BISHAMBAR DAYAL vs MANISH BUILDWELL PVT. LTD.

HARERA H GURUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of order: I 27 .0z.2oZS CORAM: Shri Vijay Kumar GoYal Member ORDER t.

This order shall dispose of all the 5 complaints titled as above filed before this authority under Section 31 of the Real Estate (Regulation and Development) Act, 2OL6 (in short, the Act) read with rule zB of the Haryana Real Estate (Regulation and Development) Rules, 201,7 fin short, Complaint No.

1163 of2024 and 4 others NAME OF THE BUILDER MANISH BUILDWELL PRIVATE LIMITED PROJECT NAME "GALLEXIE9L" S.

No.

Case No.

Case title APPEARANCE 1. cR/tL63/2024 Ram Karan Chorasiya V/S Manish Buildwell Private Limited Ms.

Ankur Berry Advocate Ms.

Priyanka Agarwal Advocate 2. cR/LL64/2024 Ambalika Chitkara & SarYtr Chaudhary V/S Imperia Wishfield Private Limited Ms.

Ankur Beruy Advocate Ms.

Priyanka Agarwal Advocate 3. cR/1,1,65/2024 Bishambar [)aYal V/S Manish Buildwe II Private Limited Ms.

Priyanka Agarwal Advocate 4. cR/LL67 /2024 Private Ms.

Priyanka Agarwal Advocate 5. cR/1,1,73 /2024 Ms.

Priyanka Agarwal Advocate Page 1 of 21 Ram Niwas V/S Manish Buildwell Private Limitetl ffiHARERA ffiGURUGRAM Complaint No.

1L63 of Z0Z4 and 4 others 2. the Rules) for violation of section 1,1(4)(a) of the Act wherein it 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' The Core issues emanating from them are similar in nature and the complainant[s) in the above referred matters are allottees of the project, namely, "Gallexie 91" (Commercial colony) being developed by the same respondent/promoter i.e. moter i.e., Manish Buildwell Private Limited' The terms and conditions of the application for the provisional allotment, fulcrum of the issues involved in all these cases pertains to failure on the part of the promoter to deliver timely possession of the units in question, seeking refund of the paid-up amount along with interest' The details of the complaints, reply to status, uttit no', date of agreement' due date of possession, total sale consideration, total paid amount' surrender request of the unit by email and relief sought are given in the table below: Mr"irh fiitd;ell Prirate Limited at "Gallexie 91" situated in Sector- 91, Gurugram' Gcupation certificate: - Not received 3. cRlrr6s l 2024 Pushpa Chorasiya V/S Manish Buildwell Private Limited 26.09.2024 F-2218 (As per page no.

18 of the cRlttT3l 2024 Ram Niwas V/S Manish Buildwell Private Limited 26.09.2024 F.189 (As per page no.

23 of the Proiect Name and Location cwfl67l 2024 Maniu Devi V/S Manish Buildwell Private Limited cR/L164/ 2024 Bishambar Dayal v/s Manish Buildwell Private Limited cRltt63 / 2024 Ram Karan Chorasiya v/s Manish Buildwell Private Limited Complaint No. & Case Title 26.09.2024 26.09.2024 26.09.2024 F-184 (As per page no.23 ofthe F-2t1 As per page no.23 of the F-222 A [As per page no.

23 ofthe Unit no.

A, Page 2 of 2l Reply status Complaint No' 1163 of2024 and 4 others ffiHARERA S-euntlGttAM Not specified Not offered TSC: Its.51,86,20 o/- [As per Page no.

18 of the r:omplaint) I np, Rs.5,00,000 t- (As per bank details of the 1 complainan t dated t3.02.2024 2 on Page no.

40 of the TSC: Rs.51,54,50 ol- (As per Page no.

23 ofthe comPlaint) AP: Rs.5,00,000 t- [As per Page no.

44 of the complaint) complaint) complaintJ complaint) 325 sq. ft. [super area) & L62.5 sq. ft. [carpet area) (As Per page no.

23 of the complaint 314 sq. ft. [super area) &157 sq. ft' (carPet area) [As Per page no.

23 of the complaint 3'27 sq. ft. [super area) & 163.5 sq. ft. .5 sq. ft. [carpet area) [As Per page no.

18 of the complaint 324sq. ft. (super area) &162 sq. ft. (carpet area) (As Per page no.

