COL RAMNEESH PAL SINGH vs SHREE VARDHMAN INFRAHOME PVT. LTD

IIAI1E11& GURUGRAM BEFORE THE CORAM: Shri Ashok Sangwan HARY,A.NA REAL ESTATE REGULATORY AUTHO]RITY, GURUGRAM Col.

Ramneesh Pal Singh R/o: House no' 366' Sector 71' Mohali' Punlab- 160071.

M/s Shree Vandhman Inrrrh'=;t::::' Ltd Regd. office: 302, 3'a Flo'or' Indraprakash Building' 2f ]garakhanrbha Road' New Delhi- 110001 ComPlaint no.

Datgof Filing ComPlaint Date of First Hearing Order Pronounced On 3905 of2023 18.08.2023 22.Lt.2023 2t.o8.2024 ComPlainant ResPondent Member ComPlainant ResPondent APPEARANCII: Mr.

SanYam Diwan Advocate Mr.

Shalabh lsinghal Adrrocate ORDER 1.

The present complairrt has been filed by the complainants/allottees under Section 31 of the Real Estate [Regulation and DevelopmentJ Act' 2016 [in short,theAct)readrlrithRule28oftheHaryanaRealEstate[Regulation and DevelopmentJ flules, 2ot7 (in short, the RuIesJ for violation of Section 11ta)[a)oftheActrruhereinitisinteraliaprescribedthatthepromoter shallberesponsiblr:forallobligations,responsibilitiesandfunctions undertlreprovisionoftheActortheRulesandRegulationsmadethere under or to the allc'ttee as per the agreement for sale executed inter se' u Page 1 of2O HARER& ffi* gunUGRAM A.

Unit and proiect relatetl 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 and delay period, if any, lhave been detailed in the following tabular form: Details Particulars "Sfr*.

Vr.ahman Flora", village BadshaPur, Sector-90, Gurugram Nr-" and loczrtion of the 10.881 acres Proiect area GrouP housrn-g colon Nature of ths-Proiect ilTCP ticense no' and validitY status Narne of the Licensee ffi lt.oz.zoogvalid upto t0.02.2025 Moti Ram Registered Registered vide no' dated 23.08.2077 30.06.2019 88 of 20t7 valid uP-to ngne registered/ not registered and validitY status 1106, tower-C1 eZL of colqplain!

Unit no. f EOO tq. ft. (suPer area) aeeZL of coqPlain'9 Unit area admLeasuring 01,.02. ng 01,.02.201,2 [Executed with 91qil?1 , ^'l!::tt- f,rf.r. eggarwal and Nikkhil GuPta) 19 of comPlaint Ort. of buYer etgreement 22.02.201,2 (page 40 of comPlaint) Urrit ."d"t*O-UY original allottees in f:rvour of AMB Infratech Pvt.

Ltd.

22.11.2014 [Page 43 of comPlaint) Ag...*.nt to sell between eEft4 Infratech Pvl Ltd' And the comPlainant L0.L2.20t4 (page 48 of comPlaint) fia;tt.d - bY ABM Infratech Pvt.

Ltd' In favor of the comP!ainant La @) Possession ini ionttruction of the flat is likely to be ,"^ii*a within a period of thirty six ioirn, P6) of io^^'n'ement of construction of the Particular liwer/ttock in which the ltat o t::i*: with a grace Period of 6 molths or 'receiPts Possession clause PageZ of2O t/ ffi,HARERF ffi-GURUGRAM nlans/revised plans and all other approvals iunlilrt of the' building plans/.revised plans ani alt'other opprovals subiect to force majeure including anY ,iit, oint l re strictions fro m any outhorities' ,,on-oroilobility of building materials or dispute with construction agencY "fr,f"iiprre and circumstances beyond the control of company and subiec.t.to time$ -iir*ti by th'e buyer in th-e sa.id complex' tFrnnhosis Suoolied B.

3. a) Facts of the comPletint: Thecomplainantshit'semadethefollowingsubmissions:- Thaton01.02.Zoj|l\BMInfratechPvt.Ltd'purchasedunitno.C-1/1106 VardhmttnFlora,Se.cl;org0,Gurugram,HaryanafromMr.AnkurGuptaand Mr.

Nikkhil GuPta' b)ThatonZ2.t1.2o..L.+thecomplainantpurchasedunitno.C-1-111,06 VardhmanFlora,Sectorg0,Gurugram,fromABMlnfratechPvt'Ltd.atthe consideration amount of Rs 44,59,4201- and agreed to pay the balance amount of Rs.4,5g ,,\",201- to the respondent' page 3 0f 20 1.4.02.2012 (page B1 of rePlY) i'lnidvertently mentioned to be 10'03'2012 in P7D dated 21.08'2024' Drt" "f commencement of construction 14.08.2015 t.rilrrr,.a from date of commencementbf ionrtrr.tion i'e' 10'03'2012 including g.u.. p. g g.u.. p.tiod of 6 months being unqualified and conditional) *lnadvertently ntentioned to be 10'09'2015 in P\D datg!

