SUDESH KUMARI AND ORS THROUGH POWER OF ATTORNEY HOLDER vs SUPERTECH LIMITED

&H #.0 ARER .

URUGRAI,/ CORAM: Shri Arun Kumar Shri Vijay Kumar Goyal Shri Ashok Sangwan APPEAMNCE: Sh.

Harshit Batra [Advocate) Sh.

Bhrigu Dhami (Advocate) Sh.

Gaurav Dua (AdvocateJ Sh.

Isha Dang (Advocate) Complaint No.

431 of 2022 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.

Date of filing: Date ofdecision 1.

Ms.

Sudesh Kumari 2.

Mr.

Ramesh Kumar Raheja Both RR: House No.

139, Huda Sector-1l, Panipat, Haryana-132103 Versus 1, M/S Supertech Limited Regd. office: 114, 11th floor, Hemkunt Chambers,89, Nehru Place, New Delhi-110019 2, lndiabulls Housing Irinance Limited Regd. office: M 62 & 63, First l-loor, Connaught Place, New Delhi-1 10001 3.

M/S Sarv Realtors Pvt.

Ltd Regd. office: 114, 11d' floor, Hemkunt Chambers, U9, Nehru Place, New Ilelhi-110019 Complainants Respondent no.1 Respondent no.2 Respondent no.

3 431 of 2022 27.02.2022 07.o4.202s Chairman Member Member Counsel for Complainant Counsel for Respondent no.

1 Counsel for Respondent no.

2 Counsel for Respondent no.

3 Page 1 of 18 ffi HRnm: ffieunuenRl,r Complaint No.

431 of 2022 1.

ORDER That the present complaint has been filed by the complainants/allottees under section 31 of the Real Estate [Regulation and Development) Act, 2016 (hereinafter referred as "the Act") read with rule 2B of the Haryana Real Estate (Regulation and Development) Rules, 2017 (hereinafter referred as "the rules"J for violation of section 11(4)(aJ of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se parties' Proiect and unit related details The particulars of the proiect, the details of sale consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: A, 2.

S.

No.

2.

Particulars Deta ils Name of the project Supertech [{ucs, Scctor 68, (irr 1221O I 1.

Project area 5 5.52 94 acres 2.

Nature of proiect Group Housing Colon 3.

RERA registered/not registered Registered vide registration no.

182 dated 04.09.2 017 Validity Status 31..12.2021 4.

DTPC License no.

106 & 107 of 2013 dated 26.1.2.20 El'dllyjlqtrs Name of licensee 25.1.2.2017 Sarv Realtors Pvt.

Ltd. & Ors.

5 Unit no.

F 1503, Tower F, 1Sth floor (Page n complaint) 6 Unit measuring 11t)0 sq. ft. super arca(l)age no complaint) 7 Date of Boo!!4g_ !0 00 !Q"tq[!4g9_!o.re 9&9rn!]4 u.

Date of execution of Buyer developer agreement 1.5.07 .201.6 (Page 24 of complaint) rugram- .l I I of2017 I o.

25 of : no.25 of ptrinq Page 2 of 78 HARERA Complaint No.

431 of 2022 ffiGURUGRAM Facts ofthe complaint The complainants have made the following submissions in the complaint: - a.

That the complainants booked an apartment no 1503, tower no F, .l5tr' floor and admeasuring 1180 sq ft. in the project "Supertech IIues"' for a total salc consideration of Rs.87,03,000/- on 20 06 2016 Consequently' a buyer development agreement was executed on 15 07 2016, according to clause 24 of which, the respondent no.

1 was obligated to deliver the possession by luly 2018, however, had miserably failed in doing so' b.

That in respect of such allotment, a memorandum of understanding ["MoU"J was executed between the complainants and the respondent no 1 on 15.07.2016 according to which the complainants opted for the subvention scheme or No pre-EMI till possession scheme ln lieu of rC B, 3.

9.

