DIVYA BHARADWAJ vs EMAAR MGF LAND LTD

Date ofdecision: OB.O\.2OZZ Cha irm a n Menrber ffiHARER; #, eunuenav BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ORDER 1.

This order shall dispose of both the complaints titled as abovc liied before this authority in form cM under section 31 oF the neal rstatc fRegulation and Development] Act, 2016 fhereinafter relerred as,,the Act") read with rule 2g of the Haryana Real Estate (Regulation an.l Development) Rules, 2017 (hereinafter referred as ,,the rules,,l fbr violation of section 11(a)(aJ of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all jts obligations, responsitrilities and functions to the allottees as per the agreement for sale executed inter se betwcen parties.

2.

The present complaint stands disposed of with Cr. no. \127 Dl.2O2Z titled as Divya Bhardwai vs.

Emaar MGF Land Limited whiclr was listed at serial no.

69 ofthe cause list.

Conrplri nt no.

4:l.llj oi :/O ) t,1 ntt t ) ).j \l t\) 2 2 Name of the Buildei Emaar MCF t-and Limir;d Gurgaon Creens Proiect Name S.no.

Complairlt No.

Lomptatnt tiue Emaar MCl.' Lind l,imired vs.

Divya Bhardwaj Attcndance \hri l)hIU\ J(i,h rlltl Shri SrIjccv Sh:rrntir L. c.R/433?,/2021 2. cR/7127 /2022 Drvya Bhardwaj vs.

Em.ar MCI; Land l,imited Shri Sanjeev Sharma Shri Dhruv Rohatgi i)age 1 or 27 CORAM: I Dr.

K.i(.

Khandelwat ShriAshok Sangwan 1$ri Sanjeev Kumar Arora HARER' ffiGURUGRAIV A.

3.

Complaint no.

4338 of 2oz1 ani 1niln|n Project and unit related details Since both the cases relate to the allotted unit one filed by the allottee and the other one filed by the builder, so far decicling both the cases, the facts of first case are being taken.

But before that the partjcuiars of the project, the details of the sale consideration, the amount paid by the complainant, the date of proposeti handing over the possesslon, delay period, if any are being given in the tabular form.

Sr.

No. m.

No.

Particulars Name ofthe project 'lotal area of the project Nature ofthe project DTCP license no.

Yalidiry oflicense Licensee l Area for which license was granted Details Imperial Ga Ha ryana 1.

12 acres Group housinl L07 of 2012 d 09.10.2020 Kamdhenu Prr 12 acres negEerea in i.208of201 [Valid up to 31 mlrs. and extei tlo.3/2A19 daL !.x1.'nded up to i.

14 of 2019 u) Valid up ro 17 3.

4.

It Registered/not registered 6.

0ccupaf ion certificate I 17.10.:20'\9 [annexure R10 rden, Sector 102, Gurugrant, g colony ated 10.10.2012 I ojects Pvt.

Ltd L two phases 7 dated 15.09.2017 1.12.2018 for 49637 sq. nsion granted vide ed 02.08.2019 which is ) 31.12.20'tgl dated 28.03.2019(phase 10.201t1 lir. ,1.4i7 irc11]sl pagc 164-167 of replyl l I Page 2 ol 27 HARER.].

MGURTJGRAM I Comnlaint no. +::a of z nl na [tn- of ZUZ 02.20L3 nexure R2, page 41-sl ofreplyl -t 1-1402, 14rh floo., building no.0l 0 sq. ft.

01.07.2013 Jannexure R3, page S 2-tO7 of replyl 14.

POSSESSION (a) Time oI handing over the Pos.ression .Subktt to tetm\ oJ tht, ,luu:t ,tnd bqrring force mojeure conditions, sublect to the Allottee hoving comptied with olt'i the terms qnd conditions of this Agreement, and not being in defoutt nder ony of thc prcvtsrcn: ol Lhi, 49reement and complionce with lrov i sion s, form o I iti"r,, or r." n ro r,Zl', I ttc, os prescribed bv the Compony lhl )ompony proposes to hond over the tossession ol thc Untt wllhtn 42 (torlv Two) months from the date of stort oI construction. suhjecL to Liulrlr complionce of Lhe provieans ol lhe Agreement by the Allottec..lhe /llloLter agrees 0nd underston(js thaL Lh.

Compony shall be enLitle(l ta o groce period oI 3 (three) months after the expirv of said petiod of 42 months, for opplling and obtaining the comoletion certificate/ o.cuputiutl certficok in respect o! lhe U tt and/or the Proiect.

IEmphasis supplicd) lannexure R4, page 64 olreplyl 7.

Provrsronal allotment lelter ddted Unit no. d Unit no.

Area ofthe unit (super area] Date of execution of Ury"f, agreement t ) 26.4 Orl IG.O B, 9.

2 001 01.0 Iann 10.

71. f;, I | (q) i Possi ),Sub1c ) borri lm*, lrn" I es,", )urd", Agree I uoui' etc., c, lco.o posset Itaat I cotsat lcompr )Agreet ooree5 lco.o, perto( I expin l opolyi ) compl certA' land/o.

IEm ph ]lrnn"" Possession clause I']aBe 3 of 27 HARERA ffi GURUGRAM Date or srart ol consrructron ,. n", I ,, ,,.r0,., statement of account dated 25. t0.20 l8 at page 84 or compl.j;nt Due date of possession -+ l, 1't .05 .20 17 'Iotal consideration P*t".'-"""r-t-l 25.10.2018 ar page 84 of complainr the agreement --t I buyer's Rs.

