SUMAN DEVI vs OCEAN SEVEN BUILDTECH PVT LTD

PROIECT NAME *HARERA S-eunuenav aR/1080/2023 cP /1044/2021 atl/t11t /2423 cR /L1L2 /2023 complaint No.

1083 of2023 BEFORETHE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUCRAM D,teof de.ision: 13 0a 2024 O.i!an Srv.n Buildr.ch Pvt.l.td.

The Veneti.n,Sector- 70, Curugram, Haryana M/s 0cean Seven Euildte.h M/s ocean Seven Buildtech M/s Ocean Scven Buildtech M/s Oc€a.

Seven Buildtech Adv,Akhand Pa.tapSingh Adv.

Akhand Parrap Slngh AdL.

Akhand Pcdaf \ nHh M/s Ocein seven Buildtech Adv,Akhand Partap Sin3h Adv, Akhand Partap Slngh CORAMI ShriArun Kumar ShriVijayKuma.

Goyal ShriAshok Sangwan Member HARERA GURUGRAN/ DTCP licetrs€ no. and other 'The venetran',Sector 70, Curusram, llaryanr.

Affddable s.oup h@ii;'s ;i;;, 103 0I2019 dated 05.09.2019 l.i.cnsee- Sh.ee Rabn lrl and oth.rs Complaint No.

1083 oi2023 I 2. il.

ORDIR This order shall dispose oa 5 complaints titled above flled belore thrs authority under sectjon 31 of the Real Estate (Regulatron .rnd Development) Acl 2016 (hereinafter referred as'the Act") read wrth rul.

28 ofthe Haryana Real Estate (Regulation and DevelopmentJ Rulcs, 2017 (hcreinaiterrelerred as "the rules"l forviolation ofsection I l(41(al olrlr.

Act whcrein it rs rnter alia prescribed that the promoter shall bc respons,ble ior all its obligations, responsibihties and functrons to th! allottees as per the agreement tor sale executed inter se parties. 'lhe core issues emanating from them are similar in naturc and thc complninant(sl in the above referred matters are allottees ot the prolc.i namcly, "The Venetian", Sector- 70, Curugram, Haryana being deveLop(d by thc respondent/promoter '.e., I4/s o.ean Seven Buildtech Pnvat. l.imrted. lhe terms and conditions ol the allotment letter. buyds agreements, lulcrum of lhe ,ssue involved in all these cases perta'ns t.) lailu e on the part ofthe p.omoter to delivertimely possession oithe uf ts in question thus seeking refund ofthe unit along with interest.

The details ol the complaints, unit no. , unit no., date of agreement, posseseon clause, duc date oipossessjon, total sale consideration, total paid anrouni and reliefsought are given in the table below: GURUGRAI\I HARERA ComplaintNo, 1083of 2023 07,02,2020 ReSisteredvideno.39of2020dated 27.10.2020 1(lvl oJthe Allq.ldbt.

Hounns Polky, 2o13 Atl such pratects tholl be requned ta b. reftstut b canpleted withtn 4 yeors lrom the opproeot oJ buil.ling plons ot grdnt ol envi.onmental clearoig whichever ts later Thts dare \hull ht ref*ted ta ds the 'dote alcannencenent al pro)ei lat the pLryose afthit poliry The L.enset shultntt br rehewed beyotul the ed 4yeo4 period f.an the dok ol connencenent ol p.otecL L L ,r.*ra., t:: l'T* RA RAlr/ ARE L,]:]UG H G ComplaintNo 1083 of 2023 r"* rNl I GUI?UGRA[4 HARERA ComplaintNo.

1083of 2023 rain abbreviationsh.vdbeen used T adn prLd by rhe allotce^ l.

5. 'lhe tacts of all the complaints filed by the complainant(r/allottee(sl .rft' sinrilar.

Out of the above-mentioned case, the particulars of lead casc CR/ 1083/202s irled as Deepika Sisotllya Vs.

M/s Oceot seven Buildte.h Pv,. l,ad are being taken into consideration for determinrng the rights or theallotteeIs).

Proi€ct and uoit related details The particulars ofthe project, the details ofsale consideration, thc amount paid by the complajnant, date of proposed handing over the posscssron d.lay period, ifany, have been detailed in the following tabLrlar fonn: CR/1083/2023 titled as Deepika Sisotlip Vs.

