DINESH CHANDRA GUPTA vs EMAAR MGF LAND LTD.

HARERA GURUGRAM BEFORE THE HARYANA Mr.

Dinesh Chandra Gupta I R/o: - BQ-54, Upper Ground Fl 1100 88 M/s Emaar India Ltd.

Office at:- ECE House, 28, Delhi- 1100001 Coram: Shri Arun Kumar Shri Vijay Kumar Shri Ashok Sangwan Appearance: Shri Gaurav Rawat I Shri Dhruv Rohatgi [Advocate l.

The present complaint has CRA under section 31 of th 2016 (in short, the Act) (Regulation and DevelopmentJ section 11(4)(al of the Act promoter shall be responsi functions to the allottee as per Complaint no.

1743 of 2023 .TORY AUTHORITY, /oN ;1fr URU c with ules, h 1743 of ZO23 19.77.2024 o4.o3.2025 Complainant Respondent Chairman Member Member Complainants Respondent allottee in Form Development) Act, the Haryana Real Estate (in sh rt, the rules) for violation of lsl alia prescribed that the ob ions, responsibilities and executed inter se them. for t for Page I of 2l ffiHARERA #"eunuenRlr Complaint no.

1743 of 2023 A.

Proiect and unit related details 2.

The particulars of the prorect, the details of sale consideration, the amount paid by the complainants, date of ptoposed handing over the possession, delay period, if any, have been detailed in the following tabular form: S.

No.

Particulars Details 1.

Name ofthe proiect Palln Gardens, Sector 83, Village Kherki Daulla , Gurugram, Haryana 2.

Project area 21.9 0 acres 3.

RERA registration Reg Vali stered vide no.

330 of 2017 l from 2+.10.2017 up to 31.12.2078 +.

Provisional allotment letter L9.0L.20t1 (Page no.

43 of reply) 5.

Unit no.

506 190 lPar 5t', floor building no.

7 0 sq. ft.

1e 44 ofcomplaint] 6.

Date of execution of buyer's agreement 27.( lpat 4.201,1 e 42 of conplaintl 7.

Possession clause 70. (a) Sub. the tern "fl ond ftr4 bvl ion Agrl mol PO.SSTSSI0N Time ofhanding over the Possession iect to terms of this clause and subject to Allottee(s) having complied with all the s and conditlons of this Buyer's ?ement, and not being in default under any he provisions of this Buyer's Agreement compliance with all provisions, rulities, d ulities, documentqtion etc,, as prescribed ,he Company, the Company proposes to d over the possession of the Unit within 3l ths from the date of commencement of L , subject to timely compliance of tfie provisions of the buyer's agreement by the Allottee.

The Allottee(s) agrees and undprstands thqt the Company sholl be entltled to a grace period of three months.

Page 2 of 2l ffiHABERA #H eunuenRl,,r Complaint no.

1743 of 2023 B.

3.

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

That the respondent advertised about its new proiect namely "Palm Gardens" in sector-83, Village K[erki Daula, Gurugram, Haryana.

The respondent painted a rosV pictur[ of the proiect in their advertisement making tall claims and represenling that the project aims at providing for aoolvins qnd obtqininq the comDletion certificate/occuDotion certificate in respect of the Unit and/or the Proiect. (emphasis supplied) IPage 5l ofcomplaint] B, Date of start of construction 09.08.2012 (Page 123 of reply) 9.

Due date ofpossession 0e.1]1.201s [Nqte: 3 months grace period is included] 10.

Total consideration as per SOA dated 76.06.2023 on page 123 ofreply Rs.96,84,53 6/- 11.

Total amount paid by the complainant as per SOA dated 16,06.2023 on page 124 of reply Rs.'l 8,11,796/ 1,2.

0ccupation certificate 10.01.2 018 IPage B6 ofreply] 13.

Offer of posscssiofl to tl]e complainants 16.0 3.2 018 IPage BB of reply] 14.

