NILIMA JOSHI vs SUPERTECH LIMITED

HARERA GURUGRAM Complaint No.

1206 of 2021 1206 ot 2021.

04.o3.2021 17.o3.202s Chairman Member Member Counsel for Complainant Counsel for Respondent no, 1 Counsel for Respondent no.

2 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.

Date offiling: Date of decision Ms.

Nilima Joshi Regd.

Address: P-3, Narkeldanga Main Road, CIT Scheme Vi M, Kolkata, West Bengal-700054 Versus 1.

M/s Supertech Limited Regd. office: 114, 1[h floor, Hemkunt Chambers,89, Nehru Place, New Delhi-110019 Complainant 2.

M/S Sarv Realtors Pvt.

Ltd Regd. office: L14, 77th floor, Hemkunt Charnbers, 89, Nehru Place, New Delhi-110019 Respondents CORAM; Shri Arun Kumar Shri Vijay Kumar Goyal Shri Ashok Sangwan APPEARANCE: i Sh.

Saumyen Das (Advocate) Sh.

Bhrigu Dhami (Advocate) Sh.

Rohit Arora (Advocate) ORDER 1.

That the present complaint has been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and DevelopmentJ Act, 2016 (hereinafter referred as "the Act") read with rule Zg of the Haryana Real Estate (Regulation and Development) Rules,2017 (hereinafter referred as,,the rules,,) for violation of section 11(4)(aJ ofthe Act wherein it is inter alia prescribed that Page I of 25 HARERA S* GURUGRAIV Complaint No.

1206 of2021 2. the promoter shall be responsible for all its obligations, responsibilities and functions to the allottee as per the agreement for sale executed inter se parties.

A.

Proiect and unit related details The particulars of the pro)ect, the details of sale consideration, the amount paid by the complainant, date ofproposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Details Supertech H ues, 722101.

Sector-68, GuruSram- 55.5294 acres Group Housins Colon Registered vide registration no.

182 of 2077 dated 04.09.2017 237.72.202t 106 & 107 of 2013 dated 26.1,2.201,3 25.t2.2077 Sarv Realtors Pvt.

Ltd. & Ors.

1803, Tower G no.

17 of complaint 1180 sq. ft. super area Page no. a Page no.

17 of complaint 13.10.2 013 e no.14 of com laint 30.07.20L4 [Page 16 of complaint) POSSESSION OF UNIT: - I.

The possession of the allotted unit shall be given to the Buyer(s) by the Developer in 42 months i.e. by April 2017.

However, this period can be extended due to unforeseen clrcumstonces for a rther groce period of 6 monrhs. [Page 18 of the complaint 30.04.201.7+6months= (inadvertently mentioned as zojazolt Oct 201t] in Particulars Name of the project Proiect area Nature of Droiect RERA registered/not registered Validity Status DTPC License no.

Name of licensee Unit no.

Unit measuring Date of Booking Date of execution of Builder developer Possession clause Due date of possession Page 2 ol25 roceedins dated 11.03.2025 S.

No. l.

4.

5.

HARERA P* GURUGRAM Complaint No.

1206 of 2021 7L.

Total sale consideration Rs.90,16,000/- (page 17 of complaint) 1_2.

Total amount paid by the complainant Rs.55,56,447 /- (annexure C3, page 31 o complaint) 13.

Occupation certificate Not obtained 74.

Offer of possession Not offered --l-l A.

3.

Facts ofthe complaint The complainant has made the following submissions in the complaint: - a.

That the complainant is one such buyer who was Iured by the promoter/developer/respondent in purchasing a unit no.1g03, on 1t],f floor at tower G, having a super area of 1180.00 square feet, in the complex known as "Supertech Hues", located at Sector - 6g, Gurugram, Haryana (the said 'Unit').

At the time of the application, the respondent showed a very rosy picture of their proiect promising several amenities. b.

That the complainant booked the said unit with the respondent and initially paid an amount of Rs.

7,00,000/- on 13.10.2013 vide chequc bearing no.

829298 dated 10.10.2 013 for Rs.4,00,000/- drawn on yes IJank and cheque bearing no.

00298 dated 10.10.2013 for Rs.

3,00,000/_ drawn on Kotak Mahindra Bank. c. a Bank. c.

That after a gap of 8 months from the date of booking of the said unjt, thc promoter/developer offers to provide the buyer developer agreement. .l.he buyer developer agreement was executed on 30.07.2014 between the respondent and complainant for the said unit for a total sale consideration of Rs.

90,60,000/- inclusive of club membership, development charges, PLC, IFMS and covered car parking. d.

That as per clause 1 of possession of the unit of the said buyer,s agreement, the promoter/developer was required to deliver the possession ofthe sajd unit within 42 months (i.e. by April 2017).

