ROMI SEHGAL vs EXPERION DEVELOPERS PVT LTD

HARERA GURUGRA[/ BEFORE THE CORAM: ShriVijay Kumar Golal ShriAshok Sangwan HARYANA REAL ESTATE REGULATORY AIJTHORITY.

GURUGRAM Complarnr No.

547o12022 complaint no t 547 ol2o22 Date offiling comPlaint: 17 02.2022 Dat€ oforder: 22.10.2024 Smt.

Romi Sehgal R/O: H-No.20i6, Sector 4, Curugram, Haryana - 122001 Versus Erhenon Develooers Prlvate Limrted Reslstered offi;e at: F'r I Floor.

Mdnish Plaza'l' Plor No:7 MLU.

Se(ror 10, Dwarkr New Delhr I 10075 Also atr 2"d Floor, Plot no. ls,lnstitut,onalArea, Sector_ 32, Gurueram, Haryana 122001 I Sh Geetansh Nagpal (Advocate) Sh. venket Rao alongwith Smt.

Gunjan (Advocatesl ORDER The present complaint has been filed by the complainant/allottee undcr Section 31 of the Real Estate (Regulation and Developmentl Act' 2016 (in short, the Actl read with rule 29 ofthe Haryana Real Estate (Regulation and Development) Rules, 2017 (in shor! the Rules) for violation of sertion 11(4)(al oftheActwherein it is inter alia prescribed that the prornoter shall be responsible for aU obligations, responsibilities and functions under the provision oftheAct or the rules and regulations made there uDder or to the allotteesas per the agreement forsale executed inter se chairman lrHARERA S-eunuoRAM A.

Unitand proiect related details 2. complzrnt No.

547of 2022 e particulars of the Project, id by the complainanl date lay period, ifany, have been Th F 1 th€ details olsale consideration, the amount ofproposed banding over the possession and .letailed in the lollowing tabular form: l l i --l 1_ s. r{o.

I Eerds l.

NameoftheProlet 2 lNatureoloroler "V/td.h Crclp l" 64 .f .nts' Sector- 112, Gurug.am RERA resistered/not 2017 73 ol 2017 210A.2017 7r2 0f 2 ?993]!11 27.04.2019 r7.08.2013 q DTPC License no.

08.02.2008 07.02.2020 BurldjnEplanaPP..ved 07 06 2012 (As allesed bYt _ _!jrthe replyl -dvlr(mentclearance 2712.2012 ! e!!€ ,qD, 2A.0?.2012 Ii*&i, *.,,,*;t,--* hu lder buYe''s lPageNo 42ot rercemen( n ldvour 6t Mr De. ks.

Mr De. ks.heal Provisional aUotment lctter in favour of RN 1e respondentrn rb rePlY dI PaBe I Dateofendorsem.ntMr Deepak Sehgal to Ms.

Romi Sehsal B 0a.2017 1a I Date of exeotion of lr"p.n."e.*.-, 1"1*-* I 14.

1u"'r €adm*s,rr.8 (Page No.92 oI the complaintl !!T:orriolliito,ii wrns r^s Der altornetrt letter .t parg!&Eqe ',ili"i"11,,-, "***,,-" " *--r"', if:;"',"f", ""'"'"". "'".,"un, anmxed w'ih ofDo5session ar pase 97 of(omDlaintl Page2 nlz5 tr !$ t6.

HARERA GURUGRA[/ ComplaintNo.547of 2022 tO, PROIECT (OMPLETION PERIOD inp rnned Prolc.t r Entrre' Paeeno 59 oithe co.rpLad 10.1 subiect to Forcc Maieure, timelvpavmentof thc lotal sal; consideratlon, and other provNions olths agreement, based upnn thr (ompan, s estimdt.s rs ner dresent Prore.t Dldns, the (ompanv inr.nds to i.,.a ** -**"- ot rhe Apartfr.nt wi.hi, a Deriod ot a2 llorty teo) nonths tron the dote ol app.oval ol the Auiklng Plons or the datQ o[ .eeeipt oJ the opprovol ol the Minisrry ol F.nironment and ForcsLt, Aovetnnent oJ tndio Iot the Proiect or e^e.utioa oI thil AArPenent. |9hhhpvpr i. to@r I Cornmrrmsnl Penod l The Buver turther asree: that the Companv ntalL ad;itionallv be entitled to a nme period or 180 ione hundred a;d e'ghtvl dals t LfuLe Perud I aher c\p'ry otthe Commtrmenr PcrLod for uniorese'n and 2112.2016 [Calculated f.om the dal. oa 27.\2.2012) Total sale co.sid€.arion As p€. customer )edBer d3r.d 31.03.2022 at Noter -Gra.e per od ot 181rdJ Rs.2,50,43,526 / Rs 2,4415,052/ 24 r2.201B 27.t2.24t4 Amount paid bY the complainant as Per customer l€deer dated 23.

Facrs of the complaints: The complainant has made the followinC submissions in the complaint:- L Thatthe original allottee booked a unitin the proiect ofrhe respondent .alled "Windchants" situated at Sector 112, Gurgaon for a total sale u 3. li 2l HARERA GURUGRAIV lIl IT consideration ofRs.2,30,13,303/'.

The orieinal allottee made a pavment of Rs. ent of Rs.11,00,000/- towards the booking amount whi€h was acknowledged by the respondent in their statement of account dated 02.01.2019.

The original allottee got provisionally allotted unjt no' WT/o 5/ 12 01 admeasuring sale area of332.13 sq' mt in the above said group housinC projecton 28.07 2012.

That the original allottee endorsed the said allotment in favour of Col Deepak Sehgal after a sale agreementwas executed between the original allottee and Col.

Deepak Sehgal.

The ownership in the said unit no' WT/o5/1201slood transaerred.s the Col.

Deepak Sehgal' That the apartment buyer's agreement for unit no wT/05/1201 was executed with Col.

