VINEET GOYAL vs SPAZE TOWERS PVT LTD

CORAM: Shri Ashok Sangwan APPEARANCE: Mr.

Gaurav Rawat Advor:ate Ms, Tanya Aclvocate Complaint No.

2069 of 2023 2069 of 2023 05.05.2023 20.07.2023 28.08.2024 Complainant Respondent Member Complainant Respondent ffiHARERA ffi* GURUGRAM BEFORE THE HA]RYANA REAL ESTATE REGULATORY AU'IHORITY, GURUGRAM Complaint no.

Date of filing complaint Date of first hearing Date of decision Vineet Goyal Resident of: Plot no.

7li,A,, Block 41, Flat no.

101, Ashok Vihar, Phase II, Nt:ar Sector 5, Gurugram Versus M/s Spaze Towers Pvt Ltd Regd. office: Spazedge Siector 47, Gurugram-Sohna Road, Gurugr am -1220 0i', ORDER 1, The present complaint[ has been filed by the complainant/allottee under Section 31 of the Real lEstate [Regulation and Development) Act,2016 [in short, the Act) read vrith Rule 28 of the Haryana Real Estate (Regulation and Development) [{ules, 201,7 (in short, the Rules) for violation of Section 11(4)[a) of ttre Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities, and functions under the prrovisions of the Act or the rules and regulations made there under or tr: the allottee as per the agreement for sale executed inter se' Page 1 of 2O ./'.

Complaint No.

2069 of 2023 A.

Unit and proiect'related details 2.

The particulars of ther proiect, the details of sale consideration' the amount paidbythecomplainant,thedateofproposedhandingoverofthe possession, and the delay period, if any, have been detailed in the following tabular form: I-013, Tower I, 1't floor [Page no' 50 of comPlaint and page no.

38 of ffi ffi_ H U iER,:i GRAM AR Ul?U repl Details Particulars ffiess", Sector 93, Gurugram, Haryena Name of the Prroject n.tiO..,t*t arouP Housing Complex Nature of the Pro Not Registered RERA Registered/not registered DTCP License tro.

Name of licensee ffid 15.01'.20t1 valid upto t4.01.2021 t tTt Sprre Towers Pvt' Ltd' 17.11.2010 Pase no.

24 of rePIY Application Form 15.02.201.1 tar*.

01.1 tar*. no' 16 of complaint and page no' 33 of reply) Allotment lettr:r IC,onstructiotr lin]<ed ment Plan 20.09.201'L iP;;. "o. zz of complaint and page no' 36 of Mr.

KaPil Kumar Original Allotllee Erd"t*d,, frvour of the comPlainant on 30.05.2012 no.77 of rePl S ubsequent .Allottee LInit no.

129? tq. ft SrPer Area [lnitiallY) Increased to 1386 sq' ft' iprg. no.

25 of complaint and page no' 39 of Unit Area Possession clause 28.

Possession ;1ri irnirct to the terms of this clause and ,'uiirit tL rtar ALLIT'TEE(S) having complied wiin atl the terms and conditions of this 'ag-reement and not being in defautt under any of llnr- p,r*itions of this agreey'nt,,o'd !'1!!:: iuai[tt tu ffiHARERA ffi* Gl,tnuennril signing of this agreement'" 1e"ug. io.

SS of iomplaint and page no' 49 of replyJ flna"dvertently mentioned to be 42 months POD dated 03.07.2024 Facts of the comPlaint: The complainant has made: the following submissions: That on l-5.02.

ZOlL,,the respondent issued an allotment letter in the name oftheoriginalallol:t,eeconfirmingtheallotmentoftheunit' b) That in April 2ot2.,the original allottee, Mr' Kapil Kumar' who was allotted unit No.

I-013 in tower I in the residential proiect of the respondent namely."Privy the l\ddress" situated in Sector 93, duly endorsed the same in the name of Mr. \/ineet Goyal, the present complainant with the consent and authorization of the respondent' Complaint No' 2069 of 2023 formalities registration of sale deed documentation payment of all qmount due payable to the DEVEL)PER by the FLAT 'ALLTTTEE(S) under this agreement as prescribed-by the DEVEL}PER, the DEVEL)PER 'proposes to handover the possession of the FLAT iiinin a period of 36 months from the date of 20.09.20t4 (Calculated to be 36 months from the date of iigning of the agreement i-e', from 2o:o^'#lt] 1iiuau"".t"ntly hentioned to be 20'03'2015 in PoD dated 03.07 '2024 Due date of Pos;session Total sale consideration Rs. ration Rs.

