SHAKUNTALA DEVI vs EMAAR MGF LAND LTD.

PHARERA s,eunuenqv C.n'pLarnt No 6461ot 2022 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaintno, : 6461o12022 orderreseruedon: 30.O4.zoz4 Orderpronouh.ed on: 24.09 2024 Mrs shakuntala Devi W/o Sh.

Harvee.

Singh R/or House No.205, Lajpat Nagar, Gun House, Hisar 125001, Haryana Versus Iqls Emaar India Limited. (Formerly Known as Emaar 14GF Land Limrtedl Registered otfice atr Emaar MGF Business Park, 2 Floor.

N.{ehrauli Gurgaon Road, Sikandarpur Chowk, Sector 28, Gurugram - 122002, Haryana.

CORAM: Shri Vijay Kunlar Goyal Chairlnan APPEARANCE: Shri Xuldeep Kumar Kohilalogwith Knnish Bangia Shri Harshit tsatra t I, r-l lfuah/ r r.-I r r. rhe present cor(lrf,f2,@iA'N&,rhi*nt/alottee in Form CRA uoder section 31 of the Real Estate [Regulation and Development) Act, 2016 lin shoc th€ Act) read with rule 28 of the Haryana Real Estate (Reguladon and Development) Rules, 2017 [in short, the Rules) for violation of section 11[4Xa) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all Advocat€s for the complainant Advocate for the respondent *s 2_ HARERA GURUGRAl\/ Complarnt No.

646I o12022 obligations, responsibilities and functions to agreement for sale executed inter se them.

Proiect and unit related details The particulars of the project, the details oi amount paid by the complainant, date ol pro possession, delay period, if any, have been d the allottee as per the sale cooslderatlon, the posed handing over the etailed in the following Name and locanon of the "Enerald Hills' at sector 65, Urban Estat€, Cureaon, Naryana ? :l I r0 0f2012 d3tPd 21 0s 2019 5 M/s Logiel Developers Pvr Ltd. and 15 RERA Registered/ not Registered vide no.

162 of 2017 dated 29.04.2017 lo $ 24,04,2022 EHF 267-J-FE-053, 1n floor lPare no.

71 of the comDlaintl B lPaee no.

71 of the comDlaintl Date of provisional fln favour oi the orieinal allott€e Ms.

Chetna ftullarl 16.02.2010 [As on paBe no.65 ofcomplaino Date of execution of buyer's t1.03. r's t1.03.2074 (As on Dase no.70 olcomDlainll 13,POSSESSION (i)rine or handing over the subkct to terns of this ctouse ond subject to the Allotree(s) hovins .onplied with oll the terns ond con.litions ol this Asremena ond not being in default und* an! of the provisions of this Agreenent ond cohp once tuth all pfovtsioht fomolitiet, doctnnrotion etc, os prescribed by the conpony, the Conbanv orooos.s to hond over the *HARERA #- cirnLrcnnu Complarnt No. b461 of 2021 B.

3 tacts ofthecomplaint The complainant made the tollowing submissions in the complaintl po$esion of the Floor withii 27 months lton the .late ol decution of this Agreqql The Allottee(, ogrces and underytonds thot the Conpant sholl be entitled to a gro.e pqio.l ol iN nontht Jor opplying ond obtalnlng the occupation certilcote in respect of the Float IEhphosk Supplied] rPaEeno,82 of .omDlainu 77.12.20t2 lNote: c.lculated fron the date oistart of execution of buyert asreement r e., 17.03,2010 + 6 months erace Deriodl T.bl rales.onsid.ration Rs.45,13,615/- (As per th€allotnent letteron page no.

Amount paid by the Rs.53,63,615 las alleEed bv the comDlainanO Nomination lette. in the name of the conplalnant 24.06.2012 (As on paee no.130 otcomplarno Asreenent to sell wherein second allott€e transfe.red thE unit in the nahe of fie lBetween Mr.

Abhinav Balyan Gecond allotleel and Shakunda Devi 20.06 20L2 [As on paae no.127 olreply) 09.06 2016 23.07.2077 06.04,2013 rPaceno.

131 of comDlaint) 20 Conv€yance deed executed 24.12.2020 lPaee no.

136of comDlarno 14.03.2013 I GU i.

HARERA ComplaintNo.6461oI2022 That relying oD various representationsard assuranc€sgiven by the respondent company and on beliefofsuch assurances, Ms.

Chetna Khuller, i.e., orig,nal allottee booked a floor in the projectby paying an amount oiRs.5,00,000/- dated 12.06.2009, towards the booking of the said floor bearing no.

Unit EHF 267 l-FF-053 in Sector 6s, admeasuring 267 sq. yd.

67 sq. yd. to the respondent and the same was acknowledged by the respondent.

That the respondent confirmed the booking of the floor to the original allottee vide allotment letter dated 16.02.2010, providing gHARERA $^ cunrcnrur,r the details ofthe project, confirming the booking ofthe floor dated 12.06.2009, allotting a floor no.

EHF 267'l-FF 053, admeasuring 267 sq. yd- iD the aforesaid project of the developer for a total sale consideration of the unit i.e.

Rs.45,13,615/-, wh,ch includes bas,c pnce, Plus EDC and lDC, PLC and additional charges ofthe allotted floorand providing the time frame with,n which the n€xtinsta)ment was to be paid.

