DEVESH DUBEY AND ANUBHA UPADHYAY vs SUPERTECH LIMITED

ARER, URUGRAI/ BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Order rcserved o ll,O3.ZOZs Order pronounce d oft 07.O4.2OZ\ M/s Sn RV Realtors I,rivatc Limitcd. "Supertech Hucs", Sector- 68, Gurugram, Haryana Casc title Appearance cR/72601 2022 cR/7312/2024 CORAM: Shri Arun Kumar Shri Vijay Kurnar Goyai Shri Ashok Sangwan Ilajinder Mohan Dhar & Usha Nehru V/s M/s Supertech L jmited (lt:1), M/s SARV Realtors Private Limited ( R:2) Devesh Dubey & Anubha Upadhay V/s M/s Superrech Limited (ll:1), M/s SARV Realtors Private Limited IR:2) Ajay Jalali & I,riyanka la1a1i V/s N4/s Supertech Limired IR:1), M/s SARV Itealtors I)rivate l,imited (R:2) Sh. lJimanshu Gautam (Complajnants) Sh.

Ilhrigu Dhami IRespondent no.1) l\4 s. lsha Dang (Respondenr no.

2) Sh.

Ajay kumar Singh IComplainants] Sh. tlhrigu Dhami IRespondent no.1) l\4 s. lsha I)ang (llcspon(lcnt no.2l Sh.

Ilimanshu Gautam (Complainants) Sh.

Bhrigu Dha mi IRespondent no.1J Ms. lsha Dang (Respondcnt no.2J Chairman Member Member 1, ORDER 'l'his order shail dispose of 3 compraints titled above fired before this Authority under section 3i of the Real Bstate (llegulation and Development) Act, 20.16 (hereinafter referred as "the Act") read with rule 2U of the Haryana Real Flstatc Complaint No.

5847 of 2022 and 2 others Page 1 ol26 NAMI OF ]'HE BUILDER PROIECT NAME J S.

No, Case No. | ,li*jie*)ioi 2.

3. ffiHARERq ffieunuenAu Complaint No.

5847 of 202 2 and 2 others (llegulation and Development) Ruies,2017 (hereinafter referred as,.the rules,,J forviolationofsectionll[4](a)oftheActwhereinjtisinteraliaprescribedthat the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se parties. 'l'he core issues emanating front them are similar in nature and the complainant(s] in the above referrecl matters are allottees of the project, namely, "Supertech Ilues", Sector- 68, Gurugram, Ilaryana being developed by the respondent/pr pondent/promoter i.e., M/s SARV Realtors pvt.

Ltd. private t,imited. .l'he terms and conditions of the allotment Ietter, buyer,s agreements, fulcrum ofthe issue involved in all these cases pertains to failure on the part of the promoter to deliver timely possession ofthe units in question seel(jng award ofrefund of the entire paid up amount along with interest and other reliefs.

The details ofthe complaints, unit no., date ofagreement, possession clause, due date ofpossession, totalsale consideration, total paid amount, and relielsought are given in the table below: Proiect Name and Location nroject'arei negistratite are. f'la tuie-of tne p roi ect : DTCP license no. and oth "supe.iectr ttuei;- Seci* OB, cut 55.5294 acres 32.83 acles lii!!!!t"c-r:lI er details 8ram.

DTCP License No.

Valid up to Area admeasurin Name oflicensee Holder 89 of 2014 dated 08.08.2014 07.08.2024 10.25 acres DSC Estate Developer Lrd.

106 of 2013 dated 26.72.2073 25.12.2017 '13.74 acres Sarv Realtors Pvt.

Ltd.

107 of 2013 dared 26.12.2013 134 of 2014 dared 26.0A.2014,___ 135 of 2014 dated 26.08.2074 25.12.2017 25.0A.2024 ,5.08.20;; 13.75 acres 4-85 acres Sarv Realtors Pvt.

Ltd. tsc E'irre D;r;lop;'- L!q, DSC Estate Developer Ltd.

136 oF 2014 dared 26.08.2014 25.0A.2024 s.Bta;;s DSC Estate Developer t,rd. l Prt.

I - Pvt.

2.

3.

Pvt.

Page 2 ol26 HARER,.. _G!BqGRAt\ lA Registerea stered not l]:flfl:l:l *,.'li^. ," r82 or20r7 dared o4.os.2ot? v aro up to 31.12.2021 I D, and n certifi te as Int session r buyer's a , li,::,:,:.:-,! :ip, rrnit: 1he posses5ion uJ tht i:::'::ii''''.0'lt le qiven b Lhe AttoLtee/'hy t.n^e_L::1.::! ,by,l:tty 20t8.

However, rhis p, rt,,,,1 Lun oe extended Ior o furrher ora monrhs. ., rce period o/ 6 1' Po,ss,e.xi,on ol .lhp ltnit: 1he pe.,:p55bt1 61 111, i;::'::::':::ni" h: oyy"n-rv, the Attotrec/\ t,v ,!^"-, !:, r, nl by epi i t,, ii ;' ; ;';;;;;:', ;:,', pcrrcd.con be axtt.nded for 0 lurther grqce period oI6 months. y371;'t'1" n,"*.".