A grace period of 6 months was Page 3 of25 HARERA MGURUGRANI given in case of delay; therefore possession was to be given not beyoncl 48 months.

The respondent has miserably failed to deliver the possession of the said unit within the promised time frame despite several requests of the complainant.

The respondent has failed to deliver possession of the said unit till date without citing any reason for delay in handing possessron ofthe said unit. e.

That the complainant duly complied with the payment plan and had already made a payment of Rs.55,5 6,4473 /- to the respondent out of total sale consideration of Rs.90,{,Q00/,;, but despite of the same, the respondent has failed to deliver the possesslon of the said unit till date. f.

That the complainant is suffering on the ground of economic hardship, mental and physical agony and due to which she is not able to lead normal life.

The said agreement is one sided agreement and arbitrary.

1'he agreement entitled the respondent to collect exorbitant amount from the complainant @20/o per month in case default, but it only offered a paltry sum of money as compensation in case of delay on the part of the respondent in delivering the sald unit.

The buyer,s agreement does not specify anywhere that in case of failure to deliver the timely possession o1. ession o1. the said unit, the buyer has the right to seek refund of the entire amount without any forfeiture.

The promoter has nowhere mentioned any remedial steps that the complainant can take in case ofdeficiency or failure of services.

Therefore, this agreement is totally unfair and one sided as pcr Section 18 ofthe Act, 2016. g.

That the respondent has never ever informed the reasons for the delay on their part in completing the project despite several requests from the complainant personally and otherwise.

The respondent is also guilty of never informing the complainant regarding progress of the proiect.

Flach Page 4 of25 Complaint No.

1206 of2021 HARERA ffi.

GURUGRAM h. l.

Complaint No.

1206 of 2021 time the complainant requested the respondent to provide the update and she was informed that the said unit would be delivered soon.

The said unit was supposed to be delivered latest by April 2017 and there is a delay of more than three years now.

That instead of informing the complainant regarding progress of the project, the respondent arbitrarily raised a demand of Rs.6,66,121/- against the said unit vide its emails daled 73.1,2.201,9 and 02.01.2020 and also sent an outstanding statement dated 07.1,2.2019 with the said emails.

That the complainant visited the site of the project and was shocked to know that the project is far from completion and the work was stopped at the project site.

The complainant at that time lost all the hope in the ability of the respondent in completing the project.

The complainant lvas devastated since despite the obvious delay of more than three years in completing the proiect, the respondent till date as not furnished the project and the same is far from completion.

The complainant therefore decided to withdraw from the proiect and seek refund. ek refund.

As per the buyer's agreement, the respondent/developer was to offer possession of the said unit followed by handing over possession ofthe said unit by April 2017 after completion of building consisting of 21st floor roof slab, top floor roof slab and MEP (Mechanical, Electrical and Plumbing) services.

But, as per website of the "Supertech Hues" project under project status, only work of 19th floor in progress for tower-G where the said unit is located and therefore, it is admitted position that the respondent till date has not finished the project and the same is far from completion even after lapse of more than threc years from the due date of delivery of possession.

Page 5 of 25 Compfaint No.

1206 of 2027 k.

That since the respondent neither replied to the legal notice nor refunded the amount along with interest despite receipt of the legal notice, the complainant again sent a reminder to the respondent vide her email dated 10.07.202 0, but the complainant has not received any revert/ confirmation from the respondent. l.

That the respondent has cheated and defrauded the complainant which is clear from the fact that the complainant had booked the said unit on 13.10.2013 and as per clause ofthe buyer,s agreement, the ljcense no.106 & 107 for the said project was granted by the Director General ofTown & Country Planning (DGTCP), Haryana to the respondent on 26.12.20t3.

Therefore, at the time of receiving the booking amount from the complainant, the respondent/ builder had no valid licence for development of the said Project. m.

That a substantial payment of Rs.

55,56,447/_ was made by the complainant without delivery ofthe said unit has caused immense financial stress and loss and mental Agony to the complainant.

B.

Relief sought by the complainant: _ HARERA S*GURUGRAM i.

URUGRAM i.

That since the promoter/developer/respondent failed to deliver possession of the said unit even after lapse of more than three years fiom the due date ofdelivery ofpossession, the complainant issued a legal notice dated 06.01.2020 through her lawyer to the respondent for refund of the said amount of Rs.SS,56,447 /_ along with interest.

But the respondent neither refunded the said amount to the complainant nor replied to the said legal notice despite receipt of the legal notice by the respondent on 07 .0t.2020.

The complainant has sought following relief(sJ: Page 6 of25 Complaint No.

1206 of2021 I.