Thereafter, a buyer's agreement was executed Complainr No 6461 o12022 betlveen the original allottee and respondent on 17.03.2010.

It is pertinent to mention here t re same was endorsed in favour of the se.ond ellottee nam hinav Balvan vide endorsement the said plot in favour of dated 12 05.2011, who fu the complainant Smt.

Sh 12 05 201 1. rvi vide endorsement dated od of27 months from That as per clause 13[i thepl t Therefore, the due date of .","0,"'n"n, fi"Q,$[Grf{"ft .o..rorr. tn" *-^a allottee execlrted an. "Agrq.Eeat to .Sell" rn favour of the complainanr herol-ft t\ loia\<i/mNdrdtioi of tu.s3,63,61 s/-.

The balance amount for obtaining the property which was still under construction was paid by the complainant according to the demands raised by the respondent.

The respondent/promoter, vide their nomination letter dated 28.06.2012 recorded their consent to the transfer by stating: "Accordingly, now the captioned property stands in the name of the complainan!" Thrt the second allottee subsequently transferre ed th€ properry in favou. of the vi.

Further, the complainant having dream ofits own residentialunit in NCR signed the agreementin th€ hope thatthe unitwillbe deliv€red on or before June, 2 012.

The complainant was also handed over the detailed payment plan which was construct,on linked plan. nked plan.

It is unfortunate that the dream ofowning a unit ofthe complainantwas shattered due to dishonest, unethical attitude ofthe respondent.

As per the demands raised by the respondent, based on the payment IARERA GURUGRAIV Compla'nr No.646l of 2022 plan, the complainant to bu captioned unitalready paid a total sun of Rs.53,63,615/ towards the said unit against total sale vii.

That the paymen The complai e payment /demands/etc. have not been transparen mands werebe,ng raised without suilcrent justifications and n).unnutr) payrnc raising structur€ leaving all amenities/finishing /facilities/common arealroad"nd other thi'ngs promised in the brochure, which counts to almost 50% ofthe total project work. v,ii.

That during the period the complainant went to the oflice of respondent severaltimes and requested them toallowthem to visit the s,te but it was never allow saying that they do not perm,t any buyer to visit the site during construction period, once compla,na nt visited the sitebutwas not allowed to enterthe site and even there was no proper approach road.

The complainant even after paying nr was extracted just was designed in such a way to extrdct the buyers viz a vrz or done/completcd. proached the .espondent and asked about the on and also raised objections towards noD e.t.

It is Dertinent to state herein that such u HARERA GURUGRAI\/ comDlaintNo 6461 of 2022 amounts stillreceived nothing in retum butonlyloss ofthetimeand money invested by them. ix.

That the complainant contacted the respondent on several occasions and were regularly in touch with the respondent.

The respondent was never able to give any satisfactory response to the complainant regarding the status of the construction and were never defi nite about the delivery of the possession.

The complainant kept pursuing the matter wi e representarives of the respondent vellas raising the matterto when wrll rheydehver theproj yconstruction isgoing on atsuch made mukiple tall oondent has chosen del,bera n del,berately ct and fulfilthe promises grievances raised by the pletely failed to honour services as promised and agreed through the broc er's agreement aDd the different respondent is also illegal and against the spirit of, AcL 2016 and the Ru1es,2017. xi.

That the complainant has sutrered a loss and damage in as much as they had deposited the money in the hope ofgetnngthe said un,t lor res,dential purposes. lt has not only been deprived ot the timelv possession of the said Unit but the prospective return they could have got if they had invested in ffxeddepositin h,nk 'rherefore. tbe compensation in such cases would necessarily have to be hieher a slow pace, butto no avail.

Thar the resDondent d thdn what rs aSreed rn the buyers agreement.

HARERA GURUGRA[/ CompLaLnrNo b461 o12022 xii.

That the complainants after many follow ups and reminders, and after clearing all the dues and fulfilling all one-sided denands and formalities as and when demanded by the respondent got the physical handover of the uniL Furthet respondent issued handover advice letter.

Th€reafter respondent issued handover tetter on account of handing over the physical possession of the unit.

Thereafter, on 06-04.2018, respondent handed over the physical possession ofthe uniL xrir.

That rhe compla,nants alter clea.ing all the due lline all .12.2020.

1t is pertinent to th complainant, in order to execute the ups and reminders, and one-sided demands and the respondent got the n amount o1Rs.66,200/- on 27.45.2019 ual execution of the coDveyance deed :h a stamp duty ol Rs.4,55,420l-.

While ","',,,"", "+I&oF&[ft,4*" no pro,'rsion ror .ompensatin&Cu foreCainagt{or \he. huge delay in handrng ovPr tte nar ana preiei'i-s[efurs nei&vla any o'pportunity to negotiate the terms ofthe said sale deed. xiv.That the respondent i! guilty of denciency io service within the puwiei, of provisions of the Acr 2016 and the Rules, 2017 The complainanthas suffered on account ofdeficiencyin service by the Respondents and as ts and as such the respondent is fully liable to cure the deficiency as per the provisions of the Act, 2016 and th€ Rules, 2017 consideration towards plarnrnt hds Pard the rotal nal consideration ol the said as pai *HARERA -&- crnuenav /payment to till t under secnon 18 & Iq[4J oi Act.