1" n,"*.".ttin ol Lhe un it sha bc eNcn tn 42 !!,)!):::.lt r,rrember 20 t 7 or axtettdcd 7erto,1 Cr No- 1,372- 2024 Complaint no., unit no. and iiii AIlotlncnt o,t...1,"r*,,,r! hy the aqrecmcnt. ir;;;;;',;" develobPr hor.h,, ^^-- - ,rr_, 1 g 1. i ) : i " :i;l i: ; :;:,,, : ;! :,;,, ; " : :,, :ir, :.::!.lil r rr.o:toy in ha n d inst uve rpossess?ua uJ tne untl beyond the oiven nernd plus Lhe groce ,^u.r:oa of U months inct upLo ra.he o11e, letter,l l^osscfsio, or octuql physrcol pus.session whtchevr.t ts eorlipr.

Casc title, Date of filing ofcomplaiIt and reply status cxlsa+zpozi Ra,inder [4ohan Dhar & Usha Nehnl V/s Supertech Limited And M/s SARV Realtors Private Limited DOF: t2.09.2022 Due dare of possession Totat sale consideration and Totat amount paid by the complainant in Rs.

TC: 1,04,65,21A / - {As per payment plan at page 1B of comptajnrl i B7,20,12a/.

Lener And BI]A 1701,171r toor, Tower O 1765 sq fr. [Supcr area ) lPagc 17 of conrpiaintl atsA 27.01.2016 JPage 16 ot conrplarntl lanuary , ZOlg (As per clause I ol the buycr,s dovcloper agfeenrent:by luly 2018 plus 6 Ntonth grace period) I Cr No.

5847 - 2022 Page 3 of 26 Complainr No.

SB47 of 2022 and 2 others l c; ru".1 ) zzdo. ) J zozz I * HARER, #* eunuennu Complaint No.

5847 of2022 and 2 others Reply by R2 tsARV): 23.12.2024 45 otcomplain z ca/tzeo/zozi t)cve\h Duhey & Anu bhr tiprdhay V/\ Supc.reLh Limrred And M/s SARV Realrors Prvare Lin)rred DOF: 1411.2022 Reply by R1[SARV): 02.04.2025 rsU1, 15th floot Tower t- 1180 sq. ft. (Superarea) JPage 24 ot complaintl auA I otober,2o- 20.08.2ota I tAs per ctau\e i 1 oI rhe buyer's tPagr 2.1,,i ] devetopcr compla'nrl i agrecment. hy Aprit20t7 i plus 6 Monrh grace period) TC: 47,45,7AO /. [As per paymenr p at pagc 25 ol complajnti 77,31,676/. lAt page 39 of complaintl r I cR/t.tlz/202a ) 0201, z"d itoor, i Tower p i AlaY lalalr & ] Pn!dn,{r jrta,i v/s i rzr,s ,q r, I r4/, Supc o(h ] tsuper,real t_rrnrred And M/s I sARv RPrlror\ ] lr,e" tool , Pnva lp Lrmr(i.d co. mr(i.d co.nplarnll l DOF:09 04 2024 Rcpty by Rl(sARvl: i | 27 oe2o24 ] Reliefsn"oh' I BI}A l ) 2s.07.2014 | ,,"ru ,, u, complaintl 31.05.2018 (As per clause 25 olrhe huyer's developer agrccmcntiby November 2017 plus 6 Month gracc period) TC: 1,36,43 ,935 / - lAs per paymenr pl at page 20 ol complajntl 4434,617 /.

IAs per statemenr ( account on page 33 complaintl paSe ntl ian 1. 'l'he facts of all the complaints filed by the complainant(s)/alloftee(sJ are similar.

Out of the above-mentioned case, the particulars of lead case CR/5547/2022 titled as Ra_rrnder Mohan Dhar and llsha Nehru V/s M/s Supertech limited And M/s SARV Reoltors private Limited are being taken into consideration for dctermining the rights of the allorteeIsJ.

Proiect and unit related details Litigation Charges A.

Page 4 of26 5.

The particulars of the project, 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: CR/5847/2022 titled as Rajinder llohan Dhor and Usha Nehru V/s M/s t uperlglh ljrnlei 4n4_ry1$4!y !9lltors Priuote Limited S.

No.

Particulars Details 1.

5.

Name of the project Supertech Hues, Sector-68, Gurgurgram Project area 55.5294 acres Nature of_p1o_pqt RERA registered/not Grolpllousing Colony *HARERA ffi eunuennirl 6. o.

9. registered -__ Validity Status Name of licensee Unit no.

Unit measuring nate of S"o*i.g- 27.01.201.6 Registered vide registration no.

182 of 2017 dated 04.09.2 017 3t.72.2021.

1.06 &L07 of 2013 dated 26.1.0.201.3 25.72.201,7 Sarv llealtors Pvt.

Ltd. & ors.

1 1?oi" 1?,, n"o",T il I (Lqg r_o lZql sorlrtbrnt) 1765 sq. ft. (Super area) (Page no.

17 of complaint) qcl99!

9!!

10.

Possession clause Page no-.12 of complaintl 27.07.2016 (Page 16 of complaint) 1. 'fhe possession ol the allotted unit sholl be given to the ollottee /s by the company by July 2018.