1,55,42,390/- Rs.I,46 ,89 ,2'20 / - 7,57,46,g76/- +- lo' 15.

Total amount paid by the compiainants as per statement of account dated 25.10.2018 at page B4 of complaint Offer of possessjon ZS.l O ZO tt . _. ] I:r":*ri_" *,1pasc 168 17s orrcptyl Request letter for name substitution 02.17.1019 :1"'"T "l:L ,,u*" ,,,,',,, B.

Facts ofthe complaint The complainant has made the following submissions in the comptaint: i.

That it is humbly submitted that upon the representation by the respondent no. l and advertisement done in said behalf, the respondent no.

1 was to construct a group housing residential complex namely "imperial gardens ,,on parcel of Iand belongrng to respondent no.2 measuring 12 acres For which the respondent no.1 was granted iicence no.

107 of 2012 dated 15.10.201,2 Iocated at sector-102, Gurgaon, Haryana.

INote: Crace period is not includeclj I As pe. sratement I A. p". pry,n"n, i of account dated I plan dnnexed wrln Page 4 of 27 13.

76.

77. ffiHARER- # eunuenav C;nrpiainr no.4:J.lij 0i 2021 and 1127 012022 i ii.

The original allottee/purchaser showed the interest in purchasing a unit with the respondent no.

1 and therefore made a payment of Rs.

5,00,000/_ in favour of the respondent no.

1 on 30.70.2012 vide cheque no. g14566 and thereafter a prov,sional allotment letter dated 26.02.20i.

26.02.20i.3 was issued in favour of the original allottee/purchaser whereby the contplainant $/as allotted unit no.

IG-01_1402,14th floor, rower/ building 01, admeasuring 2000 Sq. ft.in the project ,,imperial gardens,, located at sector102, Gurgaon, Haryana floated by the respondent no.

1 and on the inducement that the possession of the unit purchased shall be handed over on time with all amenities as promised. iii.

That the original aJlottee/pu rchaser and the respondenLs entered into the buyer,s agreement on 07.07.20.t 3 fbr a total sale consideration ofRs.

1,45,71,000/- as per clause 1.2 (a) ol the buyer's agreement.

Clause 14 talks about handing possession within 42 months from the date of start of construction and therefore, the possession was to be handed over by 11.05.2017 . iv.

That on 02.11.2019, the original allottee/purchaser transferred/ substituted the unit in question in the name of the complainant and the complainant is the wife of the original allottcc/ purchaser and it is further submitted that as per thc statemenr of account dated 03.03.2021, the complainant had made a total payment of Rs.

1,47 ,74,239/- between 30.70.2012 to 12.12.2018 as and when demands raised by the respondent no.

1. lt js pertinent to note that despite making the payment of the amount more than the total consideration as mentioned in the Page 5 of 27 MHARER, S- eunuenau Complai|t no a33B ot ZOil i.a t tit ,,t ZOZZ buyer's agreement, the statement of account shows that the revised total cost ofthe unit stands to be Rs.

1,55,42,:190/- .

That when the construction was getting delayed, thc original allottee/purchaser refused to make the payment as demandecl by the respondent no.

1 and asked for the proof of construction stage to which there was.no reply from the respondent no.

1 and the email dated 22.1,0.2074 sent by the original allottee/ purchaser is still lying open to answer. l. answer. l.hat since the origiDal allottee/ purchaser as well as the complainant were NRI, thcy were not in a position to travel frequently just for the reasor that the respondent no.

1 was not addressing to their en]ails and therefore, when in the year 2016 the complainant with rhe original allottee travelled to India, they visited the office of the respondent no.

1, they handed over to the respondent no.

1 post- dated cheques dated 15.05.2016, f5.06.2016, 15.07.2016, 15.08.2016 and 15.08.2016 each cheque lor an amount of Rs.

5,59,906/-.

The complainant also got the records checked wjth the respondent no.

1 and thus, after these cheques, there were no further delays on the part of the original allottcc as wcll as the complainant.

That thereafter, the complainant in the year 2017 suftered fronr serious congestive heart failure in philippines and since she was hospitalised, she was in desperate need ofsome financial aid ald therefore, requested the respondent no.

1 to refund the sale consideration amount paid by the complainant through cmail as well as with the help of someone got delivered the letter o 72.1.2.201,8 but since the same was not materialized as the vi.

I'age 6 of 27 HARERi SP* GUI?UGRAM I comel'r,t,; respondent no. l declinecl the request email dated 21.05.201,9.

4338 at 202 t anl,1127 ai 202 ) of the complainant vide 6.

D.

7.

C.

5.

Relief sought by the complainant: The complainant has sought following relief(sl; (i) Direct the respondent to pay interest at the prescribed rate ror the delayed period of handing over of possession.

On the date of hearing the authority explained to the respondenr/ promoter about the contraventions as alleged to have been committed in relation to section t 1ta) (al of the act to plead guilty or not ro plead guilry.

Reply by the respondent The respondent has contested the complaint on the following grounds. i.

That the present complaint is not maintainable in law or on facts. on facts.

The present complaint raises several such issues which cannor be decided in summary proceedings.