Direct the respondent to refund the entire deposited amount of the complainant, amounting to Rs.55,56,447 /- with an interest @18% compounding quarterly till its actual realization of complete amount in accordance with Section L8 ofthe Act, 2016 as the respondent is in violation ofClause 1 ofPossession ofthe said Unit ofthe Buyer Developer Agreement dated 30.07.2014 and also the respondent has cheated/defrauded the complainant.

II.

Direct the respondent to pay Rs.25,00,000/- to the Complaint towards compensation for mental and physical agony caused to the Complainant due to delay on the part of respondent in completing the project even after lapse ofthree years from the due date ofhanding over possession ofthe said Unit III.

Cost of litigation be also awarded in favor of the Complainant and against the Respondent.

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

Reply by the respondent no.

1 The respondent is contesting the complaint on the following grounds:- That the instant complaint is untenable both on facts and in law and is liable to be rejected on this ground alone. und alone.

That the matter with respect to ,urisdiction of the Authority or the Adjudicating officer is still pending adiudication before the Apex Courr, rhus no statutory vested jurisdiction being available with either the Hon'blc Authorify 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 ad,udicate upon refund matter either upon the Authority or the Hon'ble Ad.judicating officer. ffiHARERA ffieunuennl,r C.

PaEe 7 of Zs HARERA GURUGRAM Complaint No.

1206 of202t c.

Further, the Hon'ble Apex court has vide order dated 0S.11.2020 issued a stay on the judgment and law as decided/declared by the Hon,ble punjab and Haryana High Court vide iudgment being CWp no .34271/201,g. d.

That the complaint filed by the complainant is not maintainable in the f. present form and is filed on the false and frivolous grounds.

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

That the complainant after entering into agreements which clearly specify the rights and obligations of parties cannot wriggle out of its obligations merely on its whim and fancies and more over merely on the ground of financial dlfficulties without substantiating the said averment.

Without pre,udice to the afore-said, the delay if at all, has been beyond the control of the respondents and as such extraneous circumstances would be categorised as 'Force Majeure', and would extend the timellne of handing over the possession of the unit, and completion the project.

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

The agreements provide that in case the respondent delays in delivery of unit for reasons not attributable to the respondent, then the respondent shall be entitled to proportionate extension of time for completion of said proiect.

The relevant clauses which relate to the time for completion, offering possession extension to the said period is "clause 24 under the heading "possession oF unit', of thc agreement.

In view of the force majeure clause, it is clear that the occurrence of delav in case of delay beyond the control of the respondent, including but not Iimited to the dispute with the construction agencies employed by the Page I ol25 h.

7206 of 2027 l, k.

HARERA ffiGURUGRAM respondent for completion of the project is not a delay on account of the respondent for completion of the project.

That with respect to the present agreement, the time stipulated for delivering the possession ofthe unitwas on or before April, Z017.

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 November,2017.

That the proiect got inadvertently delayed owing to the above noted force majeure events.

Further, since March,2020, as owing to the nationwide Govt. imposed Iockdown, no coriiiiirciion/development could take place at site.

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

Due to the Covid condition and the its devastating effect on the lndian economy specially the real-estate sector arranging of funds for completion of proiects has become an impossible task as the banks and NBFC's have made it difficult for bqililers to apply for lgans for completion of pending projects.

However, the respondent undertakes to handover possession of the subiect unit at the earliest.

That the delivery ofa froject is a dynamic lrocess and heavily dependenr on various circumstances and contingencies. ingencies.

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

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. m.

Page 9 ol25 j.

1206 of 2021 n. circumstances like: HARERA ffiGURUGRAM Evidently, the respondent had availed all the licenses and permits in time before starting the construction.

That despite the best efforts of the respondent to handover timely possession of the residential unit booked by the complainant, 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 proiect was on account of the following reasons/ i.

Implementation of social schemes like National Rural Employntent Guarantee Act ald ]awajarlal Nehru Natinal Urban Renewal Mission, leadinf significant shortage of labour/workforce in the real estate market.

Due to paucity oflabour and vast difference berween demand and supply, the respondent faced several difficulties including but not limited to labour disputes.

All of these factors contributed in delay that reshuffled, resulting into delay of the project. ii.

That the respondent that such acute shortage of labour, water and other raw materials or the additional permits, licenses, sanctions by different departments were not in control ofthe respondent and were not at all foreseeable at the time of launching of the project and commencement of construction of the project. o. roject. o.

That the intention of the force majeure clause is to save the performing party from the consequences of anything over which he has no control.

Thc delay in construction, if any, is attributed to reasons beyond the control of the respondent and as such the respondent may be granted reasonable extension in terms of the agreement.

Page 10 of 25 HARERA ffiGURUGRAM Complaint No.

1205 of2021 p.

That the project "HUES" is registered under the Haryana Real Estate Regulatory Authority vide registration certificate no.

