SONIYA vs AGRANTE REALTY LTD

ff HARERA ffi arnuenar,,r Soniya R/o: - 46, Badiyan Mohalla, Shikar Pur, South West Delhi, Delhi- 110043.

M/s Agrante Realty Limited.

Regd.

Office at: 522-524, Jasola, New Delhi- 1100 CORAM: Ashok Sangwan APPEARANCE: Tanuj Sharma (Ad None Complaint No.

3509 of 2023 BEFORE THE HARYANA REAI ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.

Date of decision 35O9 of 2O23 tL.72.2024 Complainant Respondent Member Complainant Respondent 1.

The presenr complaint dated 11.08.2023 has been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and DevelopmentJ Act,2016 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and Development) Ru1es, 2017 (in short, the Rulesl for violation ofsection 11(4)[aJ oftheActwherein tt is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the Rules and regulations made there under or to the allottee as per the agreement for sale executed inter se.

Page 1 of 11 HARTRA HP^ GURUGRAI/ complaint No.

3509 of 2023 A.

Unit and proiect related details 2.

The particulars of unit details, sale consideration, t}le amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: s.

N.

Particulars Details 1.

Name ofthe project "Kavyam", Sector- 108, Gurgaon (Phase-1) 2.

Nature of project Affordable group housing 3.

RERA registered/not registered Registered vide registration no.

23 of 2018 dated 22.Lt.20L8 Validity status 5 acres Licensed area 31.11.2022 4.

DTPC License no.

101 0f 2017 dated 30.11.2017 Validity status 29.11.2022 Name of licensee Arvinder Singh & others Licensed area 5 acres 5.

Unit no.

TD-208, 2BHK, Type-3 [As on page no.22 ofcomplaint] 6.

Unit area admeasuring 488.30 sq. ft. lcarpet-Areal 79.73sq.ft [BalconyArea] [As on page no.

22 of complaint] 7.

Application dated Not provided B.

Allotment Letter 04.08. ter 04.08.2020 [As on page no.

22 of complaint] 9.

Buyer's Agreement Not Available Page 2 of ll .,/ B.

3.

HARERA M GURUGRAIV Complaint No.

3509 of 2023 Facts ofthe complaint The complainant has made the following submissions: - I.

That the complainant booked a unit in the Affordable Housing project namely "Kalyam" at Sector-108, Gurugram.

She has paid an amount of Rs.99,653/- as booking amount in lieu of which the respondent issued 10.

Total sale consideration Rs.23,00,000/- [As stated by the complainant ] 11.

Amount paid by the complainant Rs.18,58,468l- 1,2.

Possession clause as per Affordable Housing Policy, 2013 1 (iv) All such projects shall be required to be necessarily completed within 4 years from the date of approval of building plans or grant of enyironmental clearance, whichever is later.

This date shall be referred to as the "date of commencement of project,, fo r.tle.qu,rpos e ofthe policy, 13.

Building plan approved on 06.07.2078 [As per project details] 14.

Environment clearance 20.08.2019 15.

Due date ofpossession 20.02.2024 [Calculated as 4 years from date of environmental clearance i.e., 20.08.2019 as the same is later + 6 months as per HAREM notification no.9/3-2020 dated 26.05.2020 fot the projects having completion date on or after 2s.03.20201 16.

Occupation certificate Not obtained 1,7.

Offer ofpossession Not offered 18.

Date ofsurrender L4.02.2023 (As per page no, 41 ofthe complaintJ Page 3 of 11 .\/ ffiHARERA ffi eunllGRAN/ It.

Complaint No.

3509 of 2023 an acknowledgement receipt dated 18.11.2019.

Thereafter, a unit III.

IV. bearing no.

TD-208, BHK, Type-3 having a carpet area of 488.30 sq. ft. was allotted to her vide allotment letter dated O4.O9.ZOZO for total sale consideration of Rs.23,00,000/-.

That on 04.08.2020, the respondent issued an Allotment Letter to the complainant and thereafter a Builder Buyer Agreement was also executed between the complainant and the respondent. espondent.

It is pertinent to mention that the respondent never provided the copy of the Builder Buyer Agreement to the complainant, even after several requests of the complainant.

That at the time of executing the Builder Buyer Agreement, the respondent had assured the complainant that the possession of the unit shall be delivered within a prescribed period but till date no construction has been started by the respondent and even thereafter, the respondent had raised demands as per the payment schedule in spite of knowing the fact that the construction of the project was not complied.

It is further pertinent to mention that the complainant has also made a payment amounting to Rs.1,50,000/- in cash to the respondent officials from her husband's account, in lieu of allotment/reservation of parking area.

That the complainant has time and again visited the office of the respondent and inquired about the progress of the project but the officials of the respondent never gave proper response to the Page 4 of 11 HARERA ffiOURUGRAM VII.