The said issues requ,rc extensive evidence to be led by both the parties and examination and cross-examination of witnesses for proper adjudication.

Therefore, the disputes raised in the present complaint are beyond the purview of this authority and can only be adjudicated by the adjudicating officer/civil court..[he presenr complaint deserves to be dismissed on this ground alone. ii.

That the instant compiaint is barred by limiration. .lhe complainant has alleged that the respondent no.

1 was obligatcri to offer possession of the unit in question by May Z017 antt by way of the instant complaint have sought interest for indemniSring them for the alleged delay in delivery of the unit jn question.

It is submitted that cause of action, if any, for seeking lra9e 7 of 27 ffi HARER,', #*eunuennl,r lll. {^Irlrtd t Jlo 4l.tp.r , ,,l.,Id I : ..r .,r I interest accrued in favour of the complainant in 2017 and consequently the instant complaint is barred by limitation.

That the complainant has not come before this authority with clean hands and has suppressed vital and material facts from this authority.

The correct facts are set out in the succeedirrg paras of the present reply.

That the complainar.rt is llot an "allottee" but an Investor who has booked the apartment in question as a speculative investment in order to earn rcntal income/profit from its resale.

The apartntent ilt questjon has been booked by the complainant as a speculative investnrcnr and not for the purpose of self-use.

Therefore, no equity lies jn favour of the complainant.

That Mr.

Parikshat Nagpal (hereinafter ,,original allottee,,) had approached the respondent no.

1 sometime in the year 2013 for purchase of an independent unit in its upcoming rcsidcntjal project "lmperial Gardens,, (hereinafter,,the projecr,,l siruared in sector 102, village Kherki Majra Dhankor, Tehsil & District Gurugram, Haryana m, Haryana.

It is submitted that thc origir)al alloLrc(] prior to approaching the respondent No.

1, had corducteci extensive and independent enquiries regarding the project and it was only after the original allottee was fully satisfied wjth regard to all aspects of the project, including but not limited to the capacity of the respondent No.

1 to undertake .levclopn)ent of the same, that the original allottee took an indepcndent and informed decision to purchase the unit, un_influenced jn anv manner by the respondent no. l. iv.

Page B ot 27 ffi HARERT #*eunuennv fcomJ-" i" - ". +::e orzo- ia trnitzozt l--- t_ That thereafter the original allottee vide an application fornr applied to the respondent No.

1 for provisionai allotment of a unit in the proiect and the original alrottee was dury wcrcor,ecl by the respondent no.

1.

The original allottee, in pursuance of the aforesaid application form, was allotted an independent unit bearing no IG-01 -14O2, in the project vide provisiona I allotnrenr letter dated 26.02.2013.

The original allottee consciously and willfully undertook to remit the saie consideration for the un jt jn question in accordance with the payment plan incorporated in the buyer's agreement.

The respondent No. t had Do rcasoI to suspect bona fide ofthe complainanL That it is respectfully submitted that the rights and obligarions of original allottee as well as respondent No.

I are conrplctely ancl vt. entirely determined by the covenants jncorporated in the buyer's agreement dated 01.07.201.3 executed between the parties, which continues to be binding upon the parties therero with full force and effect.

It is submitted that the complainanr out of his own free will and volition, without any inducemcnr, force, misrepresentation or coercion of the respondent No.

I purchased the said unit with open eyes. vii. eyes. vii.

That it is submitted that the original allottce conscjously and maliciously chose to ignore the payment request Ietters, not,ces and reminders issued by the respondent No. l and flouted in making timely payments of the instalments which was an essential, crucial and an indispensable requirement under the buyer's agreement.

It is relevant to submit that when the proposed allottees default in their payments as per schedule Page 9 ol27 MHARER #- eunuemv Co rplnint no 4338 ot 2I)21nnd i t:7 oi 2022 L agreed upon, the failure has a cascading effect on the operations and the cost for proper execution of the project increases exponentially and further causes enormous business losses Lo the respondent No.

The original allottee chose to ignore ail these aspects and wilfully defaulted in making timely paymenrs.

It is submitted that the respondent No.

1 despite delaults ot several allottees earnestly fulfilled its obligations under the buyer's agreement and completed the project as expeditjously as possible in the facts and circumstances of the case.

Theretore, there is no equity in favour ofthe complainant. viii.

That, without admitting or acknowledging the truth or legality of the allegations advanced by the complainant and withour prejudice to the contentions of the respondent No.

1, rt js respectfully submitted that the provisions of the Act are nor retrospective in nature.

The provisions of the Act cannot undo or modii/ the terms ofan agreement duly executed prior to cornllrg into effect of the AcL Merely because the Act applies to ongoing projects which are registered with the authority, the Act canlot be sald to be operating retrospectively.

The provisions of the Act relied upon by the complainant for seeking interest and compensation cannot be called in to aid in derogation anci ignorance of the provisions of rhc buyer,s agreenrcnt. .l. nrcnt. .l.hc interest is compensatory in nature and cannot be grantcd in derogation and ignorance of thc provisions of the buycr,s agreement.

It is submitted that the jnterest dernandcd by tirc complainant is beyond the scope of the buyer,s agreen.rent ar.rd Pagc 10 ol27 ffi HARERT ffi, eunuennv I Complajnr no.

4338 ot zOit anailZi it zozz the same cannot be demanded by the complainant being beyond the terms and conditions incorporated in the buyer,s agreenrent. ix.