48,44 ,1'28l- tL pu, SOA dated 05'06'2OZ1at page no' 156 of Rs.46,85,L251- tet p.t SOR datea 05.06'2OZt at page no' 156 of total amount Paid bY the comPlainant 20.07.2018 no.

78 of re O ccupation cr::rtificate no.

B0 ofre 21..07.201,8 (As alleged by respondent and annexed at page Offer of Posstlt;sion Rs.2,79,247 l- [Page no.

86 of comPlaint) Co*p.ntation for delaY in possession Paid bY respondent to complainant B.

3. a) ( Page 3 of20 ffiHARERfi ffi- eunuennHl Complaint No.

2069 of 2023 c) That at the time of the r;aid endorsement, the complainant visited the office of the respondent at Gurugram with his family members and met the marketing staff of the respondent who gave a brochure along with pricelist and further assured the complainant of a number of luxury amenities which shall become part of the said project. d) That further, durinpJ the endorsement, it was also assured to the complainant that the r,rnit shall be handed over to him within a period of 36 months from the date of original booking. e) That believing in ther representations and the assurances made by the respondent, the complainant Vineet Goyal, executed the said endorsement of unit from Kapil Kuntar, the original Allottee, in his name for unit no.

I- 013, 1't floor, tower I, tentatively measuring 1297 sq. ft. on L0.04.2012 for a sale consideration of Rs.41,6 6,799 /- which was inclusive of EDC/lDC.

0 That a pre-printed anc[ unilateral builder buyer agreement was executed inter-se the respondent and the original allottee on 20.09.201.L According to clause ZB(a) of the r;aid agreement, the respondent was obligated to give possession of the said flat within 36 months from the date of the signing of the said agreement, ttrerefore the due date of possession was 20.0g.201,4. g) That the complainant \^/as never given a choice to negotiate on the terms and conditions of the said agreement and was made to sign on the dotted lines. ted lines.

There are numtrer of judgments which states that the party cannot be forced to sign on th er dotted lines of the contract/undertaking and party must be given a charLce to negotiate on the terms and conditions of the contract, otherwise it will be termed as an invalid contract.

The complainant has alrezrcly made a payment of Rs.43 ,83,203 f - against all the demands raised by the respondent. h) That on 26.04.2019, the respondent issued a letter dated for offer of possession and demande dRs.4,22,1,05 / - under different heads in the favor of "Spaze Towers Pvt.

Ltd.

The Address Escrow" and Rs.1,53,600/- in Page 4 ofZo t/ i) ffiHARERS ffi- CuNUGRAM Complaint No.

2069 of '2023 favour of "Preserve Fa,ciliteez Pvt.

A/c The Address"' The respondent further increased the super area of the flat by 89 sq' ft' without any justification, and dernanded Rs.15,939/- under Labour cess, Rs'1'33'766 under external electrification charges, Rs.13,985/- under security deposit for electrical water and sewer as well as Rs'4O,BBB/- under facade repaid charges and Rs.3 2,1,ii9 /- under Club Development Charges. i) That the respondent had acknowledged its own delay in handing over the possession of the fla[ and has given a compensation of Rs'Z'79'247 l-' After the receipt of the off,:r of possession the complainant lodged his protest to the arbitrary and unjustified demands and unlawful increase in the area' That the complainant visited the office of the respondent for getting the additional illegal anrd arbitrary charges imposed by the respondent rectified as the sanle are not part of the buyer's agreement which was signedbyboththeparties.Thelistofillegalchargesisasunder: ,fi^^tinn Ch Amount _L,n R'q - 15,939 _ 1.33766 t 13985 4O8BB 32139 Irl of ftt"gul charges imPosed on rv the resPondent - 46,162 63,252 ___ 3,46,131 k) The facade charge:; have been stricken off in the BBA of the complainant itselfandtheSamehasbeencountersignedbytherespondent. espondent.Despitethe same, the responclent has charged the same in the offer of possession' Further it is submitted that the size of the flat has also been arbitrarily increased from 1297 sq. ft. to 1386 sq' ft' without any iustification whatsoever, which is illegal and arbitrary' An e-mail in this regard was Sent by the complaLinant to the respondent on 1,2,05,2019, however, the respondentnevet.repliedtotheSame.Thecomplainantfurthersent Page 5 of20 f;,tidt",.s L-- I Labour Cess l-E**.*f gf .a,i f-s;ilw n.po,i L - - - I Facade RePair ( Erru P.*t"pr; I Interest ft;11rn4 v41; [t"or ,*r*t [omplainant t ,r' I ffiHAREI]A ffi- EunUGRAM Complaint No.