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

6 months. leee 1-9,of l\e !Srnp!qt!!l Ilate of B u ilder execution of developer lJue oate ol possesslon _] lulyZUIUr bmonthS: lanuarylU Total saf e consideration Rs.

1 ,0+,65,218 /- (page lti of complaint) Total amount paid by the I1s.87,20,128/- " t.

74. complainant | (page 36 to 44 of complaint) Occupqtioncertificate Notobtaincd Offer olpossessiot I Not offcrcd Complaint No.

5847 of 2022 and 2 others DTPC License no.

ValidiW status 15.

Page 5 of 26 11 1 n1 B.

6. ffi HARERA ffi eunGnnvr complaint No.

5847 of 2022 and 2 others Facts ofthe complaint 'l'he complainants have made the following submissions in the complaint: - That on 26.12.2013 DGTCP, Ilaryana has granted License Number 106 & 107 to the Respondent No.2 i.e.

Sarv Realtors Pvt t,td (1000/o subsidiary of Supertech Ltd) for Group Housing Scheme o n 27 .493 acres.

That on 27.01.2016, the complainants Mr.

Rajinder Mohan Dhar and Mrs.

Usha Nehru booked a residential flat bearing unit no.

R0380O01707/ Flal 1701 in Tower - 0 admeasuring 1765 sq. ft. in the project named "supertech Hues" situated in Sector 68, Gurugram. 'fhal on 27 .01.201,6, builder buyer agreement was entered into between thc parties wherein as per clause 24, the developer should offer possession of unit by July, 2018 with a grace period of6 months. 'fhat the respondent no.

1 demand ed Rs.87 ,20,128 /- from the complainant at the time of booking out of the total consideration amount of Rs,1,03,56,074l-.

That out ofthe total cost ofthe said unit a sum of Rs.

B7 ,2O,l2B l- has already been paid by the complainant till date but the construction ofthe flat is still incomplete.

Even the tower containing the flat has not been constructed yet and there is no hope of offering the possession even after a delay of almost 3.5 years. 'l-hat the undue delay by the respondent no.

1 in offering the possession to complainant caused great monetary loss to the complainants in terms ofthc interest payable on the above said amount. id amount.

That even after payment of more than 84% of the total consideration amount, the builder raised another demand of the amount of Rs.

16,35,946/- vide letter dared 04.04.2 01u.

II, I.

III.

IV.

VI.

VII.

Page 6 of 26 ffi uRnrR:, ffieunuenRu complaint No.

5847 of 2022 and 2 others VIII. 'Ihat the demand of complete consideration amount without even constructing the flat as per construction plan is arbitrary' illegal' unjustified' mischievous, fraudulent, against the principle of natural iustice and against the interests of the complainants IX.

That despite repeated calls, meetings and emails sent to the respondents' no definite commitment was shown for timely offering the possession of the flat and no appropriate action was taken to address the concerns and grievances ofthe complainant.

Thus, the respondents not only breached the builder buyer agreement but also cheated the complainants and as a result of this misconduct of the respondents, the complainants lost their faith on him and no Ionger want to continue with this project and want refund ofthc amount paid by them till the present date along with the interest as per provision of Section 12 and Section 18 of the RERA Act, 2016' X. 'lhat both the complainants are senior citizens and repeated calls' meetings and correspondences with the respondent no 1 and multiple visits to know the actual construction status not only caused loss to the complainants in terms of time, money and energy but also caused mental agony to them xl. .lhat the cause ofaction arose in favour ofthe complainants and against thc respondents from the date of booking of the said units and it further arose when respondents failed/neglected to deliver the flat within a stipulated time period. '[he cause of action further arose when the respondents have not completed the proiect with the assured facilities and amenities lt further arose and it is continuing and is still subsisting on day-to-day basis as the respondents have not fulfilled thei illed their obligations as per the buyer's agreement.

C.

Relief sought by the complainant: - Page 7 of 26 m HARERi #- eunuennu 7.

The complainants have sought following relief(s): II.

To direct the respondent to refund the whole amount paid by the complainants to the respondent along with the interest @ 240lo per annum (rate at which respondent charges interest from the complainant) counted from the date of deposit to the date of realisation of refund.

To direct the respondent to pay Rs.

1,50,000/- cost of litigation.

8.

0n 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) ofthe act to plead guilty or not to plead guilty.

No reply has been submitted by the respondent no.1 ie., M/s Supertech t'td However, the counsel for respondent no. t has stated that the respondent no.1 is under CIRP vide order dated 25.03.2022 passed by the Hon'ble New Delhi in case no.

II)-204/ND/2021 titled as lJnion Bank ol Indid Versus M/s Supertech Limited a\d moratorium has been imposed against the respondent no l company under section 14 of the lBC, 2016 Therefore, no proceedings may continue against the respondent no.

1 D, Reply by the respondent no, 2 10, The respondent is contesting the complaint on the following grounds:- i. 'lhe respondent no.

2 is one ofthe leading real estate developers in the State of Haryana and NCR.

It has several proiects across the state, and as such has built a great reputation for having the hiShest quality of real cstate developments. 'fhe respondent no.

2 has been represented in the instant proceedings by its authorized representative, Ms.

