MR HARI KISHOR SAHU vs BPTP LTD.

ffiHARERA S- ounuonnvt BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint No.

4821 of2023 Hari Kishor Sahu R/o:-N-1705, Tower-N, BPTP SPacio, Sector-37D, Gurugram, Harya 1.

M/s.

BPTP Ltd Regd. office:M-11, Mi Connaught Circle, N 2.

Cou Regd.

OfIice: 28, K.G.

Marg, New Del CORAM: Shri Ashok Sangwan APPEARANCE: Green Agarwal Harshit Batra Complaint no.r Date of decision:- 4AZl of2023 09.1o.2024 Complainant Respondents Member Complainant Respondents HARERA GURUGRAM ORDER 1.The present complaint dated 25'102023 has been filed by the complainant/allottee under section 31 ofthe Real Estate [Regulation and DevelopmentJ Act, 2016 (in short, the Act) read with rule 28 of the 11. t.

Ltd rOr, Page 1of19 ffi HARERA 4P-CRTrcRAM Complaint No.

4821 of 2023 Haryana Real Estate (Regulation and DevelopmentJ Rules' 2017 (in short' the RulesJ for violation of section 11[4)(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations' responsibilities and functions as provided 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 tnterse' A.

Unit and proiect related details 2.

The particulars of the pro jg$LSred-siails of sale consideration' the amount paid by the complainants, date the possession and delay period, if any, following tabular form: of proposed handing over have been detailed in the Details S.

N.

Particulars 1.

Name and location of the project "SPACIO", Sector-37D, Gurugram, Haryana.

43.558 Acres.

Group Housing ColonY 2.

Proiect area 3.

Nature of Project 4.

DTCP license no. and validity status 1.

83 0f 2008 dated 05.04.2uu8 Valid upto z.

94 0f 2011dated 24.10.2011 Valid uDto 5.

Name of Licensee M/s Super Belts Pvt.

Ltd.

C/o M/s Countrylvide Promoters Pvt' Ltd.

Registered (ForTower-8 toTower-13) (10 22 acres) 300 of2017 dated 13.10 2017 V,lid unto 12.10.2020 6.

Re.u registered/ not registered and validitY status 7. status 7.

Unit No.

N-1705, 17s Floor, l ower-N [As per page no.94 of comPlaint) 1865 sq. ft. [suPer area) (As oer paqe no.94 of comPlaintl 8.

Unit area admeasuring 9.

Welcome Letter t2.08.2019 Page 2 of19 7 ffiHAREBA # eunuennvr Complaint No.

4821 of2023 [As per page no.29 of complaintl 10.

Allotment letter 72.08.2079 (As per page no.30 of complaintl 11.

Date of execution of buyer agreement 29.01.202r [As per page no.83 of complaintl L2, Possession clause 2.TCommitment Period "...The seller /confirming party shall offer the possession of the unit to the purchaser(s) within a period of 30 months from the date of flat buyer's agreement." 7.1 Possession and holding charges "The applicant further agrees and understands that the seller/confirming party shall additionally be entitled to grace period of six (6) months after the expiry of the said commitment period for making an offer of 13.

Due date of possession 29.C ,2 tz4 74_ Basic Sale Consideration iS q er 369 ) 1o.94 of complaintl 15.

Amount complainant nplaintJ complainant at page ,.4.70 /- by the 76.

HA Occupation C ?

Block- T8, T9, T11 & rage no.55 of reply) And 15.07.2021 (for tower-T1o, T1.2, T13 & EWS Block- B) [As per page no.59 of complaintl 77.

Offer of possession 27.04.2020 [As per page no.63 of comDlaint) 18.

Notice for Termination 18.08.2021 [As per page no.118 of complaintl 19.

NOC 31.08.2027 Page 3 of 19 ffiHARERA S- arnuennrvr Complaint No.

4821 of 2023 [For giving the possession for carrying out fit-outsl [As per page no.120 of complaintJ 20.

Conveyance deed 03.09.2021 (As per page no.125 of complaint) B.

Facts ofthe complaint: 3.