Possession clause POSSESSION OF UNIT: - I.

The possession of the qllotted unit shall be given to the ollottee /s by the compony by luly 2018.

However, this period con be extendedfor a further grace period of 6 months fPaee 25 of the complaint) 10.

Due date of possession ulv 2018 + 6 months = lanuarY 2019 11.

Total sale consideration Rs.87,03,000/- (page 26 of complaint) Rs.9,00,000/- paid by the complainant Rs. ainant Rs.

71,00,000/- paid by the bank. (annexut C6, page 90- 102 of comPlaint) Not obtained Not offered t5.07.2016 foaee 43 of complaint) 1?.

Total amount paid by the complainant 13.

0ccupation certificate 1,4.

Offer of possession 15.

Moll 16.

Tripartite agreement 27 .07 .2076 (page 47 of complqin0 OIILZO:I b^A" lO: of comPtaint 17.

Request for cancellation Page 3 of18 ffi HARER^ S-arnuennvr subvention scheme, the complainants took financial assistance from respondent no.2 i.e.

IHFL for an amount of Rs.

7 7,00,000 /-. c.

That as per MOU, it was the responsibility of the respondent no.1 topaythe Pre-EMl to India bulls housing finance until the delivery of possession of the unit is made to the complainants.

However, instead of obliging by the same, the respondent has, through its malafide and unlawful conduct defaulted in paying Pre-EMI to the respondent no.2. d.

That the default in paying the Pre-EMI by respondent no.1 began in June 2018 which is still continuing hence violated the terms of section 1B(3) of the Act.

Moreover, the complainants were being harassed by respondents by not paying the Pre-EMIs after that period. e.

That the respondents have colluded with each other and wrongly burdened the complainants financially.

Upon non-payment of pre-EMI by the respondent no.

1, the complainants werc made to pay the same and accordingly, the complainants have paid a sum of Rs.

1,49,350/- on 23.05.2019.

That the deductions of the Pre-EMIs, which was never the obljgation of the complainants, has gravely affected the CIBIL score of the complajnants, leading in the decrement of the same.

That despite the unlawful conduct of the respondents, the complainants have always ensured their bona fide conduct and have paid a total amount of Rs.

80,00,000/- which is approximately 920/o of the rotal sale price, as rs evident from the customer statement and account statement of Indiabulls dated 24.04.2020. 'Ihat an amount of Rs.

71,00,000/- has been disbursed by thc respondent no. ondent no.

As per clause 5 of the TPA, the obligation to disburse the loan as per the stage ofthe construction ofthe project was upon the respondent no.

I']age 4 oi 1B Complaint No.431 of 2022 h. #HARER S-eunuenRnl l. l. k.

Complaint No.

431 of 2022 The respondent no.2 had failed to perform their due diligence.

Atthough under RBI regulations, it is a duty entrusted upon all the bank/financial institution in general to carry on due diligence investigation prior to disbursement of loan, As per the recent circular dated 13.0t).2019 passed by the National Housing Bank, now even the Flousing lrinance Companics ("lJFC") will be subject to RBI regulations which will provide more security to the homebuyers taking loan from these HIrCs.

That despite the payments made by the complainants, the developmcnt ol the unit is nowhere near completion.

That distressed by the unlawful and malafide conduct of respondents and the immense financial burden wrongly put on the complainants, they had lost faith in the respondents and the project.

Not intending to stand the breach of contract, the loss of profits, the financial burden and the mental agony, the conlplainants requested refund of their amount vide cancellation letter dated 05.I'2.2017 . l'he requests of the complainants were not being paid heed to.

The complainants again requested for cancellation oF the unit vjde requests dated 05.1 2.2018, 24.72.2078, 03.10.20 19 and 14.1 0.201 9. 'Ihat the multiple requests of the complainants have not been paid hecd to by the respondent no.

1 and despite such requests, the complainants are being harassed to make the payments against pre-EMIs and are being served with monthly reminders when in fact there is no development ofthe unit.

