PASSERINE WEALTH SOLUTIONS PRIVATE LIMITED FORMERLY KNOWN AS INTEGRATED WEALTH SOLUTIONS PVT LTD vs PAREENA INFRASTRUCTURES PVT. LTD.

HARERA GURUGRAM BEFORE THE HARYANA RI AUTHORITY, M/s Passerine Wealth Solutions Pvt. (Formerly known as "M/s Integrated Regd.

Office at: W-110, znd F1 Sohna Road, Gurugram-12200 M/s Pareena I Regd.

Office at: Flat Plot no.

138, Secto CORAM: Ashok Sangwan APPEARANCE: ORDER L.

The present complaint has been filed by th section 31 of the Real Estate (Regulation (in short, the Act) read with rule 28 (Regulation and Development) Rules, 2l violation ofsection 1L(4)(a) ofthe Act wh that the promoter shall be respot responsibilities and functions under the Siddhant Goel and Pankaj Chandola fAdvocates Prashant Sheoran [Advocate) Complai tNo.273 of 2024 REAL ESTATE RE 'Y,GURUGMM ULATORY Complaint no.

27 3 of 2024 Date ofcomplaint 29.O1.2024 Date oforder 21.o8.2024 vt.

Ltd. ted Wealth Solutions Uppal Southend, re Llmlteo artments, ,v Delhi-110075. a fAdvocatesJ IRDER. n filed by the complain Regulation and Develr r rule 28 of the Har :) Rules, 2017 fin shc the Act wherein it is in be responsible for under the provisions Ltd.J, Complainant Respondent Member Complainant Respondent rnt/allottee under pment) Act, 2016 i/ana Real Estate rt, the Rules) for er alia prescribed all obligations, of the Act or the Page 1of13 ffiHARERA &eunuennHl Rules and regulations made thereunder agreement for sale executed interse.

Unit and proiect related details A.

2.

The particulars of unit details, sale consideration, th amount paid bY No.273 of2024 Complai the complainant, date of proposed handing over the period, if any, have been detailed in the following tab possession, delay rlar form: S.N.

Particulars Details 1.

Name and location of the Droiect "Coban Residentes", st ctor-99A, Gurgaon 2.

Nature of the project Group Housing Projec 3.

Proiect area 10.5875 acres 4.

DTCP Iicense no.

I 3.2013 valid up to 5.

Name of licensee Monex Infrastructure Pvt.

Ltd.

6.

RERA Registered/ not registered Registered Vide no.35 of2020 issued on 16.10.2020 valid up to 71.03.2022 + 6 months = tt.09.2024 7.

09.2024 7. ffi4,-to,r"r t-3, 16* Floo.

I fPaee 28 of comPlaintJ o.

Unit admeasuring area 1997 sq. ft. of suPer area [page 28 of comPlaintJ 9.

Provisional allotment Ietter 7 .71.2073 raee 24 of complaintl 2 t 10.

Date of builder buYer aqreement 04.04.2014 IPase 26 of comPlaintJ 11.

Endorsement of complainant 23.09.2014 (page 62 of complaintl L2.

Possession Clause 3.1.

Possession Thot the Developer shall, under normol conditions, subiect to force majeure, complete construction ofTower / Building in which the said Flat is to be located within 4 yearc of the start of construction or execution of this Page2of13 '/ 17.06.2024 HARERA GURUGRAM Complain :No.273 of 2024 agreement, which IEmphasis supplied) Ner is loter, 13.

Date of start of construction 01.10.2014 (start ofe; [Pase 25 ofreplvl cavation) L4.

Due date of possession 01.10.2 018 (calculated from the construction) date of start of 15.

Total sale consideration Rs.7,21-,43,77 7 / - (as per BBA at paee 5: ofcomplaintl 16.

Total amount paid by the complainant Rs.Zo ,27 ,97 7 / - (as per cancellation I the complaintl tter at page 64 of L7.

Occupation certificate 73.L2.2022 fpase 21 of replv') 18.

Demand letter 19.

Pre-cancellation letter 23.01.2027 fpaee 66 ofreply) 20.

Cancellation letter 23.02.2021 fpaee 70 of replv) I.

II. t.

Facts ofthe complaint: That the complainant is a company incorporated under the Companies Act, 1956 having its registered office at W-110, Znd Floor, Uppal Southend, Sohna Road, Gurugram-122002, Haryana.

That the name of the complainant company has been changed from 'M/s Integrated Wealth Solutions Pvt.

Ltd.' to 'M/s Passerine Wealth Solutions Pvt.

Ltd.' on 18.06.2015.

That in the year 2013, the erstwhile allottee (M/s Infinite Wealth Solutions) learned about proiect through marketing representative of the respondent and believing upon the tall claims and assurances made by the representative on behalfofthe respondent, the erstwhile allottee booked an apartment in the said project. d project.