21'08'2024' Due date of Pos;session Rt30,51,,2301- ZZ of comPlaint grti. sale cons;ideration ffi2+2,732.061- t; ;;; .rr,orn.t ledger dated 16'02'2024 64 of rePI A,"*"t- Paid bY the comPlainant 01,.04.2021 57 ofrePI Offer for fit-ottts 02.02.2022 e 23 ofre O-cuPation certificate 20.04.2022 Off.t of Posse'ssion t/ constructiotr i'e', from 09'032012' d) That on 09.07 .20!5,t)he respondent served as letter/notice along with photographstothecornplainantandgavehimupdateofthecurrentstatus of the Project' eJ That after going through the aforesaid Ietter and photographs' the complainantassumedthattherespondentwillhandoverhisflatwithin stipulated time period as agreed by them in clause 1a [a) of the agreement' 0Thatdespitehanding;overthepossessiontothecomplainant,the respondentvidelettertz.o6,2otTsoughtadditionalchargesofRs.

91,,0351-fromthecomplainantaSVATunderthenotificationno' 19ISTI/H,^,612003//lj.59A12016dated12.09.2016.Apartfromthaton 20.t2.2orTthecomplirinantpaidanamountofRs'1-,70,8681.' g)Thatinttreyear20ll3undercomplaintno.330of}ot}titledaS..MrS.

Hemlata r,s M/s Shree Vardhman Infrahome Pvt' Ltd.,, the respondent filed theirreplybeforethisHon,bleAuthorityandstatedthattheyare committe:dtocomplr:tethepro|ectby30.06'2019.Further,aSperthe RERA centificate no.

BB of 2017 the respondent again specified revised date of completion of'proiect as31"L2'2020' h)ThatonlB.0B.202Cltherespondentsentamailtothecomplainantand tookanexcusethatduetoSomerestrictioninconstructionworkbythe governrnenttheye:<lrendedtheperiodofcompletionoftheprojectbyll months. i) That as Per the buYer's agreement' 4,5g,4201- to the respondent but till responclent which is apparent from the comPlainant had to PaY Rs' date he Paid Rs 6,89'+21/- to the the PaYment receiPt and customer Page 4 of 20 ,/ HARERfE GURUGIiAM I uurrrprarrrL rru' r/vv .-' ---- I ledger.

I ledger.Despitepayingtheaforesaidamounttotherespondenttheyare still seeking more amorunts from the complainant which is completely shows illicit and absurcl unprofessional conduct of the respondent and the breach of the terms of llBA' ,)Thatsincezol,sthecomplainantisincontinuoustouchwiththe concernedofficialsoftherespondentfortakingupdateaboutthe development of his un it but the complainant always get revised limitation or time duration and d'e:mand for the money' k] That on 0 1,04.2021. t,hre respondent issued a letter/ notice offering of possession for fit out of the unit to the complainant by stating that the workofhisflatiscompleteandtheyalreadyappliedtotheconcerned authority for issuance of occupation certificate' l) That on22.Ol.ZLlttkre complainant went to site and was in utter shock to learn that the submissions made by the responrlent in there aforesaid letter are Completely v,ague and baseless.

The unit is no where near to the completionnoritwasreadyforevenforfitoutpossession. m) That on 12.04 .2[22the complainant wrote a letter to the respondent and sought thr: acute limitation for the completion of the work of his unit as per the agree:ment dated 01'02'2012'' n) That the respondent zrgain issued letter dated 20'o+'2022 and21"06'2022 tothecomplainantirndaskedhimtotakethepossessionofhisunitand subsequelntlywithou.tgivinganysatisfactoryreplyontheaccountof compensation,theco:ncernedofficialonbehalfoftherespondentaskedthe complainant to pay the balance amount' o) That since 2[22thr: comPlainant is seeking the compensation from the respondentfortherlelayofaboutTyearsinthecompletionoftheworkof his unit but the col:Icerned authority of the respondent is completely hushed over that zrnd over their failure to complete the project within "/ Page 5 of2O ffi ffi fidq u{i H G li perCIauSe.L4[a)ofFBA.