Deepak Sehgal on 26.12 2012 According to clause 10.1 olthe apa.tment buyer's agreement, the possession was required to be delivered within 42 months from the date of approval of bu ilding plan or l4inistry of Environment and Forests Approval with an additionalgrace period of180 days i.€, on or before 27-12 2016' That the respondent duly endorsed the builder buyer agreement in favour oithe complainant on23-04.2017 ' That the complainantin order to tund herinvestmentin the above said apartment bad to borrow an aflount of Rs90,00,000/- as loan from HDFC and entered into tripartite agreements with HDFC and the respondent company.

That after timely payment against each and every demand letter' the complainant was hoping that she will get possession olher unit as per thedeliverydateprovidedintheagreement'Unfortunately'onregularly visiting the site, itwas realized by the complainant that the construction on tbe sitewas not as per the construct'on plan' This fact was brought to the knowledge or the respondent company repeatedly thro ugh perso'al Complarnt No.

547 of 2022 HARERA GURUGRA[/ visits, tetters, and mails but the respondent companv, as usual, assured and then re-assured that the delivery ofthe unit would be given as per the dates spec,fied in the agreem€nt. agreem€nt.

However, despite several assurances, tbe respondent company failed/neglected to delive' the possession ofthe unit in time.

VII.

That the respondent company sent th€ notice ofpossession (increased sale area from 332.13 sq mt. to 342.35 sq- mt) with demand of Rs.32,52,972/ after a lons delay of2 years.

The complainant vide this letter, was inlormed for the fir$ qne that the captioned unit area stood revised from 332.13 sq. mt. io 34235 sq. mt- and accordinglv more payment was sought irom the complainant Further, without any consultation with the compl;inant the respondent company calculated d€layed compensation amount at Rs.7 50/- p€r sq. ft' of the sale area amounting to Rs.5,89,600/' while charging an ioterest of 180/o p'a' on delay,n paynentswhich is completelv unfairand unjustified' VIII.

That the complainant ralsed several issu€s regarding the notice of possession dated 27.12.2018 !'lde email dated 28.12'2018, inter alia, being that the .espondent had not clearly adjusted the amount of Rs.12,038/_ towards area elterMtion in the Enal statement ofaccount' and had calculated the amount of delayed compensation unilaterally under the unfair terms of the buyer's ageement' 1X.

That after meeting with the r€spondents, the compla'nant r€ceived an u.satisfactory response to her quer,es raised in the email dated 28.12.2018 and replied vide email dated 03 01 2019 wherein ior the first time inlormed the complainant oi the applicabilitv of the Force L{ajeure clause which led to the exclusion of90 davs from the period or delay in possession.The complainant met all the demands made bv the Complarnl No.547of 2022 Page s uf25 * db HARERA GURUGRAN,4 aonplrntNo 547 of2022 respondentin a timely fashion and even paidallthe delayed interest and other charges Payable bY them.

X.

That despite the fact that the project was not complete in all 'espects' the respondent companyand the complainant executed thc convevance deed in respect ofthe above said unit on 05'02'2019' XI. '2019' XI.

Ihat the Present complaint is within Umitation as the present complainant got their convevance deed exe'uted on 05'02 2019 The present complaintwas filed in February 2022 aDd the tirst notice ofthe prescnt complaint was dispatched on 24 02'2022, belore the expirv period ending on 28.02.2022, thereafter the complainant is well within rts right oflimitat,on period.Also Limitatlon Act applies only to coults and does not applv ro quasijudicial bodies/proceediDss/authorities Reliefsought by the complainantsr The complainanthas nted th€ presentcompliantfor seeking following reliefs: i.

Direct the respondent lo entire interest amount at the prescribed rate for every month of delay from the due date olPossession till thc date of actual possession. ii.

Direct the respondent to remit the increased area backto the complainant' On the date of hearing, the authority explained to the respondent /promoter about the contravention as alleged to have been committed in r€lation to section 11t4)(al ofthe Act and to plead guiltv or not to pl€ad guiltv' R€ply by respondent: The r€spondent has raised certain preliminary objectionsand hascontested the presenl (omplaint on the following ground r:' C, l). amounts charged against e .i; HARERA GURUGRA[/ Thatunitbearing no. wTlo 5/1201 admeasuring 3 685 sq. ft. sal€ area in the project "windchants" was allotted to the complainant by way of endorsement from the original allottee, pursua.t to the execution ofthe apartment buyer agreement dated 26 12.2012 The present complainant is a subsequent allottee ofthe unit in question That the said unit was endorsed to the complainant on 23.08.2017 which is much after the lapse ofthe alleged due date ofhandingoverofpossession tothe original allottee i.e-, 2 6.12.2016.

That accordingly, the complainant stepped into the shoes oathe original allottee on 23.08.2017 i.e, after the due date of handing over of possession. ossession.

It is turther submltted that it was within the knowledge of the complainant that ihe due date of possession for handing over the unitas perthe apartment's buyer agreement had already expired' That the respo.dent re€eiv€d the occupancy certificate on 24'12 2018 and 3 days thereafterthe respondentsent the notice oipossession letter dated 27.12.2018.

Both the parties then exe€uted the conveyance deed on 05.02.2019 and the physical possessionofthe unit was handed over to the complainant on 05 02.2019.T1e complainant had alreadv taken the physical possession of the unit after execution of the conveyance deed.

That the complainant herein has also signed an indemn'ty bond dated 16.05.2017 wherein it was expressly agreed by the complainant that she will indemnify the r€spondent against all the claims, demand' action, proceedin& liens, damages etc., which may be brought as a command against the resPondent That the present complaintis liable to be dismissed solely on the ground ihat the complainantherein is notan allotteeburis the owneroithe Unit therefore, has got no rights under the Act,2016 to file the complaint befo.e the AuthoritY- aonplcrntNo 547 of20zz iv.