Unit handover letter issued in favor of the complainants 27.q3.201,9 [Pa$e 91 ofcomplaint] 15.

Conveyance deed executed between the respondent and the complainants on 03.q4.2019 fPaqe 98 ofthe replyJ PaBe 3 of 2l ll.

HARERA GURUGRAM Complaint no.

1743 of 2023 exclusive luxury homes featuring highest design standards and premium amenities.

That believing the representations of the respondent and on the lookout for an adobe for itself on 30.12.2010, the complainant booked a unit in the said project by making a payment of Rs. ent of Rs.7,50,000/- of unit no PGN-O7-0506 at Palm Gardens ad measuring 21.90 acres in the said project.

Subsequently the complainant and the respondent entered into an agreement.

Thereafter, the co$plainant contacted the respondent on several occasions and some fnfair and arbitrary clauses in the agreement.

That believing on the respondent representation, the complainant kept on making payment as and when demanded by the respondent.

Till date thc complainant has paid a total sum of Rs.95,L9,327.18/- towards the unit in question, as and when demanded, as against a total sale consideration of Rs.92,91,001/-.

As per clause 10(a) of the buyer's agreement, the respondent propoled to hand over the possession of the unit in question within a period bf 36 months from the date of start of construction, subject to timely compliance of the provisions of the agreement by the allottee along with a grace period of 3 months for applying and obtaining competition certificate/occupation certificate.

However, the respondent failed in handing over possession in accordance with the said agreement.

The complainant had paid a total sum of Rs.95,1-9,327 .L8 / - towards the total sale consideration of Rs.92,91,001/- for the said unit as and when demanded by the respondent.

The due date of possession as per the builder buver Page 4 of 2l Complaint no.

1743 of 2023 ffi HARERA #. eurluennl. agreement was 09.11.2015, but till the time of the said due date of possession, the construction of the projects was in its initial stage.

That the complainant on 07.02.2018 contacted the respondent in order to enquire about the date of handing over of possession but to the utter shock of the complainant, the proiect was nowhere near completion. ompletion.

The complainant due to the delay in handing over of possession requested the respondent to make the payment of delay possession charges on account of delay in offer of possession but to no avail.

The respondent during the said period kept on demanding money and the same was demanded without attaining the stage of construction as per the payment plan but the complainant left with no other option but to make the payment on time as per demand raised by the respondent.

Subsequently, the complainant kept making requests through calls, mails and several meetings to inquire as to when will the respondent handover the unit after removing all irregularities in the.

But the respondent's representatives never furnished a concrete answer to the same.

The complainant time and again contacted the respondents expressing his concern over the delay in handing over of possession and seeking an explanation from the respondent for the same, but to no avail.

That on 16.03.2018 the offer of possession of unit no.

PGN-07-0506, was issued by the respondent.

The respondent fraudulently kept the rnoney of the complainant for so long and never paid any interest for delay possession charges.

The complainant after receiving the offer of possession approached the respondent project to take the possession but thc project was nowhere near completion and was full of irregularities.

Further, the respondent issued a unit handover letter dated 15.03,2019 lll. lv.

Page 5 of 21 HARERA ffiGURUGRAI,/ for the subject unit stating that the unit is ready for physical possession.

However, the builder buyer agreernent was signed on 27.04.2011, there is a huge delay in handover of the possession by the respondent, and the respondent handover the unit to the complainant on 27.03.20L9. v.

That the respondent highlighted and communicated that it will deliver thc said unit to the complainant after completing with specifications and building/site Iayouts as mentioned in brochure, buyer's agreement, buildi nt, building/site layout plans etc.

36 months from the date of start of construction, subject to timely compliance of the provisions of the agreement by the allottee along with a grace period of 3 months for applying and obtaining competition certificate/occupation certificate but complainant that the project Palm Gardens shall be constructed on a land of 21.90 acreand shall have the fittowing salient and unique features at the time of delivery of possession oftheir unit. vii.

