PRATEEK SABHARWAL AND PAYAL SABHARWAL vs EMAAR MGF LAND LTD THROUGH ITS MANAGING DIRECTOR AND OTHER DIRECTORS NOW KNOWN AS EMAAR INDIA LIMITED

Complaint no.

1584 of 2023 REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.

I L584 of2023 Order reserved on | 19.1L.2024 Order pronounced on : O4,O3.2O25 Complainants Marg, New Versus M/s lJmaar lndia Ltd. (Forrnerll. known as Emaar MGF Land Ltd.J Office at:- ECE House,28, Kasturba Gandhi Delhi- 1100001 Also at:- Emaar Sikandarpur Chowk, Coram: Shri l\run Kumar Shri \/ijay Kumar Goyal Shri r\shok Sangwan Appearance: Shri Gaurav Rawat (Advocate) Shri Dhruv Rohatgi fAdvocate] HARERA GURUGRA[/] TIEFORE THE HARYANA 1.

Mr.

Prateek Sabharwal 2.

Mrs.

Payal Sabharwal Both R/o: - Premium Terraces at Plam Drive, unit no.

TPD H-F07-706, in Sector- 66, Gurugram, Haryana- t2201,8 MGF Business Parlj M.G.

Road, Sector-28, Gurugram- 12 2002, Respondent Chairman Member Member Complainants Respondent ORDER : 1.

The present complaint has been filed by the complainant/allottees in Form CRA under section 31 of the Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017 (in short, the rules] for violation of section 11[4)(a] of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se them.

Page 1of25 HARERA ffi,GURUGRAI/ Complaint no.

1584 of 2023 A.

Proiect and unit related details 2.

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

N0.

Particulars Details 1.

Name of the project Premier Terraces at Palm Drive, Sector 66, Gurugram, Haryana 2.

Project area 31.62 acres 3.

RERA registration details Registered 24 of 2020 Valid from 10.92020 up to 08.08.2021 4.

Allotment letter 30.11.2007 [Page no.

39 of complaint] 5.

Unit no.

H-706,7th floor, in tower/block- H fPage no. fPage no.

4B of complaint) 6.

Area admeasuring 2125 sq. ft. (Super area) 7.

Date of execution of buyer's agreement 26.02.2008 IPage no.

44 of complaint] B, Possession clause 14.

POSSESSION (a) Time of handing over the Possession Subject to terms of this clquse qnd subject to the Apartment Allottee having complied with all the terms and conditions of this Agreement, and not being in default under any of the provisions of this Agreement qnd compliqnce with all provisions, formalities, documentation etc., o.s prescribed by the Company, the Company proposes to hand over the possession of the Apartment/Villa /Penthouse by December 2070.

The Apartment Allottee agrees and understands that the Company shall be entitled to a grace period of ninetv (9aLlsys,:[0t aoolvino gnd obtainino the occuDqtion certificate in r?specl oI thc Group Page 2 of 25 B.

3. ffi HARERA #, i; RUGRArl Complaint no.

1584 of 2023 Facts ofthe complaint The complainants have made tlLe following submissions in the complaint: i. 'Ihat in the year 2007 , lhe respondent company issued an advertisement announcing a group housing colony project called "Premier TERRACES ,r\T PALM DRIVE" at Sector - 66, Gurugram was launched by Emaar MGF Land Limited on the 45.48 acres of land, under the license no.

DS- 2007 /24799 of 2007 dated 27 .09.2007, issued by DTCP, Haryana, and rlhandigarh and thereby in.vited applications from prospective buyers for the purchase of unit in the said proiect.

Respondent confirmed that the proiects had got building plan approval from the Authority.

Housino Complex.

IEmphasis supplied) IPage no.

62 ofcomplaint] 9.

Due date ofpossession 37.03.2071 [Note:- December 2010 as mentioned in the buyer's agreement + 90 days grace periodl 10.

Total consideration Rs.1,21,29,8+l /- (As per SOA dated 28.08.2023 at page 15l ofreply) 10.

Total amount paid by the complainant Rs.1,,21,,29,441 /- (As per SOA dated 28.08.2023 at page 15l of replyJ 11.

Occupation certificate 2 5,01.2 018 fPage no. fPage no.

107 of reply] 1,2.

Offer of possession to the complainants 23.02.2018 IPage no.

109 of reply] 13. lJnit handover letter issued by the respondent in favor of the complainants dated 27 .06.2014 [Page no.

121 ofreply] 1,4.

Conveyance deed executed between the respondent and the complainants on 09.10.2 018 [Page no.