That the original allottee from the beginning was in default in remittance of the timely installments.

It is submitted that despite of many payment requests letters, reminders, notices sent to the original allottee, no response was ever received from him.

It is submitted that the respondent no. t had to move from pillar to post in order to get the installments from the original allottec.

Ir is further submitted that the original allottee neglected/failed to deposit the paymenB due and payable to the respondent no.

It is pertinent to note that as per clause 13 of the buyer,s agreement, in case of delay in making any payment due to the respondent no.

L, the respondent no.

1 company shall have the right to terminate the agreement and forfeit the earncst money.

It is noteworthy to mention that the failed to adhere to his part ol performance of this agreement.

That the respondcnt no. l despite of issuing many payments request letters, notices, didn,t received the installments, hence, the respondent no.

I was constrained to cancel the said unit in question.

It is submitted that a cancellation letter dated 21,.02.2014 was issued to rhe original allottee terminating the buyer,s agreement. x.

That, without admitting or acknowledging the truth or legaliry of the allegations advanced by the complainant and withour prejudice to the contentions of the respondent rro. l, it is respectlully submitted that after the reccipt of the said cancellation letter, the original allottec approachcd the respondent no. ondent no.

1 requesting it to not cancel the said unit irl Page 77 of27 mHARERc ffieunuenRnl Complrinr no +ssa oizozr arra fi- izoz7 question and undertook to make payments of the sale consideration to the respondent no.

1 in accordance with the schedule of payment attached with the allotment letter. ,l.hat due to the good reputation of the respondent no.

1 in the real estatc sector, the respondent no.

1 agreed to the request of the orig,nal allottee sub.,ect to the timely remittance of all instalments. xi.

It is submitted that an amendment agreement to the buyer.s agreement dated 11.05.2016 was executed between the original allottee and the respondent no.

It is pertinent to notc thar as per clause 3 of the addendum agreement, clause 14(a) of the buyer's agreement was amended as below; Subject to terms of this clause and barring force mdjeure conditions, ond subject to the 'eliottee having complied wilh all the terms ond concliLions o[ this Agreement, and noL being in default urde, ory o1 th.e provisions of this Agreement and compliance iiti all provisions, formalities, documentation etc., as presc_ribed by the Company, the Company proposes to hond over the possession of the'lJn'it' wxhin 42 months from the dote of execution of this amendmen t Agreement, subject to timely complionce ol the provisions of the Agreement by the Attoxei. rhe Allottee agrees ond understands that the Compony shall be.entitled to a grace period of S (five) monthi, for applying and obtoining the orripotlo, lertificati in respect of the Unit and/or the project.

It is further submitted thot qn omount of Rs.

12,58,745/_ os delayed payment charges were also waived off by the respondent tvo, -l as a onetime gesture of goodwill and the original allottee further undertook to pay all the futurc installments within the stipulated time.

Page 72 of27 ffi HARERI ffieunuennnr xii.

That is respectfully submitted that the rights and obligations of the original allottee as well as the respondent no. ondent no. l are completely and entirely determined by the covenants incorporated in the buyer,s agreement which continues to be binding upon the parties thereto with fuli force and cffect.

As per_ clause 12 of the buyer,s agreement, time is of the essence with respect to the allottee,s obligations to perform or observe all the obligations of the allottee under this agreement to pay sale consideration along with other charges on or before due date or as and when demanded by the respondent no.

1 but on the contrary, the original allottee paid no heed to the rerms and conditions of the buyer's agreement and defaulted in remitting timely installmenB.

It is submitted that a perusal of rhe calculation sheet of the original allottee maintajned rvith tht' respondent no.

1, the original allottee had been levied delay payment charges furthermore, the respondent no.

1 ultimately, in order to amicably resolve the issue and to maintain cordiality and as a goodwill gesture, waived off the sald delay paynrent charges.

The complainant is conscious and aware of the said agreement and has filed the present complaint to harass the respondent no.

1 and compel the respondent no.

1 to surrender to her illegal demands. it is submitted that the filing of the present complaint is nothing but an abuse of the proccss ol Iaw. xiii.

That the respondent no. t had submitted an applicarion dared 1,1.02.2019 for grant of occupation certificate to the concerned statutory authority. l.he occupatiolt certificate vidc nrenro bearing no.

Z\-B4S/ AD(RA)/2019 /2581,5 was granred on Complainin o.4338 of 2021 and 1127 ot 2t)2) Page 13 ol27 HARERA GURUGRA[/ xiv.

I Comnlainr no.43-B of nn *,a tniinzi 77.10.2019.[t is submitted that once an application lo, irrro,,." of occupation certificate is submitted before the concerned competent authority the respondent no.

1 ceases to have arry control over the same. the same.

The grant of occupation certificatc is the prerogative of the concerned statutory authority, and the respondent No.

1 does not exercise any control over the matter.

Therefore, the time period utilized by the concerned statutory authority for granting the occupation certificate neccls to Lre necessarily excluded from the computation of the time period utilized in the implementation of the project in terms of the buyer's agreemenl As far as respondent no.

1 is concerne.l.

1t has diligently and sincerely pursued the development anrl completion of the project in question.

That the original allottee was offered possession of the unit irr question through letter of offer of possession dated 2 5.10.201U .

However, the original allottee failed to take possession of the unit in question and further delayed the process of handover indefinitely. the respondent had to issue several renrirlders t(r the original allottee to take the possession oF the unit, but ro nu avail.