182 of 2017 dared 4.9.20L7.

The Authority had issued the said certificate which is valid for a period commencingfrom 4.9.2077 to 37.72.2021.

Thus, in view of the said registration certificate, the respondent hereby undertakes to complete the said project by December, 2021. q.

That the possession of the said premises was proposed to be delivered by the respondent to the complainant by April, 2017 with an extended grace period of 6 months which comes to an end by November, 2017.1'hc completion of the building is delayed by reason of covid-19, non- availabiliff of steel or cement or other building materials or water supply or electric power or slow down strike as well as insufficiency of labour fo rcc which is beyond the control ofthe respondent. r.

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

The main intention of the respondent is just to complete the project within stipulated timc submitted before the HRERA Authority.

According to the terms of agreement also it is mentioned that all the amount of delay possession would be completely paid/ adjusted to the complainant at the time of final settlement on slab ofoffer ofpossession. s.

The Central Government announced Rs. ounced Rs.25,000 Crore to help the bonafide builders for completing the stalled/ unconstructed proiects and deliver the homes to the homebuyers.

The Rrespondent/promoter, being a bonafide builder, has also applied for realty stress funds for its Gurgaon based projects.

Page 11 of 25 HARERA P* GURUGRAM t.

That the said project is a continuance business of the respondent and it would be completed by as per time line provided under the registration certificate and applicable extension as per law.

That the proiect 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 prolect which in turn would lead to transfer of funds which are necessary for timely completion of the prol'ect.

It is most humbly submitted that any refund order at this stage would severally prejudice the interest ofthe other allottees oftheproject as the diversion offunds 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 ofthe other allottees at large.

That the complainant cannot unilaterally cancel/ withdraw from the prolect at such an advance stage as the same would fly in the face of numerous judicial pronouncements as well as the statutory scheme as proposed under the Act, 2016.

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

V. llnion of lndia & Anr., the Sup reme Court has nuanced a balanced approach in dealing with legitimate builders.

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

Further, compounding all these extraneous considerations, the Hon,ble Supreme Court vide order dated 04.11.2019, imposed a blanket stay on all construction activity in the Delhi-NCR region.

It would be apposite to note Complaint No.

1205 of2021 u. x.

Page 12 of 25 HARERA GURUGRAM that the "Hues" project of the respondent was under the ambit of the stay order, and accordingly, there was next to no construction activify for a considerable period.

It is pertinent to note that similar stay orders have been passed during winter period in the preceding years as well, i.e.

2 01 7- 2018 and 2018-201,9. y.

Unfortunately, circumstances have worsened for the respondent and the real estate sector in general.

The pandemic ofCovid 19 has had devastating effect on the world-wide economy.

The real estate sector is primarily dependent on its labour force and consequentially the speed of construction.

Due to government-imposed lockdowns, there has been a complete stoppage on all construction activities in the NCR Area till July, 2020.

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 ofthe agreement.

Reply by the respondent no. z That the respondent was issued license bearing no,s 106 and 107 datecl 26.12.2013 and license no's.

135 and 136 of 2014 dated 26.08.2074 for developing the said land.

In furtherance of the same, the respondent and M/s.

Supertech Ltd. had entered into two joint development agreement,s dated 25.04.2074 and dated 26.08.2014 respectively.

That the complainant along with many other allottees had approached M/s.

Supertech Ltd., making enquiries about the project, and after thorough duc diligence and complete information being provided to them had sought to book a unit(s) in the said project. d project.

Consequentially, after fully understanding the various contractual stipulations and payment plans for the said uniy, the Complaint No.

1206 of 2027 D.

6.

7.

Page 13 of 25 HARERA P," GURUGRAM Complaint No.

7206 of 2027 complainant executed the buyer developer sgreement dated 30.07.2014 with M/s.

Supertech Ltd. for a unit bearing number G/ 1g03, tower _ G, lgth floor, having a super area of 1180 sq. ft. (approx.) for a total consideration of Rs.

90,60,000/- exclusive ofapplicable charges and taxes.

That the Authority vide order dated zg.Tr.zolg passed in suo-Moto complainr no.

5802/ 2019, had passed certain directions with respect to the transfer of assets and liabilities in the said projects namely, ,,Hues & Azalia,,, to the respondent (M/s SARV Realtors pvt.) Ltd. and M/s.

DSC Estate Developer pvt.

Ltd. respectively.

The Authority had further directed that M/s.

Sarv Realtors pvt.

Ltd. and M/s.

Ltd. be brought on as the promoter in the project instead of M/s.

Supertech Ltd.

Certain important directious as passed by this Hon'ble Authority are as under: i.

The registration of the pro,ect ,,Hues,, and ,,Azalia" be rectifled and SARV Realtors pvt.