124 ofreply ] Page 3 of 25 HARERA S*GURUGRAI/ lt. 'Ihat the complainants while searching for a flat/accommodation was Jured by such advertisements and calls from the brokers of the respondent for buying a house in their project namely palm drive.

The respondent company told the complainants about the moonshine r:eputation of the company and the representative of the respondent company made huge presentations about the proiect mentioned above and also assured that they have delivered several such projects in the national capital region. 'Ihat the respondent issued vital brochures containing detailed specifications of the project.

It also indicated the arrangements of the rlifferent towers, parking space, an exglusive golf driving range, view l:rom their flat ofthe golidriving range,' extensive recreation facilities that r:elebrated the outdoors such as landscaped public areas, iogging trails, 'walkways, green areas, driveways, swimming pools, gyms, clubhouse, .multiple amphitheaters etc.

The respondent had conducted various road r;hon,s, extensive marketing and promotion including but not limited to India and Dubai.

Finding the layout plan of the project, the grand ,3ntrance, the large central green common areas, the amenities like swimming pool, gym, club house building, recreational facilities like badminton, squash, football, bowling alley and most importantly the golf driving range attractive as well as the project as a whole, the complainants booked flats and some even paid preferential location charges (PLCJ for apartments facing in a certain direction in the project and started making payments to respondent. iv. ndent. iv.

Ihat relying on various representations and assurances given by the respondent company and on belief of such assurances, specifically with a golf driving range view, complainants booked a unit in the project by Complaint no.

1584 of 2023 lll.

Page 4 of 25 ffiHARERA *e-gunuennnr Complaint no.

1584 of2023 paying an amount of Rs.10,00,000/- dated 25.11.2007, towards the booking of the said unit bearing no.

TPD H-F07-706, in Secror 66, having super area measuring 2L25 sq. ft. to the respondent dated 25.1,1.2002 ilnd the same was acknowledged by the respondent. 'Ihat the respondent confirmed the booking of the unit to the allottee providing the details of the project, confirming the booking of the unit dated 25.11,.2007, allotting a unit no.

TPD H-F07-706, measuring 212 5 sq. li. in the aforesaid project of the developer for total sale consideration of 1Rs.1,07,36,675 /- along with car parking and other specifications of the allotted unit and providing the time frame. 'Ihat complaint has bought specifically the captioned unit, premier terraces because this apartment is overviewing golf course range.

This rr'r'as very clearly seen asi per the brochure annexed along with the complaint.

A buyer's agreement was executed between the parties on :46.02.2008.

As per annexure of the buyer's agreement the sale price of fhe said apartment shall be Rs.l,07,36,675 /-.

That would include the basic sale price, EDC, IDC, preferential location charges and exclusive right to use the dedicaterd car parking.

This agreement and various r:lauses therein amount lo an unconscionable agreement that is an agreement containing terms that are so extremely unjust, or r:verwhelmingly one-sidecl in favour of the party who has the superior bargaining power, that they are contrary to good conscience. 'Ihat the complainants ha,ring dream of its own residential unit in NCR signed the agreement in the hope that the unit will be delivered on or before by December,2010. mber,2010.

They were also handed over one detailed llayment plan which was construction linked plan.

It is unfortunate that the dream of owning a uririt of the complainants was shattered due to vi. vli.

Page 5 of25 ffiilal?ERA #* r;unuenRHr Complaint no.

1584 of 2023 rlishonest, unethical attitude of the respondents.

As per clause 14(al of the buyer's agreement the respondent had to deliver the possession of the unit by December, 2010.

Therefore due date of possession comes out to be December, 2010. viii. 'Ihat the payment plan was designed in such a way to extract maximum payment from the buyers viz a viz or done/completed.

The complainants approached the respondent and asked about the status of construction and also raised objections towards non-completion of the project.

Such arbitrary and illegal practices have been prevalent amongst builders before the advent of the Act of 2016, wherein the payment/ rlemands/etc. have not been transparent and demands were being raised ,,r,,ithout sufficient justificdticins 'and maximum payment was extracted IX. just raising structure leaving all amenities/finishing /facilities/common irrea/road and other thin5Js promised in the brochure, which counts to irlmost 50%o of the total proiect work. 'Ihat the respondent despile having made multiple tall representations to the complainants, the respondent has chosen deliberately and contemptuously not to act and fulfil the promises and have given a cold shoulder to the grievances raised by the cheated allottees.

The respondents have complel:ely failed to honour their promises and have not provided the services ls promised and agreed through the brochure, IBBA and the different zrdvertisements released from time to time. lFurther, such acts of the respondent is also illegal and against the spirit of the Act, 2 016 and the rules, 2017. les, 2017. 'Ihat the respondents have played a fraud upon the complainants and have cheated them fraudulently and dishonestly with a false promise to r:omplete the construction over the project site within stipulated period.