HARERA GURUGRAIV That the project of the respondent got delayed due to force majeure situations beyond the control ofthe respondent.

That some of the force majeure s,tuations iaced by the r€spondent which affected or led to stoppage ofthe work for briefamount oltime is being reiterated herein for the sake ofclaritY: I NGT Order: The respondent stopped ,ts development activities in compliance with the National Green Tribunal (NGTI order to stop construction,n April,2015 & November 2016 due to emission oi dust.

The NGT orders simply ord€red to stop the construction activiti€s as the pollution Ievels w€re unprecedented took time ofa II.

Demonetlzation ofRr.s00/: and Rs.1000/- currencv notes: The Real Estate Induslry ts dependent on u. dent on u.' skilled/semi skilled unregulated seasonal casual labour for all its development activ,ties.

The Respondent awards its contracts to contractors who 5 furth€r hire daily labour depending on then need on 8th November 2016. the Government of India demonetized the rur.ency notes of Rs 500 aDd Rs.

1000 wnh immediate effect resulting into an unprecedented chaos whi'h 'annot be wished away by putting blame on respondent.

Suddenlv there was crunch offunds lor the material and labour' The labou. preferred to return to their native villages.

The whole scenario slowly moved towards normalcy but development was delayed by at least 4'5 month' IIL lat Reservatlon Agltation: The Jat Reservation agitation was a series of protests in February 2016 by Iat people of North lndia, especially those in the state ofHaryana, which parallzed the State including city of Gurgaon wherein the project of Respondent are s,tuated for 8_10 days.

The protesters sought inclus'on oftheir caste in the other Backward Class [OBC) categorv, which would make them eligible tor aftirmative action benefits- Besides Haryana' the protests also spread to the ne,ghbouring states, such as uttar Pradesh, Rajasthan, and also the National Capital Resion The instant stoppage ofwork on the lear of riots and remobilization of workforce took co nsiderable time of 3-4 months' complarntNo 547of2022 HARERA GURUGRA[/ Codplaint No 547 otZ022 IV.

Delav by Contractor: The respondent had awarded the works of Civil (Structure, Finishing), mechanical, electrical, hvac and external developmentwork, in€luding provisional sum items on design and build basis for construction of the project in question to larsen and toub.o Limited ("1&T") vide a work agreement dated 7-220t3 ("Work Contract").

L&T is awell-known construction companvwith vast expert,se in executing large scale infrastructure proiects' However, L&T delayed the work therebv delaying the construction milestones and sought several extensions in order to complete co omplete completion The delays in th,s regard were beyond the control of th e respondent The respondent has made huge inv€stments in the projectthrough the funds infusedby its parent companv' V.

Delay by the CompetentAuthonties in granttng the occupation €ertlficatel It is submitted that the respondent from the verv beginning was committed towards the timelv compl€tion ofproject' That the due to aforementioned force majeure situations the proiect got delayed- The respondent despite tuc'ng the force majeure ;ituations, expedited and €ompleted the construction activity atthe project site through infusion ofproject ffnance ofRs'250 crores for the project, which the respondent repaidthrough its o and applied for the occupation certiffcate vide application dated 09.02.2018.

That the concerned authorty has granted the occupation certificate on 24.12'2018' lt 's Doteworthy to mention herein that the concerned authority has granted the occupation certificate after a delay of approximately I months That the delay oD part ot the coDcerned authority in granting the occupation certificate does notamounlto delay on part of the respondent' lt is clear from the aforementioned submissions that the pro)ect was delayed due to Force Majeure situations bevond ihe control of the respo.dent.

It is to be noted that the representatives of the respondent duly apprised the complaintnt in one of their visits to project site about the difnculties being faced bv the respondent in ;ompleting the construction of the proiect due to alorementioned for€e maieure situations.

That it was also agreed between the complainant and the respondent that actual sale area willbe determined afterthe completion ofconstruction work 8 *HARERA &-crrnrrc,nnu,t ComplainrNo 547 of202Z and after the issuance of occupation certificate.

That after agreeing to the same the said understanding between the parties was recorded 'n clause 3'1 of the apartment buyer agreement. agreement.

That further clause 8 ofthe agreement clearly lays down mutually agre€d terms and conditionswith respecttochange andvariation in salearea ofthe Unitfo.whichthecomplainanthasconsented.Forthepurposeof thispresent complaintthe relevantclauses are clauseS 2 and clause8'6 Thattheoriginal allottee duly received aDd acknowledged the letter date 27 '042077 and never raised any queries or d,spute regarding the change in total saleable area.

Furthe.. that the demand toweids the amount payable due to the said variation in sale area was also sent to the complainant vide letter dated 27.09.2017, and hence the complainant herself wes also aware oithe same since 2017 and proceeded to make further palments and even 8ot the conveyance deed executed without showing protest against the change in total sale area.

In fac! when the unit was endorsed to the complainant on 23.08.2017. the increase in the saleable area of the unit was well within the knowledge of the complainanL Thus, the complainant has raised this issue before this Hon'bleAuthority aftera belatld period ofapproximatelv 4 vears only to gain theilleg,timate monetary benefit from the respondent aDd as an alter thought.

That the respondent in order lo prove the genuineness and justlfication for the increase in total sale area of the un,t got an independent architect to measure and certify the areas of the units oD 30 01'2018 as per terms of clause 3.1 of the agreement.

On 23 09.2020 the respondent again appointed Knight Frank lndia Pvt- Ltd to provide their report/opinion on the total super bu ilt up area of the project This was done in order to clariry that the cbanges in totalsale area was withinthe parameteras agreed in the apartmentbuver agreement- Additionally, independent measurement and verification of the *HARERA S-cLrnuenntr,l complaint No 547 ol202l bullt-up area ofthe apartments and common areas of the project was also again done by the idea architects- 10. tects- 10.