The complainant made the following submissions in the complaint: L The respondent launched a residential proiect in the name of "SPACIO" situated at Sector-37D, Gurugram and the complainant was allured by the advertisements of the respondent and believing them, the complainant booked a unit in the aforesaid project.

U.

That vide allotment Ietter dated 1,2.0A.2019, unit no. , unit no.

N-1705 was allotted on the 17th Floor, admeasuring super area of 1,865 sq. ft. and paid a sum of Rs.4,00,000/- and the same was acknowledged by the respondent vide receipt no.

2019 /t400007843. lll.

That the respondents kept on sending demand Ietters demanding payment of Rs.28,00,000/- without even executing any Flat Buyer's Agreement, which is a clear violation of section 13 oftheAct,2016.

IV.

In the meantime, the complainant had applied for a home loan from ICICI Bank and the same was granted vide offer letter dated 13.03.2020, However, due to the absence of any written Agreement to sell, the complainant could not avail the same and ultimately it was cancelled.

V.

That the respondent sent an email dated 11.05.2020, whereby it was admitted that they were liable to handover the possession Page4of19 / ffHARERA # aJRuGRAM Complaint No.

4821 of2023 of the said unit by March, 2020, but the pro,ect was being delayed.

Contents ofthe email is reproduced hereinunder: "As mentioned in our eorlier communicotions os well, the project is nearing completion qnd we would qlso like to mention that had this general lockdown owing to pondemic COVlDlg not happened we were confident of rolling out Letters for Olfer of Possessions by March 2020.,' VL That the respondents kept on raising illegal demands of payment in the absence of a written Flat Buyer Agreement and even offered the possession of the said unit on 21.08.2020.

The complainant decided to visit the proiect site himself and was in utmost shock and disbelief to see that the internal works of the unit were absolutely incomplete, rendering it inhabitable.

Even the works that had been completed were not as per the sanctioned plans.

VII.

That the respondent purposely delayed the execution of Flat Buyer Agreement to dupe the complainant in their nefarious net and kept on raising demands of payment.

After much insistence by the complainant, the respondent Rnally executed the Flat Buyer Agreement on 29.01. on 29.01.2021, being fully aware of the fact that as per the terms of the said FBA, the due date of possession will be 30 months calculated from the date of execution of the said FBA, which is unilateral, arbitrary and illegal.

VIll.

Thereafter, vide its letter dared, 27.07.202I, the respondents raised a demand including delayed payment interest charges to the tune of Rs.7,36,524/- which is extremely illegal and unjust as the respondents have charged interest for the period starting before the execution of the Agreement.

When the complainant 7 Page 5 of19 && HARERA GURUGRAM complaint No.

4821 of2023 XIII. objected to pay the interest illegally charged, the respondents sent a Termination letter dated 18.08.2021, threatening the complainant of cancelling the allotment ofthe unit.

Thus, afraid to lose the allotment of the unit, the complainant succumbed to the illegal and unjust demands of the respondents and paid a sum of Rs.89,82,824.70 /- as full and final payment of the total consideration along with interest of Rs.7 ,36 ,574 / - Thereafter, the respondent issued a No Objection Certificate dated 31.08.2021, giving possession of the unfinished and inhabitable unit only for the purpose of fit outs, which is again arbitrary and illegal in the eyes of Law and further in violation of provisions ofthe RERA Act, 2016.

That on 01..09.2021, Conveyance deed was executed between the parties and the respondent had assured that the said unit shall be completed at the earliest and the complainant would be able to occupy the same before the upcoming festive season.

That the respondent never mentioned the due date of possession anywhere on the Allotment letter or the demand letters etc, and neither mentioned the actual carpet area of the unit and charged consideration on the super area, which is highly illegal and unlawful.

It is further submitted tlat as per the sanctioned plans, the builder was to construct a club house. lub house.

However, the respondent has constructed a community hall without any amenities as per the sanctioned plans, and has been charging membership X. xt.

XII.

Page 6 of 19 IX. ffiL]AREIA -,{ru- ouRuenRHl Complaint No.