That the original allottee has also executed an indemnity cum undertaking for possession.'t-he original allottee was calle.ci upon to remit balance payment including delayed paynrent charges and to complete the n ecessa ry formalities/documentation necessary for handover of the unit irr question to the original allottee. l.lowever, the original allottec approached the respondent no.

1 with request fbr payment of compensation for the alleged delay jn utter disregard ol. tlre Page 14 ot 27 t_-4. ffiHARER. #*eunuennnl t^ I Lompra rt no 4338of20Ztandtt2/otr0 ,) l terms and conditions of the buyer,s agreement. the respondent no 1 explained to the originar arottee that he is not entitred to any compensation in terms of the buyer,s agreement on accounr of default in timely remittance of instalments as per schedule of payment incorporated in the buyer,s agreement.,fhe respondent no. ondent no.

1 earnestly requested the original allottee to obtain possession of the unit in question and further requested the original allottee to execute a conveyance deed in respect of tl)e unit in question after completing all the formalities regarding delivery of possession.

However, the original allottee did nor pay any heed to the legitimate, just and fair requests of rhe respondent no.

1 and threatened the respondent no.

1 witir institution of unwarranted litigation.

It is relevant to submit that the complainant has been given compensation to amounttng to Rs.

2,76,986/- as a goodwill gesture.

The respondent has atso credited a sum of Rs.

ZS,01.g/- on account of Anti profiting.

Wlthout prejudice to the rights of the respondent no.

1, Delayed Interest if any has to be calculated only on the amounts deposited by the allottees/complainant towards the basic principal amount of the unit in question and not on any amount credited by the respondent no.

1, or any paymcnt made by thc allottees/complainant towards delayed paymcnt charges Idpc) or any taxes/statutory payments etc. xv.

That it is pertinent to mention that the original allottce djd not have adequate funds to remit the balance payments rcquisitc lor obtaining possession in terms of the buyer,s agreentent and consequently in order to needlessly linger on the matter, the PaEe 75 of 27 ffi HnnrR i ffi eunuennu Conrplarrrt no.

4:138 ol 2021 )t)d 1127 t)l )022 original allottee refrained from obtaining possession of thc unit in question.

The original allottee needlessly avoided the completion of the transaction with the intent oF evading the consequences enumerated in the buyer,s agreement.

Therefore, there is no equity in favour of the original allottee.

Withour admitting or acknowledging in any manner the truth or correctness of the frivolous allegations levelled by the original allottee and without prejudice to the contentions of the respondent no.

1, it is submitted that the allege. he allege.l interest frivolously and falsely sought by the original allottec is baselcss and without any credible evidence. the original allortee ls not entitled to contend the interest on the amount paid even when the possession was offered with the agreed tjme as per the addendum agreement to the buyer,s agreement.

The original allottee has consciously and maliciously refiained fr_olr obtaining possession of the unit in question.

Consequently, the original allottee is liable for the consequences including holding charges, as enumerated in the buyer,s agrecmcnt, for nor obtaining possession. xvi.

That without preiudice to the contentions of the respondent no.

1, it is submitted that a Ietter for name substitution was filed by the original allottee in name of the complainant, thereby substituting the complainant as a new allottee in the said agreement as per the terms and conditions set out therein. lt is pertinent to mention that the complainant further cxecuted iln affidavit dated 02.1,1.2019 and an indemnity cum undertaking dated 02.!1.2019 whereby complainant had consciously and P age 16 of 27 HARERA ffiGURUGRAIi pnr"",t r" +::a "rzozr ".a "1127 of 2022 voluntarily declared and affirmed that she would be bound by all the terms and conditions of the provisional allotment in favour of the origjnal allottee.

It was further declared by thc complainant that having been substituted in the place of rhe original allottees, she is not entitled to any compensatjon fbr delay, if any, in delivery of possession of the unit in question or any rebate under a scheme or otherwise or any other discounr, by whatever name called, from the respondent No.

Similarly, the original AIlottee had also executed an affidavit and indemnity cum undertaking on the same lines.

Furthermore, the respondent no. ondent no.

1, at the time of endorsement of the unit rrr question in her favour, had specifically indicated to the complainant that the original ajlottee had defaulted in tinrely remittance of the installments pertaining to the unit in question and therefore, have disentjtled himself for any compensation/interest.

The respondent no. t had conveyed to the complainant that on account of the defaults of the original allottee, the complainant would not be entitled to any compensation for delay, if any.

The said position was duly accepted and acknowledged by the complainant.

That the complainant was also apprised with the fact that the rcspondcnt no. t has already offered the possession of the said unit in question and the original allottee failed to remit the balance outstanding dues and to complete other formalities.

The complainant is conscious and aware of the fact that she is not entitled to any right or claim against respondent no.

1. thc complainant has intentionally distorted the real and true f.:lcrs l'age 77 of 27 MHARER, S-euRuenRll Compldrnr ,ro u:A izaz I a:rd I I t . ,t tu1 .

L and have filed the present complaint respondent no. l and mount undue submitted that the filing of the presenr an abuse of the process of law. xvii.