That the respondent in order to provide individual justificatioD for the increase in the area ofthe untofthe complainantisalso attach'ngan affidavit by the senior general manager, design & architecture of the respondent company.

The permissible limit in variation of the sale area as per the agreement was 10olo However, the variation ,n the sale area of the unit of the complainant is merely 3%.

The respondent be'ng a responsible developer and abiding by the terms and conditions recorded in the buyers agreement hrs alreddy paid rn amounrol Rs.5,89'000/ 11.

That since more than 3 years has elapsed, the present complaint is not n,intainable b€fore this Authoritv and this Authoritv may be pleased to d,smiss such complaints initiated beyond the limit.tion period' 12.

Thatthecomplainantduringthehearingdated21 112023,admittedlystated before the ld.

Aurhority thatthe complainant did not wish to press any other reliefs exceptdetay possession charges and accordingly voluntarily dropped all other such rel,efs as claimed by th€ complainant while filing the instant complaiDt exceptthe reliefoldelayedpossession charges' Therefore' without prejud,ce and specificalyadminingalrythtn& the complainant is not entitled any other reliefas soughtin thecomplalnl 13.

That from a mere perusal of the supra_section, it is evident that as per Section 11 (41 (a) of the Act,2016 all the obligations ofthe promoters under the act are basically till the slage of conveyance deed' the exception is structural defects.

Thatonce a conveyance deed is executed between a promoter and an allottee the contract stood discharged in its entirety and liabilities of the promoter under the agreement for sale are absolved' 14.

Copies ofall the relevant documents have been filed and placed on record' Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission made bv the 15. bv the 15.

The complainant and respondent have filed the writteD submissions on 20.0?.2024 and 26 03.2024 respectivelv which are taken on record and has been considered by the authority while adjudicating upon the relief sought by the complainant.

E. lurisdiction ofth€ authorlty: 16.

The Authority observes that it has territorial as well as subiect matter iur,sdiction to adiudicate the ptesentcomplaint for tbe reasons given below' E.I Territorialiurisdlction As per notification no.

1/9212017-1TCP dated 14.12 2017 issued bv Town and Country Planning Department, the jurisdiction otReal Estate RegLrlatorv Authonty, Gurugram shall be entire Gurugram District for all purpose with offices situated in Curugram.

In the present case, the project rn question is situated within the planning area of Gurugram district' Therefbre' this authority has complete terriiorial jurisdiction to deal with the present E. ll Subiectmatt.rlurisdlction Section 11(al(a) ol the Act, 2016 provides that the promoter drall be responsible to thc allottee as per agreement for sale' section 11{41(a) is reproduced as hereunder: i"-i.',.i',i: n, ott abtool'aa\ I" pot btt t. lro tt"'taa' "r'lrt 't'P .i.'..,,." , a" '', * ,ni ,"", *, ' *,''". nade theta 1\td o tu thr iti"" " pu',,."s*".*,., rte ot too"a'so atturatottal'e"'o'th" o' i"i'i",,ii *" *"i"v**,i"tt rhe oportm'nL' ptot' ot buitdinss'usthe cose *HARERA #-eunuonnl,l Comp J niNu 547 o12022 HARERA GURUGRA[/ moy be, to the allottee, ot the.om on oleos to the dsociotion ofollottee or the con\eznt outhoriv, 6 the cd* noY be; Sectio!

34.tun.tions oa the Autho.itvl 34A of the A.t provid* ta ensure cohPliance ol the obhgotions ast upan the pr;noier, the dilo$ee and the t@t estate osenLs under this Act ond rhe rutes ond reg ulatiohs n ode the rcund er' 17.

So, in view of the prov,sio. prov,sio.s of the Act quoted above, the authoritv has complete jurisdict,on to decide the complaint regarding non_compliance oI obligations by the promoter leaving aside compensation which is to be decided by the adiudicatlng ofticer if pursued bv the complainant at a later stage.

F.

Oble.tions rals€d bv the respondent:_ r.l wearher the;omplai;aDts.an clqlm delaved possession charges rfter execution of corveyance decd.

18.

1t has been contended by th€ respondent that on execution of conveyance deed, the relationship between both the Iarties' stands concluded and no right or liabilities can be asserted by lhe respondent or the complainant against the other.

Therefote, the complalnants are estopped fron claiming any interestin the facts and circumstances ofthe case' 19.

It is lmportant to look at the definition of the term 'deed' itself in order to understand the extent of the relationship betw€en an allottee and promoter' A dee.l is a written document or an instrument that is sealed' signed and deliv€red by all the parties to the contract [buyer and seller]' It is a contractual documentthat includes legallyvalid terms and is enfo'ceable in a court ollaw lt is mandatory that a deed should be in writing and both the parties involved must sign the document' Thus, a conveyance deed is essentially one wherein the seller transfers all rights to legallv own' keep and enioya particular asset, immovable or movable' ln this case' the assets under .onsideration are immovable property.

On signing a conveyance deed' the owner transfers all legal iights over the property in question to the asainst a valid consideration (usuallv monetarv) Therefore' a original LomplarntNo 547 ol?022 PJge l3 uf25 *HARERA S- crrnrcrqv complarnr No.

547of 2022 'conveyance deed' or 'sale deed' implies that the seller signs a document stating that all authority and ownership of the property in question has been kansferred to the buyer.

20 From the above. the above. it is clear that on ex€cution of a sale/ convevance deed, only the titlean.l interest,n the said immovable property [herein theallotted unit) is transferred.

However, the conveyance deed does not conclude the relat,onship or marks an end to the liabil,ties and obligations of the promoter towards the said unit whereby the righ! title and interest has been transferred in the name olthe allotteeon execution ofthe conveyancedeed' 21.