Page 3 of 13 05.01.2021 ffiHARERA S-eunuennr,rr IV.

That the erstwhile allottee was allotted an apartment bearing no.

T3- 7604,Tower 4, admeasuring 1997 sq. ft. on 16th Floor in the pro,ect of the respondent named "Coban Residentes" at Seitor-99A, Gurgaon vide provisional allotment letter dated 27.11.2073.

Thereafter, on 04.04.20L4, an apartment buyer agreement was pxecuted between them for a total sale consideration of Rs.97 ,72 ,312 /. against which the complainant had paid an amount of Rs.Z\,Z7,97l/- in all.

That as per Clause 3.1 of the agreement, the respondent assured to period of 4 lna ent.

VI.

That believing upon the respondent, the complain6nt purchased the unit in question from the erstwhile allottee.

Further, vide nomination letter dated 23.09.2014, the said apartment was transferred in favour of the complainant company and all the rights, and the agreement were stand transferred and endorsed in favour of the complainant.

VII.

That subsequent to execution ofthe agreement the complainant kept requesting the respondent and even visited the office of the respondent to intimate and know the exact status of the prolect, but the respondent failed to respond.

VIII.

That even in the early quarters ofthe year 2016, the complainant again visited the office of the respondent to know the exact status of the proiect, but no fruitful response was received from it.

It is a matter of record that the complainant had diligently paying the instalments on the trust and faith ofthe respondent that the unit in question would be handed over within the proposed timelines.

IX.

That to the utter shock ofthe complainant, the respondent vide email dated 26.02.2021 sent a letter of cancellation dated 23.02.2021 of the v Page 4 of 13 Complai No.273 of2O24 HARERA W"GURUGRAM unit in question whereby the respondent cancelled the allotment ofthe said unit and forfeited the entire amount paid by it which is completely unlawful and non-est in the eyes of law.

X. of law.

X.

That the act of the respondent is in complete codtravention to the Haryana Real Estate Regulatory Aurhority Cr.ugfnrn (Forfeiture of earnest money by the builderl Regulations, 20tA wfrich clearty states that respondent cannot deduct more than 100/0 of the basic sale respondent, the complainant under the hope of getting the refund of the hard-earned money kept approaching the respondent to know the status of the refund of the hard-earned money paid by it, but all the request and reminder were left unanswered.

XII.

That without prejudice, the complainant reserves the right to approach the appropriate Authority to file its claim of compensation as the respondent had utterly failed to fulfil its obligations to deliver the possession in time or refund the money along with the interest and as a result had caused loss of money, loss of time, loss of resources, but also mental harassment and agony.

Reliefsought by the complainant: The complainant has sought following relief(s): Direct the respondent to refund paid-up amount along with interest.

Reply by respondent: The respondent vide reply dated IO.O4.2OZ4 on the following grounds: contested the complaint xl.

C.

3.

I.

D.

4.

Page 5 of13 Complaidt No.

273 of2O24 HARERA ffiGURUGI?AI/ That the complainant itself admits that the unit wag already cancelled on 26.02.2021and the present complaint has beeri filed after a delay of more than 1060 days from date of cancelation of.allotment.

Hence, the present complaint is barred by law of limitation.

That as per apartment buyer agreement the sale consideration of unit in question was Rs.1,,21,43,7 7 7 /- (excluding taxes and other chargesl and as pleaded by complainant it has only paid an amount of Rs.20,27,971/- only. i.e. approx.16.69 o/o.

That the respondent is in the process ofdeveloping several residential group housing colonies in Gurugram, out of them one is "Coban Residences" at Sector 99A. ector 99A.

That the respondent has already completed the concerned unit and has obtained occupation certificate of the same from the competent authority.

That the respondent continues to bonafidely develop the project in question despite of there being various instances of non-payments of installments by various allottees.

That due to the fault of complainanl respondent suffered huge losses and the unit of complainant was rightfully cancelled and the same is Iegally valid.

That the construction of the said proiect was hampered due to non- payment of instalments by the allottees on time and also due to the events and conditions which were beyond the control of the respondent, which have materially affected the construction and progress of the project.

Some of the force majeure events/conditions which were beyond the control of the respondent and affected the implementation of the project and are as under: Complaint No.

273 of 2024 It.

111. lv. vl, vll.

Page 6 of 13 vlll.

HARERA GURUGRAI/ Complaint No.

273 of 2024 a] Delay in construction due to various orders/restrictions passed by National Green Tribunal, Delhi and other competent authorities for protecting the environment ofthe country. b] Ban on construction due to various court orders as well as government guidelines. cJ The major outbreak of Covid-19.

That the complainant alleged that it had paid the amount as and when demanded by the respondent but failed to mention as to why the complainant failed to pay the remaining amount demanded by the respondent after nomination offlatin its favor.