Ltd./ DSC and others, as the case may be, be registered as promoters. ii.

All the assets and liabilities including customer receipts and project loans of whatsoever nature, the pro,ect HUES and Azalia, in the nante of Supertech Ltd. be shifted to Sarv Realtors pvt.

Ltd / DSC and orhers.

However, even after the rectification, Superech Ltd. will continue to remain jointly 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.

That in lieu of the said directions passed by the Authority all asser and liabilities have been since transferred in the name of the respondent company.

However, in terms of the said order, M/s.

Supertech Ltd. rtech Ltd. still remains jointly and severally liable towards the booing/ allotment undertaken by it before the passing of the said Suo Moto order.

Page 14 of 25 HARERA G&B ct lDt tcDAt\,4 Complaint No.

1206 of 2021 11.

L2.

1 .1.

14.

9.

That thereafter the said IDA'S were cancelled by the consent of both parties vide cancellation agreement dated 03.10.20 i.9 and the respondent from there on took responsibly to develop the proiect and started marketing and allotting new units under its name.

10.

That in terms of the said cancellation agreement the respondent and M/s.

Supertech Ltd. had agreed that as M/s.

Supertech Ltd. was not able to complete and develop the proiect as per the timeline given by the Authority and DTCP, therefore the parties had decided tS c?ncel the JDA,S vide the said Ccancellation agreement.

In the interregnum, the pandemic ofcovid 19 has gripped the entire nation since March of 2020.

The Government of lndia has itself categorized the said event as a 'Force Majeure' condition, which automatically extends the timeline of hand ing over possession ofthe apartment to the complainant.

It would be apposite to note that the construction of the project is in full swing, and the delay ifat all, has been due to the government-imposed Iockdowns which stalled any sort of construction activity.

The complaint further deems to be prima facie dismissed qua the respondent as in terms of the own admission of the complainant the BBA was executed solely with M/s.

Supertech Ltd. and furtehmrore, all payments qua the booking were also made to M/s.

Supertech Ltd. thus, there is no privity of contract nor any payment made to the respondent, thus the complaint deems to be dismjssed on this ground alone.

That the complaint deems to be dismissed sine-die or dismissed as the R2 company, i.e.

M/s.

Supertech Ltd. is undergoing corporate insolvency resolution process and therefore all matters like the present one in which Supertech Ltd. rtech Ltd. is a party deem to be adjourned sine-die or dismissed in lieu of the moratorium imposed upon M/s.

U/s 14 ofthe IBC, Z016.

Page 15 ol25 HARERA GB Ct tDt lcDAt\r Complaint No.

1206 of2021 15.

L7.

That as M/s.

Supertech Ltd. and the respondent are jointly and severally liable in terms of the Suo Moto Order passed by the Authority for the project in question, thus the present matter cannot proceed further until the said liability qua the allotees is not bifurcated between the respondent and M/s.

The respondent cannot be made wholly liable for allotments undertaken and monies/ sale consideration received by M/s.

That the complaint filed by the complainant is not maintainable in the present form and is filed on the false and frivolous grounds.

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

The buyers' agreements provide that in case the respondent delays in delivery ofunit for.reasons not attributable to the respondent, then the respondent shall be entitle{ to proportionate extension of time for completion of said proiect.

That in view of th e 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, covid - 19, shortage of Labour, shortage ofraw materials, stoppage ofworks due to cou rt orders, etc. for completion of the.project is not a delay on account of the respondent for completion 6fthe pioiect.

19.

That with respect to the present agreement, the time stipulated for delivering the possession of the unit was on or before April, 2017.

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

Thus, the possession in strict terms of the buyer's agreement was to be handed over in and around October, 2017. ber, 2017.

However, the said date was subject to the force maieure clause, i.e. "Clause 43".

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

1.6.

18.

Page 16 of 25 Complaint No. '1.206 of 2021 20' That the timeline stipurated under the buyers agreements was only tentative, subject to force majeure reasons which are beyond the control ofthe respondent.

21.

The respondent has also iust reiterated the reasons for delay and force majeure as stated in the reply ofrespondent no.

1 22.

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

Their authenticity is not in tiispute.

Hence, the complaint can be decided on the basis ofthese undisputed documents and submission made by the parties.

E.

Jurisdiction ofthe authority 23.

The authority observes that it has territorial as well as subject matter iurisdiction to ad.iudicate the present complaint for the reasons given below.

E.l Territorialiurisdiction 24.

As per notification no.

1/92/2017-fiCp dated 14.12.2017 issued bv Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offlces situated in Gurugram.

In the present case, the project in question is situated within the planningarea ofGurugram District.

Therefore, this authoriry has complete territorialiurisdiction to deal with the present complaint.