The respondent no. t has violated the terms of the allotment in making demands against the unit.

It is apparent that the respondent no. t has misappropriated the funds ol the complainants.

Thc complainants sent a notice dated 30.12. ted 30.12.2019 addressing their grievances. 'lhat through the entire course of relationship betwccn the partics, thc complainants have always been proactive in knowing the stage of the I)age 5 oi .l B ffi HARERI *&" eunuennnt Complaint No.

431 of 2022 project and development work in the same; however, they have always faced elusive replies from respondent no.

1. 'l.he respondent no.

1, in furtherance of its unlawful conduct and acting in breach of all of its contractual obligations as set under the BBA, the l.pA, and the MOtJ stands in violation of Sections 11(a)(al, 18(1) and 1B[3) of the Acr.

All such agreements executed between the builder and the buyer are to be read as a part and parcel of the agreement to sale which is obligated to be adhered to and considered under the Act. l.

That the complainants had been unnecessarily burdened, first, with the payment of instalments, then with the cancellation of the same, all due to the non-adherence of its obligations by the respondent.

Under such circumstances, the complainants, also not forcseeing the delivcry of possession and having waited for a substantial amount of time, have iost faith in the bonafide conduct ofthe respondent.

The complainants were not wrong in claiming the refund as they cannot be expected to wait indefinitely for the delivery ofpossession. m.

That the respondent no.

1 failed to deliver the unit of the complainants even after almost 6 years of agreement and taklng advantage of dominant positlon, unilaterally had ignored the request of the complainants to withdraw their allotment and had malafidely restored to unfair trade practices by harassing the complainants by way of delaying the project by diversion of the money from the innocent and gullible buyers n.

That the tactics ofthe respondent no.

1 to dupe and retain the complainant in the project is crystal clear by their act of non-refuncling the paid amount despite of various request of cancellation of allotment by the complainant. o. ainant. o.

The respondent no. t has utterly failed to fulfil his obligation to deliver thc possession in time or compensate or refund the money along with interest I'}age 6 ol 1B ffi HARERA #"eunuennnr Complaint No.

431 of 2022 and has caused mental agony, harassment and huge losses to the complainants, hence the present complaint p.

That the inordinate delay in handing over possession of the unit clearly amounts to deficiency ofservice on account ofthe respondent no.

1 and the complainants had rightly claimed to withdraw from the project and claimed total refund of amount along with other interest as pcr the Act, 2016, along with other compensation. q.'fhatthe OccupancyCertificatehas not been issued to the complainants and the complainants cannot, in any way whatsoever, anticipate the deljvery of the possession of the property. r. 'Ihat even after an inordinate delay of almost 3 years, the project has not yet received the OC and is not anticipated to receivc the same. 'l'he complainants cannot be allowed to be left in the lurch for a long period of time, hence, the complainants seek refund of their amounts along with interest and compensation.

C.

Reliefsought by the complainants: - The complainants have sought the following relieffs]: l.

Direct the respondent no.

1 to refund the amount of Rs.9,00,000/- paid by the complainants along with prescribed rate of interest from the datc of respective deposits till its actual realisation, in accordance with thc provisions of the act.

Il.

III.

IV.

1 to refund the amount of Rs.

1,a9,350/- paid by the complainant in lieu of Pre-EMls.

Direct the respondent to repay of Rs.

71,00,000/- to the respondent no.

Direct the respondent to pay the compensation of Rs.10,00,000/- for mental agony, harassment to the Complainants, for violation of the obligations conferred by the Act, as per section 1B(3).

1 to pay the compensation of Rs.

1,50,000/- for the litigation costs. ion costs.

Page 7 of 18 tr HARERI.

H eunuennH,l Complaint No.

431 of 2022 4.