23 of the complaint 327 sq.ft. (super area) & 163.5 sq. ft. (carpet area) (As per page no.23 of the complaint Area admeasuri ng 20.08.2023 [Page no.

16 of the complaintJ 20.08.2023 iPage no.

16 of the complaint 20.08.2023 fPage no.

16 of the complaint Application for provisional allotment Not issued Not issued Not issued Allotment letter Not executed Not executed Not executed Date of builder buyer's Due date of handing over of Not offered Not offered TSC: Rs.49,80,04 o/- [As per Page no.

23 of the comPlaint) AP: Rs.5,00,000 t- [As per bank details of the complainan t dated 02.t0.2022 2 on Page no.44 of the complaint TSC: Rs.51,38,64 ol- [As per Page no.23 ol the complaint) AP: Rs.5,00,000 /- [As per bank details of the complainan t dated 22.10.2022 on page no.

44 of the complaint Rs.51,86,20 ol- [As per lage no.

23 of thb complaint)r'.

AP: Rs.5,00,000 t- (As Per demand letter dated L2.03.2024 I on Page no.

47 of the complaint) Total Considerat ion / Total Amount paid by the complainan t(s) {V comPlaint Page 3 of 2\ ffiHARERA ffiGuRUGRAM The aforesaid complaints were filed by the complainant against the promoter on account of violation of provisional allotment against the allotment of units in the project of the respondent/builder for not issuing any allotment letter nor executing any BBA ancl are seeking refund of the amount paid along with interest.

It has been decided to treat the said cotnplaints as an application for non- compliance of statutory obligations on the part of the promoter/ respondent in terms of section 34(f) of the Act which mandates the authority to ensure compliance of the ollligations cast upon the promoters, the allottee(s) and the real estate agents undet' the Act, the rules and the reg nd the regulations made thereunder.

6.

The facts of all the complaints filed by the complainant/allottee are also similar.

Out of the above-mentioned case, the particulars of lead case CR/1165/2024 titled as Ram Karan Chorasiya V /S Manish Buildwell private Limited are being taken into consideration for determining the rights of the allottee[s) qua refund of the amount paid' A.Unit and proiect related details The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Page 4 of 2t Complaint No.

1163 of2024 and 4 others Surrender request by e-mail L2.03.2024 (As per page no.

46 of the complaint) 12.03.2024 [As per page no.45 ofthe complaint) L2.03.2024 [As per page no.41 ofthe complaint) 12.03.2024 [As per page no.45 ofthe complaint) 25.r2.2023 (As per page no.45 ofthe complaint) The complainant in the above complaint(s) has sought the following reliefs: 1.

Direct the respondent company to refund the amount of Rs.5,00,000/- at tl'rc prescribed rate of interest. elaborated as follows: Abbreviation Full form TSC Total Sale consideration AP Amount paid bv the allottee[s) 4.

5.

7.

HARER& Complaint No' 1163 of2024 and 4 others h eunuettAM Details ;ll."i.

9f , Sector-91, Village :wka, Gu.rgta* Particulars "G Mr S.

1.

Name and location of the Commercial colonY a n1t ^^ts^c 2.

Netrrre of the oroiect Prniect are2 3. n "f ZOOS a^t"aZ4'06'2009 valid uP ro23.06.2017 - DTCP license no.

I{arno nf licensee 4. f p,,il.l,^,oll Prirrate Limited 5.

IVlalltlSl I LrLlrru vv urF ffis 1)1??017 valid 6.

RERA Registered/ not registered fI anced Proiectl JI ul F ( 5Z Ol LVL| t.Jdt p ro 7t.12.2022 222A&Firstfloor ,- h6r hl.,p nn ?.3 of the comPlaint) 7.

Unit no.

3 ( Il sq. ft. [Super area) & 163'5 sq' rt' :arpet area) Arr..Page@ B.

Unit area admeasuring 2 ( :0.08.2023 A, p., Page no' 16 of the comPlaint) 9.

Application allotment 10. otment 10.

Allotment letter Date of buYer's agreement Not executed 1\.

V.A N"t tp..ifLd 72.

Possession',1clause 13.

Due date of Possession 14. f otut sale consideration -KS.5 rrdo, Lvv I - :r''A - ,io. ha.,A no ?.3 of the complaint) aid bY the ^nnn/ 15.

