MR AMNINDERJIT SINGH vs OCEAN SEVEN BUILDTECH PVT. LTD.

*HARERA S-eunuennll CORAM: Ashok Sangwan BEFORE THE HARYANA REAI ESTATE REGULATORY AUTHORITY, GURUGMM Complaint no. t 8O21, of2022 Date of complaint t 25.01.2O23 Date oforder t 16.O4,2O25 Amninderiit Singh, R/o: - H.

No.

136, Sector-4s, Behind DPS School, Kanahi (73), Gurugram, Haryana-122003.

Complainant Versus Ocen Seven Buildtech Pvt.

Ltd. .lll .

I Regd.

Office At; - Vilage- Kherltt'Mukiaa Paniyala Mor, Tehsil- Kotputli, JaipUr, Rajasthan-303108.

Also at: 505-506, 5tt' Floor, To*er B-4, Spaze l-Tech park, Sector-49, Gurugr afi]".12207A.,,.

Respondent Complaint no.

8021 of 2022 Member APPEAMNCE: Sapna Malik (Advocate] Complainant Arun Yadav (Advocate) Respondent ORDER 1.

The present complaint has been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read with rule 28 ofthe Haryana Real Estate (Regulation and Development) Rules, 2017 (in short, the Rules) for violation of section 11(4)(a) ofthe Act wherein it is inreralio prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provisions of the Act or the Rules and regulations made there under or to the allottee as per the agreement for sale executed inter se.

Paqe 1of19 Y Complaint no.

8021 of 2022 A, Proiect and unit related details 2.

The particulars ofthe proiect, the details of sale consideration, the amount paid by the complainant(sJ, date of proposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: s.

N.

Particulars Details l.

Name of the project "Expressway Towers", Sector 109, Gurugram z.

Nature ofthe project Affordable Housing l.

DTCP license no. validity status and 6 0f 2016 dated 76.06.2076 4.

RERA Registered/ registered not !

301 of 2077 dated 13.10.2017 valid upto 12.L0.2021.

5.

Allotment Letter 20.05.2077 {pege ?3 of complaint) 6.

Unit no.

2303, Tower 3 (Page 23 of complaint) 7.

Unit area admeasuring 645 sq. ft.

45 sq. ft. [carpet area), 99 sq.ft balcony area (Page 23 of complaintl iJ.

Date of execution of Apartment Buyer's Agreement 07 .77.20t7 (as per application dated 08.10.2024) 9.

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

This date shall be referred to as the "date of commencement of project" for the Iurpose ofthe policy.

10.

Date of environmental clearance 30.77.20t7 (as per information obtained from the planning branch) 11.

Date of approval of building plans 26.09.2076 (as per information obtained from the planning branchl L2, Due date ofpossession 30.o5.2022 Page 2 of19 r' *HARERA dt eunuennvr Complaint no.

8021 of 2022 fCalculated as 4 years from date of grant of environmental clearance i.e., 30.77.2017 as per poliry of 2073 + 6 months as per HAREM notification no.

9 /3-2.020 dated 26.05.2020 for the projects having completion date on or after 25.03.2020.) 13.

Total sale consideration Rs.26,29,500/- (excluding applicable taxes and charges) (as per application dated 08.10.2024) 14.

Amount paid by the complainant Rs.

19,65,341l- (As per ledger dated 15.11.2022 on page 10QOf complaint) 15.

Tripartite Agreement 0 1.11.2017 iage 61 of complaint) 16.

Occupation certificate /Completion certificate Not obtained 17.

Offer of possession Not offered B.

Facts ofthe complalnt 3.

The complainant vide complaint and written submissions dated 20.03.2025 has made the following submissions: - I.

That the complainant was allotted a residential flat bearing no.2303, Tower-3, having carpet area 645 sq. ft. and balcony area 99 sq. ft.in the project of the respondent named ,,Expressway Towers,' in Village Babupu4 Sector-109, Gurugram vide allotment/demand letter dated 20.05.2077.

Thereafter, a buyer's agreement dated 03.10. ted 03.10.2017 was executed between the parties against the said residential unit/flat for a sale consideration of Rs.26,29,500/-.