The complainant tor anv other reliel shi.h ComplaintNo.646lof 2022 w.

That the present complaint sets out the variolrs deficiencies in services, unfair andlor reskictive trade practices adopted by the respondent in sale oftheir unit and the provisions allied to it The modus operandi adopted by the respondenl from the respondent point ofview may be unique and innovative but from the allotted point ofview, the strategies used to achieve its objective, invariably bears the irrefutable stamp of impunity and total lack of accountabiliry and transparency, as well as breach oicontract and duping of the allottee, be it either through not implementine thc seruices/util,ties as the brochure or through not vested their lif€ savings in md are dreaming ola home for themselves and the e not o nly cheated and b-"trayed thcm but also used inant is entitled to get delay possession charges t the prescribed rate from date of app]ication C, 4. (hey are ibund entitled by this Authority. 'l'hus, th. p'cserrt The complainant is seeking the following reliet i.

Direct the respondent to pay the interestor the total amount paid by the complainant at the prescribed rate ofinterest as per the Act of 2016 from due date of possession i e., 17.06 2012 till date of actual physical poss€ssion i.e., 06.04.2018 ii.

Direct the respondent to notto charge anything which is not a pa.t of builder buyer's agreement. .omplaint filed by the complainant Reliefsought by the €omplainan complarnt No b4bl ol202l HARERA GURUGRAN/ u D.

5.

I, iii.

D,rect tbe respondent to pay the ercess amount charged against the stamp dutywhile executingthe conveyance deed. ance deed.

Reply lil€d by the respondent The respondenthas contested the complaint on the following grou nds: That the complainant have got no io.llssrordi orcause ofaction to file the present complaint. lt is based on an erroneous interpretation ofthe provisions ofthe Act as well as an incorrect understanding olthe terms and conditions of the buyer's agreement dated 17.03 2010 as shall be evident from the submissions mad; ln the following paragraphs olthe Present reply.

I , That the present complaint is rct maintainable in law or on facts The p.esent complaint €ises several such issues which cannot be decided in summary proceedings.

The said issues require extensiv€ evidence to be led by both the parties and examination and cross_examinat,on oa witnesses tor proper adiudication.

Therefore, the disputes raised in the present complaint are beyond the purview of this Authority and can oDly be adjudicated by the Adjudldtiog Officer/Civil Court.

Thereiore, the present complaint deserves to be dismissed on th,s Sround a1one.

Thrl rhe comDiainanl has not ronle betore this Authoriry wrlh clean ,l hands and has suppress€d vital and material facts from this Authority.

Thecorrecttactsaresetoutinthesucceedingparasof thepresentreplv That the complainant is vehemently and most humbly stated that bring out the true and correct facts and circumstances is subject to the contention ofthe respondent that the Authority has no iurisdiction to deal with the present matter and that th€ present complaint is not maintainable ior r€asons stated in the present reply.

That the complainant is not an "AlloBee" an but Investor who has booked the apartment in question as a speculative investment in order lt to earn rental income/profit from its resale.

Theapartment in question has been booked by the complainant as a speculative investment and not for the purpose of self-use as her residence.

Therefore, no equi.y lies in favor ofthe complainant.

HARERA GURUGRA[/ Complaint No. plaint No.

646l of2022 That the original allottee (Ms.

Chetna Khuller) approached the respondent and expressed interest in booking of an apartment in the res,dential group housing colony developed by respondent known as .onducred extensive and i Estate Gu.gaon, Haryana. booking, the original allotte€ €nquiries with regard to the prolect, only after being fully satisfied on all aspects, that she took an independent and informed dec,sion, uni.fluenced in.rny manncrby the respondent, to bookthe unitin question.

That thereafter the orisinal allottee, vide an application lorm dated 11.06.2009 applied to the .espondent lor provisional allotnreDt ol the unit.

Pursuant thereto, unit bea.ing no EHF-267_l_FE_053, locat.d on the First Floor, admea entative area) was allotted fo. remittance of $le consideration for the unit in question and iurther represented to the respondbnt that she shall remit every installment on time as per the payment schedule.

The respondent had no r€ason to susp€ct the bonande ofthe original allottee and proceeded to allot the unit in question in herfavor.

Ther€aftet a buyer's agreement dated 1703.2010 was executed betlveen the original allotee and the respondent lt is pertinent to mentio. that the buye.'s agreement was consciously and voluntarily executed berween the part,es and the terms and conditions ofthe same HARERA GURUGRAN/ Complainr No.

6a61 of 2022 are binding on the parties.

As per clause 13(,1 ofthe agreement, the due date ofpossession was subject to the allottees having complied w,th all the terms and conditions of the ageement.

That being a contra.tual .elationship, reciprocal promises are bound to be maintained.That it is respectfully submitted that the rights and obligations ofallottee as well as the bujlder are completely and entirely determined by thecovenants incorporated in the agreement which continue to be binding upon the parties thereto with fullforce and effect. vlll. ect. vlll.

That the remittance of all amounts due and payable by the original allottee under the agreement as per the schedule of, payment incorporated in the agreement was of the essence.