Isha Dang One of its marquee projects is the Azalia, located in Sector 68, Gurugram, and Haryana. ii.

That the respondent no.2 was issued license bearing no's 106 and 107 dated 26]'22073 and license no's.

135 and 136 of 2014 dated 26 08 2014 Complaint No.

5847 of 2022 and 2 others I.

9. hers I.

9.

Page I of26 * HARER^ S*eunuenaHl Complaint No.

5847 of 202 2 and 2 others for developing the said land. 'l'hat in furtherance of the same, the Answering Respondent and M/s.

Supertech Ltd. had entered into two Joint Development Agreement's dated 25.04.2014 and 26.08.201 4 respectively.

That in terms of the said JDA's, M/s.

Supertech Ltd. was to develop and market the project.

The complainant along with many other allottees had approached M/s Supertech Ltd., making enquiries about the proiect, and after thorough due diligence and complete information being provided to them had sought to book unit(s) in the project. 'Ihat, after fully understanding the various contractual stipulations and payment plans for the unit, the complainant executed the allotment letter dated 27 .01.2o1,6 for unit bearing number No.

R0380001 701/ 1701, towcr - O, 17n floor, having a super area of 1765 sq. ft. (approx..) for a total consideration of Rs.

1,09,00,160/- exclusive of applicable charges and taxes. 'fhat in the interim with the implementation of the Act, 2016 the project was registered with the Haryana Real Estate Ilegulatory Authority, Panchkula vide llegistration no. "182 of 2017", dated 04.09.2017 upon Application filed and in the name of Supertech Limited.

That this Authority vide order dated 29.11,2019 passed in Suo Moto complaint bearing no.

580212019, had passed certain directions with respect to the transfer of assets and liabilities in the said projects namely, "Hues & Azalia", to the respondents no.

2 i.e. and M/s.

SARV Realtors Pvt.

Ltd. and M/s DSC Estate Developers Pvt.

Ltd. respectively.

This Authority had further directed that M/s.

Sarv llealtors Pvt.

Ltd. and M/s.

DSC Estate Developer Pvt.

Ltd. be brought on as the promoter in the respective projects iii. vl. vll.

Page 9 of 26 vllt.

HARER Complaint No.

5847 of 2022 and 2 others GURUGRA[/ instead of M/s.

Supertech Ltd.

Certain this Authority are as under; important directions as passed by A. ssed by A. (i)'Ihe registration of the project "Hues" and "Azalia" be rectified and SAIIV Realtors Pvt.

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

B. (v)All the Assets and liabilities including customer receipts and project loans of whatsoever nature, thc project IITJES and Azalia, in the nanlc of Supertech Ltd. be shifted to Sarv Realtors I,vt.

Ltd/ I)SC and others.

However, even after the rectification, Supertech Ltd. will continue to remoin jointly responsible for the units morketed ond sold by it and shall be severolly responsible if SARV Realtors Pvt.

Ltd./DSC And other fail to discharge its obligotions towords the olottees. 'lhat in lieu of the said directions passed by this Authority all asset and liabilitics have becn since transferred in the name of thc rcspondent no.

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

Supertech Ltd. still remains jointly and severally Iiable towards the booking/ allotment undertaken by it before the passing of the said Suo Moto Order.

That thereafter the IDA's were cancelled by the consent of the respondent no.2 and M/s Supertech Limited vide cancellation agreement dated 03.10.2019 and the respondent no, 2 fronr there on took responsibly to develop the project and started marketing and allotting new units undcr its ltam e. 'l-hat in terms of the said cancellation agrccmcnt the rcspondent no.

2 and M/s Supertech Limited had agreed that as M/s Supertech Ltd. was not able lx. to complete and develop the project as per the timeline given by this Hon'ble Authority and DTCP, therefore the parties had decided to cancel the J DA's vide cancellation agreement. x.

In the interregnum, the pandemic of Covid 19 has gripped the entire nation since March of 20 20.

The Government of India has itself categorized the said Page 10 of 26 ffi HARERA #-eunuennH,r complaint No. plaint No.

5847 of 202 2 and 2 others event as a 'Force Majeure' condition, which automatically extends the timeline of handing over possession of the apartment to the complainant.

That the construction of the proiect is in full swing, and the delay if at all, has been due to the Government-imposed lockdowns which stalled any sort of construction activity.

Till date, there are several embargos qua construction at full operational level.

Preliminary Objections i.

That the present complaint further deems to be prima facie dismissed as in terms of the own admission of the complainants the BIIA was executed solely with M/s.

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

Supertech Ltd. 'l'hus, there is no privity of contract nor any payment made to the respondent no.

2, thus the present complaint deems to be dismissed on this ground alone. ii. 'the present complaint further also deems to be prima facie dismissed for non-joinder of necessary parties.

It is reiterated that in terms of the own admission of the complainant the BBA was executed solely with M/s.

Supertech Ltd. ]'hus, the present complaint deems to be dismissed for non-joinder of M/s.

Supertech Ltd. iii. 'Ihat as M/s.

Supertech t,td. and the respondent no.2 are jointly and severally liable in terms of the Suo Moto Order passed by this 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 no.2 and M/s.

1'he respondent no.2 cannot be made wholly liable for allotments undertaken and monies/ sale consideration received by M/s.