That the net area on which palm gardens is constructed is less than an area of 21.90 acre which was represented by the respondent and agreed upon by him at the time of booking the unit by the complainants and execution of buyer's agreement.

But now it is found to be constructed on a net area of only 17.84 acre which is 4.06 acre less than area of 21.90 acre.

Accordingly, relying upon respondent's declarations and Complaint no.

1743 of 2023 there was an inordinate delay in handing over the possession of the said unit. vi.

That the respondent in order to add more misery again defrauded the complainant by charging an amount of Rs.z,85,000/- plus GST on account of preferential location charges claiming the allotted unit to be green view facing.

The respondent highlighted and represented to tlte Page 6 of 21 ffi HARERA #- eunuennrvr vl1l. representations about big size of the project, the sale price was agreed upon.

Now, it has traversed that R.espondent had wrongly included the area consumed by 24 meter wide road and similar HUDA roads running outside the premises and other structures for public use as being part of net area of 2L.90 acre of the project.

By doing this the respondent violated the rules and regulations laid down by Department of Town and Country Planning, Haryana and other terms and conditions of its licenses granted by Government of HaryanL.

Complaint no. plaint no.

1743 of 2023 That the respondents represented and advertised a green area in brochures, e-brochure, welcome Ietter, buyer's agreement, site plans and many other advertisements (in eiectronic and print niedia) by marking it as an eight acre central greens area.

On survey/inspection the green area represented as central greens is found to be 3.65 acre and not 8 acre.

It vras found out by complainant and his architect that site plan of palm gardens submitted for approval to and sanctioned by appropriate A.uthorities in Government of Haryana itself shows that total aggregate green area spread all over the project is of only 3.8936 acres size i.e.

1.5756.920 sq.mt. (17.780lo of the net site area).

This total green area of 3.8936 acres is scattered over whole of'Palm Gardens' in different small pockets of green patches.

The respondent never intended to provide eight acre green area in the project, therefore no such green area of 8 acre was even planned or marked in the site and area details plan of palm gardens submitted to and sanctioned by Department of Town and C:ountry Planning (DTCP) Government of Haryana.

This site plan of Palnr [iardens was sanctioned by DTCP Haryana on 22.03.2012.

Page 7 of 2l ffiLARERA ffi, e unuenRl,,l Complaint no.

1743 of 2023 ix.

That the respondent falsely and intentionally misrepresented to them that entire green area shown in the brochures and buyer's agreement etc. belongs to him and is owned by him and therefore forms central greens area in palm gardens.

But later during survey/inspection, that green area vras found out to be a property of some other third party.

That the land parcel/area that would have contributed to form 8 acre central green area was never acquired by respondent till date while that had been f:rlsely represented and wrongly shown to be part of premises of the project. e project.

Large amounts of money as sale price and PLCs were demanded and got paid by respondent from the complainant on the pretext that the palm gardens has the luxury of vast green areas in it. x.

That the sanctioned site plan itself shows a total green area planned in palm gardens to be of size of 3.8936 acres i.e.

L5756.920 sq.mt., but the respondent still continues, till filing of this complaint, to mislead and nrisrepresent to the unsuspecting home buyers by falsely representing that the proiect has a central green area of 8 acres and a mini golf course and 3 km long jogging track besides other common facilities and amenities. xi. 'Ihat the said project does not have solar heaters and solar voltaic plants as agreed at the time of execution of the builder buyer agreement.

The respondent had assured the complainants and other like buyers that they will provide for solar power in palm gardens as in their license it was rnandatory to include solar heaters and solar voltaic plants at the project.

I'his was of utmost importance because it will bring down the recurring cost of the common area electricity (CAEJ and common area maintenance (CAM) Charges.

The complainant and other residents contribute equally Page I of 21 RA RAM ARE U11UG ffiH *e!* e Complaint no.

1743 of 2023 every month towards these expenses (CAE and CAM) borne out of electricity consumption and maintenance of common facilities and amenities in the common areas of the project. xii.