3509 of 2023 vt. complainant.

That thereafter, the respondent asked the complainant to cancel the unit and claim refund and said that the construction will take more than 5 years.

That on 14,02.2023, the respondent approached the complainant through email and asked the complainant to cancel the unit to get the refund.

It is pertinent to mention here that the complainant has even paid an amount of Rs.5,000/- to the respondent in cash, for the purpose of cancellation of the agreement and the respondent has also confirmed regarding the initiation of the refund but the same has not been done till date.

Therefore, the complainant is requesting before this Authority to refund the entire paid up amount along with interest. c.

4.

Relief sought by the complainant: The complainant has sought following relief(sJ.

Direct the respondent to refund the entire amount along with interest. interest.

Direct the respondent to give possession of the unit, if the respondent could not comply to refund the amount paid by the complainants, Direct the respondent to pay an amount of Rs.1,00,000/- on account of Litigation Charges.

Direct the respondent to pay an amount of Rs.1,00,000/- on account of mental ha rassmen t and humiliation.

The present complaint was filed on 77.08.2023 and registered as complaint no.

3509 of 2023.

As per the registry, the complaint has sent copy of the i. ii. lll.

5.

Page 5 of 11 E, 6.

HARERA Complaint No.

3509 of 2023 M- GURUGRAM complaint alongwith annexures through speed post as well as through e- mail.

The respondent appeared through its advocate Tarun Biswas on L3.L2.2023 but did not file reply.

On 20.03.2024, the respondent appeared but did not file reply instead sought adiournment and adiournment was granted with direction to file reply within a period of three weeks.

On 1,5.05.2024, again the respondent refrained from filing reply and sought adiournment.

On 21.08.2024, it was observed by the Authority that the respondent is neither filing reply ItQr paying the cost imposed on it, the matter was listed for 16.10.2024 for final arguments On 16.10.2024, the proxy counsel of the respondent requested for another adjournment as the main counsel was not available for arguments.

But the Authority observed that its the 5th date of hearing and more than one year has passed since filing of the matter.

Thus, the defence of the respondent was struck off.

However, in the interest of justice, the respondent was given an opportunity to file written submissions within a period of 2 weeks, but the respondent did not file any submissions too. f urisdiction of the authoritY The Authority has complete territorial and subject matter,urisdiction to adjudicate the present complaint for the reasons given below.

E.I Territorialiurisdiction As per notification no.

Ll92/201'7-1TCP dated 1,4.1'2. d 1,4.1'2.20L7 issued by Town and Country Planning Department, Haryana the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes. ln the present case, the project in question is 7.

Page 6 of 11 HARERA ffiGURU6I?AI/ Complaint No.

3509 of 2023 situated within the planning area of Gurugram district.

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

E,II Subiect-matter iurisdiction 8.

Section 11(aJ(a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section 71 (4) 7'he promoter sholl- (o) be rcsponsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the ollottees as per the agreement t'ir sale, or to the associqtion of allottees, as the case moy be, till the conveyance of oll the apqrtments, plots or builclings, as the cose may be, b ;he ollottees, or the common ereas to the associotion of allottees or the competent authoriqt, os the case nay be; Hence, in view of the authoritative pronouncement of the Hon,ble Supreme Court in the cases mentioned above, the Authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

Findings on the relief sought by the complainant.

F.

I Direct the respondent to refund the entire paid up amount along with interest.

F.ll Direct the respondent to handover possession of the unit, in case refund cannot be given.

The above mentioned reliefs are contradictory to each other and thus the main relief of the complainant regarding grant to refund is taken into consideration hereinafter.

The complainant was allotted unit no.

TD_Z0g on 2BHK, Type-3, in the project "Kar,yam,,by the respondent/builder for a 9.

F'.

10.

Page 7 ot 11 HARERA ffiGURUGRAM Complaint No. plaint No.

3509 of2023 total consideration of Rs.23,00,000/- under the Affordable Group Housing Policy 2013.

The complainant submitted that a Buyer,s agreement was executed in this regard but copy of the same has not been provided to the complainant till dare.

As per the Affordable Housing policy, 2013 , rhe possession of the unit was to be offered with 4 years from approval of building plans (06.07.2018) or from the date of environment clearance (20.08.2019) and whichever is later which comes out to be 20.08.2023.

Further, as per HARERA notification no.

9 /3-2020 dated 26.05.2020, an extension of 6 months is granted for the projects having completion date on or after 25.03.2020.

The completion date of the aforesaid project in which the subject unit is being allotted to the complainant is 23.11.2020 i.e., alter 25.03.2020.

Therefore, an extension of 6 months is to be given over and above the due date of handing over possession in view of notification no.

913-2020 dated 26.05.2020, on account of force majeure conditions due to outbreak of Covid-19 pandemic.