M/s ocean Seven Buildtech Pvt.

Ltd. *HARERA -($- GIRIGRAI/ ComplalntNo.

1083of 2023 F 0502, tower 1 lPage 19 olcomplaintl 571.105 sq. tt. (ca.pet aresl (Pa8e 19 orthe.onPlainrl 1 (tv) oJ the Allordable ttousiag Poti.!, 2o1 :l All such ptujects shall be reqrirc.l to be ndessotily.o plete.l withih 4 tEoB fon the oppnvat of buildins plons ot srcnt oJ .heinnnenrol dearonce. whtchever is toter This dote sholl be elerrcd ro os rhe 'date of conmencen. conmencen.nt ol project lot the purpoe ol rhis policy The licenes lhall not be teneeea The Venetian, Sector- 70, curu Affordable group housjng.olony DTCP license no. and r03 0f2019 dated 05.09.2019 valid up too4.o9,2o24 Building plan approval Erri.*"t .t"*""ii nene a"gl.t"i"u7 oot Shree Ratan L.land others oT.onon [As per DTCP weblite] R"gi"t";;d ,id" tro.

39 of 2o2o 27.10.2n20 valid upio 02.09,02024 09.03.2021 lPase 19 or cohplainrl Bu ilder buye. agreemenr *HARERA -&-cLnLnnml Due date olposse$ion crnnot b.as..rtain.d Toral sale pn.e ofihe nar Rr.2J.00,000/.

Complaint No.

1083ot2023 belond the tuid 4 tEors period lron the do|e al connerce ent ofprcject. [As alleged by the complainant at page Rs.5,89,189/- [As alleged by complainant at page 16 ol 23.06.?A?2 Ipase 31 ol.omplainrl Surrender request by the conrplainant throueh lceal B, Facts ofthe complalnt The conplainanthas made the following submissions in the complaint: l. 'lhat the present complaint is being filed by the complainant against the respondent company who lailed to timely handover any relevant information regarding the flat in question and have been demand'ng instalments without entering into any buyer's agreement & without commencing construction.

I1.

That the complainant is a law-abiding citizen.'Ihe complainant havrng the need for resideDce, ivas desirous of buying an apa(ment lor hrn and his family and thereiorc app lied fo.an apadment in a prote.t lh.

Venetian" at Secto170, Gurugram being developed by the respondenr /promoter.

That it is pertinent to mention that the complainant hld applied for the apartment through an advertisement by thc respoDdent.

Subsequently, the payments were made by ih. complainaDt to the respondent.

L2t *HARERA &. crnrcnnrtl vt \rtl I1l.

That the.espondent companyare involved in realestate activines wiih olvn or leased property which includes buying, sellins, rentLns and operating ol selaowned or leased real estate such as apartmerl building and dwellings, non residential esidential buildings, developins and subdividiDg realestate into lots etc.

IV.

That thecomplainant even alter payinE th. applicatjon fee had to t!.it till 09.03.2021 to receive the lette. of allotment. l\4oreover the respondents did not execute the buye.s ag.eemen t. 'l'hat v'de Letter ol allotment, the complainants was informed that the flat no.203 in tower no.

2, 2 BHl( [Type 1], having a carpet area of approx 571 105 sq ft and having balco ny area 98 sq. ft. has been allotted to him.

V.

Thatthe respondentthen iurtherasked the complainantto dcPosrt th. instalment amountthrough the demand letter dated 26.08.2021.1t rs to bc noted that there had been Do buyer's agreement betwcct thc partres.

He had requested to the respondent to provide relev.rnr info.mation, but the request was met wrth deaf ears hom the respondent.

It is to be again noted that there still isnt a buycrs agreement betweeD the parties and no relevant inlormation hid becn provided by th€ respondentwith respect to the allotted llat.

That after making the aforesaid instalments, the complainants made follow-up calls and enquired as to howthe respondents willcomplete the project.

He has madethe payment of Rs.5,88,0 Z 2/' till date.

That the respondents neither replied to the said enquiry made by the complainant nor ,ntimated the complainant about the progress of construction.