Page 6 of25 MHARERA ffic;unuenRvr Complaint no.

1584 of 2023 'Ihe respondent had further malalfidely failed to implement the BBA executed with the complainants.

Hence, the complainants being aggrieved by the offending misconduct, fraudulent activities, deficiency and tailure in service of the respondent is filing the present complaint. '[he complainants have suffered a loss and damage in as much as they had deposited the money in the hope oF getting the said unit for residential purposes.

Therefore, the compensation in such cases would necessarily have to be higher than what is agreed in the BBA.

The r:omplainants after many requests and emails; received the offer of possession on 23.02.20L8.

It is pertinent to note here that along with the above said letter of offer of possession respondent raised several illegal rlemands on account of the following which are actually not payable as rper the builder buyer agre,3ment. xi. 'Ihat offering possession by the respondent on payment of charges which the flat buyer is not contractually bound to pay, cannot be considered to be a valid offer of possession.

It would be noticed from the details provided above that thiose charges were never payable by the complainants as per the agreement, by the complainants and hence the offer of possession. tllt xii.

Ihat the complainants sent various reminder to respondents stating and raising various grievance with respect to delayed possession charges, air conditioners, grid power supply, car parking, solar panels, golf range, palm drive condominium association and HVAT.

Furthermore, stating that solar panels has been installed in phase-1 of the project not in the tower of the complainants, as per the agreed terms of the booking and name of the project itself indicates indicates that there will be golf range but till date respondents have failed to provide the same.

Thereafter, various Page 7 of 25 ffi HARERA ffi, r;unuennr,rr Complaint no.

1584 of2023 reminder emails and letters were sent to the respondents on the above mentioned issues but till date respondent failed to provide any satisfactory response to the complainants.

The palm drive amenities are ',44x7 power back up, 24x7 security, badminton court, golf driving range, basketball court, broadband connectivity, club house, covered parking, r:reche, Gym, health facilities, intercom facility, kids play area, lawn tennis court, maintenance stafl open parkin& recreation facilities, religious place, school, servant quarters, shopping arcade, swimming pool, visitor parking. xiii. 'lhat the complainants requested the respondent to show/inspect the unit before complainants pay any further amount and requesting to provide the car parking space no but respondent failed to reply.

The respondent asked the complainants to sign the indemnity bond as perquisite condition for handing over of the possession.

The complainants raised objection to above said pre-requisite condition of the respondent as no delay possession charges was paid to the complainants but respondent instead of paying the delay possession r:harges clearly refuse to handover to possession if the complainants do not sign the aforesaid inclemnity bond.

Further, the complainants left with no option instead ofslgning the same. xiv. llhat the complainants after many follow ups and reminders and after rlearing all the dues and fulfilling all one-sided demands and formalities as and when demanded by the respondent got the conveyance deed executed dated 09.10.201U.

While this sale deed acknowledges that the complainants has paid the total consideration towards full and final consideration of the said apartment and applicable taxes etc. taxes etc., it makes no provision for compensating the complainants for the huge delay in Page I of 25 HARER,{ W,GURUGRAM Complaint no.

1584 of2023 handing over the flat and project.

The complainants were not given any opportunity to negotiate the terms of the said sale deed. xv. '[hat the complainants are getting depressed because everyone is aware that golfview apartments are premium apartments and the complainants intend to stay within the amid of greens.

Their dreams are getting :;hattered as respondent builder is not giving the golf course at the specific location which was earmarked for the golf course.

The complainants request the competent authorities to make sure that Emaar give golf course at the same location.

They are filing present complaint not for any compensation or monetary gain, they are filling the case to have golf course at the sme location where they have mentioned, even if vve google palm drive plans, it comes with golf course range view.

That in the present project respondent specifically charged extra with purpose to charge the premium and specincally on account of golf range view at the rlesignated location whiclL was shown to the complainants at time of booking and also shown in the brochure.

The same has been paid by the complainants in timely manner but till date respondent failed to provide the same to the complairLants even after the repeated reminders and Iequests. xvi. 'that the complainants beljeve that completion certificate, grant of which is mandatory for every residential pro,ect is yet to be granted to the respondent company in respect of 'l'he Palm Drive.

The said delay and lailure to declare and obtain the completion certificate indicates that the project is well behind the scheduled date of completion.

The term "completion certificate" means the completion certificate, or such othcr rlertificate, by whatever name called, issued by the competent authority r:ertifying that the real estate project has been developed according t ccording to the Page 9 of 25 ffiHARERA #, r;unuennlrr Complaint no.