4821 of 2023 charges @Rs.1400/- per month, which is highly illegal, unjust and arbitrary.

XIV.

That the respondent illegally appointed a maintenance agency without providing any prior intimation to the complainant or any notice of Annual General Meeting for the appointment of maintenance agency, and has been charging maintenance charges @Rs.2.80/sq.ft., per month.

XV.

That the respondent had illegally increased the super area of the allotted unit in the offer of possession letter without any justification, adding additional burden on the complainant while the carpet area remains the same.

XVI.

That the Authority had constituted a Committee for the in- depth analysis of several projects of the respondents, including the proiect in question, "Spacio", wherein the committee had found out that the additional charges imposed by the respondent, including, increase in super area, Cost escalation & STP charges, etc are unreasonable and unjustified.

XVIL That the respondent offered possession for fit outs and such possession of an incomplete unit to the allottee is an outright violation of the rights of the allottees under the provisions of RERA act as well the agreement executed between complainants and respondent.

The complainant demands enquiry to be initiated against the respondent to determine as to how the respondent was able to obtain the Occupation Certificate for the said tower/unit when the said unit is prima facie evident to be under construction/ incomplete/inhabitable.

C.

Relief sought by the complainant: t Page 7 of 19 Complaint No.

4821 of 2023 4. i. ii.

The complainant has sought following relieffsJ: lll.

I, II, III, * HARERA #- eunuennr,,r Direct the respondent to finish all the work in the unit at the earliest. earliest.

Direct the respondent to pay delayed possession charges along with interest at the prescribed rate of interest.

Direct the respondent to refund the amount paid by the complainant as delayed payment interest, illegally charged from the complainant by the respondent along with interest.

D.

Reply by respondent: 5.

The respondents have filed a joint reply and made following submissions: At the very outset, it is imperative to note that the name of the respondent no.

2 shall be deleted from the array of parties as respondent no.2 is only a confirming party in the Agreement.

Moreover, no specific relief has been sought by the complainant from respondent no.2.

Therefore, it is most humbly submitted that the name of respondent no.

2 shall be deleted from the array of parties.

That the complainant being interested in the group housing real estate development project kno\ /n under the name and style of "spacio - Park Serene" located at Sector 37-D, Gurugram, Haryana applied for the allotment of the unit vide an application form dated t2.OA.ZOtg.

Pursuant to booking unit bearing number N-1705 in Tower-N, tentatively admeasuring 1855 sq. ft. was allotted to the complainant vide Allotment Letter dated 72.08.20L9.

That the complainant consciously and wilfully opted for possession linked payment plan as per their choice for remittance of the sale consideration for the unit in question.

Page 8 of 19 IV. @& HARERA GURUGRAM Complaint No.

4821 of 2023 At this stage, it is categorical to note that after the allotment of the unit and before the execution of the Builder Buyer Agreement between the parties, the construction of the unit was completed by the respondents and the respondents received the Occupation Certificate on 30.07.2020.

That the bonafide of the respondent no.

1 is imperative to note that as soon as the respondents received the Occupation Certificate from the concerned authorities, ssession of the unit to the complainants even after o l5 o/o of the total sales tal sales consideration of the unit.

VL That the Offer ofp categorically notes that out of the to ,38,799.73 /-, the respondents had Vll.

That in order to the respondents, Builder Buyer VIII, That the rights and obli ,61 ,1.10 .86 / - . respect to the unit, had executed the the complainant, as well as the builder are ffi ,::x:::;ffi#Kffi w[*;"T:r"ff:; T* *'l t:'* ""Sb[+Ef@{?frft7rxs'""-"nt read with clause 2.7, the due date of offer of posseision of the unit was 30 months from the date of execution of the agreement along with a grace period of 6 months.

Subject, to the force majeure circumstances, intervention of statutory autlorities and the purchaser(s) making all payments within the stipulated period and complying with the terms and conditions of t}tis agreement Thus, the proposed due date for Page 9 of 19 Complaint No.

4821 of 2023 offer of possession comes out to be 29.0L.2024 (including the grace periodJ.