II.

That furthei the tripartite agreement was executed between the parties and TATA Capital Housing Finance Limited on 03.10.2017 for availing the loan from the aforesaid residential unit/flat in the aforesaid project of the respondent.

III.

That on 25.11.2017, the complainant sent an email to the respondent, requesting it to not to charge interest due to delay in paymentfrom the MHARERA S-eunuennnr *HARERA dh, ounuonnu Complaint no.

8021 of 2022 TATA Capital Housing Finance Limited, because of no activity on the construction site.

Thereaftet on 30.11.2017, the respondent replied to the complainant through email stating that they will not charge the interest for the delay to make the payment of instalment till such time contraction activity picks up.

IV.

That on 24.07.2021, the complainant received the notice for non- payment of dues letter from the respondent through email.

Thereafter, the complainanton 01.08.2021, made the payment of Rs.10,OO0/- to rhe respondent for the aforesaid flet That as per 4.5 [i) ofthe buyafs agreement, in the event of any delay or default in making payment of the instalments by the complainant, he shall be liable to pay to the respondent interest, which shall be charged @150/o per annum from the due date of payment of instalments.

Howeve4, the delay for paying instalment for the aforesaid unit/flat was occurred from the side of the respondent as the respondent did not provide the RERA Certificate to the complainant/ TATA Capital Housing Finance Limited for further disbursal ofloan for the aforesaid residential unit/flat even after several requests from the complainant, his brother and TATA Capital Housing Finance Limited.

Thereaftel the respondent cancelled the aforesaid unit/flat No.

2303, on 74.06.2022, without informing the complainant and without following the process of clause 15. clause 15.2 (i) ofthe buyer's agreement.

VL That in the mid-November 2022, the complainant was informed by the respondent towards the cancellation ofhis unit/flat on14,06.2022 even after receiving the amount of Rs.19,65,341/- from him.

It is further submitted that after cancellation of the allotted unit/flat dated 14.06.2022, the respondent never returned the remaining paid-up amount to the complainant immediately.

Page 4 of19 VIII. *HARERA {b ounuonnHl Complaint no.

8021 of 2022 VII.

That the respondent may have already sold out the aforesaid unit/flat to some other buyers.

Hence, in case, the respondent already sold out the said unit/fla! then the respondent violated the clause 13 and 17 (a) and [b) of the tripartite agreement as the respondent shall not transfer the said flat of the complainant to any purchaser without the prior written consent of TATA Capital Housing Finance Limited and the respondent agreed not to create any charge or mortgage over and in respect of the said flat/unit except in favour of TATA Capital Housing Finance Limited and not to permit any other p€tsgn to occupy the said flat/unit without written permission of Tfrf,A.

Capital Housing Finance Limited respectively.

Therefore Oe iislgnitent is liable to allot another similar unit in the same pmiect to.tlircoinplainant.

That the complainant is really to pay the remaining outstanding amount of Rs.7,52,909 /- to the respondent for the aforesaid unit/flat only with the help of his financer i.e.

TATA Capital HousiEg Finance Limited as per the Tripartite Agfeement, because the coinplainant is not having the financial capacity to pay the,xemainlng outstanding amount.

That the TATA Capital Housing Finance Limited has requested the complainant to provide the lategt licence copy i.e.

RERA license of the respondent to maliing the pafment through email dated 09.08.2021.

As such, the complainant sent an email dated 09.09. ted 09.09.2021 to the respondent requesting to provide the RERA license as soon as possible for further disbursal the loan from the TATA Capital Housing Finance Limited for the aforesaid unit/flat.

But, till date, the Respondent did not provide the RERA License for further disbursal the loan from the TATA Capital Housing Finance Limited for the aforesaid flat.

That the respondent neither issued the notice/letter to the complainant for cancelling the aforesaid unit/flat nor published the Iist of defaulter IX.

Page 5 of 19 *HARERA db, eunuennn,l Complaint no.

8021 of 2022 allottee(s) including the complainant in the regional Hindi newspaper as per clause of 15.2 (i) ofthe buyer's agreement dated 03.10.2017.