The allottees have ,nvested their hard-eanned money and there is no doubt that the promoter has been enjoying benents of and the next step is to get their titl€ perfected by executrng a conveyance deed which is the statutorv .ightoftheallottee.Alsqtheobligatlonofthedeveloper promoterdo€snot end with the execut,on of a conveyance deed' Th€ essence and purpose of the Act was to curb the menace created by the developer/pronoter and safeguard the interests of the allottees by protecting them from being exploited by the dominant position of the developer which he th'usts on the innocent allottees.

Therefore, in turtheranc€ to the Hon'ble Apex Cou't iudsement and the law laid down ln case titled as Wg cdr' Atilur Rahman Khan anil Aleya Sultano and Ors.

Vs' DLF Southern Homes PvL Lt'l' (nout Knowt as BECUR OMR Homes PvL Ltd') and Ots' (Ctvil appeal no' 6239 ol 2019) doted 21.0a.2020, the relevant paras are reproduced herein below: "34 The developet hos not disputed these canftunicotions Thaugh thee a'e lout " - ,i^."ii,r.* "*"a'Uv the devetoper' rhe oppeltohts subnitted thot thev ar e not inlated abe rro ti;hs brt lt hto a pattern T he deve I ope' d oes nat sto b ,ii' i *i' *ahs * "ll* th" i"t prchov\ P.ns on of thet lo\ ond the ,i,i' - *",*i '*;*** "tihe 1o^ LhitP terans thPt ctotn ta' ..io,,*n* r' a"'i. o^ '"; 'onFoo' th" teno' at thP odnunro io': ,ia'ire' ta wt"t" -e.u.g tnc Dceot ot rorv'tor-P- the ltat bLrr - nt' " ntunedhat nolo nolptotP't ot 'P'?ruonon\|aultlbeot'PptobtP t\- al .',*' *., ^*;, a,, o,. ;, a,, o,.*t"o i h on Lnton 'hole ot Ptther rcttt4ir! tnii, ,iont to puori *"" aoint (in which event thet woutd not qet t HARERA GURUGRAIV ho$$ian or titte in the heonttnel ot ta lotsoke the cloins in order to pe'fect 'thet ttle to the tlots lot ||hich the! had paid ealuoble cansidemtion tn thts bockdrop, the sinpl; quenion which we n'ed to address k whether o llot """, in" ,"r* t e'eo^e o 'km ogon\t ttte dPv?toper ta' d'tolPd Do\:P.\on.on os o.o.\.quentPot.loig wbe.anpPtl'd ta dPfu the \oht ta obtdr o.a4atan? toPPtF.trhpit t te hwould't'o v'et-Dcnantteri unteoenobte;o expdt thot in order to PuBue a ctain lor conp@sotion fo' deloved honoaa ;R' of po,se$ion oe pu'tha\e' nrn 'rdefiatdv dd *,i-.".-,iq**.t tt e ot Pnres ptttto'ed or' n thev \?'k tn obtan o n..a otiat"yan,e to to^ate thPt@ht @ttom &dpca\onaa'Th^ba -oli is o pBiton;hich th, NcDRc hos espoused w2 'anhot couhtendnce thor rs rhe no. ourfiase" :nve,ted hotd eo'n"d qoh?v- h h ontt l"a'otdblc t etune trtot tttP ne loe^al tt?p ts Jor inP pu'.hosPt @ perlc t the ntlP o ',^,.*-^* " at-n tove b.en allotkd under the te.4' ot the 4BA Dut th' \Lbmission of the developet b thot the pu"ho*r laTokes the rened! belare the consum;t lorun br eekthg a Ued oJ convetonu ro o(ePt such d .onstruction wuld teoi to on oisutd convquace ol requiins the ptrchoset either to obandon o jusr.lairn a, a.ondltion lot obtoining the @nvevonce or to lndefni?t! det;v the e@dtioh ol the Deed oJ coneelonc' pendins Protro.ted cansunet lidqdtion " 22.

The au;hority has alreadyttken aview in in CRl4' 31/2019 and orhers tiled as Vorun Gupta V/s Emaar MGF Land Limlte'I and oth€'s and obse'ved that the execution ofa convevance deed does not conclude the relationship or marks aD end to the liabilities and obligationsofthe promoter towards the subjectunitand upon taking possession, and/or executing conveyance deed' the complainant nevergave up his statutory right to seek delayed possession charges r( per lhe provisrons ofthe saidAct' 23.

Afte.

23.

Afte. consideration olall thefactsand circumstances' the authorityholds that even after execution of the convelance deed, the complainant/allottee cannot be precluded from his right ro seek d€lav possession charges fro m the respondent/promoter.

Lll Whether the complaint is barred by limitatioD or not?

24. so lar as the issue oflimitation is concerned, the Authority is cognizant ofthe view that the law of limitation does not strictly apply to the Real Estate Regulation and Development Act of 2016 However' the Authority under section 38 oftheActof2016, istobeguided bytheprinciple of natural iustice aomp rnrNo 547 of202l *HARERA S- eunuonel,t complarnt No.

547 of 2022 Itis a universally accepted maximandthe law assists those who arevigilant' not those who sleep over their rights 'Therefore' to avoid opportunistic and frivolous litigation a reasonable period oftime 'eeds to be arrived at for a litigant to agitate his right.

This Authority is of the view that thre€ vears is a reasonable time period for a liti8ant to initiate litigation to press his rights under normal circumstances However th's shall not apply to the purpose of section 14 where specific period h:s alreadvbeen denned' 25. tt is also observed that the Hon'ble Supreme Court in its order dated 10.01.2022 in MA No.21of2022 ofSuo Moto Writ Petition CivilNo' 3 oi2020 havehel.l thattheperiod from 15.033020to 28 02 2022 shallstand excluded for purpose oilimitation as maybe p4escribed under anv general or special laws in respect oiall judicial or quasi-judiclal proceedings- 26.