2069 of 2023 another e-mail dated 17.05.201,9 requesting the respondent for justification of all the arrbitrary charges levied by the respondent. l) That the complainant cannot be expected to endlessly wait for the possession, this principle has been settled by the Hon'ble Apex Court in the case of the "Fortune Infrastructure & Ors. v/s Trevor D'Lima and Ors." and in the present case it is essential that the Hon'ble Authority may be pleased to direct the respond ent to immediately offer the valid possession of the said unit along with the necessary and just penalty for delay at prescribed rate of interest. m) That the cause of action in favour of the complainants first arose on 2O.Og.2OL4 when thrt respondent failed to deliver the possession of the said unit even after" expiry of 36 months from the date of start of construction.

The caus;e of action further arose when on26.04.201,9, when the respondent madt: illegal demands from the complainant.

The cause of action is still continuing as the respondent has still not handed over the possession of the sai,l unit to the complainant.

C.

Relief sought by thtl complainant: 4.

The com;tlainant har; sought the following relief[s): I. ief[s): I.

Direct the resporLclent to pay delay possession charges to the complainant at the prevailing rate of interest on the amount paid by the complainant at prevaiiing rate oIinterest on the amount paid by the complainant till the actual handing orrer of possession of the unit' II.

Direct the resporrclent not to charge for increase in area.

IIL Direct the reipondent not to charge labour cess, external electrification charges, ,..rrity rleposit for electrical water and sewer as well as facade repair charges arrd club development charges' IV.

Direct the iespondent to waive the interest of Rs.46,1621- unilaterally charged bY the rt:s;Pondent.

V.

Direct the respottdent to get the conveyance deed executed.

VI.

Give liberty to co rnplainant to file a complaint under section 71,72 and 31 of the RERI{ Act lor non-compliance of agreement, laws and for causing mental agonY and harassment' VII.

Direct the respoprlent to give possession of the unit as per the PLC paid by the complainant, i.e., 2BHK PLC along with corner facing as well as park facing on 1't floor. / Page 6 of2O ffiHARERA ffi- GIJRUGRAM Complaint No.2069 of 2023 VIII.

Direct the respgnrdent to refrain from charging any VA'l' from the complainant as the same is illegal and arbitrary and whatever VAT the complainant has tleen forced to pay, be refunded' 5.

On the date of hearing, the authority explained to the respondent- promoter about the contraventions as alleged to have been committed in relation ro section 11(4) (a) of the Act to plead guilty or not to plead guilty' D.

Reply by the resPondent.

6.

The respondent is contesting the complaint on the following grounds: a) That the present conrplaint relates to unit no.

I-013, tower 1, admeasuring 1386 sq. ft. in the project known under the name and style of "Privy The Address." b) That one Mr.

Kapil H.umar, the original allottee being interested in the project llooked a unit through a booking/application form dated 1,7.1,1,.2010.

1,1,.2010.

A unit was allotted to the original allottee vide allotment letter dated 1.5.02.2011,. c) That a btrilder buyer agreement was executed between Kapil Kumar and the complainant on 120.09 .2011, and thereafter, Kapil Kumar nominated the complainant rrnd requested the respondent to endorse the complainant in place of Kapil Kumar.

The complainant undertook on 10.04.201.2 to pay the government charges and all the other outstanding dues. d) That subsequently the unit was endorsed in favour of the complainant on 30.05,20 t2 and the complainant became obligated to all the terms and conditions under ther agreement' e) That the occupanc),' certificate of the project was received on 20'07 '2018 and the respondenr: offered the possession of the unit to the complainant on 2t.07.2018.

Thr: unit was ready since 2O1B and the respondent had beenholdingandnt:rintainingtheunitofthecomplainantforover5years now.

PageT ofZ0 i/ ffiHARER&, ffi- eunuennrrl Complaint No.

2069 of 2023 0 That the complaint is brarred by the principle of res sub-judice and is liable to be dismissed outrightly.

The complainant had originally filed two complaints under Section 31 of the RERA Act,2016 read with Rule 28 of the RERA Rules, 2017 in the complaint case no.279 of 201,8 titled as "Privy 93 owners'associationLversus Spaze Towers" and complaint case no, 6059 of 2019 titled as "Pri'u1r 93 owners associations versus Spaze Towers." g) That the complainanl. along with other allottees in his former complaints contested the alleged additional charges.