That the respondent has failed to complete the project on time, resulting in extreme kind of financial hardship, mental distress, pain, and agony to t]:e complainant along with the delay in handing over the possession of the said unit, the respondent had failed in providing the above mentioned several amenities, services as promised by the respondents at the time of execu tio n oI the agreement. xiii. ent. xiii.

That as per section 18 of the Act ?016, the promoter is liable to pay interest to the allottees of an apartment, building or project for a delay or failure in handing over of such possession as per the terms and agreement of the sale.

Accordingly, the complainant is entitled to get interest on the paid amount along with interest at the rate as prescribed by the Authority per annum front due date of possession as per flat buyer agreement till the date of handing over of possession along with refund of preferential location charges and other reliefs.

Reliell sought by the complainant The complainant has filed the present compliant for seeking following reliefs: i. trirect the respondents for the payment of delay possession charges as per the Act 201.6, i.e., marginal cost of lending rate of SBI + 20lo from the due date of possession as per the agreement till the actual handing over of possession. ii. l)irect the respondent to refund an amount of Rs.2,85,000/- illegally charges on account of preferential location charges. iii. t)irect the respondent to refund the holding charges.

C, 4.

Page 9 ol21 5. ffi LTABERA S- e unuenavr Complaint no.

1743 of 2023 iv.

Drirect the respondent to charge delay payment charges at an equitable rate of lnterest as per the Act of 2016. v. trirect the respondent to refund an amount of Rs.98,300/- on account of n'raintenance charges for a period wherein the unit was not even handed over to the complainant.

On the date of hearing, the authority explained to the respondent/promoter about the contravention as alleged to have been committed in relation to section 11(4)(aJ ofthe Act and to plead guilty or not to plead guilry.

Reply by the respondent The r,:spondent has raised certain preliminary objections and has contested the present complaint on the following grounds: i.

That the complainant has got no locus standi or cause of action to file the present complaint. complaint.

The present complaint is based on an erroneous interpretation of the provisions of the Act as well as an incorrect understanding of the terms and conditions of the buyer's agreement daled 27.04.2011, as shall be evident from the submissions made in the following paras of the present reply.

That the present complaint is not maintainable for non-joinder of proper and necessary parq/.

The unit in question has been booked in the name of "Dinesh Chandra Gupta (HUIrJ", vrhereas the present complaint is filed by Mr.

Dinesh Chandra Gupta.'lhe present complaint is liable to be dismissed on this ground alone. ii. 'l'hat the complainant is estopped by its own acts, conduct, acquiescence, laches, omissions etc. from filing the present complaint.

The respondent has already offered possession ofthe unit in question to the complainant, v,rho has taken the possession of the said unit and moreover, the conveyance deed has also been executed.

Both the transaction between D.

6.

Page 10 of 21 W FIARER^ *e" eunuennl,r lll. lv.

Complaint no.

1743 of 2023 both the parties stood satisfied once the conveyance deed has been executed, as such, the respondent has already complied with its obligations under the buyer's agreement.

That the conveyance deed of tlhe unit in question had already been executed in favour of the complainant as early as on 03.04.2019, whereas the present complaint has been filed on 10.04.2023, i.e. alter almost 4 years.

The complainant chose never to raise any claim towards delay possession charges and was agreeable to the compensation so awarded by the respondent in terms of the buyer's agreement.

The respondent has credited a sum of Rs.BB,441/- as benefit as EDC interest, Rs.15,4421- towards anti profiting and Rs.20,200 /- on account of early payment rebate (EPRI.

The respondent even credited an amount to the tune of Rs.3,41,761/- as compensation for the delay in offering the possession of the unit. the unit.

Hence, it is abundantly clear that the execution of conveyance deed was without any undue influence and coercion.

That the present complaint is not maintainable in law or on facts. 'l'he present complaint raises several such issues which cannot be decided in summary proceedings.