Amount Pi comPlainant KS.JrUVrtJvv/ - i;;' p.. demand letter dated \z.oz.zoz+ on Page no' 47 of the ^^-nlaint'\ evrrtH^E----' I Not obtained Not offered n.olnfl [As per page no.

46 of the complaintJ - 16.

Offer of Possession OccuPation Certifl cate 17.

18.

Surrender request bY e-matt B.Facts of the comPlaint: B.

The complainant has made the following submissions in the complaint: Page 5 of 21 Complaint No' 1163 of 2024 and 4 others ffi ffi soq{ rcd HARER& GUt?UGtlAM II.

I.

N.

That after waiting for many months the complainant seeing that respondent failed to proceed lurther with the booking, the complainant sent email dated 1,2.03'2024 for surrender of the unit and refund of booking amount.

However, the respondent immediately sent a demand letter on account of installmettt due within 30 days of booking i.e., bY 20.09.2023' v.

That the complainant repeatedly visited the office of the respondent requesting for signing of the BBA or for refund as he could smell something fishy about the way the respondent company conducted its That the complainant, Ram Karan chorasiya is a peace loving and law- abiding citizen of India, who has been running from pillar to post since booking commercial unit in the project namely "Gallaxie 91" situated in Sector-91, Gurugram.

That the complainant was approachecl by the representatives of the respondent and prompted to invest his hard-earned money in the commercial project of the respondent.

The representatives of the respondent painted a rosy picture of the project and informed the complainant that the commercial project offered ultra-luxurious uniquely designed high street retail shops and spacious food court at reasonable prices. le prices.

They informed the complainant that all licenses and approvals of the project were in place and the project was duly RERA registered.

The complainant believing the words of the representatives of the respondent filled the application form and paid Rs'5'00'0001- vide cheque dated 17.08.2023' That thereafter the unit no.

F-222A on first lloor of super area 327 sq' ft. was allotted to the complainant itnd the respondent promised that buyer's agreement woulcl be executed at the earliest' III.

Page 6 of 21 HARTR& Complaint No.

11.63 of2024 and 4 others ffiGUllUGliAM affairs and by seeing that no construction activity is being done at the project site. vl.

That the respondent intended to cheat from the very beginning since even at the time of booking and allotment of the complainant stated thattheprojecthadallthenecessaryapprovalsandplanshowever upon checking the RERA website the complainant became aware that the project's registration has lapsed and the RERA Registration no' 382 of 2Ot7 was only valid till 11'12 '2022' vll.

That till date the complainant has paid an amount of Rs'5'00'000/- to the respondent however the fact that the whole project is a sham and scheme to cheat innocent buyers, the complainant has no option but to get refund of his hard earned money' VIIL That the complainant is being stone walled by the respondent and its representatives and hence have come before the Hon'ble Authority requesting and praying to get refuncl along with interest from the date of deposit till the date of realisation' IX.

That the cause of action for filing the present complaint is a subsisting andcontinuingoneaStherespondentCompanyhascommittedgross breach of their obligations' x.

That no other complaint or legal proceedings are pending before any courtoflaworforumbetweentheparties.

C.

Relief sought by the complainant: g. ainant: g.

The complainant has sought following relief[s): i'DirecttherespondentCompanytorefundtheamountofRs 5,00,000/- at the prescribed rate of interest' 10. on the date of hearing, the authority explained to the respondent/promoter about the contraventions as alleged to have been Page 7 of 21 HARER& Complaint No.

1163 of2024 and 4 others GURUGl?AM committed in relation to section 1t(4) [a) of the Act to plead guilty or not to plead guiltY.

D.RePlY bY the resPondent: 11.

The respondent has contested the complaint on the following grounds: I.

That the present complaint filed by the complainant is wholly misconceived, erroneous, unjustified and untenable in the eyes of law' Besides being hasty, ulterior and extraneous, the present compliant have been filed in order to unlawfully gain at the expense of the respondent.

Furthermore, it is submitted that the averments surfaced inthepresentcomplaintaredeniedforbeingfalseandmisleading except to the extent specifically admitted herein or are in consonance with the submissions made hereunder' Il.ThatthisHon,bleAuthoritydoesnothavejurisdictiontoentertainthe present matter as it arises out of the alleged breach of terms of the application form dated 20.08,2023, thus, the said application form constitutestheforemostbasisofrelationshipbetweentheparties,both thepartiesareboundbythetermsandconditionsoftheSame. ,t.