4[a)ofFBA.Thecomplainantalwaysdischarged RA RAM on as ARE U11UG mitati p) his obligation towards ftre respondent by paid the money to them on time' That it is pertinent to rnention here that there is default of more than 7 years on the part of the respondent as they failed to comply with the terms of agreement dated 01''Clz'2012' That the complainant is entitled for the compensation or delay possession charges with the interest at the prescribed rate in the agreement under Section L8 and 19[4) of'the Act' r) That the project in question is ongoing as Rules ibid and does not fall in any of the q) rules. s) That the complainant after losing all hope from the respondent company' having his dreams sha,ttered of owing a unit and having basic necessary facilities,lnthevicinityofShreeVardhmanFloraandalsolosing considerable amount of money, is consrained to approach this Hon'ble Authority for redressa'l of his grievance' C.

Relief sought by the r:omplainants: 4.Thecomplainantshavesoughtfollowingrelief[s): l.

Direct the responck:nt to pay delay possession charges' ll.

Direct the respondent to pay for the loss from the date on which the defined under Rule 2[o) of the excePtion Provided under the explained to the alleged to have been plead guiltY or not to breach took Place 5. on the date of hearing, the Authority responde:nt/promoter about the contraventions as committed in relatitln to Section 11[4) of the Act to Plead guiltY' D.

RePIY bY resPondent: 6.

The respond.nt cont.ested the complaint on the following grounds: a) That the present r:omplaint filed under Section 31 of the Real Estate [RegulationandDev'elopment)Act,2ol6isnotmaintainableastherehas been no violation oI the provisions of the Act.

The complaint under Section Page 6 of20 ffiI.{ARER': ffi- iUnUgnAU I comrrraint No' 3e05 of 2023 I 3lcanonlybefiledafte.raviolationorcontraventionhasbeenestablished bytheauthorityunderSection35.

Section35.Sincenoviolationorcontraventionhas been established, the c,:mplaint should be dismissed' Additionally' Section 18 of the Act of 20!6, under which the complainant seeks reliel is not applicable to the presernt case as it does not have retrospective effect and cannot be applied to transactions entered into before the Act of z0t6 came into force. 'Iherefore, lSection 18 cannot be applied in the present case as buyers'agreementwasexecutedbeforetheActof20l'6' b) That the unit in question is situated in tower c-1' which was completed in April Ioztand for wtrich the application for oC was made on 16'0 4.2021, and the OC was granted on02'02'2022' c) That the unit in quest;ion was originally allotted to sh' Ankur Aggarwal and Sh.NikhilGuptaandaflatbuyeragreementdated0t.02.201.2was executedbetweenth'eoriginalapplicantandtherespondent'However'in February2Ol.2,thesaidoriginalallotteessoldtheunitinquestiontoM/s ABM lnfrirtech Pvt. [,t,d.