The said issues require extensive evidence to be k:d by both the parties and examination and cross-examination of \r'/itnesses for proper adjudication.

Therefore, the disputes raised in the present complaint can only be adjudicated by the civil court.

The present complaint deserves to be dismissed on this ground alone.

T'hat the complainant is not "Allottee" but lnvestor who has booked the apartment in question as a speculative investment in order to earn rental income/profit from its resale.

Page 17 of 21 eflB_ER #- e unuenRH,l Complaint no, 1743 of 2023 v.

That the instant complaint is barred by limitation.

That the complainant filed the complaint before this Authority after the execution oF the conveyance deed as all the terms and conditions as per the buyer's agreement stand fulfilled in the eyes of law.

The complainant having received the offer of possession on 16.03.2018, and having executed the conveyance deed on 03.04.201.9 has flled the present complaint on 10.04.2023, i.e. after a lapse of 4 years from the date of execution of conveyance deed.

The complaint is admittedly belated and barred by limitation period of3 years. vi. 'I'hat the complainant had approached the respondent and expressed an interest in booking an apartment in the residential group housing colony developed by the respondent and booked the unit in question, bearing number PGN-07-0506, 5th floor, tower-07 admeasuring 1900 sq. ft. situated in the project developed by the respondent, known as "Palm Ciardens" at Sector 83, Village Kherki Daula, Gurugram, Haryana. , Haryana. 'l'hereafter, the complainant vide application form, applied to the respondent for provisional allotment of a unit bearing number PGN-07- C506 in the project of the respondent company.

The complainant consciously and rvillfully opted for a construction linked plan for remittance of the sale consideration for the unit in question and further represented to the respondent that the complainant shall remit every installment on time as per the payment schedule.

That the respondent issued the provisional allotment letter dated 19.01.2011 to the complainant.

Subsequently, the respondent sent the buyer's agreement to the complainant, which was executed between the parties on 27 .04.201.1.

1'he buyer's agreement was consciously and voluntarily executed by the PaEe 12 ofzl ffiLIABER. *6S- e unuennn,l Complaint no.

1743 of 2023 complainant after reading and understanding the contents thereof to their full satisfaction.

That the rights and obligations of the complainant as well as the respondent are completely and entirely determined by the covenants incorporated in the buyer's agreement which continue to be binding upon the parties thereto with full force and effect.

Clause 10(a) of the buyer's agreement provides that subject to the allottee having complied with all the terms and conditions of the buyer's agreement, and not being in default of the same,. possession of the apartment would be handed over within 36 months. fiom ihe date of start of construction.

It has further been specified in the same clause that the respondent will be entitled to a grace period of 3 months.

Clause 10(b) provides that the tiime period for delivery of possession shall stand extended on the occurrence of delay for reasons beyond the control of the respondent.

In t,rrms of clause 10(b)[iv) in the event of delault in payment of amounts demanded by the respondent as per the schedule of payment under the buyer's agreement, the time for delivery of possession shall also stand extended. vii. nded. vii. 'lhat the respondent completed construction and had submitted an application on 29.06.20-17 for grant of occupation certificate before the concerned statutory Authority.

The occupation certificate has been granted by the concerned department vide memo dated 05.12.2018, Once an application for grant of occupation certificate is submitted to the concerned statutory authority the respondent ceases to have any control cver the same.

The grant of occupation certificate is the prerogative of the concerned statutory authority and the respondent does not exercise any influence over the same.

Therefore, the time period utilized by the Page 13 of 21 ffiHABERA SS. e,uRuennnr Complaint no.

1743 of2023 concerned statutory Authority for granting the occupation certificate is liable to be excluded from the time period utilized for implementation of t.he project. viii.

T'hat the respondent on receipt of the occupation certificate, offered possession of the said unit to the complainant vide the letter of offer of possession dated 16.03.2018.

The complainant has failed to comply with its obligations to take the possession of the unit in question.

The instant complaint is a gross misuse of process of law.