Supertech Ltd. xi.

Page 17 of 26 complainr No.

5847 of 2022 and 2 others vl.

VII. s vl.

VII. ffi HABERI S"eunuenRtr,l That the complaint filed by the complainant is not maintainable in thc 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 of the complainant and the present complaint has been filed with malafide intention to blackmail the respondent no.2 with this frivolous complaint' 'Ihe delay in construction was on account of reasons that cannot bc attributed to the respondent herein.

The flat buyers' agreements provide that in case the developer/respondent delays in delivery of unit for reasons not attributable to the developer/respondent, then the developer/ respondent shall be entitled to proportionate extension of timc for completion of project.

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 thc respondent, Covid-19, shortage of labour, shortage of raw materials, stoppage of works due to court orders, etc. for completion of the project is not a delay on account of the respondent for completion of the project' 'lhat with respect to the agreement, the time stipulated for delivering the possession of the unit was on or before luly, 201ti.

However, the buyer's agreement duly provides for extension period of 6 months over alld above the said date. 'Ihus, the possession in strict terms of the buyer's agreement was to be handed over in and around lanuary, 20I 9 l{owever, the said datc was subject to the force majeure clause, i.e. "Clause 43".'l'he 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' Page 72 of 26 ff HARERA ffieunuennn,l v[1. nnn,l v[1. 'lhe timeline stipulated under the flat buyer's agreements was only tentative, subiect to force majeure reasons which are beyond the control of the respondent.

The respondent in an 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 time before starting the construclion.

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 project was on account of the following reasons/circumstances like: i.

Implementation of social schemes like National Rural Employment Cuarantee Act ("NREGA") and Jawaharlal Nehru National Urban Ilenewal Mission ("INNURM"), there was a significant shortage of labour/ workforce in the real estate market as the available labour had to return to their respective states due to guaranteed employment by the Central/State Government under NREGA and lNNtlRM Schemes 'l-his created a further shortage of labour force in the NCR region' Large numbers of real estate proiects, including that of the Respondent herein fell behind on their construction schedules for this reason amongst others. 'lhe said fact can be substantiated by newspaper articles elaborating on the above mentioned issue of shortage of lahour which was hampering the construction projects in the NCR region 'l'his certainly was an unforeseen one that could neither have been anticipated Complaint No.

5847 of2022 and 2 others Page 13 of26 ffi HARERA ffi eunuennrvt nor prepared for by the respondent while scheduling their construction activities. ctivities.

Due to paucity of labour and vast difference between demand and supply, the respondent faced several difficulties including but not Iimited to labour disputes.

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

That such acute shortage oflabour, water and other raw materials or the additional permits, Iicenses, sanctions by different departments were not in control of the respondent and were not at all foreseeable at the timc of launching of the project and commencement of construction of thc complex..

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

That the project "HUES" is registered under the Haryana Real Estate Regulatory Authority vide registration certificate no 182 of 2017 dated +.9.2017.

The Authority had issued the said certificate which is valid for a period commencing from 04.09,2017 to -11"12 2021' 'lhat the possession of the said premises under the said BBA was proposed to be delivered by the respondent to the apartment allottee by luly' 201t] with an extended grace period of 6 months which comes to an end by January, 2019.

The completion of the building is delayed by reason of Covid-19 outbreak, non-availability of steel and/or cement or other building materials and/or water supply or electric power and/ or slow Complaint No.

5847 of 2022 and 2 others xI. xll.

Page 14 of 26 HARERA MGURUGRAM xul. down strike as well as insufficiency of labour force which is beyond the control of respondent . 'Ihat the enactment of the Act, 2016 is to provide housing facilities with modern development infrastructure and amenities to the allottees and to protect the interest of allottees in the real estate sector market. or market.

The main intention ofthe respondent is just to complete the project within stipulatcd time submitted before the Authority.

According to the terms of builder buyer's agreement also it is mentioned that all the amount of delay possession will be completely paid/ adiusted to the complainant at the time final settlemcnt on slab ofoffer ofpossession.

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 l)elhi- NCR region.

It would be apposite to notc 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.

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

2017- 2018 and 2018-2019.

It is most respectfully submitted that a complete ban on construction activity at site invariably results in a long-term halt in construction activities.

As with a complete ban the concerned Labor is lct ofland the said travel to their native villages or look for work in other states, the rcsumption of work at site bccomes a slow proccss and a steady pace of construction in realized after lon8, period of time. xtv.

That, graded response action plan targeting key sources of pollution has been implemented during the winters of 2017 -1,8 and 2018-19, 'Ihese short-term measures during smog episodes include shutting down powcr Complaint No.

5847 of 2022 and 2 others xv.

Page 15 ol26 ffiHARERA S. eunuennu plant, industrial units, ban on construction, ban on brick kilns, action on waste burning and construction, mechanized cleaning ofroad dust, etc 'l'his also includes Iimited application of odd and even scheme xvi..lhetableconcludingthetimeperiodforwhichtheConstruCtionactivities in the Proiect was restrained by the orders of competent Authority/Court are produced herein below as follows:- S. llows:- S.

Court/Authority & Order Date Titlc Duration 1. ,.