And the said unit was endorsed in favour of the saidM/sABMInfratechPvt.Ltd.on22.o2.2o1'z.Subsequently,in December2Ol4,thesaidABMlnfratechPvt.Ltd.soldtheunittothe complainant and the said unit was endorsed in favour of the complainant on 10.12'2014' d)Thatthepossessionoftheunitsinthesaidprojecthasalreadybeenoffered to the respective allottees of the project and a large no' of allottees have already occupied their respective units' Such an offer has also been made tothecomplainant]butforthereasonsbestknowntothecomplainant,the complainanthasnotcomeforwardtotakepossessionoftheunitlquestion tilldateTherespcrndentsentafinalreminderdated2l.06.2022tothe complainant calling upon him to take possession of the unit' To maintain parity,anofferforlfitoutpossessionwasalsomadetothecomplainant PageT of?O AR U11U E (, u v RP' IiAM ffi ffi {tu,ia {qll vide letter dated 01.04.i1021, however the complainant did not avail the said offer. aid offer. e) That the payment plan opted for payment of the agreed sale consideration andothercharges,vVaSaconstructionlinkedpaymentplan.The respondent from time trc time raised demands as per the agreed payment plan,howeverthecornplainantcommittedseveredefaultsandfailedto makethepaymentsas;pertheagreedpaymentplan,despitevariouscall letters and reminders lrom the respondent' 0lnthesaidAgreementrrodefiniteorfirmdateforhandingoverpossession totheallotteewasgirzen.However,clausela[a)providedatentative periodwithinwhichthLeproiect/flatwastobecompletedandapplication for oc was to be made to the competent authority was given' As the possessiollwastobrahandedoveronlyafterreceiptofoCfromDTCP Haryana and it was not possible to ascertain the period that DTCP' Haryana rvould take in granting the oc' therefore the period for handing overofpossessionlvasnotgiven'intheagreement.Theoccupancy certificate in respect thereof was applied on 16'04 '202L' as such the answering responde:nt cannot be held liable for payment of any interest and/or compensxll6rrl for the period beyond t6'04'2021' g)ThattheconstructiclnoftowerinquestionCommencedwiththelayingof foundatircn on or about 06'08'201'2' However the complainant in this case is a subsequent pur.:lraser who Came into contract with the respondent on rc.n.Zor4andtherefore,theperiodmentionedintheagreementshould start cottnting from'.L0'12'201'4' h)Thesaidtentative/r:stimatedperiodgiveninclausela[a)oftheFBAwas sublect to conditions such as force maieure' restraint/ restrictions from authorities, non.at,l,ailability of building material or dispute with Constructionagenc:y,/workforceandcircumstancesbeyondthecontrolof the respondent anrj timely payment of instalments by all the buyers in the Page B of 20 allotteesinthesaidcornplex,includingthecomplainants. i)TheconstructionactivityinGurugramhasalsobeenhindereddueto orderspassedbyHon,bleNGT/StateGovts. tateGovts./EPCAfromtimetotime putting a complete ban on the construction activities in an effort to curb airpollution.TheHon'trleNationalGreenTribunal'NewDelhi[NGT)vide its order 09.tt.ZoL7 Lrernned all construction activity in NCR and the said ban continued for almost 17 days hindering the construction for 40 days' j)TheDistrictadministr.aLtion,GurugramundertheGradedResponseAction PlantocttrbpollutiornbannedallconstructionactivityinGurugram, Haryanavidefrom0l.ll.20lBtol0.ll.20lBwhichresultedinhindrance ofalmost30daysinconstructionactivityatsiteincomplianceofdirection issued by' EPCA vidre its notification No' EPCA-R/2O1BlL-91 dated 27.1,0.2018. k) The Environmental Pollution [Prevention and control Authority for NCR (,,EPCA,,)videitsrrotificationbearingNo.EPCA-R/ZotglL.49dated zs.lo.zolgbannedcc)nstructionactivityinNcRduringnighthours[06:00 PMto06:00AM)frrrmZg.to.2o19to30.10'20l.9whichwaslateron converterl into complete 24 hours ban from 01'11'2019 to 05'11'2019 by EPCAvideitsnotificationNo'EPCA.R/2ot9lL-53dated01.11.2019' l) The Hon,ble Suprerne Court of India vide its order dated 0+,11,201,9 passed in writ Petition No' 1302 g llg}5 titled as,,' MC Mehta vs union of lndia,,completelybannedallconstructionactivitiesinNCRwhich restriction was par:t1y modified vide order dated 09,1,2.2019 and was completelyliftedbytheHon,bleSupremeCourtvideitsorderdated 1,4.02.2(120. m) The unprecedenteil :situation created by the covid-19 pandemic presented yet another force rnajeure event that brought to halt all activities related to the proiect including construction of remaining phase' processing of Page 9 of20 ffiHARER'; ffi,eunuenru Complaint No.

3905 of 2023 approval files etc.

The N{iinistry of Home Affairs, GOI vide notification dated March24,}o}obearingno.4O-3/2020-DM.ItA)recognisedthatlndiawas threatened with the spr,ead of Covid-19 epidemic and ordered a complete lockdown in the entire country for an initial period of 21 [twenty) days which started from lvtarch 25, 2020.

25, 2020.

By virtue of various subsequent notifications, the Minis;try of Home Affairs, GOI further extended the lockdown from time to time.

Even before the country could recover from the lst wave of Pandernic, the second wave of the same struck very badly intheMarch/Apr||2Cl2ldisruptingagainallactivities.VariousState governments, includinl3 the Government of Haryana have also enforced prevent the spread of Covid-19 pandemic includingimposingcurfew,lockdown,Stoppingallcommercial, construction activity.

T'he pandemic created acute shortage of labour and material. l'he nation uritnessed a massive and unprecedented exodus of migrant labourers frorn metropolis to their native village' Due to the said shortage the construr:tion activity could not resume at full throttle even afterliftingofrestrictionsonconstructionsites. n) That every responsible person/institution in the country has responded appropriately to overcome the challenges thrown by covlD-19 pandemic and have Suo-Moto extended timelines for various compliances' The Hon'ble supreme cou:rt of India has extended all timelines of limitations for court proceeding;s with effect from 1'5'03'2020 till further order; the Hon'bleNCDRChadill.soextendedthetimelinesonthesimilarlines;RERA authoritiesalsohade;<tendedtimeperiodsgivenatthetimeofregistration for completion of the project; even income tax department, banking and financial institutions have also extended timelines for various comPliances.

7.

Copies ol'all the relev'ant documents have been Their authenticity i:s not in dispute' Hence' the filed and Placed on record' complaint can be decided Page 10 of 20 HABEB& ffi.

CUNUGRAM on the basis of these undisputed documents and submission made by the parties.

E. f urisdiction of the auth'ority: .urisdiction to B.Theauthorityhasterritorialaswellassubjectmatter; adjudicatethepresentcomplaintforthereasonsgivenbelow.

E.

I Territorial iurisdiction g.