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

Jurisdiction of the authority: The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E. below.

E.

I Territorial iurisdiction As per notification no.

1/9212077 -1TCP dated 14.L2.2017 issued by Town and Country Planning Department, the iurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices 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 territorial jurisdiction to deal with the present complaint. v Page 7 of 13 5.

7.

HARERA M.GURUGRAI/ Section 77(4)(a) Be responsible for oll obligations, responsibilities and Iunctions under the provisions of this Act or the rules and regulations made therbunder or to the allottee as per the agreement for sole, or to the associotion ol ollottee, os the case moy be, to the allottee, or the common areas to the ossoclotion ;falloftee or the competent authority, as the case fiay be; 9.

Section 34-Functions of the Au 34(D of the Act provides to ensure promoter, the allottee and the ond regulotions made thereunder.

So, in view of the provisions of the Act quoted abovq, the authority has complete jurisdiction to decide the complaint regarding non_ compliance of obligations by the promoter.

Findings on the obiections raised by the respondent.

F.l Objections regarding complaint being barred by limitation.

The respondent has contended that the present complaint is not maintainable and barred by the law of limitation as the the present complaint has been filed after a delay of more than 1060 days from date of cancelation of allotment.

However, after considering documents available on record as well as submissions made by the parties, it is determined that post cancellation of the unit, the respondent has failed to refund the refundable amount to the complainant so far, which clearly shows a subsisting liability. liability.

Moreover, the deductions made from the paid-up amount by the respondent are not as per the Haryana Real Estate Regulatory Authority Gurugram [Forfeiture of earnest money by the builder) Regulations, 11(5J of 2018.

Further, the law of limitation is, as such, not applicable to the proceedings under the Act page I of13 F.

10.

If Subiect matter iurisdiction ' 8.

Section 11(41(a) of the Ac!

2016 provides rhat rhelpromoter shall be responsible to the allottees as per agreement for sal[.

Section 1l(4J[a) is reproduced as hereunder: I 11.

HARERA GURUGRAM and has to be seen case to case.

Thus, the objection of the respondent w.r.t. the complaint being barred by limitation stands reiected.

F.II Objection regarding force maieure conditions The respondent-promoter has raised the contention that the construction of the tower in which the unit of the complainant is situated, has been delayed due to force majeure circumstances such as orders/restrictions of the NGT as well as competent authorities, High Court and Supreme Court orders, spread ofCovid-19 across worldwide.

However, all the pleas advanced in this regard are devoid of merit.

First of all, the possession of the unit in question was to be offered by 01.10.2018.

Hence, events alleged by the respondent do not have any impact on the project being developed by the respondent.

Moreover, some of the events mentioned above are of routine in nature happening annually and the promoter is required to take the same into consideration while launching the proiect.

Thus, the promoter respondent cannot be given any leniency on based of aforesaid reasons and it is a well settled principle that a person cannot take benefit of his own wrong.

Findings on the reliefsought by the complainant: G.l Direct to the respondent to refund the paid.up amount along with interest.

The original allottee i.e.

M/s Infinite Wealth Solutions pvt.

Ltd. was allotted a unit bearing no. earing no.

1604, tower T-3, 16th Floor in the project of the respondent named "Coban Residences" at sector-99A, Gurugram vide apartment buyer's agreement dated 04.04.20L4 for a sale consideration of Rs.1,,21,43,77 1,/-.

Thereafter, vide nomination letter dated 23.09.2014, the said apartment was transferred in favour of the G.

12.

Page 9 of13 Complaitt No.

273 of 2024 HARERA GURUGRAM Complai4t No.

273 of 2024 complainant company and all the rights, and the agrqement were stand transferred and endorsed in favour of the complain4nt.

Out of the said sale consideration, the complainant has paid an amount of Rs.20,27,971/- in all against the said allotment.

Thrf complainant has submitted that the respondent vide email dated 25.0J.2021 sent a letter of cancellation dated, 2,3.02.2027 of the unit in queftion whereby the respondent cancelled the allotment of the said uni( and forfeited the entire amount paid by it.

However, the respondent has submitted that numerous demand letter/ Mere sent to the complainant to e payment plan.

However, the pay the outstanding dues complainant defaulted in ents and the respondent was to issue pre-cancellation letter dated 23.01,.2021 giving last and final opportunity to the complainant to comply with his obligation before finally cancelling the allotment ofthe unit vide cancellation letter dated 23.02.2021.

Copies of the same alongwith dispatch proof have been placed on record and are not in dispute.

Now the question before the Authority is whether the cancellation made by the respondent vide Ietter dated 23.02.2027 is valid or not.

13.