National Green Tribunal 09.1r.2017 I'ress Note by SPCA- Environment Pollution (Prevention and Control) AuthoritY Vardhman Kaushik Union of lndia p."tr Not"-ir.ro.zotg Ban was lift after 10 da ot.rr.zora 10.11.201 3.

Supreme Court-23.1 2,?O18 Three-day ban on induslrial activities in pollution hotspots and construction work 23.72.2078 26.12.201 4.

EPCA/ Bhure lal Comnlittee Order-31.10.201q Complete Ban 01.11.2019 05.11.2 01 oa.11.zors 14.02.202 i+oi.zozo 03.0s.202 5.

Hon'ble Supreme Court 04 .11- .2019 -74.02.2020 M.C Mehta v.

Union of lndia Writ I'etition [c) no.

13029/1985 6.

Government of lndia Lockdown due to Covid 19 7.

Government of lndia Total Lockdown due to Covid- 79 37 weeks (appro 8 weeks \ ?04 ximately) Unfortunately, circumstances have worsened for the respondent and thc real estate sector in general.

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

However, unlike the agricultural and tertiary sector, the industrial sector has been severally hit by the pandemic' iteo ays 8to r18 to B 9to r19 to 0 Ito 20 ,lnI Complaint No.

5847 of 202 2 and 2 others xvll.

Page 16 of 26 Complaint No.

5847 of 2022 and 2 others xvlll. ffi HARER , S* eunuennu 'Ihe real estate sector is primarily dependent on its Iabour 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 |uIy,2020.

In fact, the entire labour force employed by the respondent were forced to return to their home towns, leaving a severe paucity of labour. 'l'hat the pandemic is clearly a 'l"orcc Majeure'event, which automatically extends the timeline for handing over possession of the apartment. 'lhat the complainant is not entitled for any compensation or refund claimed except for delayed charges, if applicable as per clause 2 read with 24 of the builder buyer agreement.

1 1. ment.

1 1.

Copies of all the relevant documents have been filed and placcd on the record. 'l'heir authenticity is not in dispute.

I{ence, the complaint can be decided on thc basis of these undisputed documents and submission made by the parties.

E.

Jurisdiction ofthe Authority 12.

The Authoriry observes that it has territorial as well as subject mattcr jurisdiction to adjudicate the present complaint for the reasons given below.

E.t Territorialjurisdiction 13.

As per notification no.

1/92/2017-1TCP dated 14.12.2017 issued by'Iown and Country Planning Department, the jurisdiction of Real Iistate Regulatory Authority, Curugram shall be entire Gurugram District for all purpose with officcs situated in Gurugram.

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

E.ll Subject matter iurisdiction Page 17 of 26 Complaint No.

5847 of 2022 and 2 others 14.

Section 1 1(4) (a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section 11 (4) The promoter shall- (o) be responsible for all obligations, responsibilities ond functions under the provisions of this AcL or the rules ond regulations made thereunder or to the allottees os per the agreement for sole, or to the ossocidtion of qllottees, as the case may be, till the conveyqnce of qll the apartments, plots or buildings, as the cqse may be, to the ollottees, or the common areqs to the associotion oI allottees or the competent authority, os the cose moy he: Section 34-Functions of the Authority: 34A ol the Act provides to ensure complionce of the obligations cost upon the promoters, the allottees and the real estote ogents under this Act ond the rules ond regulations mode thereundeL 15. eundeL 15.

So, in view ofthe provisions ofthe Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be decided by the !

G RA RA[I ARI URUG adiudicating officer if pursued by the complainant at a later stage.

F.

Findings on obiections raised hy the respondcnt no.

1 F.l Objections regarding force maieure.

16.

The respondent-promoter alleged that grace period on account of force majeure conditions be allowed to it. [t raised the contention that the co nstructio n o f the project was delayed due to force majeure co nditions 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 between the parties on '27 .01.2016 and as per terms and conditions of the said agreement the due date of handing over of possession comes out to be 30.01.2 019, which was prior to the effect of Covid- 19 on above project could happen.The Authority put reliance judgment of Hon'ble Delhi High Court in case Page 18 of 26 ffi HA] #" eun RERA IUGRAM complaint No.

5847 of 202 2 and 2 others titled as M/s Holliburton Offshore Set'vices Inc.

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

O.M.P (l) (Comm,) no.88/ 2020 ond LAs 3696-3697/2020 dated 29.05.2020 which has observed that- "59.

The post non-performonce of the Controctor cqnnot be condoned due to the COVID-19 lockdown in March 2020 in lndia.

The Controctor wos in breach since September 2019.

Opportunities were given to the Controctor to cure the same repeoudly- Despite the same, the Contractor could not complete the Project.

The outbreok of o pandemic cannot be used os an excuse for non- performance of o controct for which the deodlines were much before the outbreok itself." 17.

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

Therefore, it is nothing but obvious that the proiect ofthe respondent rvas alrcady delayed, and no extension can be given to the respondent in this regard.'fhe events 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 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.

Moreover, the respondent promoter 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 bc 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.

18.

Respondent no. t has stated that vide order dated 25.0320ZZ passed by the Hon'ble NCL'l', New Delhi Bench in case titled as lJ nion Bank of India Versus M/s Supertech Limited, thc Hon'ble NCl,'I has initiatcd CIIIP respondent no.1 and impose moratorium under section 14 ofthe IBC, 2016.