In complaint no.279 of 2018, he sought reliefs, inter al,(a again$t demand for super area, VAT, labour cess, security deposits, PLC, EDC/IDC .ii fn complaint no.

605 9 of 2019, more reliefs were sought but vide srder dated 1,2.1,2.2022, only the reliefs seeking compensation for mental agony, harassment and litigation expenses was retainec[. h) That under complain1" no.

279 of 2018, the order was passed on 11'.04. on 11'.04.2019 but the same was assiliiled by the Association before the Appellate Tribunal under Appeal no.

4lii3 of 201,9.

The Appellate 'fribunal remanded the matter back to the Atrl.horitY. i) That an Inquiry Officr:r Ms.

Suprabha Dahiya, IAS (Retd.) was appointed to deal with all the issutx; raised by the complainant.

A report was submitted by the said Inquiry officer, however, vide order dated 31, '01,.2023, the Authority noted that the individual complainants can contest the relief of delay possession charges by filing separate complaints. j) That the c:omplainant in the present complaint seeks for additional reliefs along with the DPC and hence comes under the ambit of res judicata as the same issues had alrearJy been decided upon complaintno.2Tg of 20\B and 6059 of 201,9. k) That the complainant seeks leave to file the case for compensation before the Adjudicating officer, however, the same has already been filed by the comPlainant' Page B of 2o \/ Complaint No.

2069 of 2023 ll That no relief was erv'er sought in respect of execution of the conveyance deed.

However, Order II Rule II of the CPC categorically notes that the suit once filed shall inclucle the whole claim.

Omission of any of the relief in the complaint will bar the filing of such omitted claims at later stage' m) That the complainanlt has defaulted in making payments, upon which reminders were also served upon the complainant.

That details qua demands, reminders etnd receipts are as below: Sr.

No.

Partilculars Dated 1.

Renri nder 22.04.2011 2.

04.05.2011 3.

16.05.2011 4.

Rerninder letter L0.04.20L2 5.

Rerninder 23.05.201.3 6.

Dernand letter 27.05.2013 7.

Rerninder L9.09.20L3 B.

Rerninder Ietter 24.L0.2013 9.

Derrand letter 13.11.2013 10.

De:r:rand letter 06.L2.2013 11.

LZ,LZ,2073 1,2.

Re minder 19.L2.2013 13.

14.

11 Reminder t5.02.2014 Demand letter 'l 02.t2.2014 Reminder L7.t2.2074 1,6.

Demand Ietter 06.L2.20t7 1,7.

De naand letter 20.08.201B n) As per .tuur. per .tuur.-z8 of ffre nuyert egreement, the delivery of possession of the unit was proposed to be subject with compliance of the allottee with all provisions of thr: BBA.

The delivery of possession of the unit was extendable in case of delay in payment by the allottees as per clause ffiHARERA ffi"- GURUGnAM 2B[b) [iii).

Page 9 ofZ0 { Renriinder letter Rerninder Ietter Retr,Linder l ffiHARER$, #- GURUGRAM Complaint No.

2069 of 2023 o) Furthermore, the detivery of the possession was also subject to force majeure conditions as spelled out in clause z8(b) of the BBA.

The respondent was adverrsely affected by various construction bans, lack of availability of building material, regulation of the construction and development activities; by the judicial authorities including NGT in NCR on account clf the env'ironmental conditions, restrictions on usage of groundwater by the tligh Court of Punjab & Haryana, demonetization, etc., and other force mujeure circumstances which in turn affected the mobilisation and demobilisation of the labourers at the site, yet, the Respondent completerd the construction of the project diligently and timely, without impcsing any cost implications of the aforementioned circumstances on the complainant and demanding the prices only as and whentheconstructicrnwasbeingdone.Theseveralorders/directions passed by various forums/authorities/courts, as have been delineated hereinbelow: - Directiorns Period of Restri ction Days !

Comments affect I edl I Ll Green had d that old vehicles or light) than 10 rld would permitted ' on the of NCR, It has been I by virtue aforesaid :hat all the rltion ties in the lf Haryana, t NCT Delhi 7rh of April, 20L5 to 6th of May, 20t5 30 days The aforesaid ban affected the supply of raw materials as most of the contractors/ building material suPPliers used diesel vehicles more than 10 years old. years old.

