GHAN SHYAM SHARMA AND LOKESH SHARMA vs RAHEJA DEVELOPERS LTD

HARERA ffiGURUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complainants Respondent Member Complainants Respondent no.1 Respondent no.2 Complaint No.

4855 of 202 3 Complaint no.

Date ofcomplaint Date oforder 1.

Ghan Shyam Sharma, 2.

Lokesh Sharma, Both R/o: - 4-903, Plot no.- 198, AasthaApartments, Sector-6, Dwarka, Delhi-110075.

Versus M/s Raheia Developers Limited.

Regd.

Office at: W4D,20415, Keshav Kunj, Western Avenue, Cariappa Marg, Sainik !'arms, New Delhi- 110062.

CORAM: Ashok Sangwan APPEARANCE: 4855 of 2023 25.70.2023 24.O4.2024 Yogesh Kumar Goyal (Advocatel Garvit Gupta fAdvocate) Krishna Saroff [Advocate) ORDER 1.

The present complaint has been filed by the complainant/allottees under section 31 of the Real Estate (Regulation and Developmentl Act, 2016 [in short, the ActJ read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules,2017 (in short, the Rulesl for violation of section 11[ l Ia] of the Act wherein it is inter alio 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 allottees as per the agreement for sale executed inter se, Page 1of 12 | HARERA GURUGRAM Complaint [,,1o.

4855 of 2023 _l A, Unit and proiect related details 2.

The particulars of unit details, sale consideration, th4 amount paid by the complainants, date of proposed handing over the !ossession, delay period, if any, have been detailed in the following tab{lar form: s.

N.

Particulars Details 1.

Name ofthe project "Raheja Vanya", Gulmohar Tower, Sector 994, Gurugram, Haryana z.

Proiect area 2.28 acres 3.

Nature ofthe proiect GrouD Housins Proiect 4.

DTCP license no. and validity status 64 of 2013 dated 20.07.2013 valid vpto 19.07.2017 72 01 up of 2014 dated P8.2014 valid l't 31 .O7 .2079 Name of Iicensee Aiit Kaur D/o Pritpal sinf n 6.

RERA Registered/Not Resistered 8(aJ of 2 018 dated 01.02 valid upto 3L. d upto 3L.12.2022 20t8 7.

Unit no.

A-076, 7th floor, Tower-A fPase no.

29 of the complaintl 8, Unit area admeasuring 984.45 sq. ft. (carpet area) fPage no.

29 ofthe complaintl 9.

Date of execution of agreement to sell 06.06.2017 (Page no.

24 ofthe complaint) 10.

Date of tripartite agreement 29.08.2017 (page 17 of R-2 replyl 11.

Date of allotment letter t3.06.20t7 (Page no.

23 ofthe complaint) t2.

Possession clause r sIpOSSESSION OF THE APARTMENT 19,7 "The Company agrees and \ understands that timely delivery of possession of the Aporlment is the essence of the Agreement.

The Company, based on the approved plans and specifications, assures to hand over possession of the Apartment in a pertod of 48 Months plus/minus 6 Months variable groce period ("Commitment Period") Irom the date of execution of th/s Agreement lor sale,,, " IemPhasis suPPlied] IPage no.

38 ofthe complaint].

Pase 2 of 12 age HARERA ffiOURUGRAM I.

It.

II I. oftaxesJ no.

52 of Facts of the complaint The complainants have made the following submissions: - That the complainants were allotted a residential apartment bearing no.

4-076, Tower-A, having super area 984.45 sq. ft. [approx.) in the project of the respondent named "Raheja Vanya" Sector 99A, Gurugram, vide agreement to sell dated 06.06,20L7 for a total sale consideration of R s.7 3,52,1.7 6 /- agai nst which the complainants have paid a sum of Rs.39,30,917l- till date.

That as per clause 19.1 of the agreement the respondent was under obligation to hand over the possession ofthe property by 12.06.2021-.

That the complainant had made various communications with the respondent regarding possession of flat and delaye'd interest, but the respondent had never given a satisfactory answer.

That the complainants had obtained a housing loan from the respondent no.

2 on the subject flat booked with the respondent no.1.

Further, both the respondents colluded and cheated the complainants by not providing possession of the flat in time. t in time.