1584 of 2023 sanctioned plan, layout plan and specifications, as approved by the competent Authority under the local laws.

Basic facilities like the grid electricity and water supply; sewerage connection; gas connection; fire exits; lighting at various common areas; some basic bathroom fittings and geyser in the health club, car parking etc. we're missing if not delayed r;onsiderably when possession was offered only till recently many of l.hese were properly completed. xvii.'Ihat the complainants were enticed to book the said proiect at a much Jrigher price than the market price only for the reason that the proiect of the respondent company, was supposed to have large green landscapes by way of a golf driving range at a designated Iocation along with putting greerrs consisting of seating areas for the players, which the complainants r:ould enjoy along with all other amenities.

The respondent company boasted of building a golf driving range at a designated Iocation and gained a premium from the market in excess of a minimum of Rs.1500/- per sq. ft. and/or 30% premium.

The complainants agreed to purchase such an expensive property primarily because of the golf driving range and )arge green areas around the same.

The golf driving range has not been delivered till date i.e., after more than years from the stipulated l:ime of delivery.

Golf is respected to be a prestigious and affluent sport. 'Ihe appeal to the same is of exclusivity and superior facilities.

The golf rlriving range at the designated location encompassed a large green area and a dominant feature irL the palm drive.

From an owner's standpoint, the same covered a significant area of around and above 350/o of the total rlrea of the project.

The name of the project taking its cue from the same 'with the driving range being the focal feature of The Palm "Drive".

Page 10 of25 C.

4. ffiHAFERA *ds- c;unuennu Complaint no.

1584 of2023 xviii.

023 xviii. 'lhat the project sales brochure and description further boasted of c'xtensive recreation facilities that celebrated the outdoors such as wonderful greenery, wide-open spaces, an uplifting sense of safety, :;ecurity and community, landscaped public areas, planted parks, logging Lrails, walkways and an exclusive golf driving range along with all other Iacilities.

That as per the brochure the project was to be of thirty one + acres approximately having all facilities etc. out of which the golf driving range at the designated location was expected to occupy a large area required for modern three lane driving practice range with putting greens.

But nothing of such has been completed till date. xix. 'lhat no negotiations were permitted in relation to the buyer's agreement.

The complainants was told that the sale deed will encompass :rll the relevant issues at hand.

This agreement and various clauses lrherein amount to an unconscionable agreement that is an agreement containing terms that are so extremely unjust, or overwhelmingly one- :;ided in favour of the parry who has the superior bargaining power, that they are contrary to qood ( onscience.

Relief sought by the complainants The complainants have filed the present compliant for seeking following reliel's: i. .Direct the respondent to cleliver the golf driving range at the designated Location as promised at the time of booking. ii.

Direct the respondent to [rrovide the amenities and golf driving range at the designated location as per brochure and layout plan provided at the time of booking.

Page 11 of 25 5. ffiHA|EBA #- r;uRuennl,r Complaint no.

1584 0f2023 iii.

Direct the respondent to pay delay possession charges from the due date of possession till the handing over of possession at prescribed rate of interest on the total amount paid by the complainants. iv. nants. iv. 'lo initiate penal proceedings against the respondent on account of rriolation of various provisions of the Act, 2016 ard for not getting the project registered. v. 'fo set aside the one-sided indemnity bond and settlement agreement signed by the respondent from the complainants under undue influence.

On the date of hearing, the aul.hority explained to the respondent/promoter aboul the contravention as alleged to have been committed in relation to section 11(4J(a) ofthe Act and to plead guilty or not to plead guilty.

Reply by the respondent The |espondent has raised certain preliminary objections and has contested the present complaint on the following grounds: i. 'Ihat the complainants have got no locus standi or cause of action to file the present complaint.

The present complaint is based on an erroneous jnterpretation of the prcrvisions of the Act as well as an incorrect understanding of the terms and conditions of the buyer's agreement dated 26.02.2008, as shall be evident from the submissions made in the lbllowing paras of the pre:;ent reply.

The respondent craves leave of this ,quthority to refer and rely up6n the terms and conditions set out in the buyer's agreement in detail at the time of hearing of the present r:omplaint, so as to bring out mutual obligations and responsibilities of the respondent as well as the complainants. ii. 'Ihat the complainants are estopped by their own acts, condLlct, ,lcquiescence, Iaches, omissions etc. from filing the present complaint.

It is submitted that the complainants have been enjoying the said unit D.

6.