Therefore, no cause of action has accrued in favor of the Complainant in the facts and circumstances of the case. ix. 'l'hat the complainant did not have adequate funds to remit the balance payments requisite for obtaining possession in terms of the buyer's agreement and consequently in order to needlessly linger on the matter, the complainant refrained from obtaining possession of the unit in question.

The complainant needlessly avoided the completion of the transaction with the intent of evading the consequences enumerated in the buyer's agreement. without admitting or acknowledging in any rnanner the truth or correctness of the frivolous allegations levelled by the complainant and without prejudice to the contentions of the respondent, that the alleged interest frivolou t frivolously and falsely sought by the complainant was to be comstrued for the alleged delay in delivery of possession.

An offer for possession marks termination of the period of clelay, if any.

The complainant are not entitled to contend that the alleged preriod of delay continued even after receipt of offer for possession.

The complainant has consciously and maliciously refrained from obtaining possession of the unit in question.

Consequently, the complainant are Page 14 of 21 ffiLTARERA #. e unuenRH,r x.

1743 of 2023 liable for the consequences including holding charges, as enumerated in the buyer's agreement, for not obtaining possession.

T'hat the complainant approached the respondent in order to take the possession of the said unit in question.

The complainant has duly taken tlhe possession of the unit in question.

The conveyance deed in respect of the unit in question has also been executed.

That it is pertinent to mention that after execution of the u_nit handover letter and obtaining of possession of the unit in quegiion and after the execution of the conveyance deed, the complainant are left with no right, entitlement or claim against the respondent.

The transaction between the complainant and the respondent stands concluded and no right or liability can be asserted by the respondent or the complainant against the other.

The contentions advanced by the complainant in the false and frivolous complaint are barred by estoppel.

That the respondent has credited a sum of F1s.88,441/- as EDC interest, Rs.75,442/- towards anti profiting and tts.20,200/- on account of early payment rebate (EPR).

That the respondent even credited an amount to the tune of Rs.3,41,761/- as compensation for the delay in offering the possession oF the unit. the unit.

Without admitting or acknowledging the truth or legality of the allegations advanced by the complainant and without preiudice to the contentions of the respondent, that the provisions of the Act are not retrospective in rrature.

The provisions of the Act cannot undo or modify the terms of an agreement duly executed prior to coming into effect of the Act.

That rnerely because the Act applies to ongoing projects which are registered lvith the Authority, the Act cannot be said to be operating retrospectively.

Page 15 of 21 ffiLTARERA *e, e unuenavt Complaint no.

1743 of 2023 The provisions of the Act relied upon by the complainant for seeking delayed penalty charges or interest cannot be called in to aid, in derogation and in negation of the provisions of the buyer's agreement. xi. trespite default of several allottees, has diligently and earnestly pursued the development of the project in question and has constructed the project in question as expeditiously as possible.

The construction of the trlwer in which the unit in question is situated is complete and the respondent has already offered possession of the unit in question to the complainant.

Therefore, there is no default or lapse on the part of the respondent and there in no equity in favour of the complainant.

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

Thus, it is most respectfully submitted that tl:Ie present complaint deserves to be dismissed at the very threshold. xii.

That all the demands that have been raised by the respondent are strictly in acr:ordance with the terms and conditions of the buyer's agreement duly executed and agreed to between the parties.

Moreover, once application for grant of occupation certiFicate is submitted by the respondent in tlie office of concerned statutory Authority, the respondent ceases to have any control over the same. the same.'lhus, it is most respectfully submitted that the present complaint deserves to be dismissed at the very threshold. xiii.

T'hat without prejudice to the aforesaid preliminary objections and the contention of the respondent that unless the question of maintainabilify is first decided, the respondent ought not to be called upon to nle the reply on merits to the complaint, this reply is being filed by way of Page 16 of 2l E.

8.

7.

9. ffiHABERA S*, e unuennl,r Complaint no.