At this stage, it is categorical to note that the due date of offer of possession of the unit is 29.01.2024 and the complaint was filed by the complainant in the year 12.L0.2023, i.e., before the due date of offer of possession.

Moreover, the possession of the unit has already been offered to the complainant on 21.08.2020 hence, the present complaint filed by the com is a pre-mature complaint and is liable to be dismissed on this ne.

X.

That without preiudice -noted contentions, it is imperative to note received the notice of offer of possession of the u e., much prior to the due date of offer of possession of , the applicability of Section 18 does n XI.

Hence, as noted completed the construction "f tilLq ned the Occupation Certificate on 30.07.2020 and not liable to pay any MHARERA ffi eunuennvr x r ::':fjil;::::'hHKHHffi}k",,he due da,e .f delivery of the unit was subiictive in nature and was dependent on the force majeure circumstances and the purchaser/allottee complying with all the terms and conditions of the Agreement along with timely payments of inst ts of instalments of sale consideration.

That it was the obligation ofthe complainant to make the payments as per the adopted payment plan and agreed terms and conditions of the agreement.

That the timely payment of the sales consideration of the unit was the essence of the Agreement executed between the parties Page 10 of19 ffiHARERA #- alnuennHl Complaint No.

4821 of 2023 as per clause 4.13 of the Agreement.

That in case of default by the complainant, the complainant was bound to make the payment of interest.

At this stage, it is imperative to note that due to failure of the complainant in remitting the due instalments on time, the respondent was left with no other option but to cancel the unit and hence, the unit was cancelled by the respondent on IB.OA.ZOZI XV.

That after the cancellation of ue to failure of the complainant to pay the outstanding dues ndent once again approached the complainant and settl th respect to the payments of due instalments a of the said disputc and payment of the lainant, the parties executed a Co t as per the Clause 3 of the Con categorically noted that the compl n ofthe said unit only after comp being completely satisfied with the unit.

Moreover, after deed, the contractual relationship b ed and comes to an end.

That there aim/ grievance of the complainants with respect to the Agreement or any obligation of the parties including delay compensation.

That the present complaint is barred by limitation as the possession was offered to the complainant on 21.08.2020 and even if the complainant had any grievances, whatsoever, then the issue can be raised at a reasonable period of time after offering the possession of the unit but the complainant approached this forum in the year 1,Z.7O.ZOZ3, Page 11 ol19 MHARERA ffi eunuennvr Complaint No.

4821 of 2023 i.e, after 3 years 1 month and 21 days oftaking of offering possession of the unit and hence, the present complaint is liable to be dismissed on this ground alone.

XVIII. ne.

XVIII.

That in light of the bona fide conduct of the respondents, the peaceful possession having been taken by the complainant, non-existence of cause of action against the respondents, claim being barred by limitation and the frivolous complaint filed by the complainant, this complaint is bound be di with costs in favor of the respondents.

6.

Copies of all the rel record.

Their auth decided on the made by the p E.

Jurisdiction of 7.

The Authority o been filed and placed on the complaint can be ts and submission as well as subject complaint for the E.

I Territorial iurisdiction 8.

As per notification no.

1/92/20L7-tTCp dated t4.72.20L7 issued by Town and Country Planning Department, the iurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram district.

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

PaEe \2 of 19 Y.;t ffiHAREIA ffieunuenRu Complaint No.

4821 of 2023 E.

II Subiect matter iurisdiction 9.

Section 11(41(al of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section 71(4)(a) Be responsible for oll obligotions, responsibilities and functions under the provisions ofthis Act or the rules and regulotions made thereunder or to the ollottee os per the agreementfor sale, or to the association ofallottee, as the case may be, till the conveyance of qll the apartments, plots or buildings, as the case may be, to the allottee, or the common areas to the associqtion of ctllottee or the competent outhoriy as the case may be; 10.

So, in view of the provisions of the Act quoted above, the Authority has complete iurisdiction to decide the complaint regarding non- compliance of obligations by the promoter leaving aside compensation which is n which is to be decided by the adjudicating officer if pursued by the complainant at a later stage.