It has also been provided therein that the date fordellvery of possess,on of the unit would stand extended in the event of the occurrence of the facts /reasons beyond the power and control of the respondent. lt is pertinent to meniion that it was categorically prov,ded in clause 13(v) that in case ofany default/delay by the allottees in payment as per the schedule of payment incorporatea in the Agreement, the date of handing over ofpossession shatl be extended a.cordingly, solelyon the r e'Dondenl s dis.reEion till lhe plyinent of all oulsrandrng amounr\ lo '.'1 the s:tislaction ofthe respondenL rx.

That the unit was transferred to the subsequent allottee (Mr.

Abhinav Balyanl bythe original allottee upon the€xecution olthe affidavits and indemnity cum undertakings byboth the transferorand the Eansfe.ee.

The transier was thercafter ac€epted by the respondent vide nomination letterdated23.0S.20ll.Thereafter,thesubsequentallottee approached the respondent in lieu of kansferring the rights, title, and interest otthe said property to the complainant.

That pursuant thereto, an as.eement to sell dated 20.06.2012 was executed between the *HARERA S" GURuoRAN/ ^,ith open eyes after having that the complainant being e project was already thecompany.That having Compla'nr No.646Iof 2022 subsequent allottee and the complainant for transferring rights, title, interest ofthe said uniL Thus, unitwas transferred to th€ complainant by the subsequent allottee upon the execution of the affidavit dated 20.06.2012 and indemnity cum undertaking dated 20.06.20r2 by both the transleror and the transferee.

The transter was thereafter accepted by th€ respondentvide nominanon le$er dated 28.06.2012.

That further, an endorsement was also made in the name ol the x. xr Tb.t at this in complainant. mplainant.

That it is a matter offactand record that the complainant bought the unit after fully knowing the fact that there is a legitinrate delav on account of the reas d the control otthe respondent and was purchased b thout any delay or denrur.

That the complainant inatic delayed due to reason knowledge of the existing e to circumstaDces beYond the t willingly and volunta.ily entered into the agreement for sell and the transfer documents thereof leading to their nomination.

That 6uch prior knowledge, willing and self-initiated endorsement of the complainant, without any prot€st, amounts to acceptance of the existing circumstances and the complainant cannot be allowed to reap benefits by extracting monies from the respondent and forgoing th€i. complete satisfaction against the unit.

Hence the complaint is liable to be d,smissed with costs against the complainanL L\ elay possession charges.

That its xtl HARERA GURUGRAIV Complarnt No 6461 of 2022 It is conprehensively established that a period of 166 days was consumed on account ofcircumstances beyond the power and control of the respondenf owing to the passing oi orders by the statutory authorities.

Allthe circumstances stated hereinabove come within the meaning of force majeure, as stated above.

Thus, the respondent has been prevented by circumstances beyond its power and control from undertaking the implementation olthe Proiect during the time pe.iod indicated above andthe.efore the same is not to betaken into reckoning while computing the period of 48 as has been provided in the xlll That all tbese circumstances come within the purview of the force majeure clause and he.ce allow a reasonable time to the respondent builder.

Tbat it mustalso be noted that the respondent had the right to suspend the construction of the project upon happening of circumstances beyond the control of the conrplainant as per clause 13(iil, however, despite all the hardships aaced by the respondent, the respondentdid not suspend the con nd the construction and managed to keep the projcct afloat through allthe adversities. xlv.

Despite there be,ng a number of defaulters in the Proiect, dre respondent had ro infuse lunds into the project and have diligently developed the project in qu€stion.

That it must be noted bv this Authority that despite the default caused, the respondent applicd lor occupation certificate in respect of the said unit and the same was thereafter issued vide memo bearing no.

2115 dated 09.06.2016 Once an application lor grant oi occupation certificate is submitted ibr approvalin the office ofthe concerned statutory authorrty, respondent ceases to have any control over the same.

The grant of sanction olthe occupation certificate is the prerogative of the concerned statulory HARERA GURUGRAIV Compla'nr No.646I of 2022 authority over which the respondent cannot exercise any influence.

As far as the respondent is concerned, it has diligently and sincerely pursued the matter with the conce.ned statutory authority for obtaining of the occupation certificat€.

No fault or lapse can be attributed to the respondent in the facts and circumstances olthe case.

Therefore, the time period ut,lized by the statutory authority to grant occupation certificate to the R€spondent is necessarily required to be excluded from computation ot the time period utilized ior implementation and development of the project. xv.

That thereaft€r, the compla,n:n\t i{,is offered possession ofthe unit in question through letter of offer of,possession dated 23.01.2017.

The complainaDt was called upon to remit balance paym€nt including delayed payment charges and to comPlete the necessary formalities /documentation necessary for handover ofthe unit in question to the complainant.

Multiple possession reminders wer€ sent to the complainant in regard to handing over the possession of the said unit but all requests, reminders lell on dea, ears of the complainant. mplainant.

It is submitted that the complainant delayed th€ procedure ol taking the possession ofthe said unit on her of,n account xvr.

That the respondent earnestly requested the compla,nant to obtain possession of the unit in question and furthe. requested the complainant to execute a conveyance deed in respeci of the unit in question after completing all the formalities regarding deliverv of possession.

However, the complainant did not pay any heed to the legitimate, iust and fair requests ofthe respondent and threatened the respondent with institution of unwarranted litigation.