On the date oF hearing, the Authority explained to the respondent/ promoter about the contraventions as alleged to have been commjtted in relation to section 1 1 (4) [a] of the act to plead guilty or nor to plead gu ilty.

5. l'hat the complainant has filed an application for impleadment of M/s Sarv Ilealtors pvt. l,td. as the necessary party and the same was allowed by thc Aurhority on 70.1,2.2024.

6.

I'hat present complaint was file d on21.02.2022and registered as complajnt no.

431 /2022.

As per the registry, the complainants sent a copy of the complaint along with annexures via speed post as well as email.

The tracking report for the same was submitted by the complainants along with the complaint.

On 25.03.2022,the respondent no.1 was directed to file a rcply within the stipulared timc period.

On 10.10.2022, Advocate Bhrigu Dhami appearcd on behalf of thc respondcnt.

Moreover, after the application for impleadment was aliowcd, respondent no.

3, i.e., SARV Realtors pvt_ Ltd., was directed to file a reply within a stipulated time.

However, the reply was still not filed by thc respondent no.1 & respondent no.3.

Despite specific directions, the respondents faired to rile a written repry and did not compry with the order of the Authority.

This indicates that the respondent no.1 & 3 are intentionally delaying the proceedings of thc Authority by not filing written repiy.

Therefore, the defense of the respondcnr no.1 &2 wasstruckoff fornon-filjngof thereplyvide ordcr dated 07.04.2025, and the mattcr is being decided based on the facts ancl documents submitted with the complaint, which remain undisputed.

D.

Reply by the respondent no. z 7.

The respondent no.2 is contesting the complaint on the following grounds:_ a. 'l-hat thc complaint is not maintainabie qua thc rcspondcnt no. ondcnt no.

2 being thc financial institution registered under thc provisions of the Nationai Housing Bank Act, 1987, and presently governed by *" O*"T:rl;:|iJ ffi HABERA ffi eunuenRvr lndia.

The respondent no.

2also submitted that the Real Estate (Regulation grievances against the Developers/builders and not against the banks/financial institutions, as the respondent no.2 state that the Authority is not appropriate forum to adiudicate or raise any dispute against the respondent no.2.

The present complaint is liable to be dismissed qua the respondent no.2 on this ground alone. b.

That without prejudice, the present complaint is not maintainable qua the respondent no.

2 as the same is totally false, frivolous and devoid of any merits against the respondent no.

The main dispute as apparent from the contents of the complaint is only between the complainant and respondent no.

1 regarding delay in construction, delay in possession of the unit booked by them in regarding payment of Pre-EMI by the respondent no.

1 to the respondent no.

2 in respect of the loan availed by the complainants.

Hence the complaint ought to be and is liable to bc dismissed qua the respondent no.2 on this ground alone. c.

2 is neither necessary party as no relief is sought against respondent no.

2 nor a party in the present case that without whom no appropriate order could be passed.

That the complaint does not disclose any cause of action against the respondent no.

2. d.

That it is the complainants who firstly approached the respondent no.

2 to avail a home loan against the unit in question and request to sanction and disburse the loan to the respondent no.1.

Based upon the representations, assurances and documents furnished, the respondent no.2 sanctioned the loan amount of Rs.

71,00,000/- pursuant to execution of the loan agreement between the complainants and respondent no.2 and a Complaint No. plaint No.

431 of 2022 & Development) Act, 2016 has been brought into force to address Page 9 of 1B ff HARER,. #-eunuennll i tripartite agreement dated 27.06.2016 executed amongst the complainants, respondent no.

1 and respondent no.

2. 'Ihat the parties entered into the tripartite agreement, whereby it has becn agreed that there would no repayment on the default of the loan amount for any reason whatsoever including but not limited to any concern/issues by and between the complainants and respondent no.

1.

I'he complainant,s obligation to repay the loan shall be distinct and independent of any issu es/co ncern/d ispute of whatsoever nature between the complainants and respondent no.

1. 'l'hat the complainants also declared and confirmed in the tripartitc agreement that the respondent no.