On consideration of documents available on record and submissions made by both the parties, the authorify is of the view that on the basis of provisions of allotment, the complainant has paid an amount of Rs.20,27,9711- against the sale consideration of Rs.1.,2L,43,771' /- and no payment was made by the complainant after its endorsement i e 23.09.20L4.

3.09.20L4.The respondent/builder has sent several reminders as per the payment plan agreed between the parties, before issuing a pre- cancellation letter dated 2 3.01.2021 giving last and final opportunity to the complainant to comply with its obligation to make payment of the PageLO ofl3 v *HARERA ffi arnuennt'r amount due, but the same having no positive results and ultimately leading to cancellation of unit vide letter dated 23.02.2021.

The Authority observes that Section 19(61 of the Act of 2016 casts an obligation on the allottee to make necessary payments in a timely manner.

Hence, cancellation of the unit in view of the terms and conditions of the payment plan annexed with the huyer,s agreement dated04.04.2014 is held to bevalid.

Butwhile canceuingthe unit, it was an obligation of the respondent to return the paid-up amount after deducting the amount ofearnes! money.

However, the deductions made from the paid-up amount by ttle respondent are not as per the law of the land laid down by the Hon'ble apex court of the land in cases of Maula Bux VS.

Union oflndtal(7978) 1 SCR 928 and Sirdar K.B.

Ram Chandra Raj Urs.

VS.

Sarah C.

Urs., (2015) 4 SCC IJ6 and wherein it was held that/orp iture of the amount in case ofbreach of controct must be reasonable and ifforfeiture is in the nature of penalty, then provisions of section 74 of Contract Act, 7872 are attached qnd the party so forfeiting must prove actual domoges.

After cancellation of a otment, the ltat remains with the builder as such there is hardly any octuql damqge.

National Consumer Disputes Redressal Commissions in CC/435/2019 Rdmesh Malhotra VS.

Emaar MGF Land limited (decided on 29.06.2020) and Mr.

Saurav Sanyal VS.

M/s IREO private Limited (decided on L2.04.2022) and followed in CC/7766/2017 in case titled as Jayant Singhal and Anr.

M3M Indio Limited decided on 26.07.2022, held that 7Tok of basic sale price is reasonoble amount to be forfeited in the name of "earnest money". st money".

Keeping in view the principles laid down in the first two cases, a regulation known as the Haryana Real Page 11 of 13 Complaint No.

273 of2024 ffiHARERA # GrJRucRAr\,i 1,4.

Complaint No.

273 of 2024 Estate Regulatory Authority Gurugram (Forfeiture of]earnest money by the builder) Regulations, 11[5] of 2018, was farmed pfoviding as under: "5.

AMOUNT OF EARNEST MONEY Scenorio prior to the Reol Estote (Regulations ond Development) Act,2016 wos dilferent.

Frouds were corried out wilhout ony lear as there was no low for the some but now, in viev! of the obove facts ond Loking into consideration the judgemelts of Hon'ble National Consumer Disputes Redressol Commislion ond the Hon'ble Supreme Court oI lndio, the outhority is ofithe view that the forfeiture omount of the earnest monE/ shof not exceed more than 70o/o ofthe consideration amountolt\ereal estote i.e. qpqrtment /plot /ba where the cancellotion of in o unilateral manner ot project ond any ag any clause c|ntrary to the afores1id regulations shqll be vo respondent is directed to refund the paid-up amount of Rs.20 ,27,97L/- after deducting 100/o ofthe sale consideration ofRs.

1,21,43,771/-being earnest money along with an interest @11.10olo p.a. (the State Bank of India highest marginal cost of lending rate (MCLR) applicable as on date +2o/o) as prescribed under rule 15 of the Haryana Real Estate [Regulation and Development) Rules, 2017 on the refundable amount, from the date of cancellation i.e.,23.02-2021 till actual refund of the amount within the timelines provided in rule 16 of the Haryana Rules 2 017 ibid.

H.

Directions ofthe Authority: 15.

Hence, the authority hereby passes this order and issues 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(fJ: i.

The respondents/promoter is directed to refund the paid-up amount of Rs. unt of Rs.20,27,971/- after deducting 10%o of the sale PaEe lZ of 13 *HARERA # eunueruvr 76.

L7. directions given in this would follow.

The complaints stand Files be consigned Haryana Real Estate Datedi 21.08.2 02 3 No.273 of 2024 consideration of Rs.

7,21,43,7 7 1,/- being earnest along with an interest @11.10% p.a. [the State Bank of India marginal cost of lending rate (MCLRI applicable as date +2%J as prescribed under rule 15 ofthe Haryana Real Development) Rules, 2017 on the refundable (Regulation and of cancellation i.e., 23.0?.2021 till its realization. ii.

A period of 90 days is given to the respondent to from the date comply with the ng which I consequences HARERA GURUGRAM Page 13 of13