That after filing the case, the respondent has filed its reply on 24.07.2024 before this Authority, which is subiected to cost of Rs.5,000/- as per order dated 18.10.2023.

That on 18.12.2024, the respondent gave certain documents towards the third-party rights has been created and after perusal of the documents of the respondent, it is ascertained that the respondent has allotted the aforesaid flat s.

Maniula Vijh on 27.06.2022. lt is submitted that the said :is illegally, arbitrarily and without issuing the demand notice or ca n notice to the complainant and without following the procedures and terms and conditions of the buyer's agreementdated 07.11.2017 and the tripartite agreement dated 03.10.2077 .

That during the course of proceedings, the respondent gave the document of the newspaper otting as The Impressive Times dated 13.06.2020, New Delhi for the list of defaulters including the Complainant.

It is submitted that it is English newspapet and it is published at New Delhi.

As such the aforesaid newspaper is not a regional Hindi Nerv PapeI which is not circulated and published at State of Haryana.

That after publication of the newspaper dated 13.06.2020 and after issuing the notice for non-payment of dues dated 26.07. ted 26.07.2021, the respondent received the amount from the complainant for the aforesaid flat as Rs.3,88,000/- on 25.06.2021, Rs.10,000/- on 01.08.2021. and Rs.2,00,000/- on 09.08.2021.

That the publication of the newspaper dated 13.06.2020 is during the time of COVID lockdown and there were no possibilities of getting the xt.

XII.

XIII.

XIV.

XV, Page 6 of19 *HARERA #-eunuenaHl Complaint no.

8021 of 2022 physical paper, this in itself should make the publication irrelevant and non-admissible.

C.

Relief sought by the complainant: 4.

The complainant has sought following relief(sl: i.

Direct the respondent to set aside cancellation and handover possession ofthe unit to the complainant. ii.

Direct the respondent to pay delay possession charges.

On the date ofhearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11(4J (a) ofthe act to plead guilty or not to plead guilty.

D.

Reply by the respondent: 6.

The respondent vide its reply d ated 24.0L2O?4has contested the complaint on the following grounds: i.

That this Authoriry lacks iurisdiction to adiudicate upon the present complaint as vide clause 16.2 of the builder buyer agreement, both the parties have unequivocally agreed to resolve any disputes through arbitration. ii.

That the complainant is a willful defaulter and deliberately, intentionally and knowingly have not paid timely installments. iii.

That starting from February 2023, the construction activities have been severely impacted due to the suspension ofthe license and the freezing of accounts by the DTCP Chandigarh and HREM Gurugram, respectively.

This suspension and freezing ofaccounts represent a force majeure event beyond the control of the respondent.

The suspension of the license and freezing ofaccounts, starting from Feb 2023 till date, have created a zero- time scenario for the respondent. espondent.

Furthei there is no delay on the part of the respondent project as it is covered under clause number 5.5 force Ma;eure, which is beyond control of the respondent. r' Page 7 of 19 Complaint no.

8021 of 2022 That the final EC is CTE/CTo which has been received by the respondent in February 2018.

Hence the start date of proiect is Feb 2018 and rest details are as follows: Covid and NGT Restrictictions Project completion Date Feb-22 Covid lock down waiver 18 months NGT stay [3 months approx. for every year)i.e.6*3 18 months Total Time extended to be extended [18+ 181 months 36 months Accounts freezed & license suspended further time to be extended.till the unfreezing ofthe accounts i.e.'Feb- Nov 2023 (10 months) Feb 2023 till date Nov-23 Final proiect completion date (in case project is unfreezed) further time would be added till unfreezing the accounts Nov-25 As per the table given above, the final date for the completion of construction is Feb 25 in case the accounts are unfreezed by the competent authority on the date of filing this reply.

From Feb 2023, the license has been suspended and accounts have been freezed by the DTCp Chandigarh and HRERA Gurugram. v.

That owing to the complainant's consistent failure to meet their financial commitment, the unit of the complainant is cancelled as per the norms and conditions laid down in affordable group housing policy 2013 and agreement to sale.

7.

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. ffHARERA tllh ounuenntrl lv.

Page 8 of 19 E.