The order had abruptlY stoPPed the movement of diesel vehicles more than 10 years old which are commonlY used in construction activity.

The order had completelY hampered the construction activity.

Page 10 of?O 07.04.2 015 Nationa.l Tribunzrl directed diesel (heavy t more t years ol not be p to ply roads Delhi. further directed of ther order lh registralt authoriti 51219 r:1: I uP anri I Date of Order Sr. no. t. ffiHARERA ffi- GURUGRAM would not. register any diesr:l vehicles more t:han 10 years old and would also file the list of vehicles before th e tribunal il*.?;'ills;";:: and other concernt:cl authorities.

National Green Tribunal in O.A.

479/i1016 had directed that no stone crushers be permittercl operate unless they operate consent irom the State Pollution Control Eioard, no objection from the concerne,C authorities and have the Environment Clearanr:e from the Authorir:\'.

National Green Tribunal had directecl all brick kilns operating in NClFi., Delhi would be prohibit:erd from workinll for a period of 2016 one week from the date of passing of the orclerr.

It had also ber:n directed that no construction activity would be permitted for a complaint No.

2069 of 2023 The directions of NGT were a big blow to the real estate sector as the construction activity majorly requires gravel produced from the stone crushers.

The reduced supply of gravels directlY affected the supply and Price of ready mix concrete required for construction activities.

30 days 19rh Iuly 20L6 relaxat ion has been given to this effect.

The bar imposed by Tribunal was absolute.

The order had completely stopped construction activitY.

7 days 8th Nov, 20L6 eriod of one Page 11 of?O z.

3.

Bth Nov, I 2016 I to 15th Nov, 20L6 week from date of order. ffiHARERA ffi- GURueRAIv complaint No.

2069 of 2023 p) That a period of L6(, days was consumed on account of circumstances beyond the power andl control of the respondent, owing to the passing of orders of various statutory authorities and rities and the Covid-19 Pandemic, as noted above.

All the c:ircumstances stated hereinabove come within the meaning of force majeure, as stated above.

However, despite all odds, the respondent was able tr: carry out construction/development at the project site and obtain the n.ercessary approvals and sanctions, and has ensured compliance under thr: agreeffie1l laws, rules, and regulations. q) Even after the delay in making the payments of the outstanding dues on the part of the complainant, the respondent provided a compensation of Rs.Z,Z9,24Z /-vianotice of offer of possession of the unit dated 21.07.201'8.

The respondent earnestly requested the complainant to make the outstanding paymentr; and take possession of the unit in question' 18.

All other averments made in the complaint were denied in toto.

19.

Copies of all the relr:vant documents have been filed and placed on the record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basjs of those undisputed documents and submissions made by the Parties.

E. turisdiction of the aruthority: 20.

The authority obsenres that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.

I Territorial iurirsdiction 21.

As per ngtification no.l/92/2017-tTCP dated 1,4.t2.2017 issued by'fown and country Planning Department, the jurisdiction of Real Estate Regulatory Authoril.y" Gurugram shall be the entire Gurugram District for all purptlses with offices situated in Gurugram' In the present case' the / Page L2 ofZo ffiHARERA "*ffi" gunuGRAM Complaint No.

2069 of 2023 project in question rs situated within the planning area of Gurugram district.

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

II Subiect matter iurisdiction 22.Section 11t+)(a) of ttre Act,2016 provides that the promoter shall be responsible to the allottee as perthe agreement for sale. for sale.

Section 11(aJ(ai is reproduced as hererunder: "section t1(4)(a) Bet responsible Jbr all obligations, responsibilities, and functions urtder the prov,'sions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sole, or to the association ctf allottees, as the case may be, till the conveyance ofall the aportments, plots or buildings, os the case may be, to the qllottees, or the common areas to the association of allottees or the competent authctrity, as the case may be; Section 34-Fu nctions of the Authority: 34(fl of the Act provides to ensure complionce with the obligations cast upon the promoters, the allottees, and the real estate agents under this Act ond the rules and regulations made thereunder." 23.

So, given the provit;ions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation 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 Obiections regarcling force Maieure' 24.The reipondent-prolrroter has raised the contention that the construction of the tower in whir:l:r the unit of the complainant is situated, has been delayed due to force majeure circumstances such as orders passed by the district administratio,n Gurugram, Hon'ble Punjab & Haryana HC, NGT' shortage of labour and construction material, etc.

The pleas of the respondent advancercl in this regard are devoid of merit.

First of all, the possession of the unit was to be offered by 20.03.2015.

