal, which rs in either way not attributable to the allottee/home buyer, the promoter is under an obligation to refund the amount on demond with interest at the rate prescribed by the State Government including compensation in the manner provided under the ,1ct with the proviso that if the allottee does not wish to withdraw from the proiect, he shall be entitled for interest for the period of delay till handing over possession af the rate prescribed,,, The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 201,6, or the rules and regulations made 28, 29.

2361 of 20 21 Page26 of 28 thereunder or to the allottees as per agreement for sale under section 1 1(a) (a).

1(a) (a).

1'he promoter has failed to complete or is unable to give possessign of the unit in accordance with the terms of agreement for sale or duly completed by the date specified therein.

Accordingly, the promoter is liable to the allottee, as he wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of the unit with interest at such rate as may be prescribed.

30.

Accordingly, the non-compliance of the mandate contained in section 11t+)tal read with section 1B[1) of the Act on the part of the respondent is established.

As such, the complainant is entitled to refund of the entire amount paid by them at thc' prescribed rate of interest i.e., @ LL.100/o p.a. [the State l]ank of India higherst marginal cost of lending rate (MCLII) applicable as on date +2%) as presc:ribed under rule 15 of the Haryana Real Estate [Regulation and Deveiopment) Rule s,201,7 from the date of each payment till the actual date of refund of the amount within the timelines provided in rule 16 of the Haryana Rules 201,7 lbid.

H.

Directions of the authority 31' Hence, the authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of obligations casted upon the promoter as per the functions entrusted to the authority under section 3 [fJ of the Ar:t: i' l'he respondent no.2 i.e., M/s Sarv Realtors Pvt.

Ltd. is directecl to refund the amount received by it from each of the complainantfsJ along with interest at the rate of 1'1.100/o p.a. as prescribed under rule 15 of the Llaryana Real Estate [Regulation and Development) Rules, Z0l7 from the date of each payment till the actual date of refund of the deposited amount.

Page27 ofZB ffiHARER,' ffi- eunuennu Complaint No.

2361. of 2021 ii' A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences would follow. ld follow. iii.

T'he respondent is further directed not to create any third-party rights against the subject unit before full realization of the paid-up amount along vrith interest thereon to the complainants, and even if, any transfer is initiated with respect to subject unit, the receivable shall be first utilized f'or clearing dues of allottee/complainant. iv.

No directions are being passed in the matter qua respondent nos.

1 in view of the moratorium imposed under section 1,4 of the IBC in NCL,T case IB- 204 /ND /2021titled Union Bank of India versus M/s Supertech [,imited.

32.

Complaint stands disposed of.

33.

Files Lre consigned to registry. ffiHARERA ffiGURUGRnrvt (Ashok Haryana Real Estate R Uri:yt* t) Member {'IOh-.h, , (Arun Kumar) Chairman egulatory Autho rity, Gurugram Dated: 13.05.2025 Page 28 of 28