8. *HARERA 4h^ eunuennu Complaint no.

8021 of 2022 Jurisdiction of the authority The authority observes that it has territorial as well as subiect matter jurisdiction to adjudicate the present complaint for the reasons given below.

E, I Territorial rurisdiction As per notification no. cation no.

7 /92 /2017 -1TCP dated 14.12.20t7 issued by Town and Country Planning Department, the jurisdiction 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 iurisdiction to deal with the present complaint.

9.

Section 11(a)(al of the Act, 2016 provides responsible to the allottee as per agreement reproduced as hereunder: Section 71 iq rhe promoter sha - (o) be responsible for a functions under the pror that the promoter shall be for sale.

Section 11(a)(a) is responsibilities ond Act or the rules ond regu or buildingt as the case may be, to the ollottees, or the common oreas to the assoeiation of ollottees or the competent quthority, os the case mqy be: Section 34- Functions of the Authoriay: 344 oI the Act provides to ensure compliance of the obligotions cost upon the promoters, the allottees ond the reol estate agents under this Act ond the rules ond reg u lat i o ns made thereu n d er.

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.

Page 9 of19 HARERA g GURUGRAN/ F.

Findings on the obiections raised by the respondent: F.l Obiections regarding force maleure, 12.

The respondent/promoter has raised the contention that the construction of the project has been delayed due to force maieure circumstances such as ban on construction due to orders passed by NGT, ma,or spread ofCovid-19 across worldwide, suspension of license by the DTCP, Chandigarh and freezing of accounts by HREM Gurugram etc. which is beyond the control of the respondent and are covered under clause 5.5 of the agreement. agreement.

The respondent has further submilted, that suspension of the license and freezing of accounts, starting fidin-Feb 2023 till date have created a zero- time scenario for the respondenL Furthermore, the final EC is CTE/CTO which has been received by the resl in February 2018, hence the start date of project is Feb 2018.

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

Asper clause 1(iv) of the Affordable Housing Policy, 2013 it is pnescribed that "/ll su6rr projeds shall be required to be necessarily completed within 4 years from the date of approval of building plans or grant of environmental clearance, whichever is later.

This date shall be referred to as the "date of commencement of project" for the purpose of this policy.

The respondent has obtained environment clearance and building plan approval in respect of the said prolect on 30.11.2017 and 26.09.2016 respectively.

Therefore, the due dete ofpossession is being calculated from the date of environmental clearance, being later.

Further, an extension of 6 months is granted to the respondent in view of notification no.

9 /3-2020 dated26.05.2020, on account ofoutbreak of Covid-19 pandemic.

Therefore, the due date of possession was 30.05.2022.

As far as other contentions of the respondent w.r.t delay in construction of the project is concerned, the same are disallowed as firstly the orders passed by NGT banning construction in the NCR region was for a very short period of time and thus, Complaint no.

8021 of 2022 Page 10 of19 trHARERA #-eunuennt',t Complaint no.

8021 of 2022 cannot be said to impact the respondent-builder leading to such a delay in the completion.

Secondly, the licence of the proiect of the respondent was suspended by DTCB Haryana vide memo dated 23.02.2023, due to grave violations made by it in making compliance ofthe terms and conditions of the licence and thereafter due to several continuing violations of the provisions ofthe Act, 2016 by the respondent, in view to n view to protect the interest of the allottees, the bank account of the respondent related to the pro,ect was frozen by this Authority vide order dated 24.02.2023.

Thus, the promoter/respondent cannot b6. give'n'any lenienry on based of aforesaid reasons and it is well settled p{itipldthat a person cannot take benefit of his own wrong. ;, :'. , F.

II Obiection regardlig cornpfhttarii'fs ln 'breach of agreement for non- invocation of arbitratlon. ...

13.

The respondent has submitted that the complaint is not maintainable for the reason that the agrE€ment contains an arbitration clause which refers to the dispute resolution mechanism to be adopted by the parties in the event of any dispute.

The authority is of the oplnion t}lat the iurisdiction of the authority cannot be fettered by the existence of an arbitration clause in the buyer's agreement as it may be..not€d that section 79 of the Act bars the jurisdiction of civil courts about.any matter which falls within the purview of this authority, or the Real Estate Appellate Tribunal.