F.

Findings on the obiections raised by the respondent: F.l.

Obiection regarding complaint being barred by limitation.

11.

So far as the issue of limitation is concerned, the Authority is cognizant of the view that the law of limitation does not strictly apply to the Real Estate Regulation and Development Authority Act of 2016.

However, the Authority under section 38 of the Act of 2 016, is to be guided by the principle of natural iustice. lt is universally accepted maxim and the law assists those who are vigilant, not those who sleep over their rights.

Therefore, to avoid opportunistic and frivolous litigation a reasonable period of time needs to be arrived at Page 13 of19 *HARERA ffi arRrJcRA[/ Complaint No.

4821 of 2023 for a litigant to agitate his right.

This Authority ofthe view that three years is a reasonable time period for a litigant to initiate litigation to press his rights under normal circumstances.

12.

It is also observed that the Hon'ble Supreme Court in its order dated L0.07.2022 in MA NO.21 of 2022 of Suo Moto Writ petition Civil No.3 of 2020 have held that the period from 15.03.2020 to 28.02.2022 shall stand urpose of limitation as may be prescribed under any gen laws in respect ofalljudicial or quasi-judicial pro 13.

In the present ma on 21.08.2020 when the offer of respondent.

The complainant 25.10.202 3 which is 3 years 2 mon of action. [n the present case the th filing of the case needs to be calculated after nt the exclusion period from 15.03.2020 to 28.02.2022.In view of the above, the Authority is of the view that the present complaint has been filed within a reasonable time period and is not barred by the Iimitation.

F.lI.

Oblection regarding wrongful impleadment of respondent no.Z in the array of parties.

14.

The respondent-promoter has raised an objection of wrongful impleadment of respondent no.2 i.e., M/s.

Countrywide Promoters Pvt. oters Pvt.

Ltd. in the array of parties.

The respondent-promoter stated Page 14 of 19 I HARERA Complaint No.

4821 of 2023 H GURUGRAM that respondent no.

2 is only a confirming party in the Agreement and no specific relief has been sought by the complainant from respondent no.2.

15.

As per record available the respondent no.2 is a Confirming party to the Agreement dated 04.02.2011 and was granted licence by the Director, Town and Country PIanning, Haryana vide licence no.83 of 2008 and 94 of 2011.

The t no.2 cannot escape its responsibility and obliga licensee of the proiect of the project being promoter within the 16.

The promoter h zk) of the Act.

The relevant portio requires - (zk) "promoter" o (ii) a person who or not the person also constructs of selling to other persons oll or some structures there; or whether with or without (iii) xxx (iv) xxx As per afo rt no.1 & 2 will be on of the project. jointly and Whereas, the primary responsibility to discharge the responsibilities of promoter lies with respective promoter in whose allocated share the apartments have been bought by the buyers.

In view ofthe same, the contention/objection of respondent no.1 stands reiected.

G.

Findings on the relief sought by the complainant. under the definition of t7. section reads as Page 15 of 19 HARERA Complaint No.

4821 of 2023 GURUGRANI G.l Direct the respondent to finish all the work in the unit at the earliest.

G.ll Direct the respondent to pay delayed possession charges along with interest at the prescribed rate of interest.

G.lll Direct the respondent to refund the amount paid by the complainant as delayed payment interest , illegally charged from the complainant by the respondent along with interest.

18.

The aforementioned reliefs are interrelated and thus are being addressed together. [n the present complaint, the complainant acquired a unit numbered N-1705 of Tower-N, measuring 1865 sq. ft, along with one covered car parking space, for a basic sale consideration of Rs. ion of Rs.71,81,369 /- in the project "Spacio" being developed by the respondents.

The unit was allotted to the complainant via an allotment letter dated 15.05.2019, followed by the execution of a Flat Buyer's Agreement on 29.01.202L.

According to clause 2.7 of the aforementioned agreement, the respondent committed to hand over possession ofthe unit to the complainant by 29.01.2024.The said clause is reproduced below: " Clduse 2.7 "Commitment Period" .....