Therefore, the due date of handing over possession comes out to be 20.02.2024.

The complainant paid a sum of Rs.18,58,468/- out of the total sale consideration of Rs.23,00,000/-.

Iiurther, the respondent vide email dated 14.02.2023 informed the complainant that they have scheduled the cancellation of the BBA of the complainant's unit for 16.02.2023 and to refund the amount paid.

The email dated 14.02.2023 is reproduced as under for a ready reference; - Dear sir/madom, Creetings fram Agrante! !

We $,ould like to infarm ya that $)e have schectuled your BBA tegistration cancelkXian an 16 42.242:l- Kitldly canlitn lour avoildbrltU an the mentionetl dute.

We invite lour kind attentian towurds registration cancellation charges which )s Rs.5AAA/ you have to nake the porment immediatel! as we have ta purchose token oI yaur nome bekre twa Page B of 11 HARERA ffi GURUGRAIV Complaint No.

3509 of 2023 days.

2023 days.

Requesting you to transfer the amount in below mentioneil account details Once it is poid let us know so that it could proceed ohead.

Please note if you do not visit at mentionecl address lor BBA registration afrer conlrmotion then you will have to give a penalty of k.5,000/- We will initiateyour refund amount as soon os possible onceyour BBA is cancelled.,, 11.

As per the clause 5 tiiixh) of the Affordable Housing policy, 20L3 as amended by the State Government on 05.07.2019, the relevant provision is reproduced as under: Clause 5(iii) (h) ofthe affordable housing policy 'A waiting list for a moximum of 2;ok of the total availoble number of Jl a ts ava i I a b I e fo r allotm e n t, ared during the dtuw of lob vtho can be oJfered the allo of the successful allottees are not able to remove the their application within the prescribed period of 15 allottee, the amount that Rs.25,000/- shall not exce, days [On surrcnder of Jlat by any successful con be forfeited by the colanizer in addition to Sr.

No.

Particulars Amount to be forfeited (aal ln case ol surrender of flat before commencement of project Nil tbb) Upto 1 year from the date commencement of the project of 170 ofrhe cost offlat (ccJ 3Yo ofthe cost offlat (ddl After 2 ,,ears from the date of commencement of the project 5% ofthe cost offlat S-bch llots rnoy bc cansidcred b! the comiiLtee Jor oner rc rhose appli'ons falling in the waiting list.

However, non-removot of defcienciei by ony successful applicant sholl not be considered as surrender of flat, and no suih deduction of Rs 25,000 shall be applicoble on such cases. lf any wait tisted candidote does not want to continue in the woiting list, he moy seek withdrawol ond the licencee shall refund the booking omount within i0 days, without imposing ony penolu.

The waiting tist shall be mainmined foi o period of 2 years, after which the booking amount sho be refunded bick to the waitlisted opplicants, without ony interest. interest.

All non-successful applicants shall be refunded back the booking amount within 15 days of hoiiing the draw oflots.

12.

Since the surrender of the unit by the complainant was done after commencement of construction, hence the respondent is entitled to forfeit amount in accordance with as per the clause S (liD(hl of the Affordable Page 9 of 11 ljpto 2 year Iiom the date commencement of the project ffi!A&E!A ffi,ounuonntr,l Complaint No.

3509 of 2023 Housing Policy, 2013 as amended by the State Government on 05.07.2019.

The date of commencement of project has been defined under clause 1[iv] to mean the date of approval of building plan or grant of environmental clearance, whichever is later.

In the instant case, the date of grant of environment clearance i.e.,20.0g.2019 is later and hence, the same would be considered as date of commencement of project.

13.

The respondent/promoter is directed to refund the paid_up amount after deduction oF 5% of the consideration money in addition to Rs.25,000/_ as per clause 5(iiiJ(h) ofthe ofAffordable Housing policy 2013 as amended by the State Government on 05.07.2019, along with interest @10.750lo per annum from the date surrender/withdraw of allotment till the actual realization of the amount.

G.

Directions ofthe authority 14.

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 authoriw under section 34(fJ: The respondent/promoter is directed to refund the paid-up amount of Rs.18,58,468/- after deduction of 5olo of the consideration money in addition ro Rs.25,000/- as per clause 5(iiil[h] ofthe of Affordable Housing Policy 2013 as amended by the State Government on 05.07.2019, along with interest @11.10% per annum from the date surrender/withdraw of allotment i.e., 14.02.2023 till the actual Page 10 of 11 *HARERA ffi,GuRUGRANI Complaint No. plaint No.

3509 of 2023 realization of the amount along with interest at the rate of 11.10% p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017. ii.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences would follow.

Complaint stands disposed of.

File be consigned to registry.

Dated: 1L.12.2024 Gurugram 15.

76.

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