Thereaft€r, an indemnitycum undertaking forpossession dated 21.12.2017 ofthe said un it was executed b€tween the complainant and the respondent for use U HARERA GURUGRA[/ and occupationofthe said unit whereby the complainant have declared and acknowledged that they have no ownership right, title or interest in any other part oF the p.o)ect except ,n the unit area of the unit in question.

The instant complaint is preferred in complete contravention of their earlier representations and documents executed.

The present frivolo us complaint has been filed with the mala fide intentioD to mount undue pressure upon respondent thereby compelling it to succumb to their unjust and illegitimate demands.

Xvll.

That the compla,nant is a defaultihgrparty who has delayed i. remitting the timely instalments.

The iomiplainant having some grievances approached the respondeDt for the,r redressal.

That a settlement agreemenr dated 14.03.2018 was executed betlveen both the parties according to which the respondent in good faith and as a Coodwill gesture agreed to compensate the complainant after adjustment of all dues payablebythecomplainant.

That the said agreementwas executed as a full and final settlement of all claims, contentions of the complainant- That as per clause 1 df the settlement agreenent dated 14.03.2018, the respondent paid an amount of Rs. unt of Rs.3,50,000/' to the complainant as compehsation, Ddspite being compensated by the respondent, the complainant with malafide intention approached th,s Authority only to fulfill her Sreediness That as per clause 5 of the agreement, the complainant even indemn,fied the respond€nt against anyclaims in future. xvul.

That moreover, without accepting the contents ofthe complaint in anv manner whatsoever, and without preiudice to the r,ghts of the respondent, delayed interest if any has to be calculated only on the amounts deposited by the allottees/cornplainants towards the basic principal amount of th e unit in question and not on anyamount credited a.mnlrrniNn 644,1.f 2022 tomplarnt No 6461 of 2022 by the respondent, or any payment made by the allottees/complain:nts towards delayed payment charges or any taxes/statutory payments, xlx.

That in lisht otthe bona fide conduct ofthe respondent, no delay for the complainant, the peaceful possession having been taken by the complainan! non-existence ol cause of action, claim b€ing barred by limitation and the frivolous complaint filed by the complainant, this complaint is bound be dismissed with costs in favorofthe respondent.

The respondent has filed the written submissions on 0209.2022.

6. respect,vety which are take d.

No additional iacts apart from the complarntor repl lurisdiction ofth ell E,l Tcrritorial,u As per notification n ed 14.12.2017 issued by trHARERA $-crrnrnnnttt 8.

E, 7 Town and Country Plannin ent, Haryana the Jurisdr.tion rc,r r"t t" neeul{QrREftA, * "ntire curusram Distrid for all puryo€q wil\F1.2{qat"q i1c,,1rgo*. ln the present .".", t'" p.i".ttiaL*KllLaldldilrMlt'" pr,"nins area ot Curugram District, therefore this authority has complete terrltorial iurisdiction to deal with the preseni complainL E.lt Sublect-Datr€rlurbdtctlon 9. dtctlon 9.

Section 11({Xa) of the Act provides that the promoter shall be responsible to the allottee as per agreement for sale Sedion 11(4) (a) is reproduced as hereunder: *HARERA S- cLrnLrcnnrr,l Complainr No 6461 o12022 (4) rhe pronoter shall- {a) be r5ponsible Ior all obligdtions, respansibilities and functions rndet the provisions of this Act or the r|les dul rcgulotions norle thdeundet o. ta the allatA.s os per the ogrcenent lot sole, or ro the ossociatian ofoltottees, os the case nov be, till the convetonce of oll the opdrthents, plob or buildihqs, os the coe na! be, to the allottees, or the co non arcos to th. ossociotion al ollottees ar the conpetehtduthority,os the cose naybe) Se c t i o n 3 4- F u n. ti on s of th e Atth ority : 3 4 A oJ the Act p.ov ides to e h tu re con pl i a nce al the ab t igotion s cast u pan th e pt onoters,.he ollottees o nd rhe reo I es to te a se nts u nder th i s Act and the r u t n a nd.es ula tiohs h ode the.euh det.

1 0.

So, in view of the provisions oi the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non- complia.ce otobligations by the prirmoter as per provisions ofsection 11(4)(a) of the Act l€aving aslde cqmpensation wh,ch is to be decided 1l by the adjudicating officer ifpursued bythe€onplainaniat a later stage.

Findings on theobiections raised bythe respondent F.l Ob,ection regardlng maintainability of complaini on account of co m plai nant being ilvestor. 'Ihe respondent took a stand that the complalnant is investor and not consumer and therefore, she is not entitled to the protection oIihe A.t anrl thereby not entitled to file the complalnt under section 3l of the Act.

However, itis pertinentto Dore thatanya88rieved person can I'le a complaint agalnst the promoter ll he contravenes or vrolatcs any p.ovisions ol the Act or rules or regulations made the. made the.eunder' Upon careful perusal of allthe terms and conditions ofthe allotment letter' rt is revealed that the complainant is buyer's, and they have paid total price oiRs.53,63,615/_ to the promotertowards purchase of unit in iis proiect.