The respondent have not even executed the 8BA despile of receiving more than 10% ofthe sales consideration- Complaint No.

1083 o12023 i}HARERA #-cunLnnrnr vtlt. \ IX That having receiv€d no updates and lacing mental agony and harassment du€ to the acts and conduct ofthe respondent and h.rving leatwith no remedy, th e complainant through th€ir counselsent a legal not,ce dated 11.10.2022 wherein the compla,nants sought a retund of the entire amount pa,d along with interest @ 12% Per annum lrom the date ofpayment to the date ofreiund. ofreiund.

Even tilldate, the project is lar away from its completion as the construction has notyet started That the respondent issued the reply dated I1.11.2022, to the notice dated 11.10.2022 but have retused to refund the entire investmcnt made by the complainant.

That the complainant was made to sufler at the hands ot thc respondents considerinBthe fact that the complaina n t has been 'ssued the allotment letter on 09.03.2021 and till date the constructron hds not yet sta.ted and the project is far away arom its completion and thc respondentsare enioyingthe benents oi the hard earned money ofth. complainantas w€I1 asother innocenthome buyers withou!dornga l proposed construction on the site. lhat the delay in constxuction and iailure to deliver the property, rh. complainant is entitled to withd.aw and accordingly is wrthdrrwrng from the allotment and further s€eks the relund of an amounl or Rs.s,88,022l- along with interest as per section 18 ofthe Act, 2016 xt c.

7 Rellefsought by the complalnanu - The complainant has sought following relie(5): I.

Direct the respondentto refund theentire paid'up amountalongwith interest@ 18yo p.a.

Fom thedate ofeach payment- Il.

Direct the respondent to pay an amount of Rs.50,000/- as litiSation Pa8e9ol17 Complaint No.

1083 of202:l HARERA ConplaintNo 1083or2023 GURUGRANI 8.

The present complaint was filed on 28.03.2023.

On 15.09.2023, and 10-11.2023, the respond€nt was direct to ffle the reply within stipulated time period, but the respondeni failed to comply with the orders of the authority.

However, despite service of notice, and the respondent has failed to file reply within the stipulated timeframe.

In view of the conduct ofthe respondent on 13.08.2024, the authority is left with no option but ro striktns off rhe defence oithe respondent.

9.

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

The,r authenticity is not in dispute. n dispute.

Hence, the complaint can be decided on the basis of these undisputed docu ments and submission made by the complainant.

D.

Jurisdlction of the authority 10.

The authority observes that it has territorial as well as subject matter jurisd,ction to adjudicate the present complaint aor the reasons given D.l TerritorialiurtsdtcUon 11.

As per notification N.

1/92/2017-1TCP dated 14.12.2017 iss|red by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Curugram shall be entire Curugram District for all purpose with oflices situatedin Gurugram.ln thepresentcase, the project in question is situated within the planning area of Gurugram District.

Therefore, thisauthority has complete territorial jurisdiction to dealwith the present complaint.

D.ll Subiect matter ,urisdicdoD 12.

Section 11[a)(a) of the Acr 2016 provides that the promoter shall be responsible to the atloftee as per agreement for sale Section 11(4)(al is reproduced as he.eunderl HARERA GURUGRAIU 13 14 1i;,t" p,o..n,,t.u (a) be responsible for oll obligotiont rcsponebihtid and luncnans Lnde. the prcvisons aI this Act or rhe tules ond regulotions mode thefeunder ot to the ollottees os pet rhe ogreneht lor sole, or to the ostociation ofallottees,osthe cose nay be, tillthe conveyon.e olollthe opoftnehts, plots ot buildingt os the cav nay be, to the allatteer o. the con nan a rea s to th e ostuc i o rio h oI o t loctees or the con petent o uthaa tt, os the cov noy be; Section 31-Fwcrions ol de authotity: 34(n of the Act oravides to ensute conplidnce ol the oblgations cost Lpon the pmnoter' the allorke, ond the reol estote agenE undetth6 Act ond the rules ond .egulotions had. theteuhdq So, in view of the provisions of the Act quoted above, the authority has complete jurisdictio. risdictio.todecidethecomplaintregardingnon-complianceof oblieations by the promoter leaving aside compensation which is to be decided by the adjudicating ofRcer ifpursued by the complainant at a later stage.