As per notification no. t pih|t7-ITCP dated 1,4.12. ed 1,4.12.2017 issued by'Iown andCountryPlannirrlgDepartment,thejurisdictionofRealEstate Regulatory,Authority,l3urugramshallbeentireGurugramDistrictforall purposewithofficessiltuatedinGurugram.InthepresentCaSe,theproject in question is situatr:rl 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 10.

Section 11(4)i'i of tlie Act' 201-6 provides that the responsible to the allottee as per agreement for sale' promoter shall be Section 11[4)[a) is reproduced as hereunrder: Section fift)(t) Be responsi-bte Jbr alt obtigat-ions' 'respo:t:!!.""t and functions under thrz provisions o,f tlhis lrt oi tn, rules and regulations made thereunder or fu the [llotte,es aS per in-,.ig,.,,^en1pi'Sale, or to the association of allottees, a:; the ,ori'-^iy ir, tili the conveyance of all the apartments,pltltsorbuildings,asthecasemaybe,totheallottees,or the common ar(,as t" tir'iiiotc:iation of allottees or the competent artthoritY, as the case maY be; S e ctio n" i 4' F urt t:ti ons of th e Authority : 3,tr(f)oftheAct|,\rovidestoensurecomplianceoftheobligationscast upon the prom,ot ers, the iitotttees and the real estote ogents under this Act and the rule's and regulations made thereunder' ll,.So,inviewoftheprovisionsoftheActquotedabove,theauthorityhas complete jurisdiction to decide the complaint regarding non-compliance of obligiltions by threr promoter leaving aside compensation which is to be decided by the adir-rclicating officer if pursued by the complainant at a later stage.

Page 11 of20 HARER,& GURUGIIAM 12.

Findings on the obiecti'ons raised by the respondent: F.Iobiectionregardingiurisdictionofthecomplaintw.r.ttheapartment buyer,s ugr"l-.nt e,xecuted prior to coming into force of the Act. . the Act. .fhe respondent submitted that the complaint is neither maintainable nor tenable ancl is liable to be outrightly dismissed as the buyer's agreement was executed betweetr the parties prior to the enactment of the Act and theprovisionofthesaircActcannotbeappliedretrospectively.

The authority is of the view that the provisions of the Act are quasi retroactiver to some extent in operation and will be applicable to the agreements for sale entered into even prior to coming into operation of the Act where the transaction are still in the process of completion' The Act nowhere trlrovides, nor can be so construed' that all previous agreements would be re-written after coming into force of the Act' Therefore' the provisions of the Act, rules and agreement have to be read and interpreted harmoniously.

However, if the Act has provided for dealing with certain specificprovisions/:;ituationinaspecific/particularmanner,thenthat situation would be dealt with in accordance with the Act and the rules after thedateofcomingintoforceoftheActandtherules.Thenumerous provisions of the Act :;ave the provisions of the agreements made between the buyerrs and sell,ers.

The said contention has been upheld in the landmarl< judgment ,of Neelkamal Realtors Suburban Pvt, Ltd, Vs, UoI and others. (w.P 2737 of 2077) decided on 05'12'2017 which provides as under: "L1'9'Ilndert'heprovisionsofSectionL8'.thetlelayinhandingover the poises;s;ion would a'' 'ou't'a from the date mentioned in the agreementforsaleenteredintobythepromoterandtheallotteeprior toitsregistratiorunde-r-'ntgr,z..'UndirtheprovisionsofRERA'the promoter is gri.ven o roritiity to revise .the,date oJ'completion of proiect and declare the same uriir-irrtion 4.

The RERA does not contemplate ,r*ririri ir contract bettveen the flat purchaser and the promoter """ 1.22, We hove otreoay ai,,u,,,i tha.t above stoted provisions of the RERA are n*t ret,ospect|,ive in nature. in nature.

They may to Som,e extent be having a retroactiw j, luasi retroactiui effect but then on that g,ouid the validity o1 tn, p,o,isions of RERA cannot be challenged' Page LZ ofZO 13. t ffi,HARER,.- #_ 6UnUGRAM I complaint No' 3e0s or 2023 I TheParliamentliscompetentenoughtolegislatelawhaving retrospectiveorretroactiveeffect.Alawcanbeevenframedtoaffect subsisting / exisl.i,ng ,ortrrituol rights betvveen the parties in the largerpublicinterest.Wedonothaveanydoubtinourmindthatthe RERAhasbeenfl.ctmed.i-nthelargerpubti,interesl,afterathorough stuc)y and discus:;ion made atlne highest level by the standing ContmitteeandijelectCommittee,whichsubmitteditsdetailed rePorts"' 14.