At this stage, it is important to stress upon thedefinitron olterm allottee under the Act, the same is reproduced below for read) '2kl) " ollottee ' i,) .elotrc n too tealestate pr.Je.t neons the pe.son to whan a plaa opo.tnentor building, as rhe.o\e nlav be ho! bee otlatbA, \atd twhethe. as tcehald ot teoschold) or a.t)crwur Complainr No.646Io12022 HARERA GURUGRA[/ I trott'eted by the pronoter, ond includes the puson wha slbsequently acquir$ the said allornent thrcugh sole, trandet ot otheNise but dae! not incllde o persoh to whon such plat opotnentorbuilding,os the cose noy be, is given on tdt ln view of above-mentioned definition of "allottee" as well as all the rerms and conditions of the buyer's agr€ement executed between promoter and complainan! it ,s crystal clear that the complainant are alloftee[s) as the subject un,twas allofted to them by the promoter.

The concept of investor is not defined or referred in the AcL As per the definition g,ven under section 2 ofthe Act, there willbe "promoter" and "allottee" and there cannot be a partyhaving a status of "investor".

Thus the contention ol promoter that the auottee being investor are not enrtled to protection of this Act alsd stands rejected.

F.ll whether thc executior of lh. convelaDcG deed extlnguish€s the right of thc allottee to claim delay possessioD charges?

The respondent submitted that the complainant had executed the conveyance deed on 28.12.2020 andthereforq the transaction betlveen the complainant and the respondent has been concluded and no right or liability can be asserted by respondent or the complainant agajnst the other.

Therefore the complaiqant is estopped from claiming any interest in the facts and circumstanlces of the case. the case.

In the complaint bearlng no.4031 of2019 nied as Vorun Gupta v/s Emaor MCF Lanil LtiL, the authority has comprehens,vely dealt w,th this issue and has held that taking over the possession aDd thereafter execution ol the conveyance deed €an best be termed as respondent having discharged its liabilities as per the buyer's agreement and upon taking possess,on, aDd/or executing conveyance deed, the complainant never gave up th€ir statutory rightto seek delayed possession charges as per the provhions of the said Act.

Also, the same view has been 12. complaLnr No 1146l or2022 HARERA GURUGRAN/ upheld by the Hon'ble Supreme Court in case titled as Wg.

Cdr.

Aritur Rahman Khanand Aleya Sultanaand Ors.vs DLtSoutbern Homes P!'t.

Ltd. (now Known as BEGUR OMR Homes Pvt Ltd.) and Ors. (civilappeal no.6239 of 2019 ) dated24.oa.zozo, the relevant paras are reproduced herein below: (supral and the law laid down by the Hon'ble Apex Coud in the wg Cdr.

Aritur Rahman (supra), this authoritv holds that even after execution oftheconveyance d€ed, thecomplainant cannot be precluded ''34 The developet hos not disputed these cotununicotions.

Thoush these ore fa u con nuhicotions issu. tl by the deee lo pe r, the a ppet lo nts subn itted thot they ote not itutoEa oberatians bur lt into o pottern.

The Aeveloper daes not state thot itwos wtlling to ater the fat purchoeB poss*sion of their lloLs antt the tight ra execute caneetonce olthe llats while t*Nthg then clain lot ionPensotian fo. delo!.

An the contrarv th. tenor of the connu\icn:d|ns ihdicotes thdt while executing the Deeds of convetance, the llatbutqs wete inlotned thot no farn of pratest or rcseNotion would be odeptoble.

The flat buteB were essentidlly p.ent4dwith on ttlfoir choice oletker tetoining thetr nght to pusue their elolns An vhi.h event the! would not get pasessian ot utte n thp nedhuie) ot to lo6okc the .lon\ n o' der .o pPt tPrt | \^t t btohe na$lor ht;h der iod potd vdttubte . vdttubte .on\d?, ouar tat\r bockdrap, the simPle question whrh we need to oddress is wheth{ a lot bulet who seeks tD spouse a clain osainst the developet lar deloyed piesion can os a consequehce of doing e be conpelkd to det'et the ight to obtain o conveydn@ to Pei*t their title. tt would in aur liew be nonilesrly untdsonable to %pect thot in otdet to pursue o cloim far cof,penetion lor deloyed handing ovet of poe$ian, the pu.chasq n6t tndelnitelt defd obtoining o convelon.e ol the prenies purchaed or, il dEy eek to obton o Deed of convelonce tn lo$oke the right to claid onpensotion.

This basicallv is a pasition h\ n t np N.DRC ho\ espo6e4 Wc cainot @ditPnaa.e thot r'?w ',. fie nat putho:ds invetted h+d eamed mner tt R o4tv t eo'onobb t o p.e ,r1p that the nen logtdlslepisla' the purchov, bperle'tth" nLt" to the ptmiwr whtch hove bcen alhned undet the terns olthe ABA But the subni$Dn ol ke developer is that the purchoser lotsakes the renedy befote the consune.

Iorum by seekihs o Deed ofconverance To accepi such o consttuction vould leod to an obsurd consequence af rcquiring the putchoset eiher to abondan o just clain as o condtton Jor obtoint;g the canveJahce at to defnltev delav the executioh oI the De4l ol CanveJon@ pendns protrocted consuner litisdtion Therefo.e. in turtherance of vorun Cupto v/s Enaar MCF Lond Ltd' r{i c. t5 HARERA GURUGRAM kom his right to seek delay possession charges from the respondent_ Findings on the reli€f sought by the complalnant G.l Direct the .espondent to pay delayed possession lnte.est @ 18o/o on accouol ofdelay ln offering possession on the amount paid bv the comptainant of ns.1,01,86322l' against the sale consideration ofthe said flat fron the date ofPayment till the date ofdeliverv of The original allottee ie., Chetna Khullarwas allotted a unit bearing no EHF-267-l'FF-053, 1n floor, admeasuring 267 sq. vds.