1743 of 2023 abundant caution, with liberty to file such further reply as may be necessary, in case the complaint is held to be maintainable.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis ofthese undisputed documents and submission made by the parties. lurisdiction of the Authority The preliminary objections raised by the respondent regarding jurisdiction of the Authority to entertain the present complaint stands rejected.

The Authority observed that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.t 'I'erritorial iurisdiction As per notiFication no. l/92/2017 -1TCP dated 74.12.2077 issued by Town and Country Planning Department, Haryana the jurisdiction of Real Estate llegulator)/ Authority, Gurugram shall be entire Gurugram District for all purpcse with office situated in Gurugram.

In the present case, the project in questrion is situated within the planning area o[ Gurugram District, therefore this authority has complete territorial jurisdiction to deal with the present comp laint.

E.II Subiect-matter iurisdiction 10.

Sectian 11[4)(a) ofthe Actprovides that the promoter shall be responsible to the aLlottee as per agreement for sale. for sale.

Section 11(4](a] is reproduced as hereunder: Section 71 (4) The promoter shall- (q) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules ond regulations made thereunder or to the allottees as per the agreement for sole, or to Page 17 of27 ffiFARERA ffieunuenAM Complaint no.

1743 0f2023 the qssociation ofallottees, os the cose may be, tillthe conveyonce ofoll the apartments, plots or buildings, qs the case moy be, to the allottees, or the common areos to the ossociotion of allottees or the competent authoriqt, as the case may be; Section 34-Functions of the Authority: 344 of the Act provides to ensure compliance of the obligqtions cast upon the promoters, the allottees ond the real estate agents under this Act and the rules and regulotions mode thereunder, 11.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter as per prDvisions of section 11[4](a) of the Act leaving aside compensation which is to be decided by the adjudicating officer if purr;ued by the complainants at a later stage: I.

Observations of Authority with regard to maintainability of complaint on account of complaint is barred by limitation.

1-2.

The r,rspondent has filed the reply on 1.2.09.2023, which is taken on record and raised the preliminary objection in its reply that the complaint is not maintainable being barred by limitation.

It is necessary to deal with the preliminary objection before proceeding with the reliefs sought by the complainant.

0n consideration ofthe documents available on record, the authority observes that the complainants herein was allotted a unit bearing no.

PGN-07-0506, 5th floor, in building no, 7, admeasuring 1900 sq. ft., in project of the respondent name,l "Palm Gardens" situated at Sector-83, Gurugram vide provisional allotment letter dated 79.01. ted 79.01.201L, and an apartment buyer's agreement was also executed between the complainants herein and the respondent regarding the said allotment on 27.04.201,1,.

The occupation certificate for the subiect unit has been obtained by the respondent promoter on 10.01.2018 and the possession has been offered on 16.03.2018.

Further, at the time of offer of possession, an amount of Rs.3,41,761/- has already been paid by the 13.

Page 18 of 21 t-ARERA GURUGRAN,I Complaint no.

1743 of 2023 respo:ndent to the complainant towards compensation for delay in handing over crf possession and the unit handover letter was issued on 27.03.2019.

The conveyance deed is also executed between the parties on 03.04.2019.

L4.

The cr:mplainant is seeking delayed possession charges and other relief with regard to refund the amount of preferential location charges and holding charges and maintenance charges charged by the respondent.

The respondent while the respondent on the other hand is pleading that the present complaint is barred by limitation as the complainants have got the offer of possession on 1603.2018 and the conveyance deed executed on 03.04.2018, the transaction between the complainant and the respondent stands concluded upon the execution of the conveyanc"'a"ea'rrh the iomplpinant has filed the present complaint after a long delay on 1,7 .042023 i.e., Iapsed of 5 years, 1 month and 1 day (1858 days) of the offer of possession and after 4 years and 14 days (1475 days) after the execution of conveyance deed.

Thus, the claim of the complainants is not maintainaqle.

Both the parties through their respective counsels advanced submissions with regard to the maintainability of the compLiant on the ground of the limitation.