1 is of their choice, and they are confident of the builder's capability for quality construction and timely completion of the said project.

Not only this, the complainants also declared and confirmed that they have agreed and contested to the terms of the payment plan upon understanding the nature of risks and consequences associated with the payment plan opted by them.

The complainants further deciared that they shall bc solely rcsponsible and shall continue to repay the loan amount in terms of the loan agreemcnt and tripartite agreement irrespective of the stage ofconslruction/delay or failure to develop/construct the said project by builder within stipulatccl pcriod. g.

2 is a non-banking financial institution and the debt being a secured debt, respondent no.

2 is entitlecl to recover its lawful dues and interest, if any, a per law.

It is well settlcd law that recovery by non-banking financial institutions is of paramount interest.

2 has acted within the four corners of the loan agreemcnt Complaint No.

431 of 2022 e.

PaBe 10 of 18 ALEttA URUGRANI WH &e Complaint No. plaint No.

431 of 2022 and tripartite agreement executed between /amid respective parties towards the lawful recovery oftheir dues a per law. h.

That in the event the Authority allows the relief sought by the complainants whereby granting refund to the contplainants, then in thc terms of clause 13 of the tripartite agreement, the respondent no.

1 be directed to first refund the loan amount directly to the respondent no.

2 to pay olf the debts of the respondent no.

2 as also prayed by thc complainants in the facts and circumstances of the present case in tltc interest of justice.

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

Hence, the complaint can bc decided on thc basis of these undisputed documents and submission made by thc parties. lurisdiction of the Authority 'l'he Authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint lor the reasons given below.

E.l Territorial jurisdiction 10.

As per notification no.

1/92/2017-1TCp dated 74.12.2077 issued by Town and Country Planning Department, the,urisdiction of Real llstate llegulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Curugram.

In the present case, the project in question is situated within the planning area of Gurugram District. 'l'herefore, thjs authority has complete territorial jurisdiction to deal with the prescnt complaint.

E.ll Subiect matter iurisdiction. ll.Section 11(aJ[aJ of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)(aJ is reproduced as hereunder: t).

E.

9, Page 11 of18 ffiFIARER4 ffi eunueRnivr Complaint No.

431 of 2022 Section 77 1+1 fne pronoter shatf (a) be responsible for oll obligotions, responsibilities ond functions undet the provisions of this Act or the rules ond regulaLions made thereunder or to the allottees as per the ogreemenL ogreemenL for sale, or to the tlssociqtion ofallottees, os the cose may be, till the conveyonce of dll the aportments, plots or buildings, as the case noy be, to the allottees, or the common oreas to the ossocicttion of oIlottees or the compeLent outhority, os the cqse moy be; Section 34-Functions of the Authority: 34(D of the Act provides to ensure complionce of the obligations cast upon the promoters, Lhe ollottees and the reol estate oqenLs under this Act ond the rules ond regulqtions made thercunder.

12.

So, in view ofthe provisions 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 thc adjudicating officer rf pursued by the complainant at a later stage.

13.

Further, the authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the Hon'ble Apex Court in Newtech Promoters and Developers privote Limited Vs State of U.P. ond Ors.

2021-2022(1) R.C.R. (Civit) 357 ond reiteroted in case of M/s Sana Reoltors Private Limited & other Vs llnion of Indio & others SLP (Civil) No.

13005 ol2020 decided on 12.05.202Zwherein it has been laid down as under: "86.

From the scheme ofthe Act of which o detoiled reference hos been mode and toking note of power of odjudicotion delineated with the regulqtory outhority qnd odjudicating offcer, whqt frnqlly cults out is thot qlthough the Act indicotes the distinct expressions like'refund', 'interest', 'penolE/' and 'compensotion', o conjointreading ofsections 1B ond 19 clearly manifests that when it comes to refund of the omount, ond interest on the refund qmount, or directing poyment of interest for delayed delivery of possession, or penolty ond interest thereon, it is the regulatory authoriry which hos the power to examine qnd determine the outcome of o complaint. complaint.