The seller/Confirming Parq, sholl offer the possession of the llnit to the Purchaser(s) within a period of 30 (Thirty) months Irom the date oJ this Flat Buy e r's Ag ree ment" "Clause 2,17 "Grace Period" .....refers to the sdditional period of 6 months after the expiry of the Commitment Period t'or making an offer for possession of the Unit" lEmph0sis suppLiedl 19.

Therefore, the due date for handing over possession to the complainant was 29.01.2024.

The respondent obtained the occupation certificate for Tower-N from the competent authorities Page 16 of19 ffiHARERA e aTRUGRAM as per various parties, the res not been han conversations are Complaint No.

4821 of2023 on 30.07.2020, Subsequently, the respondent issued an offer of possession to the complainant on 21.08.2020.

It is apparent from several payment receipts appended to the complaint that the complainant has thus far paid Rs.89,82 ,BZ4 / -against t}re basic sale consideration of Rs.77,9L,369 /-, which exceeds 100% of the basic sale consideration for the subiect unit.

20.

The respondent issued a No Objection certificate on 31.08.2021, offering possession for of fit-outs.

On 01.09.2021, ur of the complainant.

Here, conveyance deed was in the present complai utmost consideration is the fact that whether s been handed over or not to the comp " E-mail dated Greetings ftom BPTP, intention to h our vqluable with t has submitted that place between the t the possession has The same E-mail rm you thot lt is our possible as you are Pleose be informed 1 lnishing works in g works in . teom to expedite the tentqtively vtill be honded over your unit on or belore 27-3-2022" E-mail dated 09.09.202 2 : "Reference to your email we are sorry for the inconvenience caused due to delay in handover, Please allow us sometime to tqke an update from project team for final handover timelines" 21.

Vide proceedings dated, 09 .10.2024, the respondents were directed to submit an affidavit regarding the date of handing over of I Page 17 of 19 & HARERA ffi arRucRA[/ possession of the unit to the complainant.

Vide proceedings dated 20.Ll.2024, the respondent submitted that the respondent wishes to place on record certain documents w.r.t handing over of possession and sought a week's time to place on record the same.

On 7L.72.2024, the respondent filed an affidavit stating that the Occupation Certificate was received on 30.07.2020 and the offer of possession was made on 21.08.2020.

Thereafter, the unit was handed over for fit outs 021with the execution of the unit were handed over to the complainants on the title of the unit was also transferred to the execution of the Conveyance D over of the unit to and the same by the complainant ent.

As on date, the complainant is pictures of the is evident from the t.

The pictures show the presence of d the door, plants and air Complaint No.

4821 of2023 conditioner outlet in the balcony, which evidently shows the unit has been occupied.

Along with the above mentioned pictures, the respondent placed ced on record an: n affidavit and submitted that the keys of the unit were handed over to the complainant on 2l.08.Z02l.The relevant part of the affidavit is reproduced below: "3, t say that thereafter, the unit was handed over for frt outs on 21.08.2021 with the execution of the 'NOC for rtt outs, (annexed at page 120 of the complaint).

I say that the keys of the unit were handed over to the complainonton this day." 22. day." 22.

On consideration of the documents available on record and submissions made regarding contravention of provisions of the Page 18 of 19 Complaint No.

4821 of 2023 23.

24.

Datedt 78.72.2024 GURUGRAM HARERA GURUGRA[/ Act, the Authority is of the view that the allotment letter was issued in favour of the complainant on 72.08.2019 and thereafter, the Buyer's Agreement was executed on 29.01.202L.

As per Clause 2.7 read with Clause 7.1 of the Buyer's agreement, the due date of possession was 29.01..2024.

The respondent had obtained the Occupation Certificate from the competent authorities on 30.07.2020 and thereafter offered possession to the complainant on 21.08.2020, which is possession.

As per the to the committed due date for tted by the respondent on 11..1.2.2024, the t has already been handed over to the Thus, the complaint is dismissed bei Complaint File be consign Haryana Page 19 of 19