VIRENDER SINGH RAGHAVE AND ANJANA RAGHAVE vs EMAAR MGF LAND LTD.

u HARERA GUNUGRAIV BEFORE THE Complarnr No.

3821 or2021 HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complatnt no. | 3A23 otzoz1 Order reserved on : 02,07 .ZOZ4 Order pronounced on: 03,09.2024 1.

Nir. \/irender Singh Raghave 2. [ars.

Anjana Raghave Doth RR/o: F 401, Munirka Apartnrenrs, Ptot no. tt, Sector 9, Dwarka, New Delhi V€rsus lqls Ijmaar MGF Land Ltd.

Registered omce atr 306 308,3d noor, square 0ne, C-2, Distnct Centre, Saket New Delhi 110017.

CORAM: shrivijay Kumar Goyal APPEARANC[: Shrilagdeep Kumar Respondent Chairman I ,n" r,","", ""JJ,AffE RlLr,",nant^rotte.s in Form cRA und€fuhfit (]{qg"q p$t" (Reguration and Development) Acl ?016 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and Developm€ntl Rules, 2017 (in short, Ore Rules) for violation ot section 11(4Xa) of the Act wherein it ,s ioter alia prescribed that the promoter shall be responsible for all obliganons, responsibilities and functions to th€ allottees as per the agreemeDt for sale executed inter se them.

Advocate for the .omnlai n. ni Advocate for the resDondent Pag. l ,fll tr cs 2.

HARERA GURUGRA[/ Proiect and unlt related d€tails DTCPlicenseno and validity Compla nlNo 38?1ot202I The particulars of rhe project, the derails of sate consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, if any, have been detailed in the followins 102, 7 S ot 2O12 dat..l t1 o t 2o1?

Valid/r.n.w.d !n i.30 07 2070 01of2019 dared 02.o3.2or 9 Kamdhenu Projects Pvt.

Ltd and a.other C/o Em3ar MCF Lrnrl I iil TIRERA registered/ Registered vrde tro.

36(a) ol 2oa7 dated 05.12.20r7 for 95829.92 sq.

31.12.2018 annexure R5, Dase 133 ofreDl GCN-12 0601, 6rr floo. buildnig r.

30.05.2019 Pruvi ,nal allutmcni letter issued in iavor of Vikrant Rohilla (Orjsjnal Allottee) on Date of execution oibuyer's aAreement between Vikrant 31 12 20r 9 01.04.2013 lannexure P2, pase 46 ofcomplaintl 14. laintl 14.

POSSESSTON G) rine ol hondins ovq 12 measurins 1650 sq. ft. if ..tur l'.l, t,rg. lrr,,l.,rtiliL.L 2S.01.2013 lannexure P1, pase 32 otcomplaintl l 2 10 t I 11 THARERA S GURuGRATt/ Complainr No. l82l of 2021 Subje.t to terns of this cloBe ond bofing lorce najeure conditions, subject to the Allottee haring complied with all the terns and conditions ol this Agreenent, ond not being in .leloult under ony oI the prcvbions of this Agreenent ond conplionce with oll provisions, Iornalities, docunentotian etc., os pres ibed by the Conpony,the Cohpont proposes to hdnd over the po$esioh of the Unit withih ji stort of .onstruttion. subkct to tinely conpliance ol the pravnions oJ the Agreenent by the Allottee The Allottee ogrees and understands that the ComponJ shall be enntled ta o grace period oI s Av4 nonths. ror annexure P2, pase 61 ot com laintl Date oisrarr oi.o.strx.rinb 14.06.2013 as pcr statement of account dated 17.10.2021 at page Duedatentpossersrcn Nomilation letter hsued by the respondent in favour oI Mr Pmvecn X!h.r fln Total consideration as per statement of account dated 17.70.2021 ar page 222 of 14,112016 [calculated trom thc datc otstart ol conshtr.tion i.e..

14.06.2013 + 5 t!,9t{hisle!9?!r!9!l 25.04.2013 tu.95,25,54rl Total amount paid by the complain.nts as per statehent ol account dated completion certin.ok/occupation Rs t.01.46322/. t2 {THARERA Seunuo,rAM complarnr No 18?l!r2011 'l'hai the res very ethical business delivering its housing dards and agreed timelines. consumer thatth€irdl€am home udll be completed altd delivered to them within the time agreed initially in the agreement while selling the dwelling unit to them.

They also assured to the consumers like complainants that they have secured all the necessary sanctions and approvals from the appropriate authorities for the construction and completion ofthe real estate proiectsold by them to the€onsumers in general.

B, 3.

1?-10.

3.

1?-10.2021 at page 223 or 1J Offer of possession to the first subsequent allortee 01.06.2019 lannexure R4, pase 124 ofreplyl 18.

Complainants herein are second subsequent allottees The respondent acknowledged the complainants as allottee vide nomiDation letter dated 06,08.2019 (annexure R3, page 99 of reply) in pursuance of aereehent to selldated 13.07.2019 (annexu.e P7, page 111of complaint exe.uted between the complainanis and the previous auottee (Mr.

Praveen Kuharl Unit handover lette. signe.l by the .onjrlainants on lmo9.2ole ftfirexure Rr. oape 29 of reDlvl 2A Conv.yrnce .le€.1 €xe.uted bv th€.omDLainantr on 09.092019 fannexure R6, DaEc 137 ofrcDlvl laint llowingsubmi vI ng and {r di HARERA GURUGRAM ii.