At the some time, when it comes to a question of seeking the reliel of odjudging compensotion ond interest thereon Page 12 of 18 HARER.

Complaint No.431 of 2022 P*GURUGRAII under Sections 12, 14, 18 ond 19, the adjudicoting offcer exclusively hos the power to determine, keeping in view the collective reoding ofsection 71 read with Section 72 of the Act. if the odjudicotion under Sections 12, 14, 18 and 19 other than compensqtion as envisoged, if extended to the qdjudicoting ollicer qs proyed that, in our view, moy intend to expond the ambit and scope of the powers and functions of the odjudicating oflicer under Section 71 ond thot would be ogoinst the mandote of the Act 2016." 14.

Hence, in view of the authoritative pronouncement of the Hon'ble Supreme Court in the cases mentioned above, the authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refundable amount F.

Findings on the obiections raised by the respondents during hearing.

F.l Obiection regarding CIRP against respondent no.

1 and consequent moratorium against proceedings against respondent no.1.

15.

Respondent no.1 during the course of hearing has submitted that vide order dated 25.03.2022 passed by the Hon'ble NCLT, New Delhi Bench in case titled as Union Bank of India Versus M/s Supertech Limited, the Flon'ble NCLT has initiated CIRP respondent no.1 and impose moratorium under section 14 ofthe 18C,201.6.

The Authority observes that the proiect of respondent no.

3 is no longer the asset of respondent no.

1 and admittedly, respondent no.3 has taken over all assets and liabilities of the proiect in question in compliance of the direction passed by this Authority vide detailed order dated 29.11.2019 in Suo- Moto complaint HARERA/ccM/ 5802/2019.

Respondenr no.3 has stared rhat the M DA was cancelled by consent of respondent no.3 and respondent no.1 vide cancellation agreement dated 03.10.2019.

Thereon, respondent no.3 i.e., Sarv Realtors Pvt.

Ltd.

Pvt.

Ltd. admittedly took responsibility to develop the project and started marketing and allotting new units under its name.

In view of the above, respondent no.3 remains squarely responsible for the performance of the obligations of promoter in the present matter.

So far as the issue of moratorium is concerned, the projects Hues & Azalia stand excluded from the CIRp in terms Page 13 of 18 HARER,'..

GURUGRAM Complaint No.

431 of 2022 Ii.

16. of affidavit dated 19.04.2024 filed by Sh.

Hitesh Goel, IRp for M/s Supertech Limited.

However, it has been clarified that the corporate debtor i.e,, respondent no.1 remains under moratorium.

Therefore, even though the Authority had held in the Suo-Moto proceedings dared 29.11.2019 that respondent no.

1 & 3 were jointly and severally liable for the proiect, no orders can be passed against respondent no.1 in the matter at this stage.

Findings on the reliefsought by the complainants.

G.l Direct the respondent to refund the entire deposited amount of the complainant, amounting to Rs.80,00,000/- with an interest @18olo compounding quarterly till its actual realization of complete amount in accordance with Section 1B ofthe Real Estate Regulation Act, 2016 as the Rcspondent is in violation ofClause 1 ofPossession ofthe said Unit ofthe Buyer Developer Agreement dated L5,07.2OL6 and also the respondcnt has cheated/defrauded the complainant; In the present complaint, the complainants intend to withdraw from the project and are seeking return of the amount paid by them in respect of subject unit along with interest.

Sec.