Thus, the intention to render such disputes as non-arbitrable seems to be clear.

Also, section 88 of the Act says that the provisions ofthis Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

Further, the authority puts reliance on catena of iudgments of the Hon'ble Supreme Court, particularly in National Seeds Corpomtion LimitEd v.

Ll.

Madhusudhan Reddy & Anr. (2072) 2 SCC 506, wherein it has been held that the remedies provided under the Consumer Protection Act are in addition to and not in derogation ofthe other laws in force, consequently the PaSe 11 of t9 / trHARERA dh euRuennl,r Complaint no.

8021 of 2022 authority would not be bound to refer parties to arbitration even if the agreement between the parties had an arbitration clause. on clause.

Therefore, by applying same analogr the presence of arbitration clause could not be construed to take away the jurisdiction of the authority.

14.

Furthe[ in Aftab Singh and ors. v.

Emaar MGF Land Ltd and ors., Consumer case no.70l of ZOLS decided on 13.07.20L7, the National Consumer Disputes Redressal Commission, New Delhi (NCDRC) has held that the arbitration clause in agreements between the complainants and builders could not circumscribe.tle iurisdiction of a consumer.

Further, while considering the issue qFaalntainability of a complaint before a consumer forum/commission iit-ii6iiit of an existing arbitration clause in the builder buyer agreement, the hon'ble Supreme Court in case tit ed os M/s Emaar MGF la\d Ltd.

U Afub Singh in rcvision petition no.

2629- 30/2018 in cMI appedl no.

23572"23573 of2O17 decided on 70.72.2078 has upheld the aforesaid iudgement ofNCDRC and as provided in Article 141 of the Constitution oflndia, the law declared by the Supreme Court shall be binding on all courts within the territory of India and accordingly, the authority is bound by the aforeSatd view.

Therefore, in view of the above judgements and cotisidering the rrovision of the Act, the authority is of the view that complainant is well wfthln his right to seek a special remedy available in a beneficial Act such as the Consumer Protection Act and RERA Act, 2016 instead ofgoing in for an arbitration.

Hence, we have no hesitation in holding that this authority has the requisite jurisdiction to entertain the complaint and that the dispute does not require to be referred to arbitration necessarily.

G.

Findings on the reliefs sought by the complainant: G.

I Direct the respondents to set aside cancellation and handover possession ofthe unit to tfre complainant Page 12 of19 r' 15. ff HARERA dh ounuennH,t Complaint no. plaint no.

8021 of 2022 The complainant intends to continue with the proiect and is seeking delay possession charges as provided under the proviso to section 18(1) of the Act.

Sec.

18(11 proviso reads as under. "Section 78: .

Return of amount qnd compensation 18(1).

If the promoter foils to complete or is unable to give possession of an apartment, plot, or building, - Provided thatwhere an allottee does not intend to withdraw from the projecC he shall be paid, by the promoter, interest for every month of delay, ti the handing over of the possession, at such rate os moy be prescribed," 16.

Clause 1(iv) ofthe Affordable Housing Policy, 2013 provides for completion L7. of all such projects licenced and the same is reproduced as under for ready reference: 1 (iv) "All such projects shall be required to be necessarily completed within 4 years from the dote of approvol of building plans or grqnt of environmental clearonce, whichever is loter.

This dote shall be referred to as the ,'dote of commencement ofproject" for the purpose of the policy." Due date of handing over of possession: As per clause 1(iv) of the Affordable Housing Policy, 2013 it is prescribed that '.4 ll such projects shall be required to be necessarily completed within 4 years from the date of approval of building plans or grant of environmental clearance, whichever is later.

This ddte shall be referred to as the "date of commencement of project" for the purpose of this policy.

The respondent has obtained environment clearance and building plan approval in respect of the said project on 30.11.2017 and 26.09.2016 respectively.

Therefore, the due date of possession is being calculated from the date of environmental clearance, being later.

9/3-2020 d,ated, 26.05 .2020, on account of outbreak of Covid-19 pandemic.

Therefore, the due date of possession comes out to be 3 0.05.2022.