Also, in appeal no. !73 of 2ot9 titled as Magic Eye Developer Pvt' Ltd' vs' Ishwer singh Dahiya,in order dated 1'7 't2'2019 the Haryana Real Estate Appellate'l'ribunal has observed- "34' Thus, keeping in view our aforesaid, dis.cuss'on: Y1, are oJ the considered opinton thtat the prouiiions- of the Act are quasi retroactive to,someextentinoperation.ond.Wl,llbeappticabletotheogreements forsaleenteredintoevennil,g.r.toi,comingintooperationoftheAct where the transoction areifilt i, the proiess of completion' Hence in caseofdelayinthe.offer/ae\very'ofpossessionasperthetermsand conditions of thtz ,rgrJ:ririt 7o, sate'tire allottee shall be entitled to the interest/delayedpossession.clla-rgeso'nthereasonablerateofinterest as provided in Ru'i;-li or th"e rules and one sided, unfair and ur|reqsonablerateofcompensationmentionedintheagreementfor sale is liable to b'e ignored'" 15.

The agreements are sacrosanct save and except for the provisions which have been abrogated' by the Act itself' Further' it is noted that the agreements have beetr executed in the manner that there is no scope left to the allottee to nego[iate any of the'clauses contained therein. d therein.

Therefore' the authority is of the, view that the charges payable under various heads shall be PaYable as per the agreed terms and conditions of the agreement subject to the condition that the same are plans/permissions alpproved by the respective authorities and are not in contravention of any in accordance with the departments/ comPetent other Act, rules, statutes, instructions, directio,ns issued thereunder and are not unreasonable or exorbitant in naturel' F.lI Obiections regarrrding force maieure' 16.

The respondents-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 passed by Page 13 of20 ffiHAIIEB* ffiEUNUGRAM National Green Tribunal to stop construction' NGT and other authorit.ies advanced in this regard are devoid of merit' The orders passed by NGlt'banning construction in the NCR region was for a very short period of time and thus, cannot be said to impact the respondent-builder leading to such a delay in the completion' Also' there may be cases where allottees has not paid instalments regularly but all the allottees cannot be e:<pected to suffer because of few allottees' Thus' the promoter respondent cannot be given any leniency on based of aforesaid reasons and it is well settled princiPle that a person cannot take benefit of his own wrong.

F.III Obiection regarding delay in completion of construction of proiect due to outbreak of tCovid-19.

17.

The Hon,ble Delhi Hrigh court in case titled as M/s Halliburton offshore Services Inc. v/s vedsnta Ltd. & Anr. bearing no, o,M.P (1) (comm.) no' sB/2020andLAS3|696.3697/2020dated29.05,2020hasobservedas under: ,,69.ThepaStrll|n.performanceoftheContractorcannotbecondoned due to tde CTV1,D'19 iockdown in lvlarch 2020 in lndia' The Contractor wasinbreachsinceSeptember20lg,\pportunitiesweregiventothe Contractor ta, cure the same repeatedly. epeatedly.

Despite the same, the (iontractor cluld not complete 'the Proiect' The outbreak of a plandemiccartrtotbeusedasanexcusefornon-performanceofa contiract fo.which the deadlines were much before the outbreak itself." 18.

In the present casel also, the respondents were liable to complete t'he construction of the pr:oject and handover the possession of the said unit by 1.4.08.2015. lt is claLiming benefit of lockdown which came into effect on 23.03.2020 whereas the due date of handing over of possession was much prior to the event of outbreak of Covid-19 pandemic' Therefore' the authority is of the v'iew that outbreak of a pandemic cannot be used as an excuse for non-performance of a contract for which the deadlines were complaint No.

3905 of 2023 non-payment of instalment by allottees.

The plea <lf the respondent regarding various orders of the t/ Page L4 of2O ARER,*, ffiH ffieURUGIlAM Complaint No.

3905 of 2023 much before the outbreak itself and for the said reason' the said time period cannot be excluded while calculating the delay in handing over possession.

G.Findingsregardingrre.liefsoughtbythecomplainant. tg.

That the complainan[ was allotted unit no. c-1'106, tower c' in the respondent's project at basic sale price of Rs.30,5L,2301-'A buyer's agreement was execul.erd on 01.02 .201,2 between the original allottee' Mr' Ankur Aggarwal and 14r.

Nikkhil Gupta and the respondent' Later' the said unit was endorsed in favour of the complainants on 06'08'2015' The possession of the unit lvas to be offered within 36 months from the date of Commencement. of co.struction"and'iit is further provided in agreement that promoter shall btl entitled to a grace period of six months' The date of construction commerrlcement was initially to be commenced from 1,4.02.201,2 asper thr: intimation/demand letter dated 14',02',2012 issued by the respondent.

Therefore, the due date of possession comes out to be 1,4.08. be 1,4.08.2015 includinpl grace period of six months being unqualified and unconditir:nal.