18(1) ofthe Act is reproduced below for ready referencc t- "Section 18: - Return of amount and compensqtion 1B{1). lfthe promoter fails to complete or is unable to give possession ofan apartment, plot, or building, - (a)in occordance with the terms of the agreement for sqle or, os the cose moy be, duly completed by the dste specified therein; or (b)due to discontinuance of his business os o developer on occount of suspe t of suspension or revocotion of the registrotion under this Act or Ior ony other reoson, he shall be lioble on demqnd to the allottees, in cose the ollottee wishes to withdraw from the project, without prejudice to any other remedy ovoiloble, to returu the amount received by him in respect of thaa apartment, plot, building, as the cose moy be, with interest qt such rqte os may be prescribed in this behall including compensotion in the monner as provided under this Act: Provided that where on allottee does not intend to withdrow from the project, he shqll be poid, by the promoter, interest for every month ofdeloy, tilIthe handing over ofthe possession, at such rote os moy be prescribed." (Emphosis supplied) Page 14 ol lB 17. ffi HARER \ #.eunuoqnnl Complaint No.

431 of 2022 The complainants are claiming refund of amount paid to the resPondent- promoter under the provision 1B(1) of the Act, 2016.

Although the complainants requested for cancellation of the unit and full refund of the amount paid by them through a letter dated 05.12.2017, the respondent failed to refund the said amount.

As a result, the complainant-allottees filed the present complaint and are now seeking a refund along with interest. 'l'he complainants vide buyer's agreement dated 15.07.2016 were allotted an apartment bearing no.

1503, tower F, 1sth floor, admeasuring 11t)0 sq.ft. super area in project "supertech Hues" being developcd by "R-1 M/s Supertech Limited". l'he complainants have paid Rs.

80,00,000/[Rs.

9,00,000/- paid by thc complainant, Rs.

71,00,000 IHFL) against the total sale consideration of Rs 87,03,000/^.

As per clause 1 of the agreement, the respondent was required to complete the construction of tower/building within 2.6 years from the date of execution of buyer's agreement.

The date of buyer's agreement is 15.07 2016 and the due date of possession is 1 5.01.2 019. 'l'here is a delay of 3 years 1 month 6 days on the date of filing of the complaint i.e,, 2L.02.2022.

L.02.2022.

In the instant case, the buyer's agreement was executed between the parties on 15.07.2076.

The due date of possession was 15.01.2019.

The 0ccupation Certificate of the project where the unit is situated has still not been obtained by the respondent-promoter.

The complainant vide letter dated 05.12 2017 requested the respondent for cancellation of unit even before the due datc.

Thereafter they filed the present complaint seeking withdrawal from the project.

In this case, refund can only be granted after certain deductions as prescribed under the lJaryana Real Estate llegulatory Authority, Gurugram (Forfeiture of Earnest Money by the builder) Regulations, 11 [5) of 2018.

20.

The issue with regard to deduction of earnest money on cancellation of a contract arose in c ases of Moula BuxVS. alnion of lndia, (1970) 1 SCR 9ZB and Page 15 of 18 18.

19.

HARERA Complaint No.

431 of 2022 ffi.GURUGRAI\/ Sirdar K.B.

Ram Chandra Raj IJrs.

VS.

Sorah C.

Urs., (2015) 4 SCC 136, and wherein it was held that forFeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of section 74 of Contract Act, 1872 are attached and the party so forfeiting must prove actual damages.

After cancellation of allotment, the flat remains with the builder as such there is hardly any actual damage.

National Consumer Disputes Redressal Commissions in CC/438/2019 Ramesh Malhotra VS.

Emaar MGF Lond Limited (decided on 29,06.2020) and Mr.

Saurav Sanyot VS.

M/s IREO Private Limited (decided on 12.04.2022) and followed in CC/2766/2017 in case titled os ldyont Singhol ond Anr, VS.

M3M India Limited decided on 26.07,2022, held that 10% of basic sale price is reasonable amount to be forfeited in the name of "earnest money',.

Keeping in view the principles laid down in the first two cases, a regulation known as the Haryana Real Estate Ilegulatory Authority, Gurugram (Forfeiture of earnest money by the builder) Ilegulations, 11(5) ns, 11(5) of 2 018, was iarmed providing as under- "5, AMOUNT OF EARNES'I MONEY Scenorio prior to the Real Estate (Regulations and Development) Act, 2016 wos different.