That it is submitted that after the substitution of the name of the complainant as a new allottee, the complainant was served with possession reminders in order to complete the formalities and to clear the balance outstanding dues, so that the said unit cannot be handed over to the complainant, but the complainant also did not pay any heed to the requests of the respondent no. l. .fhe complainant has intentionally distorted the real and true facts in order to generate an impression that the respondent no. t has reneged from its commitments. no cause of action has arisen or subsists in favour of the complainant to institute or prosecLlte the instant complaint. complaint.

The complainant has preferred the instanr complaint on absolutely false and extraneous grounds in order to needlessly victimise and harass the respondent no.

1. in order to harass tlte pressure upon jt.

It is complaint js norhirg but xviii.

That it is the obligation of the complainant under the acr to Section 19(10): Every ollottee sholl take physical possession of. the oportment, plot or building os the cosi mov be, within lt peri,od of two months ol the occupancy certtftcate ,ssu"d 1o, tl,, soid opartment plot or building, as the cose moy be. ' Section 19(11): Every ollouee sholl portrcrpote towortl, registration of the conveyance deed of the opar:tment, plot or take the possession occupancy certificate deed.

The relevant hereinbelow: of the allotment within and to thereafter execute provisions of the Act two nronths of the conveyan cc are rciterated lhgc 1B ol27 M HARER- #^ eunuenavi buil.liWr2s 9h1 case may be, as provided under sub-section (1) oJ. section 17 of this AcL xix.

That the complainant is not only in breach of the section 19(10) of rera (assuming without in any manner admitting the provisions of the act to be applicable to the project in questionJ, by failing to take possession of the unit but also in breach of the clauses of the buyer,s agreement.

That the relevant clause 17.] of the buyer's agreement is reproduced below: 17,7 lt.is agreed by the Allottee(s) thqt in the event of the fctilu re ol thc Allottee(s) to tqke the possession of the said unii tn ,iu ionr", o, aforesaid in Clause 16, then the Company sholl ttt," ,tt,t,o,, tu concel this Agreement and avoil the rem"des o, ,riputot"d iu Clause.

20 of this Agreement or the Compony moy, wjithout prej.udice to its rights under any of the clouses oS this'Agr"em"rt qnd at its sole discretion. deiidi to condone the deliv-iv tne A.llott?e(s) in toking over the sotd llnit in tn" . t in tn" .anr", iilriina i, this clause on the condition thot the A ottee[s) snott pay to tn" Company the following amount: a) holding charges @ Rs.

7.5/- per sq. ft. of the Super Areu of Lhe . . said Unit per month for the entire period'of such ieloy. b) Delayed payment charges @ 24% per onnu, o, set out in this Agreement, c) Mointenance charges from the deemed date of possession as per notice of possession.

Further the company also has the right to withhold c.?n.ve!a_1c1 or hqnding over for occupotion and use of the surl Unit, till the time oll outstantling omounts ctlong witL overdue interest os prescribed in this Agreement, if any, ari fulty paid.

17,2 The Allottee agrees ond understands that the hotding charqes as stipulq.ted n clquse 17.1(a) sho be a distinct chorge'and sioll be in qddition to Maintenance Chorges or any other rlutgoing cesses, toxes, levies etc which sholl be poyable at the risk, iespi'nsibility and cost of the Allottee.

Further, the Allottee c,grees thoL in the event of his/her fqilure Lo toke pos-re.$ion ol- thi soid Unit withtn the time stipuloted by the Company in its notice, the Allottee shall hqve no right or any cloim in respect of any item oJ work in th.! sqid Unit which the Allottee moy ollege noi to have heen c.arrie(l out or completed or in respcct o] any (lesian speclicaLiaDs, complainr no. +J:s oi zoz.t ina t t1l of za22 L-, Pagc 19 ol27 HARERA SP* GURUGRAI/ ForrrpUint_- "o, +:se;-ari{,d I t27 or)ozz l building moterials, use or any other reason whqtsoever an(j that the Allottee sholt be deemei to hor" ii", lrtt, ,"rirf,il ,r rt, matte.rs concerning construction work relotid to tn" ioii urit I Buitding/ project.

The complainant is responsible for all the consequences of breach of the buyer,s agreement and violation of Rera. xx. [n view thereof, the complainant does not deserve any relicI whatsoever.

The present complaint merits outright dismissal, with costs and strictures against the complainant. . lainant. .lhat it is submitted that all the demands that have been raised by the respondent no.

1 are strictly in accordance with the terms and conditions of the buyer,s agreement duly executed and agrecd to between the parties.

Further, the amendment agreement dated 1,L.05.201,6, the date for handing over possession was duly extended and the complainant had accepted thc sanrc anil further accepted and acknowledged the benefits advanced by the respondent for waiver of the delay payment chargcs.

Moreover, once application grant of occupation certificate is submitted by the respondent no.

1 in the office of concerned statutory authority, the respondent no.

I ceases to have any control over the same.

The respondent no.

1 canuot regulate thc functioning of the concerned statutory authority.

Thcrefbre, no default or lapse can be attributed to the respondent no.

It is evident from the entire sequence of events, that no illegality can be attributed to the respondent no.

1. 'Ihe allegatjons levelled by the complainant are totally baseless.

Thus, it is most respectfully submitted that the present complaint deserves to be disn)isse.j at the very threshold.

PaEe 20 ol27 E.

8.

HARERA ffiGUI?UGRAI,{ 9.

10, { urttpl.r,rt rro I 1.18 oi , ,,1 14 r ,., ,r .,.