Hence, the events alleged by the respotrdent do not have any impact on the project being developed by the res;pondent.

Moreover, the orders passed were for a very ./ Page 13 of2O HARERA short period of time and thus, cannot be said to impact the respondent- builder leading to such a delay in the completion. ompletion.

Furthermore, the respondent should h.erve foreseen such situations.

Thus, the promoter respondent cannot ber lgiven any leniency on the basis of aforesaid reasons and it is a well-settledl principle that a person cannot take benefit of his own wrong.

G.

Findings on relief sought by the complainant.

G.l Direct the resrpondent to pay delay possession charges to the complainant at the prevailing rate of interest on the amount paid by the complainant at prevailing rate of interest on the amount paid by the complainant till the actual handing over of possession of the unit.

G.lI Direct the respondent not to charge for increase in area.

G.III Direct the respondent not 'to charge labour cess, external electrification charges, security deposit for electrical water and sewer as well as facade repair charges and club development charges.

G.lV Dir.ect the rr:s;pondent to waive the interest of Rs.

46'762/- unilaterally charrged by the respondent' G.V Direct the resprondent to get the conveyance deed executed.

G.VI Give liberty to complainant to file a complaint under section 71,72 and 31 of the Fl.llRA Act for non-compliance of agreement, laws and for causing mental agony and harassment' G.VII Direct the respondent to give possession of the unit as per the PLC pairl by the cotnLplainant, i.e., 2BHK PLC along with corner facing as well as Park fa,ciing on 1st floor' G.VIII Direct ih" ."tpondent to refrain from charging any VAT from the conrplainant ars the same is illegal and arbitrary and whatever VAT the complainant has been forced to pay, be refunded.

25.

The complainant sought various reliefs as mentioned above vide his complaint dated 0S,Cr5.2023, however, during the course of proceeding dated 03.07.2024, the counsel for the complainant stated that the complainant is seeking delay possession charges on account of delay in handing over the unit in terms of buyer's agreement dated 20. dated 20.09'2011 along with physical prlssession and does not wish to press the other reliefs as same have alrearly been adjudicated upon by this Authority and are pending in Appeal trefore the Hon'ble Appellate Tribunal' Therefore' the Complaint No.

2069 of 2023 Page L4 of2O v ffiHARERA ffi- GURUGRAM Complaint No.

2069 of 2023 complainant is only seeking the relief as to delay possession charges and handing over of physical possession of the unit.

26.ln the present complaint, the complainant intends to continue with project and is seeking; delay possession charges as provided under provisions of Section 1B(1J of the Act which reads as under' "section 78: - Al'eturn of amount and compensation 1B(1). lf the ptromoter fails to complete or is unable to give possession of an apartment, plot, or building, - the the provided that vtlinere an allottee does not intend to withdrow from the proiect, he s'hall be paid, by the promoter, interest for every month of delay, t.ill the honding over of the possession, at such rate as' maY be Prescribed'" 27.

Further, the buyer's aLgreeroent was executed between the original allottee Mr.

Kapil Kumar anrl the respondent on 20.09.2011 and the same was endorsed in favour of the complainant on 30.05.20L2.

As per clause 2B[a) of the said agreemen'[, the possession was to be handed over within 42 months from the dat.e of the signing of agreement.

The said clause is reproduced below: "'lhot subiect to terms of this clause and subiect to the FLAT ALLTTTE-E(S) h,eving complied with alt the terms and conditions of this Agreemint and not being in default under any of the provisions o.f this Agreement and fuither subiect to compliance with all provisioni, fo,ntalities, registration of sale deed, documentation, payment of oll amount dui payahle to the DEVEL)PER by the FLAT ALL7ffE;$) under this agreement etc. ement etc., as prescribed by the DEVEL0PiR, the DEVEL1PER proposes to hand over the possession of the FLAT within a period of thirty six (36) months from the date ofsigningofthisAgreement.lf,howeverunderstoodbetweenthe p,orli* that ttittz possession of various Block/Towers comprised in the complex as also the various common facilities planned therein s'hail be'ready ll complete in phases and will be handed over to the Allottee of diflbrent Block / Towers as and when completed'" Therefore, the due clzrte of possession comes out to be 20 '09 '201'4 ' 28.

The respondent has obtained the occupation certificate on 20'07 '2018' copy of the same hras been placed on record.