7 sq. vds. on first floor, in project of the respondent named'Emerald Hills_ Floors" at Sector65 Gurugram vide provisional auotm;irt letter dat€d 1502.2010 and an apartment buyer's agrcement was also executed betlveen the original allottee and the.espondent regarding the saidallotmenton 17 03 2010' Thereafter, th€ original allottee i.e, Chetna Khullar sold her unit to the first subsequent allottee namely Abhinav Balyan vide nomination letter dated 23.05.2011.

Thereafter, the first subsequent allotte€ requested the respondent to transfevsell the said unlt to the complainant vide agre€ment to sell dated 20.06 2012.

Accordinglv, the respondent vide nomination letter dared 28.06.2012, confirrning substitution ofname in the aforementioned apartm€nt and lthe said apartment was transferred /endorsed in the name of the complainant herein' Therefore, the complainant stepped into the shoes oi original 'llottee on 28'06'2012' As decided in complairon t no.4031 ol2019 i ed os varun Gupta Vs' Emaar MGr hmt Limited, the authority is ofthe considered view that in cases where the subsequent allottee had stepped into the shoes of original allottee beiore the due date of handing ov€r possession, the delayed possessioncharges canbe consideredrv.e L due date ofhanding CompLarnt No 6461 of20Zz ComplarnrNo.646lof 2022 HARERA GURUGRAM In the present complaint, the complainant intends to continue with the project and is seeking delay possession charges as provided under the proviso to section 18(1) ofthe Act of2016.

The buyer's agreement was executed between the original allottee and the respondent on 17.03.2010 and as per clause 13(i) of the ag.eement the respondent was directed to handover the possession ofthe unit within 27 months from the date ofexecution ofbuyer's agreement and a grace period of6 months forapplyi.S and obtainingthe occupation certificate in respect oi the complex.

The said grace period is allowed in terms of orde r dated 08.05. ted 08.05.2023 passed by the Hon'ble Alpellate Tribunal in Appeal No.433 ol 2022 ttlteit as Emoot MCF Lolnd Llmited vs Bobia Tiwarl ond Yogesh Tiwort \9hereirl it has beeh held that if the allottee wishes to continue with the proiect, he accepts the term of the agreement regarding grace penod of thrce months for applying and obtaining the occupation certificate.

The rel€vant portion oa the order dated 08.05.2023, is reprod'rced as under: ''As pet oloresoi.t ctawe ol the og@tnent, poss.stoh ol the uni \|os to be d.lirercd within 24 nanthslron the dote olexecurion olthe agreenent i e. bro'.0t.,!014.A,,pr theobote \atd t loL'c 1t(o)oI'h"ac,eenPat o a, o'e i""oa d t .o,ins nr oorqinine bnupotion cetrtca@ - nu bezn p,"qdei.

Thc p".usol oft\e O(upauon Lfiil F dated lt 1t.2u10 pto."rt ot pas. na.

J|'oJ t\e Poiq boar ryveo^ tho. rh" oPp"llalt' pranater has opplied lor gront of OccupoUq Certlfcote an 2147 2024 whtch wos uhihdt lt Oronted oh 11.11-2020 h is oho well known that it tokes tim. to oPPl! ond obtoin occupotion certficdte lrom the cohcetned outhotiE.

As per section 13 al the Act, il the proiei of the pronoter ts delayed ahd if the allattee wishes to withdra\| then he has the opttoh to wnhdrow tan the pruiect ond fek refund olthe amountotilthe ottottee does nat intend to withdraw lran the proiect and wishes tocohtihuewith the prcjecL rhe o ottee is to be paid inte.est bv the pronoter lat each nonth of the deloy. tn our opihion il the ollottee wishes to continue with the prot u, he accepts the tern of the ogreenent rcgo rding stuce Period ofthtee onths Jot o Pplyins a nd obto inins the occ t pa tion ce rtif cote So in view ol the obove sad circututances, the appeltont'prmoter is entuted to ovoit ihe g.o@ pe orl so provide.l in the agreenent lt oppttans and obtaitins the Occupation Certilcate Thus,eithinclusin tr db HARERA GURUGRAN/ olsrcce periotl aJ3 nanths os per the Provisians in clouse 11 (o) olthe ogteement,the tototconPletion periad becones 27 onths Thutthe due utthe due date of deliery ol posesion cakes out to 07.06.20 14 " 17.

Therefore, in view of the above judgement and considering the provisions of the Act, the authority is oithe view that, the p.omoter is entitled to avail the grace period so provided in the agreeme.t lor applying and obtaining the occupation certincatc.

Therefore, the due date of handing over oi possession comes out to be 1712.2012 including grace per,od ofsix months 18. ln the present complaint, the occupation certif,icate was received trom the competent authority on 09.06.2016 and Possession ofthe unit was oifered to the first complainant herein vide olier of possession letter dated 23.01.2017.

Further, the possession ofthe unjt was handcd over to the complainants herein vrde unit handover l€tter dated 06.04.2018.