That clause 46 & 4T ofthe said application form, specifically states that in case of any disputes arising out of the said agreement shall be resolved through the process of arbitration governed by the provisions of the Arbitration & conciliation Act, barring the jurisdiction of this Hon,ble Authority.

The Hon'ble Supreme Court through its plethora of judgments, has time and again reiterated that the existence of a valid arbitrationclauseintheagreementbarrestheinterferenceofthecivil courts in the disputes arising out of the said agreement' Thus' the presentcaseisliabletobedismisseldonthisgrounditselfthatitlacks iurisdict iurisdiction' Page 8 of 21 Complaint No' 1163 of 2024 and 4 others ffiHARERA ffiGURUGRAM N.

That the complainant approached the respondent and booked the unit in Augus t,2023 and received the allotment unit no' F-222A' in Tower "F", super area admeasuring32T Sq' ft' in the proiect Manish Gallaxie 91, situated at revenue estate of Village Maneka, Sector 91, Manesar Urban Complex, Gurugram, Haryana.

The complainant signed the applicationformondatedlT,o},2o23andaSpertheapplicationform, the total sale consideration of the said unit was Rs' 51''86'2001- inclusive of BSP @27 'OOO/sq' ft'' EDC' IDC' IFMS and other charges' excluding taxes.

The terms and conditions for the sale of the said unit and total sale consideration and payrnent mile stones were decided by the both parties as per application folm V.ThattherespondentCompanyhasrlulyrenewedthelicenseandhas applied for further renewal of license and has also applied for extension of the project registration and has paid the requisite fee' which is pending before this Hon'ble Authority' vl.

That the complainant has paid only a sum of Rs'5'00'000/- till date as admittedbythecomplainantitthiscomplaint.Tilldate,the complainanthasonlypaidaSumrlfRs.5,00,000/-whichislessthan even 1,Oo/oof the total sale consideration of the unit in question' It is submitted that the provisions of the Act of 2016 puts a bar on the promoter/developer,nottoacceptthepaymentofmorethanl,0o/oof the total cost without executing any written agreement for sale' vll.

That the respondent company has not violated any provisions of the Act,aStherespondentCompallyhasonlyreceivedaSumof Rs.5,00,0ool-fromthecomplainanttilldate,whichislessthanl0%of the total cost of the unit in questiott' Page 9 of 21 Complaint No.

1163 of2024 and 4 others HARERA ffi #b ssqr qqi GUI?UGI1AM Vlll.ThattherespondentbeingaCustomerCentricCompany,isstillwilling to retain the complainant as its allottee however' as per the complainant,S own admission, in email dated 1,2.03. ed 1,2.03.2024, it is the complainant's own wish to withdraw from the proiect' and thus' if the complainant still wished to withdraw from the project' then the respondent company is entitled to forfeit the booking amount [which is less than lOo/o of the total sale consideration) as earnest money' in accordance with terms of the application form clause 16 & 18' as per which, the respondent company is entitled to dedu ct lOo/o of the total orY fees, brokerage etc' if anY sale consideration and any taxes' statut paidbytherespondent.ltisclearlymentionedinclauselBofthe application form that in event of cancellation of the unit under any circumstance[s), by the applicant, the promoter shall have the right to forfeit the earnest moneY' IX.

That the timelines for possession are based on date of statuary approvals.Itwasnotinthecontemplationoftherespondentthatthe force majeure would occur and the construction was also affected on accountoftheNGTorderprohibitingconstl.uction[structural)activity ofanykindintheentireNCRbyanyperson,privateorgovernment authority.ItissubmittedthatvideitsorderHon,bleNGTplaced sudden ban on the entry of diesel trucks which were older than ten yearsandsaidthatnovehiclefromoutsideorwithinDelhiwillbe permittedtotransportanyconstructionmaterial.Sincethe construction activity was suddenly stoppecl' after the lifting of the ban ittookSometimeformobilizationoftheworkbyvariousagencies emPloYed with the resPondent' Page 10 of 21 HARER& Complaint No.

1163 ofZ0Z4 and 4 others ffi ffi rsis q{a GU11UGI?AM X.