Further, the authority has no hitch in proceeding with the complant and to grant a reliefof refund in the present matter in view otthe )udgement passed by the Hon'ble Apex Co!ft in New'tech Promoters ond Developers Private Llmlted vs state ofU.P, dnd ors,2021-2022 (1) RcR (clvll),3s7 ond reitemted in case ol M/s sona lTealaors Prlvote Llmited & other Vs Unton ol tndia & others SLP (Ctv ) No, 73005 ol2o2O decided on 12.05.2022 whereir. ithas been laid down as under: "a6 Frcn the ilhene al the A.t ol whnh o detoited rcf*ence has been node ond taking nore ol power al odiudicarioh delineoted with the res u lo tory o uthoriE o n.] odt ud tcati ng all cer, qho t f no I 1! cu lls oul i s that olthough the Act ntl@tes the distinct expressions hke 'relund lntercst', 'penolry' and 'conpensation', o con)oint reoding ol kcttons 1A and )9 dedrty nonlests that when t conet to refund olthe a ounrondinterst on the 4ud ahount, or ditecting payheht ol interest for delored delivery oJ p6se$ion, at penaltr and interest thercon, t i! the regulotatv authoriA which has the power to exontne oKl deternine the outcone ol o conploint.

At the sane tine, when i cones to o question ol eekins the ret.laladjudsins conpeleian ond intercst therean undet s rions12, ComplainiNo.1083oI2023 ISHARERA -,S- eLrnLrcnnu [.

16.

ComplaintNo.

10a3of 2023 15.

14, 18 ohd 19, the odiudicoting aJJicer etclusivel! hos the powet n determine, keeping in view the collective rcoding al secttan 71 rcod wtn Secttan ?2 ofthe AcL iltheadjudicotton unde.

Secttons l2,11, 1t) ond 19 other thon cohpeh tion os enisoged, il extended La the odiudt. he odiudt.otnlo olfcet as ptaled thot, ih aut tiev doy intend to expand theunbn ond scope ol th e powe^ ond fu n ctian s ol th e o d )u d xati n s afi cet u nact s{d o n 71ond thotwauld be osainst the nandote ofthe A.t 2a16 " Hcnce, in view ofthe authoritative pronouncement olthe Hon'b1e Suprcnrc Court in the cases mentioned above, the authority has the jurisdictron to entertain a complaint seeking reiund of the amount and interest on the Findings on the r€liefsought by th€ complainant. [.] Direct the respold€nt to refund the paid-up amount alon8-with The complainant was allotted a unit bearing no.0203, in lower 2 hnvrng .arpet area of571.105 sq. ft. along with balco ny with area ol98 sq ri in thc protect o f respondent Damed "venetian" at sector 70, Gurugram under the Affo.dable llousing Policy,2013 vide allotment letter dated 09032021 Thereafier, builder buyer agreement was not executed betwccn th. complainant and respondent in respect of the subject uni!.

As per clausr 1(iv) ol the policy oi 2013, all projects u.der the said policy shllL h. required to be necessarily cornpleted within 4 yea.s lrom the d.)le ol approval of building plans or grant orenvironmental clearance, whrchever rs later.

Thus, the possession of the unit w:rs to be offered with'n 4 ycars hom the approval of building plans (07.02-2020) or from the date or environment clearance [not obtained yeo.

Thcrefore, the due d.te oJ possession cannot be ascertained.

As per record, the complainant has prl(l an lmountofRs.5,88,022l- to respondent.llue to lailure on thc Prrt ollh. respondent in obtarning cnvironment clearance from th€ conc.rncl .uthonty and iDordinate delay on part ot the respondent ro start I'dB( 12,)r l7 HARERA GURUGRA[/ GJI ln.ase oI su.render or 0at betbre commcncement of proJect \L tLh) upto 1 ycar from the date of commencement oi tho projccr kd Upto 2 year l.on the dat. of .ommencefrentof theproject (,i l Ancr 2 yea6 from thc drte ol comm€ncement ol the proiecl ComplaintNo. mplaintNo.

1083 of 2023 construction of the project in question, the complainant has surrendered the unit/flat vide legal notice dated 11.10.2022.

17.