E.lI Subiect matter iurisdiction 25.

Section 11(4) [a) ofthe Act, 2016 provides that the promoter shall beresponsible to the allottee as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: ffi HARERA ffi GuRGRANT Section 77 (4) The promoter shall- (a). be .responsible for all obligations, responsibilities ond functions under the provisions of this Act or the rules and regutations made thereunder or to the allottees os per the ogreement yi sale, or to ie association ofa iation ofallottees, os the case mo! be, till the coiveyonce of all the opartments, plots or buildings, os the case may be, to the allotte;s, or the common oreas to the ossociotion ofnllottees or the competent outhority, os the cose moy be; Section 34-Functions of the Authority: Page 17 of 25 HARERA *GURUGRAI/ Complaint No.

1206 of 2021 i4A oJ the Act provides to ensure complionce of the obligations cost upon the promotert the allottees and the reol esme agents under this Act and the rules and regulotions made thereunder, 26.

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

F.

Findings on obiections raised by the respondent no.

1 F.l Obiections regarding force majeure.

27.

The respondent-promoter alleged that ,grace period on account oF force majeure conditions be allowed to it.

It raised the contention that the construction ofthe proiect was delayed due to force majeu re conditions such as demonetization, and the orders of the Hon'ble NGT prohibiting construction in and around Delhi and the Covid-19, pandemic among others, but all the pleas advanced in this regard are devoid of merit.

The flat buyer's agreement was executed betlveen the parties on 30.07.2014 and as per terms and conditions of the said agreement the due date of handing over of possession comes out to be 30.10.2017, which was much priorto the effect ofCovid-19 on above project could happen.

The authority put reliance judgment of Hon'ble Delhi High Court in case titled as M/s Hallib.urton OIfshore Services lnc.

V/S Vedanta Ltd. & Anr. bearing no.

O.M.P o)'Gomm.) no.88/ 2020 and I.As 3696-3697/2020 dated 29.05.2020 which has observed that- "69.

The past non-performance ofthe Controctor connot be condoned due to the C0VID-19 lockdown in Morch 2020 in lndia. in lndia.

The Contactor wos in breoch since September 201.9, opportunities were given to the Controctor to cure the same repeatedly.

Despite the same, the Contoctor could not complete the Project The outbreok of o pondemic connot be used as an excuse for non- performonce of o contract for which the deadlines were much before the outbreak itsef" 28.

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

Therefore, it is nothing but obvious that the pro,ect ofthe respondent was already delayed, and no extension can be given to the respondent in this regard.

The events taking Page 18 of 25 Complaint No.

1206 of 2021 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 respondent.

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.

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.

29.

Respondent no.

2 has submitted that in the matter as 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 impose moratorium under section 14 of the IBC, 2016.

The Authority observes that the project of respondent no.

2 is no longer the assets ofrespondent no.

1 and admittedly, respondent no.2 has taken over all assets and liabilities of the prolect in question in compliance of the direction passed by this Authority vide detailed order dated 29.11.2019 in Suo- Moto complaint.

HARERA/ccM/ SEOZ/ZOl9.

Respondent no.2 has srated in the reply that the MDA was cancelled by consent of respondent no. ondent no.2 and respondent no.1 vide cancellation agreement dated 03.10.2019.

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

Ltd. admittedly took responslbility to develop the pro.iect and started marketing and allotting new units under its name.

In view of the above, respondent no.2 remains squarely responsible for the performance of the obligations of promoter in the present matter.

So far as the issue of moratorium is concerned, the projects Hues & Azalia stand excluded from the CIRP in terms of affidavit dated 79.04.2024 fiied 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 ffi HARERA # eunuennvr Page 19 of25 G.

HARERA Complaint No.

1206 of2021 P*GURUGRAM though the Authority had held in the Suo-Moto proceedings dated 29.71.2019 that respondent no.

7 & 2 were iointly and severally liable for the project, no orders can be passed against respondent no.1 in the matter at this stage.

Findings on the reliefsought by the complainants.

G.l Direct the respondent to refund the entire deposited amount of the complainant, amounting to RS.SS,S6,447/- with an interest @18yo compounding quarterly till its actual realization of complete amount in accordance with Section 18 ofthe Real Estate Regulation Act,2O16 as the Respondent is in violation of Clause 1 of possession of the said Unit of the Buyer Developer Agreement dated 30.07,2074 and also the respondent has cheated/defrauded the complainant; In the present complaint, the complainant intends to withdraw from the project and is seeking return of the amount paid by her in respect of subject unit along with interest.

Sec.

18(1) of the Act is reproduced below for ready reference :- "Section 18: - Return of amount and compensation 1B(1).