So, the Page 3 of 12 the Complaint o.

4A55 of 2023 Due date of possession 06.06.2022 [48 months from the agrefment to sell i.e., 06.06.2017 + 6 months grace period is allowed being unqualified+ 6 months as per HAREM notification no.

9/3-2020 dated 26.05.2020 for the proiects having completion date on or after 25.03.2020 Total sale consideration Rs.7 3,52,17 6 / - (exclusive (As per BBA on page comDlaint Amount paid by the complainants Rs.39,30,917l- As per CRA at pase 17 o omplaint Occupation certificate Offer of possession C, 4. ffiHARERA #-eunuennrrl 5.

6.

7. ll.

Complaint No.

4855 of 2023 complainants are filing the present complaint before this Authority for refund of entire amount along with interest as per the Act, 2016.

Relief sought by the complainants: The complainants have sought following relief[s).

L Direct the respondent to refund the paid-up amount alongwith prescribed rate of interest.

On the date of hearing, the authority explained to the respondent /promoter about the contraventions as alleged to have been committed in relation to section 11(a) (al of the Act to plead guilty or not to plead guilty.

The respondent no.1 put in appearance through its Advocate and marked attendance on 31,.0L.2024 ard 2L.02.2024.

Despite specific directions for filing of reply, it failed to comply with the orders of the authority.

It shows that the respondent was intentionally delaying the procedure of the court by avoiding filing of written reply.

Therefore, in view of above, vide order d,ated 13.03.2024, the defence of the respondent no.1 was struck off.

The respondent no.2 has contested the complaint on the following grounds: - That the role of the answering respondent is solely confined to providing financial assistance in furtherance of the loan agreement to purchase the respective unit/apartment and the answering respondent has fulfilled all its obligations under the loan agreement and tri partite agreement. agreement.

That the complainants have grievances with the respondent no.

1 regarding delivery of the unit.

Therefore, the answering respondent cannot be made a party to the present case.

PaEe 4 of 12 HARERA ffi,GURUGRAM Complaint [o.

4855 of 2023 iii, That based on the application of the complainants, a loan amount of Rs.52,24,802 /- was sanctioned by the answering respondent in their favour vide a sanction letter dated 26.08.2017.

That out of the said sanctioned amount, a sum of Rs.27,72,794/- was disbursed to the builder. iv.

That the respondent no.1 confirmed that they had sold the said apartment and granted permission to mortgage the said apartment to the answering respondent vide a letter dated 20.09.2017. v.

That the respondent no.2 plays no role attributable to that of a promoter and are only acting in the capacity of a financer and as such Section 12 & 18 of Act, 2016 are not attracted.

That the answering respondent is not liable for the actions of the builder in the event of any delay in delivery of the proiect. vi.

That as the flat was under construction, a tri-partite agreement was executed amongst the complainants, answering respondent and the builder being respondent no.1 on 29.08.2017 . vii.

That by virtue of clause 4 ofthe agreement, the answering respondent is entitled to recover the loan amount and the complainants are duly bound to pay the EMls regularly irrespective of the stage of construction of the said flat. viii.

That the complainants have no locus- standi to file this instant complaint against the answering respondent.

8.

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 submissions made by the complainants.

Page 5 of 12 D.

9.

HARERA ffi GURUGRAI/ 11.

Complaint [',1o.

4855 of 2023 10. f 2023 10.

Jurisdiction of the authority The authority has complete territorial and subject matter iurisdiction to adjudicate the present complaint for the reasons given below.

D.l Territorialiurisdiction As per notification no. l/92/20L7-1TCP dated 14.L2.2017 issued by Town and Country Planning Department, Haryana the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes.

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.

D.II Subiect-matteriurisdiction Section 11[4](a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)[aJ is reproduced as hereunder: Section 71 (4) The promoter shall- (a) be responsible for oll obl@adon' responsibilities and functions under the provisions ofthis Act or the rules and regulations made thereunder or to the ollottees os per the agreement for sqle, or to the association ofollottees, as the cqse moy be, till the conveyqnce ofall the opartments, plots or buildings, os the cose moy be, to the qllottees, or the common areas to the ossociation of allottees or the competent authority, os the cose may be; Section 34-Functions oJ the Authority: j4A of the Act provides to ensure compliance of the obligations cast upon the promoters, the qllottees ancl the reolestote agents underthis Act and the rules ond regulations mode thereunder.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non- 12. compliance of obligations by the promoter.