As per the clause 5 [iii)(h] ofthe Atrordable Housing Policy,2013 as amended by the State Governm€nt on 05.07.2019, the relevant provision regarding surrender of the allotted unit by the allottee has been laid down and the sameis reproduced as under: clause s(iii) (h) oftheAtrordabl€ Houslng Pollcy, 2013 ''A \|oitihs tist lor o noxinun ol2s% olthe totatovoitobte nunbetofflots ovailable lor allotnent, noy ole bs prepoed duti.g the drow of loLs who @n be olIered the attotnent in .ote sone ol the succ4dut altotte$ ote nat able to renove the delicieh.i4 in th.ir applicotion wthin the pt6c ben petiod of 1s ddrs. [on sufte4.1er ollot b! an! suee$lut otlokee, the anount thot con be fotei|d by the colonizer in dddition tb Rs.25,000/ sholl not exceed the lollowins: - such lots not be considercd W the connittee lor ollet to thot. oppt'conts follins i rhe woiting IBL Hoeever, nonrenovol oI delcincies bv onr slqNlul applkd^t sholl not be consideftd as suftendet ol flo1 o.d no such deduction ol k 2s,000 shdll be applicoble on such cae9 ll ont wait hsted condidoz d@s ^at want to continue in the woiting list, he not seek withdrowol and the licencee shall relund the booking o ount withtn 30 doyt without ihpoting ant penalty- ?he soiting list shall be nointoined lot a petiod ol2 teo6, oftu which the bookins otuount shott be refunded bock to the woitlsted appliconLs, wihout an! interesL All non.uccessful oppliconts sholl be r4und.d back the bookns anount ||ithin 15 davs aJ holdins the drav ofloE".

HARERA GURUGRA[/ 18. ln the present matter, thesubject unitwas surrendered by the complainant- allottee vide legal notice dated 11.10.2022 due to failure on the part of the respondent in obtaining environment clearance and has requested the respondent to cancel the allotment and retund th€ entire amount paid by him along with i.terest.

1 9. rest.

1 9.

However, it has come to the notice of the authority that the respondent has failed to obtain environmental clearance from the competent authority till date. lt is pertinent to mention here that as per the clause s liii)(b) of the Affordable Housing Policy, 2013 as amended by the State covernment on 22.07.2015 provides that ifthe license€ fails to get environmental clearancc even one year ofholding draw, the licencee is liable to reiund the amount depos,ted by the applicant along with an interest of 12%, if the allottee so desires.

The relevant provision ,s reproduced below tor ready.eference: ''Lhe lats in o sp{ifc praject sholl be allo$ed in on. go withtn lout nonths ol the sonctioh oJ building pla6. ln cose, the numb.t ofopplicotions rccelved )s ler\ thon the nunber ol tunctioned las, the allotn nt can be hode in two ot nare phoes.

Ho\|evet, the licencee qill stott the co$ttuction onlt ofter recetpt ol ehvnonnental clatun.e ltun the conPetent outhority.

The li@n@ e l sto.t r..elvlng th. further instalm.nts onlt d.e th. envi.tum.ntal cleoron@ is [email protected].

Futthe, if the licen@, lail to get environmqtal cleofonc. evq dft$ one v@t ol hot.ttng ol dm* the licqc@ is lidbb to reha.l rhe Mour dePallt .l bv th. oppli.ont olongwlth an in& en ol120h, if h. o ot.eedetl.es.

20.

In ihis regard, the authority observes that as per clause s(,ii)(bl or the Arordable Housing Policy, 2013, the licencee will start receiving the further installments onlyonce the environmental clearanc€ is received.

As delineated hereinabove, the respondenthas failed to obtain environmental clearance till date, thus, are not entitled to receive any further pavments.

Herce, theobjection raised by the respondent isdevoid ofmerits.

21.

Further, as peramendment dated 09.07.2018 in Atrordable Croup Hosing Policy, 2013, the rate olinterest in case ofdefault shallbe as per rule 15 of Complaint No.

1083 oi202l *HARERA #- crrnrcnnur the Haryana Real Estate [Regulation and Development) Rules, 2017. les, 2017.

Rule 15 ofthe.ules is reproduced as under: ComplarntNo.