In furtherance of the same, the possession wasr offered to the complainant vide offer of possession letter dated 21.07.2'.018 annexed as annexure R7 at page no' B0 of reply' I)age 15 of 2O ffiHARERA ffi- GuRUGRAM Complaint No.

2069 of 2023 However, the complainant stated that possession was offered to him vide offer of possession letter dated 26.04.201,9 annexed as annexure 4 at page no.

85 of the complaint.

The Authority has gone through the letters placed on record by both the parties and is of the view that offer of possession dated 21..07.2018 is a rzalid offer of possession made by the respondent to the complainant as the same was made after obtaining the occupation certificate from the competent authority and there is no logical reasoning as to why will the resprondent wait for over a period of one year and then offer the possession to, the complainant on 26.04.2019 after the receipt of occupation certification way back on 20.07 .2018.

29.

Further, the languager of offer of possession date d 26.04.2019 annexed by the complainant reads as under: "This letter is L,e'ing sent in compliance of the order passed by the Hon'ble Real E:;tate Regulatory Authority in the matter Privy 93 Owners Association Vs, Spaze Towers Pvt.

Dated LL.04.201.

LL.04.201.9," This explains the scenrario that the respondent gave another opportunity to the conrplainant tc, take the possession of the unit within a period of one month after clearing all his outstanding dues post decision of the Authority in complaint case nc,.279 of 2018 and complaint case no.6059 of 2019.

Therefore, the offer ol'possession letter dated 21.07.2018 is considered to be the date of valid ofl[er of possession' 30.

Admissibility of delay possession charges at prescribed rate of interest: The complainant is seeking delay possession charges.

However, proviso t9 Section 1t| provides that where an allottee(s) does not intend to withdraw from the project, he 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 anrd it has been prescribed under Rule 15 of the llules, ibid.

Ruler 15 has beern reproduced as under: ,,Rttle 75. prestcribed rate of interest- [Proviso to section 72, 1/' section 79 and sub-section (4) ond subsection (7) of section 191 I']age 16 of 2O ffiHARERA ffi- ouRUGRAM complaint No.2069 of 2023 (1) For the purpose of proviso to section 1.2; section 1-B; and sub- sections (4) oncl (7) of section L9, the "interest at the rate prescribed" shall be the State Bank of India highest marginal cost of lending rate +2(,Y0.: provided that in case the State Bank of lndia marginal cost of lending rote (ltltlLR) is not in use, it shall be replaced by such benchmark lenati ng rates which the State Bank of India may fix from time to time for I'ending to the general public'" 31.

The legislature in its r,visdom in the subordinate legislation under the Rule 15 of the Rules, ibid h,ers determined the prescribed rate of interest.

32.

Consequently, as tr)er website of the State Bank of India i'e', }rtlps://-s}.iJp.,m, the rnarginal cost of lending rate (in short, MCLR) aS on date i.e., 28.08.2024 ttst 9.lOo/o. t 9.lOo/o.Accordingly, the prescribed rate of interest will be marginal cost of lending 12,1s +20/o i.e., 1 1,.1,0o/o.

33.

The definition of terrn 'interest' as defined under Section Z(za) of the Act provides that the rzrte of interest chargeable from the allottee by the promoter, in case of rlefault, shall be equal to the rate of interest which the promoter shall 5. lisbrle to pay the allottee, in case of default' The relevant section is reProduce'C below: "(za)"interet;t"meanstheratesofinterestpayablebythe promoter or l'he allottee, as the case may be' Explanation.'-For the purpose of this clause- (i) the rate of t'nterest chargeabte from the allottee by the promoter,incaseofdefault,shallbeequaltotherateofinterest whichtheprolnotershallbeliabletopaytheallottee,incaseof defoult; (ii) thLe interest payable by the promoter to the allottee shall be fromthedat.ethepromoterreceivedtheamountoranypart thereoftiltthedatetheamountorpartthereofandinterest thereonisrefilnded,andtheinterestpayablebytheallotteeto thepromotershallbefromthedatetheallotteedefaultsin payment to illre promoter till the date it is paid;" 34, Therefore, interest rrn the delay payments from the complainants shall be charged at the presr:ribed rate i.e., 1 1.1,0o/o by the respondent which is the same as is being grzrnted to them in case of delayed possession charges' PagelT of2O ,/ ffiHARER,'I ffi- GURUGRAM Complaint No.

2069 of 2023 35.

The authority is of thre considered view that there is delay on the part of the respondent to off'er physical possession of the allotted unit to the complainant as per '[]re terms and conditions of the buyer's agreement dated ZO.0g.Z01l- executed between the parties.