Page 6 of 12 ffiF]AREBA *H euRuennll Complaint No.

4855 of 2023 Findings on the relief sought by the complainants.

E. inants.

E.

I Direct the respondent to refund the paid-up amount alongwith interest In the present complaint, the complainants intend to withdraw from the proiect and are seeking return ofthe amount paid by them in respect of subject unit along with interest at the prescribed rate aE provided under section 18(1J of the Act.

Sec.

18(1) of the Act is reproduced below for ready reference. "Section 78: - Return of amount and compensation 1B(1). lfthe promoter fails to complete or is unable to give possession of an aportmenL. plot, or building.- (a) in accordance with the terms Althe qgreement Ior sale or, os the case may be, duly completed bythd.Qib..specifed therein; or (b) due to discontinuance of his business as o developer on account of suspension or revocotion ofthe registration underthis Apt orfor any other reoson, he sh.rll be liqble on demand to the allottees, in case the qllottee wishes to withdraw Irom the project, without prejudice to ony other remedy availoble, to return the qmoant received by him in respect of that qpqrtment plot, building, as the case mqy be, with interest at such rqte as moy be prescribed in this behalf including compensotion in the manner as provided under this Act: Provided thot where on allottee does not intend to withdraw from the project, he shqll be pqiL by the promoter, interest for every month of delay, till the handing over of the possessior, ot such rate as moy be prescribed_" (Emphasis supplied) 14.

Clause 19.1 of the agreement to sell dated 06.06.2077 provides for handing over ofpossession and is reproduced below: 19,1 POSSESSION OF THE APARTMENT "The Company ogrees and understonds thot timely delivery of possession of the Aportment is the essence of the Agreement.

The Company, based on the approved plons and specifications, a.rsure.r to hand over possession of the Aportment in q period of 48 Months plus/minus 6 Months variable grace period ("Commitment period") from the date of execution of this Agreement for sale...".

15. e...".

15.

Due date of handing over possession and admissibility of grace period: As per clause 19.1 of the agreement to sell, the possession of the allotted unit was supposed to be offered within a stipulated timeframe of48 months from the date ofexecution ofagreement plus 6 PaEe 7 of 12 E.

13.

HARERA ffiGURUGRAIII Complaint No.

4855 of 2023 months of grace period.

Given the fact that the gface period was unqualified, the due date of possession was 06.12.1027.

Further, an extension of 5 months is granted to the responflent in view of notification no.

9 /3-2020 dated 26.05.2020, on accouht of outbreak of Covid-19 pandemic.

Therefore, the due date ofposses+ion comes outto be 06.06.2022.

16.

Admissibility of refund along with prescribed ratd of interest: The complainants/allottee intends to withdraw from th( proiect and are seeking refund of the amount paid by them in respect qf the subject unit -- with interest at prescribed rate as E ded under rule 15 of the rules.

Rule 15 has been reproduced as under: 77.

Rule 75, Prescribed rate of interest- [Proviso to section 12, section 7B and sub-section (4) and subsection (7) of section 191 (1) For the purpose of proviso to section 12; section 78; and sub- sections (4) ond (7) of section 19, the "interest qt the rate prescribed" shall be the State Bonk of lndia highest marginql cost of lending rate +2ak.: Provided that in case the State Bonk of lndio marginol cost of lending rate (MCLR) is not in use, it shqll be reploced by such benchmork lending rotes which the State Bank of lndia may frx from time to time for lending to the general public.

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.

Consequently, as per website of the State Bank oI India i.e.

India i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLRJ as on date i.e., 28.08.2024 is 9.100/o.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +20lo i .e., ll.loo/o.

Keeping in view the fact that the complainants/allottee wish to withdraw from the project and are demanding return of the amount 18.

L9.

Page B of12 * HARERA S-eunuerw Complaint No.

4855 of 2023 received by the promoter in respect of the unit with i{rterest on failure ofthe promoter to complete or inability to give possesfion of the unit in accordance with the terms of agreement for sale or dfly completed by the date specified therein.