1083of 2023 Rule 15.

Prcsiibed tute ofinterest. lProvie to sction 12, section la aid sub-vcrion (4) ond subvction (7) of@tion 191 Fat the putpose ol proi@ to Rction 12; section 1a; ond subaections (4) ond (7) ol*crion 19. the "interest otrhe rcte presnbed shott be the state Bank oJ l^dtd hbhest hdrqinol cott oI tendinq rote +2%.: Prcided thot in coe the kote Bonk ol In.lia orginal costoflendtns rcte (MCLR) is not in use, n lhall be replaced by such benchnork lending rates which the StaE Bank ol lndo nay fx fion tine to tihe fur lending to the genercl publi.

22.

Th€ legislature in its wisdom In the subordinate legislation under the rule 15 of the rules has determined the prescribed rate of interest.

The rate of ,nterest so determined by the legislature, is reasonable and itthe said rule is followed to award the interesL it will ensure uniform practice in all the 23. 'lhus, the complainant'allottee is entitled to refund of the entire amounl deposrted along with interest at the prescribed rate as per aloresrrd provisions laid down under Affordable Housing Policy,2013 24 IIence, the respondeDt/promoter is directed to reiund the entrre p.r'd ul) amount as per clause 5(iiiJ(bl of the ofAfiordable Housing Policy, 20I I rs am.nded by the State Covernment on 22.07.2015, along w'th prcscnbcd rateotinteresti.e., @110/op.a.(theStateBankof, India highest marg.nal on oilcndins rate (MCLR) applicable as on date +2ulo) as prescribed under rule 15 of tbe Haryana Real Estate (Regulation and Developmentl Rulcs, 20li frorn the date oi each paymeni till the actual realization of the amount within the timelines provided in rule 16 ofthe Haryana Rules 2017 rbrd E,ll Dir.ct the respondent to pay an amount ofRs.50,000/_ as Iitigattun expenses. gHARERA -&- cLnuenav Complaint No.

1083 of 2023 25.

The complainantis also seeking reliefw.r.t. compensation. pensation.

Hon'ble Suprcmc Court of lnd,a in civil appeal nos 6745-6749 of ZO2l titled as t/sl/ew.e.ft PromoteE and Developers PvL Ltd. vs.

State oJ UP & Ors. (supra ) ha s hcld that an allottee is entitled to claimcompensaiion & litrgation charges Llndc. sections 12,14,18 and section 19 which is to be decided by the adludicrtrnE oificer as per section 71 and the quantum of compensation & litigation expense shall be adjudged by the adjudicatins officer having due regard to the factors mentioned in section 72.

The adiudicating officer has erclusrve jurisdiction to dealwith the complairts in respect ofcompensatLor & leg.n I.

Directionsof the authority 26.'llence. the authority hereby passes this order and issue the tollowrnB directions under section 37 ofthe Act to ensure compliance oloblgations caned upon the promoter as per the functions entrusted to the authonl! under section 34[0 oftheAct: i.

Th e respo ndent is directed to refund the entire pa id upamountaspcr clause 5[iii)(b] olthe Affordable Housing Policy,2013 as amended b] the State Government on 22.07.2015, along with presc.ibed rate o, interesti.e., @11% p.a.asprescribedunderrule 15 of the Rules, 201 7 from the date oleach p:ymenttillthe actual realization of thc amount ii.

A period ol90 days is given to the rcspondeni to comply wrth the directions given in this o.der failingwhich legalconsequenc.s wou d iii.

The respondentis furtherdirected not to create any third_partv rights against the subject unit before the full realization of paid up anrount along with interest thereon to the complainantls], and even if an!' HARERA GURUGRAl\/ {Ashok sa 13.08.2024 Complaint No.

1083 of2023 27 transfer is inihated with respect to subject unil the receivable shall be fi rst utilized for clearing dues of allottee/complainant(s). ainant(s).

Th,sdecision shallmutatis mutandis apply to cases mentioned in para 3 oi this order wherein details otpaid up amount is mentioned in each ofthe The complaints stand disposed ol Files be consigned to registry.

29 an) tvllav (Arun Kunar) Chairman Haryana Real Estate Regulatory Authority, Curugram HARI Gt]RI]C r Goyal)