Furthermore, the construction of project was halted on several times in direction of NGT and Environment Pollution [Prevention and control) Authority, EPCA, expressing alarm on severe air pollution level in Delhi-NCR issued press note vide which the construction activities were banned within the Delhi-NCR region' The ban commencedfrom0B.11.2016till1,6.11.2016andalsofrom09'11"2017 to t7.11.201,7 & again from 31.10. rom 31.10.2018 to 10'11'2018 whereas the same was further extended till L2]'1201'8' That thereafter, the Hon'ble supreme court of India on 04'11"2019' I lldL LrrEr uqrLUr, while deciding the matter of "M'C' N v.

Union of India" banned all xl. the construction activities.

The said ban was partially lifted by the ^ t41 t1n1o ,^,horohrr rel eyatiOn WaS Hon,bleSupremeCourtonog/l,2l2olgwherebyrelaxationWaS accorded to the builders for continuing the construction activities from 6:00 am to 6:00 pm.

Thereafter, the complete ban was lifted by the Hon'ble APex Court on 14'02'2020' That the construction of the project was going on in full swing, however, the changed norms for water usage, not permitting construction after sunset, not allowin.s sand quarrying in Faridabad area, shortage of labour and construction material, liquidity etc', were the reasons for delay in construction' Furthermore' it is to be noted that due to the sudden outbreak of the covlD-19' the construction came to a halt in the past 2 years and it took some time to get the Iabour mobilized at the site' 12.Copiesofalltherelevantdocumentshavebeenfiledandplacedonrecord' Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of those undisputed docurnents and submissions made by the parties. rFl _ KI.

Page 11 of 21 ffiHARERA ffi-eUnucRAM Complaint No.

1163 of2024 and 4 others E. furisdiction of the authoritY: 13.

The respondent has raised a preliminary submission/objection the authority has no jurisdiction to entertain the present complaint' The objection of the respondent regarding rejection of complaint on ground of jurisdiction stands rejected.

The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below' E.I Territorial iurisdiction As per notification no. t/g2/2017-1TCP clated 1,4. lated 1,4.12-2017 issued by'fown and country Planning Department, Haryana, the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes.

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.

E.II Subi ect-matter i urisdiction Section 11[4](a) of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale' section 11[4)[a) is reproduced as hereunder: Section 77..... ft) fhe Promoter shall' (a) be responsibte for alt obtigations, responsibilities and functions under the provisions of this Act or the ritles and regulations made thereunder or to the allotteesaspertheagreementforsale,ortotheassociotionofallottees,osthe case mqy be, till the conveyancb of all the apartments, plots or buildings' as the ,oy ioy be, to the attottees, or the common areas to the association of allotteei or the competent authority' as the case mcty be; Section 34-Functions of the Authority: 3a(fl of the Act providei to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and regulations made thereunder' 1,4.

So, in view of the provisions of the Act quoted above' the authority has complete jurisdiction to decide the complaint regarding non-compliance of Page 12 of 21 ffiHARERA ffi-GURUGIIAM complaint No.

1'163 of2024 and 4 others obligationsbythepromoterleavingasideCompensationwhichistobe decided by the adiudicating officer if pursued by the complainant at a later stage.

15.

Further, the authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the iudgement passedbytheHon,bleApexCourttnNewtechPromotersandDevelopers Private Limited Vs State of U.P, and ors,,, SCC online SC 7044 decided on 77. ded on 77.77,2027 and followed in M/s Sana Realtors Private Limited & others V/sUnionoflndia&othersSLP(Civil)No.73005of2020decidedon 72.05.2022 wherein it has been laid down as under: ,86.FromthesChemeoftheActofwhich.adetaitedreferencehasbeenmade and taking note of oo*"i'ri" rilirairatln delineated with the regulatory authority and adiudicotirig ;kr:;;, what,.finally culls out is that although the Act indicates the aistinci ,iprur,rion, tit<e 'ie1und" 'inte.rest" 'penalty' and ,compensation,, a ,orloini ,ia'ding of sections 18 und 1'9 clearly manifests that when it comes to refund,rti ri;r_*,ln,a inftrest on the refund amounL or directing payment of intrirri for delayea aelivie,y of posses.sion' or p::l-:I::d- interest thereon, it is the ,rgr;h,tory iu.thority which has the power to examtne and determine the orrroii i7 a cimptaint' it th' sqme time' when it comes to a question of seeking tne ritiil ol adiudging compcnsation and interest thereon under Sections L2, L4, rc-atia-ig, inu-adiudicating officer exclusively has the power to determinr, t rriing'ii iir* *'cotiiiti'i 'iiaing of section 71 read with section 72 of *, ai,lt". i thLe adiudic.utiotn untler sections 1-2' 74' 1B and 19 other than compensation"'olin,i*i,a,,if.extendetl to the adiudicating officer as prayed that, in our view,-may iniend'to iiii''t the ambit and scope of the powers and function, oj thte,adju,dicyti\qirr,cer under Section 71 and that woula"ai a-siiitt the mindare of the Act 2016"' 16.