L Jurisdiction of the authority The respondent has raised preliminary obiection regarding jurisdiction of authority to entertain the present complaint.

The authority obscrves that it has territorial as well as subiect matter jurisdjction to adiudicatc the present complaint for the reasons given below.

E.

I Territorial iurisdiction As per notification no.

7/g2/ZOIZ_1]'Cp dared 14.12.2017 issueci by Town and Country planning Department, Haryana the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be enrire Gurugranr District for all purpose with offices situated in Gurugram.

In the present case, the proiect in question is situated within the planning area of Gurugram District.

District.

Therefore, this authority has comptetc territorial jurisdiction to deal with the present complaint.

II Subject-matter iurisdiction Section 11(4)(a) of the Acr, 2016 provides that the promorer sha bc responsible to the allottee as per agreement for sale.

Section 11[4)[a) is reproduced as hereunder: Section 11(4)(a) Be responsible for all obligqtion, responsibilities and t'unctions under the provisions of this Act or thi rules ,ra uguntiir, -.oi" thereunder or to the allottees os per the qgree.ert 12, ,ote, o, to ii" association of allottees, os the cose may be, till the conveyance ol oll the opartments, plots or buildings, as the cose moy be, to it e attoilees, or the common oreos to the qssociotion of a otties or th" ,"r;p;;;,;; authority, as the cose may be; The provision of assured returns is pott of the butl(ler buvet,s agreemenL os per clouse lS o[ the BIJA doted......

Atcordtnqly, thp promoter is responsible for oll obligotions/responsibilities ond functions including payment of assuretl returns os provided in Iluilder Buyer's Agreement.

Section 34-Functions of the Authority: PaEe 21of2?

344 of the Act provides to ensure compliance of the obligations cosL upon the promoters, the ollottees ond the reot estate og"rii"una", *i, Act ond the rules qnd regulotions mode thereunder.

11.

So, in view of the provisions of the Act of 2016 quoted above, rhe authorify has complete jurisdiction to decide the complainr regarding non-compliance of obligations by the promoter leaving asjde compensation which is ro be decided by the adjudicating otfjcer if pursued by the complainant at a later stage.

F.

Findings on the obiections raised by the respondent: ffi HnnrRn ffi. eunueRRv t Complaint no. +338 oi 2 Oii"a tni oioj t F.l Obiection regarding entidemcnt complainant being investor of DPC on ground of 12' The respondent submitted that the complainant is investor and not consumer/allottee, thus, the complainant is not entitled to the protection of the Act and thus, and thus, the present complaint is not maintainable.

13.

The authority observes that the act is enacted to protect the interest of consumer of the real estate sector.

It is settled principle ol. interpretation that preambre is an introduction of a statute and statcs main aims and objects of enacting a statute but at the same tinrc preamble cannot be used to defeat the enacting provisions of the Act.

Furthermore, it is pertinent to note that under section 31 of the Act, any aggrieved person can file a compraint against the promoter if thc promoter contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions of the buyer,s agreement, it is revealed that the complainants are an allottee/buyer and she has paid total prjcc ol.Rs.

1,,46,89,220/- to the promoter towards purchase of the said u n,r in thc project of the promoter.

At this stage, it is important to stress upon thc l'agc 22 Li 27 ffi HARER :, #* eunuennvr Comptaint no. +S:A -)OZi and 7127 of 2022 definition of term allottee under the Act, the same is reproduced below for ready reference: "2(d) "ollottee,,in relotion to o reol estoLe projecl meons Lhe Derst)n Lo whom a plot, oportment or buldtng, o, in" ,or"'.oy i","io, t u, ollotted. sold (whether os freehoid or t"os"noUi o,i o,ti"r*,r" tro.nsferred b! the promoter, und tnclttdes the person who subsequently ocquires the sod ollotment throrgn rul;,-rriry", o, otherwise but does not include o p"rron ti rin.-ruri ptor, opartment or building, cts the case moy be, is given on renL:,.

14. ln view of above-mentioned definition of ,,allottee,, as well as all the terms and conditions of the buyer,s agreement executed between respondent and complainants, it is crystal clear that the complainants are allottee as the subject unit was allotted to them by the promoter.

The concept of investor is not defined or referrecl in the Act. n the Act.

As per thc definition given under section 2 of the Act, there will be ,,promoter,, and "allottee" and there cannot be a party having a status of,,investor,,.

The Maharashtra Real Estate Appellate Tribunal in its order dated 29.01.2019 in appeal no.

000600000001055 7 titted as M/s Srushti Songam Developers pvt.

Ltd.

Vs.

Sarvapriya Leosing (p) Lts.

And anr. has also held that the concept of investor is not defined or referred in the Act.

Thus, the contention of promotcr that thc complainant-allottee being investors is not entitlecl to protection of this Act stands rejected.

F.U Obiection regarding exclusion of time taken by the conrpetent authority in processing the application and issuance of occupation certificate.

15.

As far as contention ofthe respondent with respect to the exclusion of time taken by the competent authority in processing the applicarioll for issuance of occupation certificate is concerned, the authority observed that the respondent has applied for grant of occupation Il Pagc 23 ol27 RER,:.

UGRA[,1 HA GUR Io* t no.4338 oi202t aid 1127 atri22 certificate on 71,.02.20L9 and thereafter vide memo no.

ZI) 845 / AD(M) /2019 /2SglS dated 17.70.2079, the occupation certificate has been granted by the competent authority under the prevailing law.