15.

In line with the aforesaid facts and submissions made by the parties and docurnents placed on record, the Authority observes that the unit was allotted to the complainant on 19.01.2011, a buyer's agreement in this regard was executed on27.04.2011.

7.04.2011.

Though the possession ofthe unit was to be offered on or before 09.11.2015 after completion of the project but the same was offererd only on 16.03.2018 after receipt of occupation certificate on 10.01.2018 and ultimately leading to execution of conveyance deed of the same on 03.04.2019.

So, limitation if any, for a cause of action would accrue to the c0mplainant w.e.f.

16.03.2018 and not from 03.04.2019.

So far as the Page 19 of 21 &FIARERA *&*eunuennl,r Complaint no.

1743 of 2023 issue ,lf limitation is concerned, the Authority is cognizant of the view that the law of limitation does not strictly apply to the Real Estate Regulation and Devel,lpment Authority Act of 2016.

However, the Authority under section 38 of the Act of 2016, is to be guided by the principle of natural justice. tt is universally accepted maxim and the law assists those who are vigilant, not those who sleep over their rights.

Therefore, to avoid opportunistic and frivolous litigation a reasonable period of time needs to be arrived at for litigant to agitate his right.

This Authority of the view that three years is reasonable time period For a litigant to initiate litigation to press his rights under normal circumstances.

It is also observed that the Hon'ble Supreme Court in its order dated 10.012022 in MA NO.21 of 2022 of Suo Moto Writ Petition Civil No.3 of 2020 have held that the period from 15.03,2020 to 28.02.2022 shall stand excluded for purpose of llmitation as may be prescribed under any general or speci:rl laws in respect of all judicial or quasi-judicial proceedings.

In the present matter the cause of action arose on 16.03.2018 when the possession was offered to the complainant by the respondent.

Ihe comp.Lainant has filed the present complaint on 17.04.2023 which is 5 years 1 month and 1 day from the date ofcause ofaction.

In the present case the three year period of delay in filing of the case also after tal<ing into account the exclusion period from 15.03.2020 to 28.02. to 28.02.2022 would fall on 01.03.2023.

In view r:f the above, the Authority is of the view that the present complaint has not been filed rvithin a reasonable time period and is barred by the limitation.

No dcubt, one of the purposes behind the enactment of the Act was to protect the interest of consumers, However, this cannot be stretched to an extent that basic principles of jurisprudence are to be ignored and are given a go by a 16.

17.

18.

Page 20 ot 2l especjially when the complainant/allottees have already availed aforesaid beneflts before execution of conveyance deed.

19.

Furth,:r, as observed in the Iandmark case i.e.

B,I' Sreedhar and Ors, V, K,M, Munireddy and Ors. [AIR 2003 SC 578,/ the Hon'ble Supreme Court held that "Law assists those who are vigilant and not those who sleep over their rights." Law lvill not assist those who are careless of their rights.

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

Only those persons, who are watchful and careful ofusing their rights, are entitled to the benefit of law.

20.

In the light of the above stated facts and applying aforesaid principles, the authority is of the view that the present complaint is not maintainable after such a long period of time.

The procedure of law cannot be allowed to be misused by the litigants even in cases where allottees have availed certain benefits prior to the execution of conveyance deed.

It is a principle of natural justic,s that nobody's right should be prejudiced for the sake of other's right, when a person remained dormant for such an unreasonable period of time without any just cause. ln Iight of the above, the complaint is not maintainable and the same is declined.

Complaint as well as applications, if any, standt disposed off accordingly. ffiFIARERA #" cllRricRAN/ Haryana Real Datecl: 04.03.202 5 Complaint no.

1743 of2023 vl - (viiay 0 ftr^--tv (Arun Kumar) Chairman Estate Regulatory Authority, Gurugram 2t.

22. ed to registry. registry. consiT ,/\ hdk sal It"-l File be (As trmar Goyal) Member Page 2l of27