PaEc 12 of 25 HARERA ffi"GURUGRAM ,,,'/ithout any demur/protest. 'l hat the possession was offered to the complainants on 23.02.2018 and the unit was handed over on 27 .06.201.8 and thereafter, executed a conveyance deed dated 09.10.2018, regarding 1.he unit in question, whereas the present complaint has been filed on 07.04.2023, i.e.

2023, i.e., after almost 4 years 6 months from the date of execution of the conveyance deed.

The lack of bonafide ol the complainants is apparent that after conclusion of the entire transaction on the execution of the conveyance deed and the completion of all obligations of the respondent, they chose to remain silent for such a long period and have approached this authority to extort money, The complainants chose to never raise any claim towards delay possession charges and were agreeable to the compensation so awarded by the respondent in terms of the buyer's agreement.

The respondent has credited a sum of 11s.8,80,817/- as compensation for the delay in offering the possession of the unit.

Hence, it is clear from the lack of any documentary proof, ,,,',hereby the complainants may have raised any such additional claim or if he may have been dissatisfied with the awarded compensation.

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

There is nothing on record to suggest Ihat there was any coercion or undue influence at the time of lianding over of the possession, as has been alleged. 'Ihat the present complaiut is not maintainable in law or on facts.

The llresent complaint raises several such issues which cannot be decided in summary proceedings.

The said issues requlre extensive evidence to be led by both the parties and examination and cross-exam inatio n of ,/,,/itnesses for proper adjudication.

Therefore, the disputes raised in the present complaint are beyond the purview of this Authority and can only Complaint no.

1584 of 2023 Page 13 of25 ffiI]AREIA SF- c;unuenRHr lv.

1584 0f2023 be adjudicated by the civil court.

Therefore, the present complaint deserves to be dismissed on this ground alone. 'fhat the complainants are not "Allottees" but Investors who has booked l.he apartment in question as a speculative investment in order to earn rental income/profit from its resale. ts resale.

The apartment in question has been booked by the complainants as a speculative investment and not for the purpose of self-use as their residence.

Therefore, no equity lies in favour ofthe complainants. 'Ihat the complainants 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 TPD H-FO7-706,7th floor, admaasuring 2725 sq. ft. situated in the project developed by the respondent, known as "Palm Terraces at l?alm Drive" at Sector 66, Gurugram, Haryana.

That thereafter the iromplainants vide application form dated 21..1.1.2007 applied to the respondent for provisional allotment of a unit bearing number TPD H- )F07-706 the project.

The complainants consciously and wilfully opted lbr an instalment payment/subvention plan for remittance of the sale r:onsideration for the unit in question and further represented to the rrespondent that the complainants shall remit every instalment on time as per the payment schedule.

That the respondent issued the provisional irllotment letter dated 30.17.2007 to the complainants, Subsequently, the respondent sent the buyer's agreement to the complainants, which was 3xecuted between the parties on 26.02.2008.

That the buyer's agreement was consciously and voluntarily executed by the complainants after reading and understanding the contents thereof to their full satisfaction.

The payments request letter and reminders thereof were sent to the Page 74 ol25 ffiHARERA S* r;unuenaHr VI, Complaint no.

1584 of 2023 complainants by the respondent clearly mentioning the outstanding amount and the due date for remittance of the respective amounts as per the schedule of payments, requesting him to timely discharge his outstanding financial liability but to no avail. no avail. 'fhat the rights and obligations of the complainants as well as the respondent are completely and entirely determined by the covenants incorporated in the buyer's agreement which continues to be binding upon the parties thereto with full force and effect.

Clause 14 of the buyer's agreement provides that subject to the allottees having complied r,1/ith all the terms and conditions of the agreement, and not being in default of the same, the respondent shall handover the possession of the unit by December 2010. l.'urthermore, the respondent is entitled for a grace period of 90 days.

The buyer's agreement that time period for rlelivery of possession shall stand extended on the occurrence of delay for reasons beyond the control of the respondent.

Furthermore, it is categorically expressed in clause 1 [b) (vi] that in the event of any default r:r delay in payment of instalments as per the schedule of payments incorporated in the buyer's agreement, the time for delivery of possession shall also stand extended.

The complainants have defaulted in I,imely remittance of the instalments and hence the date of delivcry option is not liable to determine the matter sought to be done by the r:omplainants.

The complainants are conscious and aware of the said agreement and has filed the present complaint to harass the respondent and compel the respondent to surrender to their illegal demands. 'Iirat as per clause 16 of the buyer's agreement provides that i:ompensatiorl for any delay in delivery of possession shall only be given to such allottees who are not in default of their obligations envisaged vll, Page 15 of 25 HARERA m^GUI?UGRAI,/ Complaint no.

1584 of 2023 under the buyer's agreement and who have not defaulted in payment of instalments as per the payment plan incorporated in the buyer,s agreement. agreement.