The respondent obtained the occupation certificate from the concerned authority on 02.02.2022 and thereafter' offered the possession of the unit to the complainants vide the offer of possession letter datr:d 20.0 4.202:.2' G.IDirecttheresponidenttopaydelaypossessioncharges.

G.II Direct the resp,'dent to pay for ilre loss from the date on which the breach took Plac'e' The above-mentionecl reliefs sought by the complainant are being taken together as the findings in one relief will definitely affect the result of the other relief and the :;ame being interconnected' In the present complaint, the complainant intend to continue with the project and are seel<ting delay possession charges as provided under the Proviso to section 18[1) of the Act.

Section 1B[1) proviso reads as under: "section 78: - I?tzturn of amount and compensation 20.

21,.

Page 15 of 20 ffiHARER$r #-.GLiR complaint No.

3905 of 2023 1B(1.),lfthepromoterfailstocompleteorisunabletogivepossession of an aPortment, trtlot, or building' - i;:;;;;i;r,i;no,t'*nrn, an ailottee does not intend to withdraw from the pro1,r:,ii he shall be paid, by the promoter, interest for every month of dela-y, till the hand'ing ovir o7 th, pottrttion, ot such rate as may be nrescribed." 22.

Clause 1a[aJ of the ap;artment buyer's agreement provides the time period of handing over posse:ssion and the same is reproduced below: ,,l4,aTheconstructionoftheftatislikelytobeco.mpletedwithin a period of thirty six moiths of commencement of construction of ,n" iirrii"ttar i.ower/ btock in which the subiect llat is located witi i g"" period of 6 monthL' o.n receipt of sanction of the buildiig'plans/ r'evisea fnns and all oth.er approvals subiect to force maleuie' inclu,dingt any restrains/ r.es. ins/ r.es.trictions from any authorities' non-availability if building riaterials or dispute with construction ,gr;;;/;or:x,ori'u and ciriumstances beyond the control of company ona iiLlrrt to timely payments by the buyer$) in the said complex, 23.

Due date of posst:r;siori and ua*isfuitity of grace period: The promoter has proposed to hand over the possession of the said unit within 36 monttrs from the date of commencement of construction and it is furtherprovidedinilgreementthatpromotershallbeentitledtoagrace period of six months, The date of construction commencement was initiallytr:becommencedfromt4.O2.2Ol'2aspertheintimation/demand letter dated 1,4.02.201-2 issued by the respondent' Therefore' the due date of posses;sion comeis out to be 14'08 '}OtS including grace period of six months treing unqualified and unconditional' 24.

Admissibility of clelay possession charges at prescribed rate of interest; The complainant is seeking delay possession charges' However' Proviso to Section -Ll3 provides that where an allottee does not intend to withdraw from the project, they shall be paid, by the promoter, interest for every month of delay, 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 retrlroduced as under: ,,Rule75,Pr.e:scribedrateofinterest-fProvisotosectionT2, section 78 and suAlsection 1i) and subsection (7) of section 791 Page 16 of 20 ffiHAREM\ ffi-CUNUGRAM Complaint No.

3905 of 2023 (1.) l|or the purpo:;e of proviso to section 12; Section 18; and sub. sections (4) and (7,1 of section 19, the "interest at the rate prescribed" shalt be ih-, Strt, Etank of India highest marginal cost of lending rate +20/0.: prov,ided that in case the State Bonk of India marginal cost of lending rate (MCLR) is not in use, it shatt be replaced by such benchmark tendiig rates whict\ the state Bank of India may fix from time to time for lending to the generol Public"' 25. blic"' 25.

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' 26.

Consequently, as Frer website of the State Bank of India i'e" https://sbi.co.in. the marginal cost of lending rate (in short, MCLR) as on date i.e., 21.08.2024 is 9.1.00/o.Accordingly, the prescribed rate of interest will be marginal cost 0f lending y71s +2o/o i.e., 11.1,0o/o.

27.

The definition of tertn '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 rl,efault, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default"fhe relevant section is reProducerd below: '(za) "interesl:" means the rates of interest payable by the promoter or the allottee' as the case may be' Explanation' --l?or the purpose of this clause- (i)therateof,in,terestchargeablefromt-heallotteebythepromoter, in case oj de,1ault, shall-be equal to the rate of interest which the piroioru s,h'rall be tiable to pay the allottee, in case of default; (ii1 ihe interest.ltayable by the promoter to the allottee shall be from the date the promotei received the amount or any part thereof till the date th,e amount or part thereof and interest- thereon is refunded,andtheinterestpayablebytheallotteetothepromoter siall be fro'm the date the allottee defaults in payment to the promoter titl the date it is Paid;" 28.

Therefole, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., 11.'10 o/o by the respondent/promoter Page L7 of2O ffiHARER$i ffi- GURUGRAM complaint No.