In the present matter the cause of action aroseon27l2 2018when the offer of possession was made by the respondent to the complainant The complainant has filed ttepresent complainton 1702 2022 which is 3 years 1 month and 21 days irom th€ date of cause ofaction' ln the present matter the three year period of detay in filing of the case also after taking into account the exclusion Period from 15 03'2020 ro 28'02'2022 would fall on 10. all on 10.12.2023 ln view of the abov6, the Authority is ofthe view that the present complaint has been fi led withina reasonable period of delav and is not barred F.Ul Where Lhe subsequ'nt 'llottee has srePPed lnto the rhos- of the ''" o'"ielnur;1.""" "t"" toting into rnre of the Ad atrd after the resisrmtion oflhe Proiecr ln question: ,r r**'i'?,i", 'll,"ii""'*r,"* - ilt"n* "*sterred his unir in rdvour or d sutseqrent .tton"e ater the Act came into force and where the project has been registered under the Act by the respondent lt was argued by the promoterthatincaseswherethesubseque'tallotteecameintopictureaiter the reg,stralion of the proiect under the provisions of the Act with the authority, then the date of completion of the project and handing over the possession shall be the date dectared by the promoter under section 4(2)(l)tC) ofthe Act.

The counsel ofthe respondent turther argued that the while purchasingthe unit, it is presumed that theallotteeverywell knew that the projech,ould be completed by that specific declared date, therefore, the delayed possession chargesshall not be allowed.

28.

The author,ty is of the vi€w that the t,me period for handing over the possession as committed by the buildel as per the relevant clause ofbuilder buyer's agreement and the commiEnent of the promoter regarding handing over of possessioD of the unit is taken accordingly.

The new timeline indicated in respect of ongoing pro,ect by th€ piomoter while mak,ng an application lor regiskation ofthe proj€ctdoes not change the commitment of the promoter to hand over the possession by the due date as per the builder buyer's agreement and the promoter,s liable tor the consequ€nces and obligations arising out offailure in handing over possess,on by the due date as committed by him in the builder buyer's agreement and ,s liable for the delayed possession charg€s as provided in proviso to section 18(1) oftheAct' The authority is ol the view that the Act nowhere provides, nor can be so can be so construed, that all previous agreements will be re_written after coming into iorce oatheAct.

The same issue has been dealtbv Hon'ble Bombav High Cou't in case titled as lveelfomal Realtors Suburbon Pfi-,.d (supra) wherein it was held that the RERA Act does not contemplate rewrit,ng oi contract between the allottee and the promoter.

The relevant para ofthejudgement is THARERA S-eunuennu LompLdLnr No 547 of2l)22 "119.

Undet the prcvisiont ol S4tion 10, the delat in honding ovd the po '^',on "oiu * couru"a t, on the dote aenloacd ta rhe oq'eeaen' Io' 'ao etterca nto ov o. pnno.er o\l the otlotuP p ortotBteaitndtrcn under REI.i.

Under the pravisions oJ REPy., the prcnoter is given o foc itv HARERA GU|lUGRAIV to reie the dote ol @nptetion ol prciect and dectore the tane und{ Section 4. 'Ihe RERA does not contenplote tNtiting of contoct betweeh the lot putchokr ond the pto otet.

29.

However, complainants were well aware about the fact that the construction ofthe tower where the sub)ect unit is situated has not been completed and occupation certincate qua that part ofproiect is yet to be obtained.

Further, they still chosen to proceed w,th execution ol the agreement voluntarily which means that the complainant had accepted the factum of the delay.

Moreover, they have not suffered any delay as the subsequent allottee/complainants herein came intopicture onlyon 23.08.2017 when the subject un,t was endorsed in his favour.llence, in such an eventuality and in the interest olnatural justice, delay po6session charges can only be granted to the complainant from the date ofendorsemenlletter dated 23.08.2017 j e', date on which the complainant stepped into the shoes of the original allottee' F.lv obiection regardlngfo.ce maieureconditions: 30.

The respondent_promoter raised the contention that the construction ofthe project was delayed due to force majeure conditlons such as NCT order' Delay by th€ contractor, Demonetlzation, GST application, iAT Reseruation Agitation bu itation but all the pleas advanc€d ln this regard are devoid of merit The subject un,t was allolt€d to the complainaDts on 28072012 and as per provisions oiagreement, its possession was to be otretedby 27 72'2076-The due date as per possestioD clause comes out to be 27'12 2016' 31.

The events such as demonetization and various orders by NGT in view oi weather condition of Delh, NCR reg,on, wer€ for a shorter duration oftime and were not cont,nuous whereas there is a delay of more than rwo years' Even after due date of handing over ofpossession' whereas if it comes lor CST, the GST was applicable arom 01.07.2017 and IAT reservation was for onlyone or two months Further, grace period of 6 months on account of forc€ majeure has alreadybeen sranted in this regard and thus' no p€riod over and Comp rnr No 547 oi2022 compla'rt No.

547of zoz2 BA RAN/ ABE URUG ffiH s,-G above grace period of 6 months can be given to the respondent/promoter' Thus, the promoter/respondent cannot be given any len'en€y on basis of aforesaid reasons and it is well setded principle that a person cannot take benent ofhis own wrong.

Firdings or the reliefsoughtbythe complaimnt G.l Direct the resporde;t to;ndre interest amourt at ihe prescrlbed rate for every monih otd€lay from the due date ofpossesslon till the d'te ot .ctual possesslon. tn ttre preient complaint, the original allottee was allotted a unit vid€ allotment letterdated 28.07.2012 and ther€after the original allott€e sold the subject unit to the first subsequent allottee on 2612 2012 following which the Brst subsequent allottee sold the'srb,rct unit to the second subsequent allottee beingthe complainants inthepresentcaseon 23 08 2017 Therefore' the complai.ant stepped into the shoesoforiginal allottee on 23'08 2017' ln the present complaint,the complainantlntend tocontinue with the project and is seeking delay possession charges as provided under the proviso to section 18Ul ortheAcL Sec 18(11 proviso reads as under' 'Se. nder' 'Se.tion 7A: ' Retum ol omount and @hpq tioh ieA l.