If the promo&r laits to complete or is unoble to give possession of an ap0rtment, plot, or building. building. - (a)in accordance with the terms of the ogreement for sale or, as the case moy be, duly compleied by the dote specified therein; or (b)due to discontinuonce ofhis businessas a developer on occount of suspension or revocation of the registration under this Actor |or ony other reason, he sholl be liqble on demand to the ollottbes, in case the allottee wishes to withdraw from the project, without prejudice to ony other remedy avoiloble, to return the amount received by him in respect oI thot oportment, plot, building, as the case may be, with interest ot such rate as moy be prescribed in this beholf including compensation in the manner as provided under this Act: Provided thatwhere ah allottee does not intend to withdraw from the project, he sholl be poid, by the promoter, interest for every month of deloy, till the handing over of the possession, at such rate os moy be prescribed." (Emphosis supplied) As per clause 1 ofthe 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 unit sholl be given in 42 months i.e, by December 2017 or extended period as permiu.ed by the ogreement.

However, the company hereby agrees to comiensote the Buyer(s) @ k.5.00/- per sq. ft. ofsuper orea oI the unit per month for ony detoy in honding over possession of the unit beyond the given period plus the grace period oI6 months and up to the oJIer letter 30.

31.

Page 2O of 25 HARERA P*GURUGi?AI/ Complaint No.

1206 of 2021 32.

JJ. oI possession or actual physicql possession whichever is earlier, to cover ony unloreseen circumstances......', Due date of handing over or possession and admi*,oliff';;';i:?J';1""0, As per clause 1 of the buyer developer agreement, the possession of the allotted unit was supposed to be offered by the 30.04.2017 with a grace period of 6(six) months. x) months.

Since in the present matter the BBA incorporates unqualified reason 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.

Therefore, the due date of possession comes out to be 30.10.2017.

Admissibility of refund along with prescribed rate of interest: The complainant is seeking refund the amount paid by them along with interest prescribed rate ofinterest.

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

Rule 15 has been reproduced as under: Rule 75.

Prescribed rote of interest- [proviso to section 12, section 1g and sub-section (4) and subsection (7) of section 1gl (1) For the purpose ofproviso to section 12; section 18; and sub-sections (4) ond (7) ofsection 19, the "interest qt the rate prescribed,, shatt be the Stote Bank of tndio hig hest marginol cost of lending rote +20k,: Provided that in case the State Bonk of lndio marginot cost of lending rote (MCLR) is not in use, it shall be replaced by such benchmark lending rotes which the Stote Bqnk of India moy frx from time to time Ior lending to the generol public.

34.

The legislature in its wisdom in the subordinate legislation under the provision ofrule 15 ofthe rules, has determined the prescribed rate ofinterest.

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

35.

Consequently, as per website of the State Bank of India i.e., httos://sbi.co.in, the marginal cost of lending rate [in short, MCLR) as on date i.e., 11.03.2025 is Page 2l of 25 HARERA ffiGURUGRAM Complaint No.

7206 of 2021 9.10ol0.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +20lo i.e.,ll,l|o/o.

36. l|o/o.

36.

The definition of term 'interest, as defined under section 2(za) of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case ofdefault.

The relevant section is reproduced below: "(za) "interest" means the rotes of interest payable by the promoter or the allottee, os the case may be.

Explonation. -For the purpose ofthis clouse_ (i) the rate of interest chargeablefroln the ollottee by the promoter, in case of default shqll be equalio thb rdte ofinterest which tie promour sholl , be liable to pai the allottge, in case ofdefault; (i, the interest poyable by the promoter to the allottee sholl befrom the dote the promoter received the omount or any port thereof till the date the omount or part thereofand interest thereon is refunded, ond the interest payable by the ollottee to the promoter shall be fron the date the ollottee defoults in poyment to the promoter till the date it is poid;,, 37.

On consideration of the documents available on record and submissions made by both the parties regarding contravention of provisions of the Act, the authority is satlsfied that the respondent no.Z is in contravention of the section 11(4)(a) of the Act by not handing over possession by the due date as per rhe agreement.

By virtue of clause 1 of the agreement executed between the parties on 30.07.2074, the due dite of possession is calculated from the date of Execution ofAgreemenL The period of4Z months expired on 30.04.2017.

As far as grace period is concerned, the same is allowed for the reasons quoted above, Therefore, the due date ofhanding over possession is 30.10.2017.

38.

It is pertinent to mention over here that even after a passage of more than B 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 no.2. oter no.2.

The Authority is of the view that the allottee cannot be expected to wait endlessly for taking possession of the unit which is allotted to him and for which he has paid Page 22 of 25 HARERA P*GURUGRAI/ Complaint No.

1206 of 2021 a considerable amount of money towards the sale consideration. lt is also to mention that complainant has paid almost 61% 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 no.