In case of delay caused due to non-receipt of occupation certificate, completion certificate or any other permission/sanction from the competent authorities, no compensation or any other compensation s;hall be payable to the allottees.

The complainants by way of instant complaint are demanding interest for alleged delay in delivery of possession.

The interest is compensatory in nature and cannot be granted in derogation and ignorance of the provisions of the buyer's agreement, viii.

Despite there being a number of defaulters in the project, the respondent had to infuse funds into the project and have diligently developed the proiect in question.

The respondent applied for occupation certificate on 110.06.2017 and the same was thereafter issued vide memo bearing no. ,lP-3 08-Vol-l/SD(BS) /20L8 /3486 dated 2 5.01.2018.

Once an application for grant oF occupation certificate is submitted for approval in the office of the concerned statutory authority, respondent ceases to have any control over the same.

The grant of sanction of the occupation certificate is the prerogative of the concerned statutory authority over which the respondent cannot exercise any influence.

As far as the respondent is r:oncerned, it has diligently and sincerely pursued the matter with the concerned statutory authority for obtaining of the occupation certificate.

I'lo fault or lapse can be attributed to the respondent in the Facts and circumstances of the case.

Therefore, the time period utilised by the sitatutory authorify to grant occupation certiFicate to the respondent is necessarily required to be excluded from computation of the time period utilised for implementation and development of the project.

PaEe 16 0125 ffi HARERA ffiaxrRUGRAr/ Complaint no.

1584 of 2023 ix. :l'hat, without admitting or acknowledging the truth or legality of the allegations advanced by the complainants and without prejudice to the contentions of the respondent, it is respectfully submitted that the prov t the provisions of the act are not retrospective in nature.

The provisions of the ./\ct cannot undo or modify the terms of an agreement duly executed prior tro coming into effect ofthe Act.

The Act applies to ongoing projects which are registered with the Authority, the Act cannot be said to be operating retrospectively. 'l'he provisions of the Act relied upon by the {lomplainants for seeking interest cannot be called in to aid in derogation and ignorance of the provisions of the buyer's agreement.

The interest is compensatory in nature and cannot be granted in derogation and ignorance of the provisions of the buyer's agreement.

That the interest lior the alleged delay or compensation demanded by the complainants are lceyond the scope of the buyer's agreement and the same cannot be Cemanded by the complainants being beyond the terms and conditions incorporated in the buyer's agreement. x. fhat on receipt of the occupation certificate, the respondent issued an offer of possession letter dated 23.02.2018.

The complainants were called upon to remit balance payment including delayed payment charges and to complete the necessary formalities /documentation necessary for handover of the unit in question to the complainants.

However, the complainants approached the respondent with request For payment of compensation for the alleged delay in utter disregard oF the terms and conditions of the buyer's agreement.

The respondent explained to the complainants that they are not entitled to any compensation in terms of the buyer's agreement on account of default in timely remittance of instalments as per schedule of payment incorporated in the buyer's Page 17 ofZs ffi I]AREIA #,c;unuenavr Complaint no.

1584 of 2023 agreement.

The respondent earnestly requested the complainants to obtain possession of the unit in question and further requested the complainants to execute a conveyance deed in respect of the unit in question after completing all the formalities regarding delivery of livery of possession.

Thereafter, an indemnity cum undertaking for possession dated 22.04.20L8 of the said unit was executed by the complainants in lavour of the respondent for use and occupation of the said unit whereby the Complainants have declared and acknowledged that they have no ownership right, title or interest in any other part of the project except in the unit area of the unit in question.

Moreover, the complainants have admitted their obligation to discharge lheir HVAT liability thereunder. 'Ihe instant complaint is preferred in complete contravention of their earlier representations and documents executed. xi. 'Ihat the complainants 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, l:he complainants refrained from obtaining possession of the unit in question.

The complainants needlessly avoided the completion of the ]:ransaction with the intent of evading the consequences enumerated in r:he buyer's agreement.

Therefore, there is no equity in favour of the ,:omplainants.

Without admitting or acknowledging in any manner the truth or correctness of the frivolous allegations levelled by the :omplainants and without prejudice to the contentions of the respondent, it is submitted that the alleged interest frivolously and falsely sought by the complainants was to be construed for thc alleged delay in delivery of possession.

That an offer for possession marks termination of the period of delay, if any.

The complainants are not entitled to contend that the Page 18 of25 ffiI]AREBA *@* c;unuenRl,r Complaint no.

1584 of 2023 alleged period of delay continued even after receipt of offer for possession.