0.05.2022.

Admissibility of delay possession charges at prescribed rate of interest: Proviso to section 18 provides that where an allottee does not Page 13 of 19 18. *HARERA S-eunuennnr Complaint no.

0021 of 2022 intend to withdraw from the project, he shall be paid, by the promoter, interest for every month ofdelay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 of the rules.

Rule 15 has been reproduced as under: marginal cost of lendtng rute (MCLR) is not in use, it shall be benchmork lending rotes which the is may Iix from time to time for lending to the general public.

19.

The legislature in its wisdom in the subordinate legislation under the provision of rule 15 of the rules, has determined the prescribed rate of interest.

The rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases.

20.

Consequently, as per website the marginal cost oflending rate [in short, MCLR) as on date i.e., l6.O4.ZOZs is 9.107o.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2o/o i.e-,l]..too/o.

21.

The definition of term 'interest' as defined under section Z(za) of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: "(zo) "interest" means the rates of interest payabte by the promoter or the ollottee, as the cose may be.

Explanation. -For the purpose of this clause* (i) the rate of interest chorgeable from the ollottee by the promoter, in cose of default, shall be equal to the rate of Rule 75, Prescribed ratc ol interest- [proviso to section 12, section 18 and sub-section (4) and subsection (7) oI section 791 (1) For the purpose of proviso to section 12; section 1g; ection 1g; ond sub-sections (4) and (7) of section 19, the "interest ot the rote prescribed" sholl be the State Bqnk of lndia highest marginal cost of lending rate +Zok.: Provided thot in cose the State Bank of tndia s ofthe State Bank of India i.e., https://sbi.co.in.

Page 14 of 19 HARERA gP* GURUGRAI\/ Complaint no.

8021 of 2022 interest which the promoter sholl be liablc t poy the allottee, in cose of default; (i0 the interest poyable by the promotcr ta the ollottee shalt be ftom the dotc the promoter received the omount or qny part thereof till the date the omount or port thereof and interest thereon is rcfunded, ond the interest payable by the allottee to the promoter shall be from the dote the allottee defoults in payment to the promoter till the date it is paid;" 22.

Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., 11.10% by the respondent/promoter which is the same as is being granted to the complainant in case of delayed possession charges. i",-...

23.

The Authority observes that th{Ment vide its reply d ated 24.OL.2OZ4 has contended that the corrrptiinini has not paid the outstanding installments with intorest.

Fofd{t rlaibn, the rcspondent has cancelled his unit and allotted to sorhe other buyer.

Further, vide proceedings dated L8.12.2024, the counsel for :he respondent has handed over certain documents pertaining to cancellation ofthe unit ofthe allottee and creation of third-party rights to the complainant.

However, a copy of the same has not been placed on record till dat€.

Furthermore, the complainant vide his objections to the cancellation and creation of third-party rights dated 25.02.2025, has s{bEitteil rha} th uqtt tn question was illegally and arbitrarily cancelldd as tire respondent neither issued any notice/letter to the complainant for cancellitg the unit in questlon nor published the list of defaulters including the complainant in the regional Hindi newspaper. newspaper.

Also, the cutting of newspaper attached with the documents supplied to him was of English newspaper dated 13.06.2020 which was published at New Delhi.

He further submitted that after the publication dated 13.06.2020 and after issuing ofnotice for non-payment ofdues dated 26.07.2021, the respondent received the amount from the complainant for the aforesaid flat as Rs.3,88,000/- on 25.06.202L, Rs.10,000/- on 01.OB.2OZt and Rs.2,00,000/- Page 15 of 19 {ffHARERA d$- eunuennHl Complaint no.

8021 of 2022 on 09.08.2021.

After considering the above, the Authority is view that there is no document available on record to substantiate the claim of respondent that the unit has been validly cancelled after following the due procedure as prescribed under the policy of 2013 and the copy of ledger account dated 15.11.2022 annexed with the complaint (Annnexure-11), duly supports the arguments of the complainant that the respondent has duly received amount from the complainant on several dates post publication in the newspaper.

Moreover, post cancellation, the respondent has failed to refund the amount to the complainant lill date.