The matter is covered undef section 18(1) of the Act of 2016.

20.

The due date of possession as per agreement for sell as mentioned in the table above is 06.06.20112.

The authority has furtfer, observes that even after a passage of more than 2.2 years till flate neither the construction is complete nor f possession of the allotted unit has been made to the allottees by the respondent/promoter.

The authority is of the view that the allottees cannot be expected to wait endlessly for taking possession ofthe unit which is allotted to them and for which they have paid a considerable amount of money towards the sale consideration.

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

In view of the above-mentioned fact, the allottees intend to withdraw from the project and are well within the right to do the same in view ofsection 18[1) ofthe Act,2016.

21.

Moreover, the occupation certificate/completion certificate of the project where the unit is situated has still not been obtained by the respondent/promoter. /promoter.

The authority is of the view that the allottees cannot be expected to wait endlessly for taking possession of the allotted unit and for which he has paid a considerable amount towards the sale consideration and as observed by Hon'ble Supreme Court of India in Ireo Grace Realtech Pvt, Ltd, Vs, Abhishek Khanna & Ors, civil appeal no.

5785 of2O19, decided on 11.07.2027 PaEe 9 of Lz IIARER^ MGURUGRAI\4 "....

The occupotion certilicate is not available even qs pn date, which cleqrly amounts to deficiency of service, The allottees 4annot be made to wait indelinitely for possession ofthe oportmenB ollotted to them, nor cqn they be bound to toke the aporiments in Phase 1 of the project,,,,.,," 22.

Further in the iudgement ofthe Hon'ble Supreme CoUrt of India in the cases ofNer.ytecrr Promoters ond Developers Private Limited Vs State of U,P, and Ors, (supro) reiterated in case of Myl Sana Realtors Private Limited & other Vs Union of tndia & othe,F SLp (Civil) No.

13005 of2020 decided on 12.05.2022. irwas observed: amount on demond with interest qt the rate prescribed by the State Government including compensotion in the manner provided under the Act with the proviso that if the allottee does not wish to withdro\r from the project, he shall be entitled for interest for the period of (lelay till handing over possession ot the rote prescribed." The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunder or to the allottee as per agreement for sale under section 11[aJ(a).

The promoter has failed to complete or unable to give possession ofthe unit in accordance with the terms ofagreement for sale or duly completed by the date specified therein.

Accordingly, the promoter is liable to the allottees, as the allottees wish to withdraw from the proiect, without prejudice to any other remedy available, to return the amount received by it in respect of the unit with inte with interest at such rate as may be prescribed.

Accordingly, the non-compliance of the mandate contained in section 11(4)(aJ read with section 18(1) of the Act on the part of the 23.

Page 10 of 12 Y 24.

4855 of 2023 HARERA GURUGRAII Complaint No.

4855 of 2023 . respondent/promoter is established.

As such, the complainants are entitled to refund of the entire amount paid by them at the prescribed rate of interest i.e., @1,1,.100/o p.a. (the State Bank of India highest marginal cost of lending rate (MCLR) applicable as on date +2%o) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development] Rules, 2017 from the date of each payment till the actual date of refund of the amount within the timelines provided in rule 16 of the Rules,2017 ibid.

25. out oftotal amount so assessed, the amount paid by the bank/payee be refunded in the account of bank and the balance amount along with interest will be refunded to the complainants.

F.

Directions ofthe Authority: 26.

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

The respondent/promoter is directed to refund the entire amount received by it from the complainants along with interest at the rateof 11.100/0 p,a.as prescribed under rule 15 of the Haryana Real Estate [Regulation and Development] Rules, 2017 from the date of each payment till the actual realization of the amount.

Out of total amount so assessed, the amount paid by the bank/payee be refunded in the account of bank and the balance amount along with interest will be refunded to the complainants.

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, ii. ill, Page 11 of 12 1rHARERA S-GuRuGRAM 27.

Complaint stands disposed of.

28. ed of.

28.

File be consigned to registry.

Haryana Real Estate Regulatory Authority, Gurugram Dated:28.08.2024 HARERA gURUGRAM Page 12 of 12 Complaint No.

4855 of 2023 Mem$