Z has applied for occupation certificate/part occupation certificate or what is the status of construction of the proiect. [n view of the above-mentioned facts, the allottee intends to withdraw from the proiect and are well within the right to do the same in view of section 18(1) oftheAcr,2016.

39.

Further, the Occupation Certificate/Completion Certificate ofthe project wherc the unit is situated has still not been obtained by the respondent/promoter.

I'he authority is of the view that the allottees cannot be expected to wait endiessly 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,blc Supreme Court of India in lreo Grace Reattech pvL Ltd.

Vs, Abhishek Khanna & Ors., civil appeal no.

5785 of 2079, decided on 11.01.2021 "..,, The occupotion certificote is not availob e even os on dote, which cleorty amounts to defciency ol sen/ice.

The alldttees cannot be mode to wait indertnitely for possession of the apartments ollotted to them, nor con they be bound to take the apartments in phase 1. oJthe project.......', 40.

Moreover, the Hon'ble Supreme Court of India in the cases olf Newtech Promoters and Developers private Limited Vs State of ll.p. and Ors. (supra) reitcrated in case of M/s Sana Realtors private Limited & other Vs Union of Indio & others SLP (Civil) No.

73005 of 2020 decided on 12.05.2022. observed as under: - "25. er: - "25.

The unquolified right of the ollottee to seek refund referred llnder Section 1B(1)(a) ond Section 19(4) of the Act is not dependent on ony contingencies or stipulations thereof. lt oppears thqt the legislature has consciously provided this right of refund on demond os an unconditional absolute right to the a ottee, ij the promoterfqils to give possession ofthe oportment, plot;r buitding within thi time stipulated under the terms of the agreement regardless ofunforeseen events or stoy orders of the Court/Tribunal, which is in either way not attributoble to Page 23 ol25 HARERA ffiGURUGRAM specified therein.

Accordingly, the promoter no.2 is liable wishes to withdraw from the project, without prejudice Complaint No.

1206 of 202"1 the ollottee/home buyer, the promoter is under on obligotion to refund the omount on demqnd with interestatthe rate prescribed by the State Government including compensotibn in the monner provided under the Act with the proviso that ifthe allottee does notwish to withdraw from the project, he shall be entitled for interest for the period of detay till honding oier-possession ot the rote prescribed." 41.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunder or to the allottees as per agreement for sale under section 11(a)(al.

The promoter has failed to complete or is unable to give possession of the unit in accordance with the terms ofagreement for sale or duly completed by the date available, to return the ariount received by him in respect of the unit with interest at such rate as may be prescribed.

42.

Accordingly, the non-compliance of the mandate contained in section 11(4)(aJ read with section 1B(1] of the Act on the part of the respondent no.2 is established.

As such, the complainant is entitied to refund of the entire amount paid by them at the prescribed rate of interesti.e.,@ LL.10o/op.a. .10o/op.a.

ItheState Bank of India highest marginal cost of lending rate IMCLR) applicable as on d 21s +20/o') as prescribed under rule 15 of the Haryana Real Estate fRegulation and Development) Rules, 2017 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 2017 ibid.

H, Directions ofthe authority 43.

Hence, the authority hereby passes this order and issue the following directions under section 3 7 of the Act to ensure compliance of obligations castf upon the promoter as per the functions entrusted to the authority under section 34(f ol the Act: to the allottee, as he to any other remedy PaEe 2+ of 25 ffi& i.

HARERA GURUGRA[/ (Ashok Sa Complaint No.

1206 of 2021 lu. ll.

The respondent no.2 i.e., Sarv Realtors pvt.

Ltd. is directed to refund the amount received by it i.e., Rs.

55,56,447 /_ from complainant along with interest at the rate of Ll.l|o/o p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation and DevelopmentJ Rules,2017 from the date of each payment till the actual date of refund of the deposited amount.

A period of 90 days is given to the respondent no.2 to comply with the directions given in this order and failing which legal consequences would follow.

The respondent no.

2 is further directed npt to create any third_party rights against the subject unit before full realization of the paid-up amount along with interest thereon to the .complainants, and even i[, any transfer is initiated with respect to subject unit, the receivable shall be first utilized for clearing dues of allottee/complainant. iv.

No directions are beingpassed in the matter qua respondent nos.

1 in view of the moratorium imposed under section 14 of the IBC in NCLT case III_ 204 /ND /2021titled Union Bank oflndia versus M/s Supertech Limited.

Complaint as well as applications, ifany, stands disposed of accordingly.

Files be consigned to registry.

44.

45. y.

45. y4 (vilayffi/,*r^rt Member UJ (Arun Kumar) .

Chairman Haryana Real Estate Regulatory Authority, Gurugram Dated:11.03.2 025 PaEe 25 ot 25 t L