Hence, in view of the authoritative pronouncement of the Llon'ble SupremeCourtintheCasesmentionedabove,theauthorityhasthe jurisdictiontoentertainacomplaintseekingrefundoftheamountand interest on the amount Paid bY him' F' Findings on obiections raised by the respondent: F.Iobiectionrega.ai,,g,pplicatiorrforprovisionalallotmentcontatnsan arbitration clarrr"' *t",i.t, refers tl tne dispute resolution system mentioned in aPPlication' Page 13 of 21 ffiHARERA ffiGURuennM Complaint No.

1163 of2024 and 4 others lT. others lT.

The application for provisional allotment dated2 0.08.2023 contains clauses 46 & 47 relating to dispute resolution between the parties.

The contents of clause 46 & 47 of the application form are reproduced herein under: "46.

Any dispute arising out of or touching upon or in relation to the terms of this Application and/or the Agreentent including the interpretation and valitlity of the terms and conditions thereof and the respective rights ond oitigations of the Parties shall be settled amicably by mutual discussion.

In case the parties are unable to settle their disputes within 15 days, the same shalt be settled through arbitration as per the Arbitration and Conciliation Act, 1996, or any statutory am'endments/modifications thereof for the time being in force, by a sole arbitrator selected from the nrlnes of two arbitrators suggested by the promoter.

In case t:he fi.rst porty delays/ neglects/refuses to select one of the names from the suggested names within 15 days of intimation, the promoter shall be at liberty to appoint one of the proposed persons as a sole arbitrator, whose appointment shall be finat and binding on the parties.

Costs of arbitration shall be shared equally by the parties.

The arbitration shail be heltl in English lanlTuage at an appropriate location in Gurgaon, HarYana. +2. rhebistiict iourts at Gurgaon, Haryana and/or Puniab and Haryana High Court, to the exclusion of all other courts in Indio shall alone have exclusive jurisdiction in qll mattirs arising out of, touching and/or concerning this Application and the arbitration proceedi ngs thereunder'" (Emphasis SuPPlied) 18.

The authority is of the opinion that the jurisdiction of the authority cannot be fettered by the existence of an arbitr:rtion clause in the application for provisional allotment as it may be noted that secti on 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 Tribu late Tribunal. 'fhus, the intention to render such disputes as non-arbitrabte seems to be clear.

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

Further, the authority puts reliance on catena of judgments of the Hon'ble Supreme Court, particularly in National Seeds Corporation Limited v.

M.

Madhusudhan Reddy & Anr. (2012) 2 SCC 506, wherein it Page 14 of 21 ffiHARERA ffiCURUGIrAM Complaint No.

1163 ofZ0Z4 and 4 others has been held that the remedies provided under the Consumer Protection Act are in addition to and not in derogation of the other laws in force, consequently the authority would not be bound to refer parties to arbitration even if the any agreement between the parties had an arbitration clause.

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

1,g.

Further, inAftab Singh and ors. v.

Emaar MGF Land Ltd and ors" consumer crlse no.

707 of 2075 decided on 73,07,2017, 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 the jurisdiction of a consumer' 20.

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

Hence, we have no hesitation in holcling that this authority has the requisite jurisdiction to entertain the complaint and that the dispute does not require to be referred to arbitration necessarily' F.II Obiection regarding delay due to force maieure conditions: 21. tions: 21.

The respondent-promoter hai 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 certain environment restrictions, weather conditions in NCR region, shortage of labour, increase in cost of construction material and major spread of Covid-19 across worldwide.