Also, the conveyance deed bearlng vasika no.

5101 dare.l2g 12.2o2o was also executed by it in favour ofthe compla,nants in respect ofdrc said unit.

The complainant has filed the present complaint atier a long de1ayon04.10.2022.

19.

Though both the parties through their respective counsel advanced ComplaintNo.6461 oI2022 submissions with regard to the malntainab,lity oi the compliant on the sround of the limitation but in viel^/ of settled proposition of law, the case ofcomplainantcannotbe thrown aw?y being barred bv limitation.

As.liscussed earlier, after the unit was allotted to the original conplainant on 16.02.2010, a buyer's agreement in this regard was executed on 17.03.2010.

Though the possession oithe unit was to be offered on or before 17.12.2012 after completion ofthe project but the \ame wrs oftered only on 23.01.2017 alter recerpl of orcupdlron certificate oD 09.06.2016 and ultimately leadiDg to execution of conveyance deed ofthe same on 28.12.2020 So,limitation ifany, for a a.m.laintNo.6461 oi2022 HARERA GURUGRAl\/ cause ofaction would accrue to the complainant w.el 23-01-2017 and notfron 28.12.2020.Therefor€, the limitation period of threeyearswas expired on 23.01. on 23.01.2020 and accordingly,the periodbetween 15-03.2020 till 28.02.2022 as excluded by the Hon'ble Supreme Court in its order dated 10-01.2022 in MA NO.

21 of 2022 otSuo Moto Wr,t Petition Civil No.

3 of 2020 shall not be excluded while calculating the pe.iod of limitation as the limitat,on expired prior to the beginning of the sa,d period.

The present complaint seeking delay possession charges and other reliefs was nled o.

04.102b22 i.e., beyond three vears w.e.l 23012017.

20.

As noted above, the possession of ihe subiect unit was oflered to thc complainant on 23.01.2017 after obtaining occupation certiticate on 09.06.2016.

Thereafter, the conveyance deed ofthe unit was executed between theparties on 28.12.2020 andthe presentcomplaintwas filed on 04.10.2022.

There has been complete inaction on the part of the complainant for a period oa more than fiv€ vears from the ofier ol possession till the prese.t complaint was flled in october 2022 lhe complainant remained dormantofhis rights for more than 5 years and thcy didn t approach any foflrm to availhis rights.There has been such a long unexplaiDed delay in pursuing the matler.

No doubt, one of th' purposes behind the e.actment ofthe Act was to protect the intcresi of ..nsumers.

However. this cannot be stretched to an extent that basic principles of jurisprudence are to be isnored and 3re given a go bv especinlly when the complainant/allottees have al.eadv availed aforesaid benefits before execution ol conveyance deed.

21.

One such principle is that delay and latches are sufficient to defeat the apparent rights ofa pe.son.

In fact, it is not that tbere is any period of limitation for the authority to exerc,se their powers under the section Complaint No 6461 oJ 2022 *HARERA # crnrcnnu ad with section 35 ofthe Act nor it is that there can never be a case e the authority cannot inte.fere jn a manner arter a passage of a in length of tjme but it would be a sound and wise exer. wise exer.ise ol etion for the authority to refuse to exercise their extraordrnary rrs ol nat ural justice provided undersection3S(2) oftheActin case rsons who do oot approach expeditiously ior the relief and who lby and allowthingsto happenand then approach thccourtto put ard stale claims.

EveD equality has to be claimed at the right ure and not on expiry ofreasonable time. rer. as observed in the landrnark case t.e.

B.L.

S.eedhar and ors v- Munireddy ond ort IALR 2003 SC 5781 rhe Hon'ble Supreme t held that "Law assists those who are vigilant and not those who , over their rights.' Law will not assist those who are careless of rights.

In order to claim one's right, one must be watchful of hs s.

Only those persons, who are watchtuland careful ofusing their s. are entitled to the benefit oflaw. e light ofthe above stated facb and applyrng aforesaid principles, authority is of the view that the Present complaint is not K.M.

I rights rights ln the 22. e law is not meant for those who are dormant ov€r their rights.

The procedure of law cannot be allowed to be misused bythelitigants even in cases where allottees have availed certain beneffts prior to the execution ofconveyance deed.

It is a principle of natural justice that nobody's right should be pre,udiced for the sake of other's right, when a person remained dormant for such an unreasonabl€ period of tim€ without any iust cause.

In light of the above, the complaint is not maintainable and the *HARERA S- eunuennv ComplaintNo.646lof 2022 24.

In the present case, the Authority (Shri.

Arun Kumar, Hon'ble Chairperson, Shri.

Viiay Kumar Colal, Member & Shri.

Sanjeev Kumar Aror4 Memberl heard the complaint and reserved the order on 30.04.2024, the same was fixed for pronouncement of order on 16.0?.2024.

On 16.08.2024, one ofthe member Shri Sanieev Kumar Arora grfretired and has been discharged from his duties from the Authority.

Hence, rest of the presiding omcers of the Authority have 25- 26. pronounced the sard order. ard order.

Hence, no case for DPC is ComplaiDt as well as appli nraintainable.

The ca 27.

Frle be(onsigned 4-r. (Arun Kumar) ority, Curugram (vijayu- Haryana Dated:17.09.2024 HARERA GURUGRAM R /rl