1'he Authority observes that the project of respondent no.

2 is no longer the assets of respondent no.

I Page 19 ol26 G.

1_9.

HARER,{ Complaint No.

5847 ot 2022 and 2 others W,GURUGRANI and admittedly, respondent no.2 ltas tal(en ovcr all assets and liabilities of the project in question in compliance of the direction passed by this Authority vide detailed order dated 29,11.2019 in Suo-Moto complaint.

HARERA/GGM/ 5802/2019.

Respondent no.2 has stated in the reply that the IDA was cancelled by consent of respondent no.1 and rcspondent no.2 vide cancellation agreement dated 03.10.2019.

In view of the above, respondent no. ondent no.z 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 CII1P in terms of affidavit dated 19.04.2024 filed by SI1.

Hitesh Goel, IRP for M/s Supertech Limited.

However, ir has been clarified that the corporate debtor i.e., respondcnt no.1 remains under moratorium. 'l'herefore, even though the Authority had held in the Suo-Moto proceedings dated 29.11.2019 rhat respondent no.

1 & 2 were jointly and severa))y iiable for the project, no orders can bc passcd against respondent no.1 in the mattcr.

Findings on the reliefsoughtby the complainants.

G.l To direct the respondent to refund the whole amount paid by thc complainants to the respondent along with the interest @ 240lo per annum (ratc at which respondent charges interest from the complainant) counted from thc date ofdeposit to the date ofrealisation ofrefund.

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

Sec.

18(1) ofthe Act is reproduced below for rcady reference:- "Section 7B: - Return of omount qnd compensqtion 1B(1). lf the promoter fqils to complete or is unable to give possession of on oportment, plot, or building. - (o) in qccordance wilh Lhe terms of the ogreement Jbr sqle or, as the cose may be, duly completed by the dute specifred therein; or [b) due to discontinuance of his business as o developer on occount of suspension or revocotion of the registration under this Act or fot any other reoson, Page 20 ol26 HARER. complaint No.

5847 of 202 2 and 2 orhers GURUGRAM he shatl be lioble on demand to the ollottees' in cose the allottee wishes to withdtow from Lhe project' without prejudice to any other remedy ovoilable, to return the qmountreceived by him in respect of that opartment, ploL buitding, os the cqse may be, with iitere ith iiterest at such rote os may be prescribed in this behalf including compensotion in the monner os provided undet this Act: Provided thoLwhere qn allottee does not intend to with(lrctw from the projecL, he sholt be ptlid' by the promoter, interest for every month of delay, Lill the handing over oJ the possession' ot such roLe os moy be prescribed" ,,:;:i;;, 20.

As per clause 1 ofthe buyer's developer agreement talks about the possession ol' the unit to the complainants, the relevant portion is reproduce as under:- 7. 'l he Possessirtn of the ollotted unit shall be given to the Allottee/s by the company by luly 20L8. t!owever' this period can be extended Jbr o furthet groce period of 6 months " 21.

Due date of handing over of possession and admissibility of grace period: Asperclauselofthebuyerdeveloperagreemellt,thepossessionoftheallotted unit was supposed to be offered by the July 2018 with a grace period of 6(sixJ months.

Since in the present matter the buyer developer agreemcnt 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 January, 2019.

22.

Admissibility of refund along with prescribed rate of interest: Thc complainants are seeking refund the amount paid by them along with interest prescribed rate ofinterest.

The allottees intend to withdraw from the project aild are seeking refund of the amount paid by them in respect of the subiect unit with interest at prescribed rate as provided under rule 15 of the rules Rule 15 has been reproduced as under: Rule 75.

Prescribed rate of interest' lProviso to section 72, section 18 dnd sub-section (4) and subsection (7) of section 191 Pagez7 otz6 ffi HARERA #"eunuennlr (1) For the purpose of proviso Lo section 12; secLion 18; and sub'sections (4) . ions (4) .id (7) ofsection 19, the "interest ot the rate prescribed" shall be the Stote Bank of tndio highest marginal cost of lending rote +2ak : Provided thot in cose the State Bonk of lndia marginol cost of lending rote (MCLR) is not in use, it shall be replaced by such benchmark lending rates which the State Bonk of lndia moy fix from time to time for lending to the general Public.

23.

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

The rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases' 24.Consequently,asperwebsiteofthestateBankoflndiaie',https://sbicoin'the marginal cost oflending rate [in short, MCI,R) as on date ie, 07'042025 ts 9.107o.

Accordingly, the prescribed rate of interest will be marginal cost ol' lending rate +20lo i.e., tL,tlo/o.

25.

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 reproduccd below: "(zo) "interest" meqns Lhe rotes of interest poyable by the promoter or the allottee, as the cose maY be. f:xplonotion. -l:or the purpose ofthis clquse- (i) the rote of interest chorgeoble from the allottee by thc promoLer' in cose of det'auh' sholl be equal to the rote of interest which the promoter sholl be liable to poy the olloLtee, in case ofdefqul' (ii) the interest poyable hy the promatet to the ollottee sholl be from the dote Lhe promoter received Lhe qmount or ony pdrL thereof Lill Lhe (lote the amount or part thereof (|nd interest thereon is relunded' and the interest poyoblc by the ollottee to the promoter sholl be from the date the allottee defoults in poymen in poyment to the pronoter till the date itis poidi' 26.