4tn" p..ot", fik @ *nptete or isunobte to sive possesvon olon opotnena Plot, or buildlng. - (;.

32.

33. i.tidcd thot wh*e on olortee d.e\ notihtend tn wtthttto\r fron tt)r ptqc.t, h. shatt be poid, b! the prcnotet nkrest for luv n th ol i"ii"y, t tn" n,aig ** ol the posslstan ot such rote os nav be ,0. o** ,o "i[:il,:1;r's agreement proviaes ror handins ov€r or possession and is reproduced below: Clouk tO, PROIEO COMPLE|IoN PERIOD -ii, i't"" i Force Moiure, tinetr pavnent of rhe ratot sote ,ii'ti*iii",, *d *t * pi"isions of thk osrement based upon the ' "-,"^i , "',,.,'.. ", *, o*tcd P'at^ t pton'.

4e Lonpon, ntendt ta ',-""i "i., .i'*",- .t r,', qoot taeni\|ithin o peno'r ol a2 qorn tuot -""ini mi *" a,ti ot "pprcvot ol thc Duitdins ?toas or th" 'totc oJ ,"..i"1i tte oooro,oi oi oc Minittry ol Environnent ond Forcsts cov; nent ot t;dio tor the Proi"ct or de.uuon ol thts AsrcenPnt .niii'i, ti", t rZ.-,.PniPPr:od't rn?

Duv?' N'^P' as'Pat th"t the conpont sholl dd.litionalu b. ehtitled nt o titue period al180 lane *HARERA #-eunuonnM compla nt No.547 ol2022 htndred ond eishty) dats t'ercce Peliod') ofte. expirv ofthe conninnent Pedod lor unlorcken ond unplanned Prcie.t reolitt$' 35.

At the outsef ia is relevant to comment on the present possess'on clause of the agreement wherein the possession has been subjected to alt kinds oi terms and conditions of this agreement, and the complainant not being iD default unde. any provisions of this agreement and compliance with all provisions, formalities and documentation as prescribed by th€ P'omoter' The drafting of this clause and incorporatio' of such conditions is not onlv vagu€ and uncertain but so heavily loaded in favour of the promoter and against the allottees that even a single default by him in fulfilling tormalities and documentations €tc. tions €tc. as prescrib€d by the promoter may make th€ possession clause irrelevant for the Purpose of allotiees and the commitment time period ior hand,ng over possession loses its meaning' The incorporation ofsuch clause in the buyer's agreement by the proiDoter is just to evade the liability towards rimely delivery of sublect unit and to deprive the allottees oi their right accruing after delay in possession' This is iust to comment as to how the builder has mis'used his dominant position and draft€d such mischievous clause in the agreementand the allottees is left with no option but to sign on thedotted lines.

36.

Admissibllity of grace pertod: As per clause 101 of buyer's agreement dated 26.72.2012, the respondent'promotcr proposed to handover the possessio. of the said unit within a period of period of42 morths from the date of approval of building plans or the date of receipt of approval ol env,ronment clearance or execution of this agreement whichever is later' Therefore, asperclause 10.1 of the buyer's agreement dated 26-12 2012' the due date ofpossession comes out ro be 2412'2016 bv allowing grace per'od beins unqualified and beingallowed in earliercase no' 530 o12018' ComplaLntNo 547 or20l2 37.

Admissibitityof delay possesslon charges atprescribed rat€ of interestl The complainaDt are seeking delay possession charges however, prov'so to section 18 provides thatwherean allottee does notintend to withdrawf'om the project, he shall be paid, by the promoter, interest for every month of delay, tillthe handing over ofpossession, at such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules Rule 1s has been reproduced as under: RlJe 75, Pt5c.ibed rote oflnt rest' lProvitu to section T2 tection lA ond sub-se.tion (4) ond subecti@ (1) ol s.ction lel t 1, ror he D!;ooe at oto\ ^o to teetoh 12: '?tto4 |a' oqd \ub'P Lrn\ 14) oad itot'P' t;oh P.

P' t;oh P. ihe hh,* at rhP rcte pr^'\ttbed 'hott bPthcstatp Bonk of lndio hishesr norynol cosr ol bndbg 'dte +2% : P,.-d:ed that i; cose th; srrte Bonk oJ Indio otsinot cost oI tendins toE (MCLR) is not in uY, n sholt be rePlaeed b! stch b'nchnork lending ruteswhtch i,i sit" aon* "f inaio -ov n,-Irod n eto tine Jot tendins to rhe senerct 38.

The l;gislature ,n its wisdom in the subordirate legislation under the provision of rul€ 15 of the rules, has determined the prescribed rate of interest.

The rate of interest so determined by ihe legislature' is reasonable and ifthe said rul€ is followed to award tie interes! it willensure uniform practice in all the cases 39.

Consequently, as per website ofthe State Bank of lndia i'e" https://sbico jn' the marginalcost oflending rate (in short, MCLR) as on date ie'' 22 10'2024 is @ 9.10 0,6 Accordingly, the prescrib€d rat€ of interest will be marginal cost of lending rate +2% i.e., 11 10%.

40 The definition of term 'interest' as defined under section 2(za) of the A€t provides that the rate of interest chargeable from the allotlee by the promoter, in case oldeiault, shallbe equal to tbe rate of interest which the promoter shall be liable to pay the allottee, in case otdeiault' The relevant section is reproduced below: "A "lnej6r" n@ns the m?s ol inrerst paloble bv rhe Pronotet or the ollottee, os the co* naY be trHARERA # eunuonll,r HARERA GURUGRAI/ Explahation. -Fot the purpov ofthis.loug- tt) the rate of interen choryeabte lroh the a ottee bt the pronoteL in ee al defauh, sholl be equol to the rcte ol interest which the prcnoter sholl be liable to pot the ollonee, in cas ofdefall| (ii) the ihtqest poyoble b! rhe prcnotet to the o llottee shot I be ton the d ote the pro ota re@ived the anount ot dh! pott theref till the daE the onount or port the. port the.eof ond inEtest thereon k rcfuhded ond the inErst paJtoblebvthe allottu to the Prohotet tholl be lra the dote the ollottee deloults in paynent to the pronotet till the dote it is poidi 41.