Frauds were corried out without any fedr os there was no low for the some but now, in view of the above facts and tuking into consideration the judgements of Hon'ble Nutionol C.unsumer Disputes Redrcssql Commission and the Hon'ble Supreme Cou rL of lndio, the outhority is of the view thot the forfeiture qtnount of the eornest money sholl noL exceed more thon 100/a ol the constdcrottan omount of the real estote i.e. opartmenL/plot/huildinll as the case ntoy be in all coseswhere the concellquon ol lhe flot/untL/plnt 6 node by rhe bulder in a unilateral monner or the buyer inLen(ls to withdr|w from Lhe project dnd any agreement containing ony clouse conLrary to the oforesaicl regulotions shall bc votd ond not btnding on the buyir.', So, keeping in view the law laid down by the Hon,ble Apex court anc.l provisions of regulation 11 of 2018 framed by the Ilaryana Real Estate Regulatory Authority, Gurugram, and the respondent-promoter can,t retain more than 10yo of sale consideration as earnest money on cancellation but that was not done.

So, PaBe 16 oflB 2L.

431 of 2022 the respondent-promoter is directed to refund the amount received against the allotted unit after deducting 100/o of the sale consideration and return thc remaining amount along with interest at the rate of 1l 10% (the State llank of India highest marginal cost of lending rate (M(;l-R) applicable as on date +2061 as prescribed under rule 15 of the Haryana Real Ilstate [lLcgulation and Development) lLules, 2017, from the of each payment till the actual date of refund of the deposited amount within the timelines provided in rule 16 of the tlaryana Rules 2017 ibid Out of refundable amount' thc loan amount with interest be cleared first and only the remaining amount is to be disbursed to the complainants/allottees alongwith no dues th no dues certificate of the financial institution' G.

Directions of the Authority 22.

Hence, the Authority hereby passes this order and issue the following directions under section :17 of the Act to ensurc compliance of obligations casted upon thc promoter as per the functions entrusted to the authority under section 34[fJ ol thc Act: i. 'lhe respondent no 3 (inadvertently mentioned as respondent no 2 in proceedina doted 07'042025) ie' Sarv Realtors Pvt l'td is directed to refund the paid-up amount of Rs 80,00'000/- after deduction of 100/o of thc sale consideration as earnest money along with interest on such balancc amount at the rate of 11 10%pa as prescribed under rule 15 of the Rulcs' 2017, from thc of each payment till the actual date of refund of the depositcd amount, ii. out of refundable amount, the loan amount with interest be cleared first and only the remaining amount is to be disbursecl to the complainants/allottces alongwith no dues certificatc of thc financial institution' AN/ AREI URUGR ffiH #-e Page 17 of 18 23.

24. ffi HARER.T *&-eunuoqA[/ (Ashok Complaint No.

431 of 2022 iii.

A period of 90 days is given to the respondent no.

3 to comply with the directions given in this order and failing which legal consequences would follow. iv.

3 is further directed not to create any third-party rights against the subrect unit before full realization of the paid-up amount along with interest thereon to the complainants, and even if, any transfer is initiated with respect to subject unit, the receivable shall be first utilized for clearing dues of allottees/complainants. v.

No directions are being passed in the matter qua respondent no.

1 in view of the moratorium imposed under section 14 of the IBC in NCLT case IB- 204 /ND /2021titled Union Bank of India versus M/s Supertech Limited.

Complaint as well as applications, ifany, stands disposed ofaccordingly.

Files be consigned to registry. tlYn r (Arun Kumar) Chairman Dated 07.04. ted 07.04.2025 Haryana Real Estate Regulatory Authority, Gurugram ).) >s (Viiay Kumar Goyal) Member Page 18 ol .l B lt \ _-- ,.TJ.