3905 of 2023 which is the same as is Lreing granted to them in case of delayed possession charges.

29. arges.

29.

On consideration of the circumstances, the evidence and other record and submissions made by the parties, the authority is satisfied that the respondent is in contrzrvention of the provisions of the Act.

By virtue of clause ta@) of the bulrsp'5 agreement dated 01,.02.2012,the possession of the said unit was to ber delivered within a period 36 months from the date commencement of colstruction i.e.

1,4.02.201,2 and it is further provided in agreement that promoter shall be entitled for a grace period of six months.

As far as grace period is concerned, the same is allowed being unconditional and unqrualified.

Therefore, the due date of handing over of possession comes out to be 14.08.2015, In the present complaint the complainant was offered possession by the respondent on 20'04.2022 after obterining occupation certificate dated 02.02.2022 from the competent authority.

T'he authority is of view that there is a delay on the part of the respondent to offer physical possession of the allotted unit to the complainant as p€)r the terms and conditions of the buyer's agreement dated 01.02.2012.

30.

Section 19[10) of the ,Act obligates the allottee to take possession of the subject unit within 2 months from the date of receipt of occupation certificate, In the present complaint, the occupation certificate was granted by the cornLpetent authority on 02'02'2022' I'he respondent offered the possession of the unit in question to the complainant only on 20.04.2022, so it can be said that the complainant came to know about the occupatio n certificate only upon the date of offer of possession' Therefore' in the interest of natural justice, the complainant should be given 2 months' time from thLe date of offer of possession' These 2 months' of reasonable time is being given to the complainants keeping in mind that even after intimation of possession practically they have to arrange a lot Page 1B of2O v ffiHARERT\ ffi"GURUGIIAM Complaint No, 3905 of 2023 of logistics and req cs and requisite documents including but not limited to inspection of the completely finis;hed unit but this is subject to that the unit being handed over at the tirne of taking possession is in habitable condition. lt is further clarified that the delay possession charges shall be payable from the due date of possess;ion till the expiry of 2 months from the date of offer of possession [20.04.2022) which comes out to be 20.06.2022, or till the date of actual handing over of possession of the unit, whichever is earlier' 31.

Accordingly, the norr-compliance of the mandate contained in Section 11t4) [a) read with Ser:tion 1Bt1J of the Act on the part of the respondent is established.

As sur:h the complainant are entitled to delay possession charges at prescribecl rate of the interest @ 11.10 o/o p.a. w,e.f' 14.08.2015 till expiry of 2 mont|:s from the date of offer of possession [20'04.2022) i.e., up to 20.06.

2022, as per the provisions of Section 1B[1) of the Act read with Rule 15 of the RuLles, ibid.

32.

Further, the respondent is directed to handover physical possession of the subject unit within 30 days from the date of this order as occupation certificate of the project has already been obtained by it from the competent authoritY.

H.

Directions of ths trutthority: 33.

Hence, the authorifg hereby passes this order and issue the following directions under Section 37 ofthe Act to ensure compliance of obligations cast upon the promoters as per the functions entrusted to the Authority under Section 34[0 of the Act of 2016: I.

The responden[ is directed to pay delayed possession charges at the prescribed rate of interest i.e., 1,1,.1,00/o p.a. for every month of delay on the amount paid by the complainant to the respondent from the due date of possession 14,08.2015 till the date of offer of possession (20.04.2022) plus two months i.e., 20.06. e., 20.06.2022 or till the date of actual handover of pos;session, whichever is earlier, as per section 1B[1) of Page 19 of20 1/ ffil:lARE1?3I ffi CUnUGRAM II.

Complaint No.

3905 of 2023 the Act of 2016 read with Rule 15 of the Rules, ibid.

The arrears of interest accrued so far shall be paid to the complainant within 90 days from the date of tlris order as per Rule 1.6(2) of the Rules, ibid.

The rate of interels;t chargeable from the allottees by the promoter, in case of default shrerll be charged at the prescribed rate i.e., 11.100/o by the respondent/pr'omoter which is the same rate of interest which the promoter shall be liable to pay the allottees, itt case of default i.e., the delayed possession charges as per Section Z(za) of the Act' III.

The respondent is directed to issue a revised statement of account after ;ldjustment of delayed possession charges, and other reliefs as per above within a period of 30 days from the date of this order. 'fhe IV. days, thereafter.

The respondent is directed to handover physical possession of the subject unit withrin 30 days from the date of this order as occupation certificate of thel project has already been obtained by it from the competent authoritY.

V.

The r:espondent shall not charge anything from the complainant which is not the part of the buyer's agreement' 34.

Complaint stands disPosed of.

35.

File be consigned to thLe registry. ok M Gurugram Page 20 of2O Dated: 04.09.2024 Haryana ftal Estate Regulatory AuthoritY, n)