The respondent further raised the contention that other factors like govt. schemes and non-payment of instalment by different allottee of the project also contributed in delay in completion of project but Page 15 of 21 HARERA Complaint No.

1153 of 2024 and 4 others W* GURUGRAM all the pleas advanced in this regard are devoid of merit as these above- mentioned events are routine in nature happening annually and the promoter is required to take the same into consideration while launching the project.

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

22.

Further, the respondent's claim regarding Covid-19 is also devoid of merit.

The application for provisional allotment was made in 2023, while the pandemic happened in 201,9 years before the application of provisional allotment.

Consequently, any relief sought on the basis of Covid-19 cannot be considered.

G.

Findings on the relief sought by the complainant: G.I Direct the respondent company to refund the amount of Rs.

5,00,000/- at the prescribed rate of interest.

23.

The complainant in his complaint has mentioned that he has applied for booking of a unit on 20.08 .2023 and the same was allotted a unit no.

F-222A for a total sale consideration of Rs.S1,86,200/-.

In furtherance of the provisional allotment, the complainant has paid an amount of Rs.5,00 ,000 /-.

Thereafter; till date neither any allotment letter has been provided to the complainant nor the buyer's agreement has been executed.

24.

0n 12.03.

0n 12.03.2024, the complainant wrote an e-mail to the respondent and mentioned that he cannot make further payments towards the total sale consideration and wants to surrender the unit and requested for refund of the paid-up amount.

Thereafterl the complainant has filed the present complaint seeking refund of the paid-up atnount.

25.

While going through the application form for provisional allotment issued by the respondent, the Authority observed that the respondent-promoter is liable to refund the entire amount paid by the complainant towards booking Page 16 of 21 HARERA Complaint No.

L163 of2024 and 4 others ffiGURUGRAM amount without any interest if the promoter is not in a position to allot the unit in terms of the application.

The relevant clause of the application form is reproduced below for the ready reference: "l/We also agree that in the event, the promoter is not in a position to finatty allot the unit in terms of this application, the promoter shall be liable to refund the entire amount paid by me/us towards the booking amount without any interest within 7 month (one month) from the occurrence of such contingency"' (EmPhasis suPPlied) 26.

The counsel for the respondent vide proceeding dated 30.01,.2025 submitted that the project was launched in 20L7 and the payment plan opted by the complainant is flexi payment plan.

According to the opted payment plan, 40o/o of the sale consideration is to be paid within 30 days from the date of booking but the complainant has paid 10o/o of the sale consideration.

But as per the application form placed on record, there is a clause regarding timely payment of the instalments.

The relevant portion of the same is reproduced below for ready reference: "ln the event, the promoter agrees to allot a unit to me/us, l/we agree to make timely payment of all the instalments of the total consideration(as defined herein) along with all the dues, charges, duties and taxes including any fresh incidence/enhancement thereof, current o current or retrospective in effect, that may be levied by the government thereof, current or retrospective in effect, that moy be levied by the government/any statutory/competent authority as well as in terms of the agreement to be executed, based upon the carpet area of the unit so allotted, as per the payment plan that l/we have opted for, and which has been duly explained in detail to me/us by the promoter to my/our satisfaction." 27 .

In view of the above-mentioned clause of the application form, it can be said that the payments are to be made on issuance of allotment letter and as neither any allotment letter has been issued nor any draft of the buyer's Page L7 of 2L HARERA Complaint No.

1163 of Z0Z4 and 4 others 28.

29. ffi*GURUGRAM agreement had been sent by the respondent after taking the booking amount.

Thus, in the absence of allotment of unit no further payment is required to be made by the complainant in terms of the application form dated 20.08.2023.

Moreoveq section 13 of the Act of 2016 provides that a promoter-builder cannot take more than L\o/o of the cost of the unit without entering into an agreement.

Section 13 of the Act of 201,6 is reproduced below for ready reference: L3.

No deposit or advance to be taken by promoter without first entering into agreement for sale- ,, (1) A promoter shall not accept a Sum,more than ten per cent of the cost of the apartment, plot, or building as the case may be, QS an advance payment or an application fee, from a person without first entering into a written agreement for sae with such person and register the said agreement frtr sale, under any law for the time being in force. (Z) The agreement for sale referced to in sub-section (1) shall be in such form as may be prescribed and shall specify the particulars of development of the proiect including the construction of buitding and apartments, along with specifit:ations unrl internul development works and external tlevelopment works, the dates and the manner by w anner by which paymttnts towards the cost of the apartment, plot or building, as the case ma)/ be, are to be made by the allottees and the date on which the possession of the apartment, plot or building is to be handed over, the rates of interest payable by the promoter to the allottee and the allottee to the promoter in case of default, and such other particulars, as may be Prescribed.