The authority cannot be a silent spectator to the deficiency in the application submitted by the promoter for issuance of occupancy certificate.

It is evident from the occupation certificate datcd 17.L0.201,9 that an incomplete application for grant of 0C was applied on 1,1.02.2079 as fire NOC from the competent authority was granted only on 30.05.2019 which is subsequent to the liling of application for occupation certificate.

Also, the Chief Engineer_1, HSVp, panchkula has submitted his requisjte report in respect of the said project on 25.07.2019.

The District Town planner, Curugram and Senior Town Planner, Gurugram has submitted requisite report about this project on 06.09.2019 and OZ.O9. and OZ.O9.2O1g respectively.

As such, the applicarion submitted on L1.02.2019 was incomplete and an incompletc application is no application in the eyes of law.

16.

The application for issuance of occupancy certificate sha[ be moved in the prescribed forms and accompanied by the documents mentioned in sub-code 4.10.1 of the Haryana Building Code, 201,7.

As per sub_code 4.10.4 of the said Code, after receipt of application for grant of occupation certificate, the competent authority shall communicatc iD writing within 60 days, its decision for grant/ refusal of such permission for occupation of the building in l.-orm BR_VII.

In rhc present case, the respondent has completed its application for occupation certificate only on 07.09.2019 and consequently the concerned authority has granted occupation certjficate on 17.10.2019.

Therefore, in view of the deficiency in the said application datcd PaEc 24 of 27 HARERA @ at lDr rcDAru Complaint no.4338 of 2021, and 1727 ot 2022 L1.02.2019 and aforesaid reasons, no delay in granting occupation certificate can be attributed to the concerned statutory authority.

G.

Findings on the reliefsought by the complainant: G.

I Delay possession charges 17.

In the present complaint, the complainant intends to continue with the proiect and is seeking delay possession charges as provided under the proviso to section 18(11 of the Act.

Sec.

18[1) proviso reads as under. "Section 78: - Return of amount and compensdtion 18(1). lfthe promoter lails to complete or is unable to give possession of an apartment plot, or building, - Provided that where on allottee does not intend to withdraw from the projecC he sholl be poid, by the promoteL interest for every month of delay, till the honding over of the possession, ot such rote os may be prescribed." 1.8. bed." 1.8.

The attention of the authority was drawn towards amended agreement at page 155 ofthe reply, wherein it is categorically mentioned in clause 3 (amending clause 14 (aJ of the original agreement) that the company proposes to hand over the possession of the unit within 42 months from the execution of this agreement etc.

The amended agreement was executed on 07.05.2016 as per page 157 of the reply, the offer of possession was made on 25.10.2018.

No case for delayed possession charges is made out and also the promoter has not demanded Rs.

72,58,743/- as per clause 1 of the amended agreement i.e., (that the delayed payment charges of Rs.

1,2,5A,743/- would not be demanded by the companyJ.

Page 25 of 27 HARERA ffiGURUGRAII Complaint no.4338 of 2021 and 1127 of 2022 19.

Clause 14[aJ of the buyer's agreement provides for time period for handing over ofpossession and is reproduced below: Time ofhanding over the Possession Subject to terms of this clouse ond bqrring force majeure conditions, and subject to the Allottee hoving complied with oll the terms ond conditions ofthis Agreement, qnd not being in default under any of the provisions of this Agreement ond compliance with all provisiont formalities, documentation etc., as prescribed by the Compony, the Company proposes to hand over the possession of the Unit within 42 months Jrom the dqte of execution oJthis qmendment qgreement, subject to timely complionce of the provisions of the Agreement by the Allottee.

The Allottee agrees ond understands thot the Compqny shall be entitled to a grace period of 5 Ave) months, for opplying and obtaining the occupotion certifrcote in respect of the Unit ond/or the Project.

H.

Directions ofthe authority 20.

Hence, the authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(0: No case for delayed possession charges is harges is made out and also the promoter has not demanded Rs.

12,58,7 43 /- as per clause 1 of the amended agreement i.e., [that the delayed payment charges of Rs.

12,58,7 43 /- would not be demanded by the company).

The complainant/allottee is directed to pay outstanding dues, if any, after adiustment of interest for the delayed installment. iii.

The rate of interest chargeable from the allottees by the promoter, in case of default shall be charged at the prescribed rate i.e., 100/o by the respondent/promoter which is the same rate of interest which the ll.

Page 26 of 27 ffiHARERA #*eunuennnr Complaint no.4338 of 2021 and,7727 of 2022 promoter shall be liable to pay the allottees, in case of default i.e., the delayed possession charges as per section 2(za) ofthe Act. iv.

The respondent/promoter shall not levy/recover any charges from the complainants/allottee which is not the part of the buyer's agreement.

The respondent is also not entitled to claim holding charges from the complainants/allottees at any point of time even after being part of the buyer's agreement as per law settled by hon'ble Supreme Court in civil appeal nos.

3A64-3889 /2020 decided on L4.12'2O2O.

21.

A copy of this order be placed on the connected case file bearing no. cRl4233 /202L.

22.

Both the complaints stand disposed ol 23.

File be consigned to registry.

Haryana Real Estate Regula Authorily, Gurugram Dated: 08.09.2022 Dr.

K.K.

Khandelwal Chairman Kum Member Page 27 of 27 MemblN