Therefore, interest on the delay payments irom the complainant shall be charged at the prescribed rate i e., 11.100/6 by the respondent/promoters which the same is as is being granted ro them in case ofdelayed possession 42.

On consideration ot the documefts available on record and submissions made regarding contraventlon of provisiods of the Act, the Authorily is satisfie.l thatthe respondent is in contravention ofthe section 11(4)tal ofthe Act by not hand,ng overpossession by the due date as per the agreement By virtue olclause 10.01ofbuver's agreement executed between the parties on 26.12.2012, the possession of th€ subiect apartment was to be delivered within a period oiperiod of42 months from the dale oiapprovalof building plans orthe date of receipt ofapprcval ofenvlronment clearanceorexecution ofthis agreement whichever is laier' The due date otpossession is calculated from the date olenvironment clear.nc€ plus 180 days grace penod wh'ch comes out to be 24.12.2016 The respondent has otrered the possession of the ,llotted unit on 27.72207a aft€r obtaining occupation cert'frcate from competent Authority on 24.12.2018.

The authority is of the considered view that there is delay on the part ofthe respondent to offer physical possession ofthe allotted unit to the complainant as per the terms and conditions ofthe buyer's agreement executed betlveen the parties' 43.

In the preseDt complainL the original allottee was allotted a unit vide .llotment Ietterdated 2a.07 2012 and tllereafterthe original allottee sold the subiect unit to the first subsequent allottee on 2612'2012 following which ConplaintNo.54Tof 2022 the lirst subsequent allottee sold the subject unit to the second subsequent allottee on 23.08. on 23.08.2017 and the same was acknowledged bv th€ respondent vide eDdorsement on 23.08.2017.

Therefore, the complainants stepped into the shoes of original allottee on 23 08.2017 i e., after the due date.lt simplv means that the complainants were welt aware about the fact that the construction of the tower where the subiect unit is situated has not been completed and occupation certificate qua that part of proiect is y€t to be obldrnpd However, he strll chosen 1o proceed wrth execulion or rhe agreement voluntarily which means that the compla,nant had :ccepted the iactum of the delay Moreover, they have not suffered anv delav as the subsequent allottee/complainant herein came into picture onlv on 23.08.2017 when the subiect unit was endorsed ln his favour' Hence, in such an eventualiiy and in the interest of natural justi€e, delay possession charges can only be granted to the comptainaDt ftom the date of nominahon dated 23.08.2017 i.e.. date on which the complalnant stepped into the shoes oithe original allottee.

The Authorlty is of considered view that there is delay on the part olthe respondents/promoter to ofr€r ofpossession of the allotted unit to the complainant as per the tlrms and cond'tions of the buyer's agreement dated 26.12.2012 tucordh8ly, itiEthe hilure ofthe respondent /promoter to fulfil its obligations and responsibilities as per the agreement to hand overthe possession within the stipulated period 44.

Accordingly, the no._compliance of the mandate contained in section 11t4)(a) read with section 18t1) of the Act on the part of the respondent is established.

As such the complainant is entitled to delay possession charges at rate of the prescribed interest @11.10% pa w'et from the date oi endorsement letter i.e., 23.08.2017 lill 05.02.2019 i e-, expiry of 2 months from the date of otrer of possession [27.12'2018) or actual taking ove' or ffHARERA S.eunuonnu complaLnt No 547ot20l2 *HARERA S- eunuonel,l Complarnr No.

547o12022 possession (05.02. on (05.02.2019) whichever is earlier as per proviso to section 1B(11 of the Act read with rule 15 ofthe rules' G.ll Direct the resPondent to remit the amounts charg€d against the increased area back to the complainanr ,15.

In the present rcmplaint the complainant has sought a reliel ol remit the amounts charged ag:inst the increased areaback to the compl:inant' During proceeding date.121.11.2023, the counsel for the comPlainant stated that the .omplainant does not wish to press for any other relief than delaved possession charges.

Accordingly, no direction ca' be granted w r't' to the H.

Directions ofthe Authorityl 46.

Hence, the authority hereby passes this order and issue the followi']g directions under section 37 of the Act to ensure compliance ol obligaiions cast upon the promoter as per th e lu nctions entrusted io the A uthority u nder Section 34[0 oithe Act of 2016: i The respondent/promoter is directed to pay interesi at the prescribed rate ie., 11 10% perannum for every month otdelay oD the amoLrnt paid by the complainant(sl from the date of endorsement letter ie'' 23.08.2017 till 05.02.2019 i'e-, expiry oi2 months hom the date oioffer ol possession 127 r2'20fi) or actual taking over of possession (0s 02.20191 whichever is earljer as per proviso to section 18(11 of the Act read with rule 15 of the rules' The respondent is directcd to pny arrears of interest accrued so farwithin 90 days lrom the date oforder ot thjs order as per rule 16[2) ofthe flnes' ii.

Also, the amount of comPensation already paid by the respondcnt towards compensahon for delav in handing over possession shall be Page2a.l25 HARERA GURUGRAI\,4 adjusted towards the delay possession charges to be pai respondent in terms ofproviso to section 18(1) 'ltheAct' iii The respondent is directed to not to charge anlthing which ,s the buyer's agreement 47.

Complaint stands disPosed oi 48.

File be consigned to the reg,stry.

Haryana Date* 22.10.2024 HARERA GURUGRATV] t, q"\{'&P