The complainants have consciously and maliciously refrained fiom obtaining possession of the unit in question. question.

Consequently, the complainants are liable for the consequences including holding charges, as enumerated in the buyer's agreement, for not obtaining possession. llhat subsequently, the complainants approached the respondent requesting it to deliver the possession of the unit in question.

A unit handover letter dated 27.06.2018 was executed by the complainants, s;pecifically and expressly agreeing that the liabilities and obligations of the respondent as enumerated in the allotment letter or the buyer's agreement stand satisfied.

No cause of action has arisen or subsists in favour of the complainants to institute or prosecute the instant complaint.

The complainants have preferred the instant complaint on absolutely false and extraneous grounds in order to needlessly victimise and harass the respondent. xiii. 'lhat after execution ofthe unit handover letter dated 27.06.201.8 and obtaining of possession of the unit in question, the complainants are left \^/ith no right, entitlement or claim against the respondent.

The complainants have further executed a conveyance deed dated 09.10.2018, in respect of the unit in question. '[he transaction between Lhe parties stands concluded and no right or liability can be asserted by l;he respondent or the complainants against the other.

It is pertinent to take into reckoning that the complainants have obtained possession of the unit in question and the complaint is a gross misuse of process of law. 'lhe contentions advanced by the complainants in the false and frivolous complaint are barred by estoppel.

Page 19 of 25 HARERA GURUGRAM Complaint no.

1584 of 2023 xiv. 'lhat several allottees, including the complainants, have defaulted in Limely remittance of payment of installments which was an essential, crucial and an indispensable requirement for conceptualisation and development of the project in question. question.

Furthermore, when the proposed allottees default in their payments as per schedule agreed upon, the lailure has a cascading effect on the operations and the cost for proper execution of the project increases exponentially whereas enormous business losses befall upon the respondent.

That the construction of the l.ower in which the unit in question is situated is complete and the respondent has already offered possession of the unit in question to the complainants.

Therefore, there is no default or lapse on the part of the respondent and there in no equity in favour of the complainants. 'fhe complainants have been in settled possession oftheir unit since 2018 and the present complaint has been filed after more than 4 years and 6 months, which amply proves that the present complaint has been filed v,/ith malafide intentions to extort money from the respondent.

The r:omplainants have remained silent and had no grievances in this entire period of 4 years and 6 months.

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

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 of these undisputed documents and submission made by the parties.

The iromplainant has filed the written submissions on 05.12.2024, which is taken on record and has been considered by the Authorily while adjudicating upon the relief sought by the complainant.

7. u.

E.

Jurisdiction of the Authority Page 20 ol25 ffi|]ARERA ffic;unuennvr Complaint no.

1584 of2023 9.

The preliminary objections raised by the respondent regarding jurisdiction of the r\uthority to entertain the present complaint stands rejected.

The Authority observed that it has territorial as well as subject matter rurisdiction to ad udicate the present complaint For the reasons given below.

E.l Terrltorial iurisdiction 10, As per notification no. cation no. l/92/20U-ITCP dated 14.L2.201,7 issued by Town and Country Planning Department, Haryana the ,urisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with office situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram District, therefore this authority has complete territorihl jurisdiction to deal with the present complaint.

E.II liubrect-matter iurisdiction 11.

Section 11[4)(aJ ofthe Act provides that the promoter shall be responsible to the aLllottee as per agreement for sale.

Section 11(4J[aJ is reproduced as h ereunder: Section 11 [4) The promoter shqll- (a) be responsible for all obligations, responsibilities ond functions under the provislons afthis Act or the rules ctncl regulations nqde thereunder or to the allottees as per the agreement for sole, or to the association of allottees, as the cose may be, till the conveyqnce of oll the apqrtments, plots or buildings, as the case moy be, to the allottees, or the common areqs to the qssociotion of allottees or the competent authority, as the case may be; Section 34-Functions of the Authority: 344 of the Act provides to ensure conplionce of the obligotions cast upon the promoters, the allottees and the reql estate ogetts uncler this Act ancl the rules ond regulations mode thereunder.

12.

So, ir.r 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 provisions of section 11(4](a) of the Act Page 2l of25 F. ffiL]ABERA $.-+- c;unueRavt Complaint no.

1584 of2023 leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a Iater stage.

Obseryations of Authority with regard to maintainability of complaint on accou.nt ofcomplaint is barred by limitation.

The respondent has liled the reply on 12.09. on 12.09.2023, 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.

H-706, 7th floor, in tower-H, admeasuring 2125 sq. ft., in project ol the respondent named "Premier Terraces at Palm Drive" situated at Sector-66, Gurugram vide provisional allotment letter dated 30.LL.2007, and an apartment buyer's agreement was also executed between the complainants herein and the respcndent regarding the said allotment on 26.02.2008.