Accordingly, the said cancellation cannot be held valid in the ey"r df hw and is hereby set aside.

24.

On consideration of the documents available on record and submissions made by both the parties, the authorityis satisfied that the respondent is in contravention of thoisecuon 11(+)(a) of the Act by not handing over possession by the due date as psr the agreement.

By virtue ofclause 1(iv) of the Affordable Housing Policy, 2013, the respondent/promoter shall be necessarily required to cornplete the construction of the proiect within 4 years from the date of approval ofbuilding plans or grant ofenvironmental clearance, whichever is later.

Therefore, ln view ofthe findings given above, the due date of handing over of posression was 30.05.2022.

However, the respondent has failed to handover possession of the subject apartment to the complainant till the date ofthis order.

Accordingly, it is the failure ofthe respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

Moreover, the authority observes that there is no document on record from which it can be ascertained as to whether the respondent has applied for occupation certificate or what is the status of construction of the project.

Hence, this project is to be treated as on-going proiect and the provisions of the Act shall be applicable equally to the builder as well as allottees.

Page 16 of 19 ffHARERA db- eunuennvr Complaint no.

8021 of 2022 25.

Accordingly, the non-compliance of the mandate contained in section i1(4)(aJ read with proviso to section 18(11 of the Act on the part of the respondent is established.

As such, the allottee shall be paid, by the promoter, interest for every month ofdelay from due date ofpossession i.e., 30.05.2022 till valid offer of possession plus 2 months after obtaining occupation certificate from the competent authority or actual handing over of possession whichever is earlier, as per section 18(1) of the Act of 2016 read with rule 15 ofthe rules.

26.

Further, keeping in view of the fact that the respondent has already created third party rights on the unit ln question, the respondent/promoter is directed to offer possession of a similarly located unit/flat of same size and specifications at same rate as per the agreement dated 07.11.2017 in the said proiect to the complainant.

H.

Directions ofthe authority 27.

Hence, the authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(0: i.

The cancellation is set aside. set aside.

The respondent/promoter is directed to offer possession of a similarly located unit/flat of same size and specifications at same rate as per the agreement dated 07 .17.2017 in the said project to the complainant. ii.

The respondent/promoter is directed to pay interest to the complainant against the paid-up amount at the prescribed rate of 17.700/o p.a. for every month of delay from the due date of possession t.e., 30.05.2022 till valid offer of possession plus 2 months after obtaining occupation certificate from the competent authority or actual handing over of possession, Paee 17 of 79 * HARERA S-eunuennnr whichever is earliei as per section 18(1) ofthe Act of2016 read with rule 15 ofthe rules.

The arrears ofsuch interest accrued from 30.05.2022 till the date of order by the authority shall be paid by the promoter to the allottee within a period of 90 days from date of this order and interest for every month of delay shall be paid by the promoter to the allottee before 10th of the subsequent month as per rule 16[2) of the rules.

The respondent/promoter is directed to supply a copy of the updated statement of account after adjusting delay possession charges within a period of 30 days to the complainant.

The complainant is directed to pay outstanding dues, if any, after adjustment of delay possession charges within a period of 60 days from the date of receipt of updated statement of account.

The respondent/promoter shall handover possession of the flat/unit in terms of section 17(1) of the Act of 2016 on payment of stamp duty and registration charges as applicable, within three months after obtaining occupation certificate from the competent authoriry The rate of interest chargeable from the allottee by the promotet in case of default shall be charged at the prescribed rate i.e., 17.10o/o by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottee, in case of default i.e. fault i.e., the delayed possession charges as per section 2(zal ofthe Act.

The respondent/promoter shall not charge anything from the complainant which is not the part of the buyer's agreement or provided under the Affordable Housing Policy, 2013.

Complaint no.

8021 of 2022 r' [1. tv. vll. vlll.

Page 18 of 19 ffHABERA St. euRuenml 28.

The complaints stand disposed of.

29.

Files be consigned to registry. ( Haryana Real Estate Complaint no.

8021 of 2022 Authority, Gurugram HARERA GURUGRAM Dated: 16.04.2025 Page 19 of19 Memtdr