As the application for provisional allotment was made on 20.08 -2023 that is after the commencement of the Act of 201,6 and being a post RERA allotment, the provisions of section 13 of the Act of 201,6 requires to be complied by the respondent.

And as per the submissions made by the counsel for the respondent during the proceedings dated 30.01,.2025 and the demand letter dated L2.03.2024 placed on record, it is established that Page 18 of 21 ffi HARERA GURUGRAM Complaint No.

1163 of 2024 and 4 others 30. the respondent-builder has demanded an amount of Rs.20,76,577 /- which is 40o/o of the total sale consideration without issuing any allotment letter or executing any buyer's agreement in furtherance of application of provisional allotment.

It clearly shows that the respondent/promoter has violated the provisions of section 13 of the Act of 201,6.

The counsel for the complainant vide proceedings of the day dated 30.01.2025 also stated that no construction at the project site is taking place and it is the shell which is stand still from past one and a half years.

Furthet, the registration of the project was expired in 2022 and the project of the respondent is a lapsed project.

The counsel for the respondent clarifies the same and stated that the respondent has applied for extension of the project but the same is not yet granted by the Authority.

Also, the Maharashtra Real Estate Appellate Tribunal in the case titled as Mr.

Dine.sh R.

Humane and Anr.

Versus Piramal Estate Pvt.

Ltd. dated 77.03.2027,Lhe following has been observed: "................. .. ....... ..

Allottees merely booked the flat and paid some amount towards booking and executed letter for request of reservation of the Jlat in printed form.

Therettfter there is no progress in the transaction and neither allotment letter nor confirmation letter is issued by Promoter.

Agreement Jbr sale is not executed behueen the parties.

Parties never reached to the stage of executing agreement for sale.

There was no attempt to execute ogreement on the part of either party.

In such circumstqnces, Allottees cannot cluint refund on the basis of binding eJfect at clause (18) of "model agreement" for sale under rules of RERA, In Jact, claim of Allottees for refund cannot be supported by clause L8 of model agreement for sale under RERA rules.

Refund of amount paid to promoter can be demanded as per section 18 of RERA on the ground that promoter fails to give possession on agreed date or ftiils to complete the proiect as per terms and conditions of agreement for sale, Transaction in the instant case is not governed by Section 1B of RERA' In this peculiar motter, though the claim of refund is not governed by any speciftc provision of RERA, it cannot be ignored that obiect of 31.

Page 19 of 21 HARERA Complaint No.

L163 of2024 and 4 others W*GURUGRAM RERA is to protect interest of consumer.

So, whatever amount is paid by home-buyer to the promoter should be refunded to the Allottee on his withdrawal from the project." 32.

In view of the facts and reasons stated above, the respondent was not within its right to retain amounts received fronr the complainant.

Thus, the complainant is entitled for refund of the entire booking amount of Rs.5,00,000/- in terms of the clauses of the application form for provisional allotment and raising of demands beyond Llo/o amount is violation of section 13 of the Act of 201,6.

Thus, the Authority hereby directs the respondent/promoter to refund Rs. refund Rs.5,00,000/- paid by the complainant towards the booking amount in terms of the application form for provisional allotment dated 20.08.2023 issued by the respondent within 90 days from the date of this order.

H.

Directions of the Authority: 33.

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 3a(fJ: i.

The respondent/promoter is directed to refund the amount i.e., Rs.5,00,0 OO / - received by it from the complainant without interest in terms of the application form for provisional allotment dated 20.08.2023 issued by the respondent. . 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.

34.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order along with details of amount paid by the complainants, due date ' of possession etc.

Page 20 of 21 35.

HARERA S* GURUGRAM Complaints stand disposed of.

True placed in the case file of each matter.

Files be consigned to registry. vt_. (Viiay Haryana Real Es Complaint No.

1163 of 2024 and 4 others certified copy of this order shall be Authority, Gurugram 36.

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