It is the failure on part of the promoter to fulfil its obligations and responsibilities as per the buyer's agreement dated 2o.og.2o1'1, to hand over the possession within the stipulated Period.

36. eriod.

36.

Section 19[10) of the Act obligates the allottee to take possession of the subject unit within ,z months from the date of receipt of occupation certificate.

In the 'present complaint, the occupation certificate was granted by the competent authority on 20.07 '2018' The respondent has offered the possessir:n of the subject unit[s) to the respective complainant after obtaining ocr:upation certificate from competent authority on ZI.OT.ZO1B.

Therefore, in the interest of natural justice, the complainant shouldbegiven2months'timefromthedateofofferofpossession'This2 months, of reasonalole time is being given to the complainant keeping in mind that even after intimation of possession practically he has to arrange a lot of Iogistics atrrC requisite documents including but not limited to inspectionofthecompletelyfinishedunitbutthisissubjecttothattheunit being handed over at the time of taking possession is in habitable condition.

It is further clarified that the delay possession charges shall be payablefromtheduedateofpossessioni'e',20'09'2Ol4tilltheexpiryofZ months from the date of offer of possession (2 1"07 '2018) plus two months (i,e,,21,09.2018).

Ihe respondent shall handover the possession of the allotted unit as per specification of the buyer's agreement entered into between the parties and the complainant is further directed to take possessionofthea'Ilottedunitafterclearingallthedueswithinaperiodof 2 months and failing which legal consequences as per the provisions of the Act will follow.

I)age 18 of Zo v ffiHARER,.-, ffi- GURUGRAM Complaint No.

2069 of 2023 37, Accordingly, it is the failure of the promoter to fulfil its obligations and responsibilities as per the apartment buyer's agreement to hand over the possession within ther rstipulated period.

Accordingly, the non-compliance of the mandate contained in Section 11(+)(a) read with proviso to Section 1Bt1) of the Act on thLer part of the respondent is established. tablished.

As such, the allottees shall be pairl, by the promoter after adjustment of DPC already paid, if any as per posrsr:ssion notice, interest for every month of delay from due date of possessicn i.e., 20.03.2015 till offer of possession plus two months (i.e.,21.09.201-B), at the prescribed rate i.e., 11.10 o/o p.a. as per proviso to Section 1Bt1) of the Act read with Rule 15 of the Rules, ibid.

H.

Directions of the AuthoritY 38.

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

The respondent is directed to pay delayed possession charges at the prescribed rate gf interest i.e., tl.1,Oo/o p.a. for every month of delay on the amount paid by the complainant to the respondent after adjustment of DF'C already paid, if any as per possession notice from the due date of possession i.e., 20.09.2014 till offer of possession i.e., 21.07.201-B plu:; two months i.e., up to 21,.09.2018 as per proviso to Section 1B(1) c,f the Act read with Rule 15 of the Rules, ibid.'l'he arrears of intererst accrued so far shall be paid to the complainant within 90 days from the date of this order as per Rule 1'6(2) of the Rules, ibid. ll.

The rate of inter,est chargeable from the allottees by the promoter, in case of default r;hall be charged at the prescribed rate i.e', 10.95% by the respondent/promoter which is the same rate of interest which the v Page 19 of 20 ffiHAR_ER": ffi-EunUGRAM Complaint No.

2069 of 2023 promoter shall Lrel liable to pay the allottees, in case of default i.e., the delayed possessign charges as per section Z(za) of the Act.

Ill.

The respondent irs directed to issue a revised account statement after adjustment of clelay possession charges and other charges as per above and final orrder passed by the Authority in complaint case no. t case no.

279 of 2018 titlr:d as "Privy 93 owners' association versus Spaze Towers" and complaint case no.

6059 of 2019 titled as "Privy 93 owners associations versus Spaze Towers." within a period of 30 days from the date of this order.

The complainant is directed to pay outstanding dues; if any, after adjustment of delay possession charges within a period of next 30 daYs.

The responden't is di subjr:ct unit within 30 39.

Complaint stands disPosed of.

40.

File be consigned to the Registry.

Dated: 2B.OB.2OZ4 dover physical Possession of the r the date of this order as occupation IV. certificate of thLer project has already been obtained by it from the comPetent authoritY. v.

The responden,t shall not charge anything from the complainant which is not the part of the buyer's agreement' Regulatory AuthoritY, Gurugram Page 20 of2O Asliok ( r) Estate Haryana