The occupation certificate for the subject unit has been obtained by the respondent promoter on 25,.01.2018 and the possession has been offered on 23.02.2018.

Further, at the time of offer of possession, an amount of Rs.8,80,817/- has already been paid by the respondent to the complainant towards compensation for delay in handing over of possession and the unit hanclover letter was issued on 27.0C'.201.8.

The conveyance deed is also executed between the parties on 09.1Cr.2018.

The complainant is seeking delayed possession charges and other relief fbr providing the amenities and golf drive rang as per brochure and layout plans provided at the time of booking and also to set aside the one sided indemnity bond get signed by the respondent.

The respondent while the respondent on the other hand is pleading that the present complaint is barred by limitatlon 13.

1,4.

15.

Page 22 ol Zs ffiIUREIA -@*c;unuenavt Complaint no.

1584 of 2023 as the complainants have got the offer of possession on 23.02.2018 and the conveyance deed executed on 09.10. on 09.10.2018, the transaction betvveen the comp lainant and the respondent stands concluded upon the execution of the conveyance deed and the complainant has filed the present complaint after a long delay on 17.04.2023 i.e., lapsed of 5 years, 1 month and 25 days (1,879 days] of the offer of possession and after 4 years, 6 months and 7 days (1650 days] after the execution of conveyance deed.

Thus, the claim of the complainants is not maintainable.

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

16.

In lirre with the aforesaid facts and submissions made by the parties and documents placed on record, the Authority observes that the unit was allotted to the complainant on 30.11.2007, a buyer's agreement in this regard was execr.rted on 26.02.2008.

Though the possession of the unit was to be offered on or before 31.03.2011 after completion of the project but the same was offerr:d only on 23.02.2078 after receipt of occupation certificatc on 25.0'1.2078 and ultimately leading to execution of conveyance deed of the same on 09.10.2018.

So, limitation ifany, for a cause ofaction would accrue to the complainant w.e.f .

23.02.2078 and not from 09.10.2018.

So far as the issue of 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 Development 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.

It is universally accepted maxim and the law assists those who are vigilant, r)ot thoser who sleep over their rights.

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

This Authority of the view that three years is a Page 23 o'i 25 ffiIAI]ERA S$- cunuenanl Complaint no.

1584 0f2023 18.

1-7 .

18.

1-7 . reascnable 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 10.01..2022 in MA NO.Z1 of ?OZZ of Suo Moto Writ Petition Civil No.3 of Z0ZA have held that the period from 15.03.2020 to 28.02.2022 shall stand excluded for purpose of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.

In the present matter the cause of action arose on 23.02.2018 when the possession was offered to the complainant by the respondent. 'Ihe comtrrlainant has filed the present complainton 17.04.2023 which is 5 years 1 month and 25 days from the date of cause of action.

In the present case the three year period of delay iniiling ofthe case also after taking into account the exclusion period from 1.5.03:2020 to 28.02.2022 would fall on 05.02.2023.

In view of the above, the Authority is of the view that the present complaint has not been ljled within a reasonable time period and is barred by the limitation.

19.

No dr:ubt, one of the purposes $ehind the enactment of the Act was to protect the interest of consumers.

Howbver, this cannot be stretched to an extent that basic principles of iurisprudence are to be ignored and are given a go by especially when the complainant/allottees have already availed aforesaid benefits before execution of codvevance deed. '20.

Further, as observed in the lanfmark case i.e.

B.L Sreedhar and Ors.

V.

K.M.

Nluntireddy and Ors. [AlR 2003 SC 578l the Hon'ble Supreme Court held that "Law assists those who are vigilant and not those who sleep over their rights." Law will not assist those who are careless of their rights.

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

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

PaEe24 of 25 21-.

22.

25. -.

25.

ITARERA ts* (3URUGRAM ln the light of the above authi)rity is of the view e present comp such a long period of time e procedure of misused by the litigants n in cases where n of conveyance d benefits prior to the executi justice that nobody's right when a person remained with0ut any just cause.

In and the same is declined.

Complaint as well as applica File tre consigned to regi Complaint no.

1584 of2023 ng aforesaid principles, the nt is not maintainable after w cannot be allowed to be lottees have availed certain It is a principle of natural ld be prejudiced r the sake of other's right, t for such an onable period of time the complaint is not maintainable sed off accordingly. , Gurugram GU JG Page 25 of25 ) Haryana Real Es Dated: 04.03.2025 'z- Kumar Goyal) Member ll4uw. (Arun Kumar) Chairman