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 satisfied that the respondent is in contravention of the section Complaint No.

5847 of 2022 and 2 others Page22 of26 Complaint No.

5847 of 2022 and 2 others 11(4)(a) of the Act by not handing over possession by the due date as per the agreement.

By virtue of clause 1 of the agreement executed between the parties on 27.01.20L6.

The due date ofpossession is July 2018.

As far as grace period is concerned the same is allowed for the reasons quoted above 'l'herefore, the duc date ofhanding over possession is January 2019 27. lt is pertinent to mention over here that even after a passage of more than 6 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' 'Ihe authority is of the view that the allottee cannot be expected to wait endlcssly for taking possession of the unit which is allotted to him and for which he has paid a considerable amount of money towards the sale consideration lt is also to mention that complainant has paid almost 87% of total consideration Further, thc authority observes that there is no document placed on record fronl which it can be ascertained that whether the respondent has applied for occupation certificate/part occupation certificate or what is the status of construction of the project. ln 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 1B(11 of the Act, 2016.

28.

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

Vs' Abhishek Khonna & Ors., civil appeol no.

57BS of 2019, decided on 11,01.2027 "...-'l'he occupqtion cerLilicote is not ovailable even os on dote, which cleorly omounts Lo defciency of service '['he ollottees connoL be made to ffi HARERA #- eunuennu Page23 of 26 M HARERA ffieunuennnr Complaint No.

5847 of 2022 and 2 others wait indelinitely for possession ofthe apartments allotted to them, nor con they be bound to take the oportments in Phose 1 of the project.....,." 29.

Moreover, the Hon'ble Supreme Court of India in the cases o/ Newtech Promoters and Developers Private Limited Vs State of U.P. and Ors' (supro) reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLP (Civil) No.

73005 of 2020 decided on 12.05.20 2 2. observed as under: - "25.

The unquolifed right of the allottee to seek refund referred llnder Section 1B(1)(o) and Section 19(4) of the Act is not dependent on any contingencies or stipulations thereof. lt oppears thot the legislqture hos consciously provided this right of refund on demond as an unconditional absolute right to the ollottee, ifthe promotet foils to give possession of the qpartment, plot or building within the time stipuloLed under the terms of the ogreement regordless of unforeseen events or stoy orders of the Court/ftibunal, which is in either woy not otLributable to the olloLlee/home buyer, the prcnoter is under on obligation Lo relund the amount on demqnd wiLh interest dt the rale prescrihecl by Lhe SLate GovernmenL including compensaLion in the monner provided under the AcL with the proviso that if the allottee does not wish to withdraw from the project, he shall be entitled lor interestfor the period of delay till honding over possession qt the rote prescribed." 30. ibed." 30.

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(4J(a).

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 datc specified therein.

Accordingly, the promoter is liable to the allottees, as they 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.

31.

Accordingly, the non-compliance ofthe mandate contained in section 11[4)(a] 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 PaBe 24 of 26 H b Complaint No.

5847 of 2022 and 2 others at the prescribed rate of interest i.e., @ 11.10%o p.a. (the State Bank of India RA l?AM ABE URUG highest marginal cost of lending rate (MCLR) applicable as on date +2o/o) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) llules, 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.

G.ll To direct the respondent to pay Rs.

32.

The complainant are seeking above mentioned relief w.r.t. litigation.

Hon'ble Supreme Court of tndia in civil appeal rcs.6745-6749 of 2021 titled as M/s Newtech Promoters and Developers Pvt.

V/s State of Up & Ors. [supraJ, has held that an allottee is entitled to claim compensation & litigation charges under sections 12,14,18 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation & Iitigation expense shall be adjudged by the adiudicating officer having er having due regard to the factors mentioned in section 72.

The adiudicating officer has exclusive iurisdiction to deal with the complaints in respect of compensation & legal expenses H.

Directions of the Authority 33.

Hence, the Authority hereby passes this order and issue the following directions under section 3 7 of the Act to ensure compliance of obligations casted upon the promoter as per the functions entrusted to the authority under section 34(0 of the Act: i.

The respondent no.2 i.e., SARV ltealtors Pvt Ltd is directed to refund the amount received by it from each of the complainant[s) along with interest at the rate of 11.10% p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Rules, 2077 from the date of each payment till the actual date ofrefund ofthe deposited amount.

Page25 of26 HARERA ffiGURUGRAM Complaint No.

5847 of 2022 and 2 others ii.

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. iii. 'Ihe respondent no.

2 is further directed not 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 il 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 being passed in the matter qua respondent no.

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

34.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order wherein details of paid up amount is mentioned in each of the complaints.

35.

Complaint as well as applications, ifany, stands disposed ofaccordingly.

36.

Files be consigned to registry. ). gistry. ).t ->-2 (Viiay Kumar Goyal) Member (Arun Kumar) Chairman Real Estate Regulatory Authorify, Gurugram {-t' Haryana ok Dated: 2 5.03.202 5 Page 26 of 26