Thatthe respondentwas verywellaware olthe factthat in roday's scenario looking at the status of the construction oi housing projects in lndia, especially in NCR, the key facto. to selt any dwelling unit is the delivery oicompleted house within the agreed and promised t,melines and that is the prime factor which .r consumer would consider while purchasing his/her dream home Respondent, therefore used this tool, which is direcrly conneded to enotions oi gullible consumers, i n its marketing plan andahvays represented and warranted to the consumers that their dream home will be delivered withio th€ agreed timelines and consumer will not go through the hardship oi paying rent along with the installments of home loan like in the case oi other builders in Complarnt No 18?l !r20.21 That Mr.

Vikrant Rohilla S/o Mr M.S Rohila, R/o C225, I\4adhuban.

Vikas Marg, New Delhi 110092, Delhiwas the or,g,nal allottee, who paid advance booking amount ofRs.7,50,000/ through chequ e n o.

908922 &cheque no-908923 dated 30.01.2012 to bookthe flat no GGN'12-0601 atCurgaon G.eens,Sector 102, Gurugram, Haryana. having super built up area admeasuring 1650 sq. ft. in the proiect That the original allottee and respondent entered into a bunder buye.'s agr.ement on 01.04. on 01.04.2013 and subsequently the "buyefs agreemenC'was endorsed in ravour ofMr.

Praveen Kunrar S/o Shri Hoshiar SiDsh Dahiya on 25.04.2013.

Compl.rnt No 3823 of2021 !A RAN/ t]I UG HA u GUR That M..

Praveen KumarS/o ShriHoshiar Singh Dahjya pu.chased the said flatin the project from original allonee vide agreement to sel1" dated 17.04.2013 and endorsement the buyers agreement was subsequently made on 25.04.2013, thus stepping into the shoes oithe original aUottee.

That the said flat was subsequently pu.chased by lvlr.

Virender Singh Rashave & Mrs.

Anjana Raghave, R/o, F401.

I\4unirka Apartment, Plot No.

11, Sector 9, Dwarka, New Delhion 13.07.2019 by executing agreement to sell between Mr.

Praveen Kuma.

S/o Shri HoshiarSiugh Dabiya,and Mr. virenderSingh Raghave & Mrs Anjana Raghave, endorsement on the buyers agreement was subsequently made on 06.08.2019, thus st€pping into lhe shoes ol the original allottee.

Further, the respondent confirmed nomination of the complainants for the said flat through nomination letter and endorsement on the buyer's agreement on 06.08.2019.

Further, on 06.08.2019, the respondent issued a nomination letter in which respo.dent confirms that the Domination formalities havingcompleted and accordingly now the .aptjoned property stands in the name of complainants and the respondentalso confirm having received olconsideration amounl lrom originalbuyer.

That after the endorsement was made on the buyer's agreement in favour ol the complainants, the complainants with bona'fide intentions continued to make payments on the basis otthe demand iTHARERA S- cLrnrcnnu That the said unit was consideration exclusi raised by the respondent.

During th€ period starting from 06.08.2019, the date ofendorsementon the buyer's agreemen! the respondent raised demands of payments vide various demand letterwhich were positively and duly paid by cornplainants.

A total sum of more than R.s.1,01,86,322l- was paid. was paid.

Thus, it shows the complainant has complete sincerilyand interest in projectand the and original buyer on 01.04.2013 and subsequently endorscd in the name orMr.

Prav€en KumarS/o Shri l{oshiar Singh Dahiya on 25.04.2013 and thereafter endorsed in the name of complainant herein on 06.08.2019.

Buyer's agreement consistingvery stringent and biased contractual terns which are illegal, arbitrary, unilateral and discriminatory in nature, because every clause of agreem€nt is drafting in a one-sided way and a single breach ofunilateral terms of buyers aereement by complainants, will cost him torfeiting ol 15olo oftotal consideration value ofun,t.

Respondent exceptionally )oo /- .,IFMS Compla'ntNo l82l ol202l original allottee fora rotrlsale s.89,34,983/- [which includes 83, exclusive/dedicated IDC of Rs.5,70,900/ , fRs.82,s00/-, and PLC tbr nafter referred to as between the respondent ,000, HARERA GURUGRA]V also compensate att arbitrary u Complaint No.

3823 oi2021 increase the netconsiderationvalue offlat myadding EDC,IDC and PLC and when complainants opposed the unfair trade practi€es of respondent they inform that EDC, IDC and PLC are iust the government levies and they are as per the standard rules of gover.ment and these are just approximate values which may come less at the end of project and same can be propodonately rdjusred on prorate basrs bout the delay payment charges of 24% they said this is otcompany and company will persq. ft. per month in case or eyopposed these,llegal, terms ol provisional er option ieft wr(h e lurther payment of t forteit l57o ot toral unt pa,d bycomplainants. enrs) of th€ buyer s \.

That as per annexure-lll [schedule of paym .igreFmFnt the <dre\ .o1' dPrrlion ex.', si\ Rs.89,34,983/- [which includes the charges towards basic price, covered car parking EDC&IDC, Club Membership, IFMS, and PLC central Greens) but later atthe time ofpossession respondent add Rs.30,076/- in sale consideration and increase sale consideration to Rs. ion to Rs.89,6 5,059/- without any reason for the same and respondent also charge IFMS Rs.82,500/- separately, whereas IFMS Charges already included in sale consideration and that way respondent e of ST and CST is I HARERA GURUGRA[/ respondent had agreed a!d pr 6$ ? xii lhat the complai Complaint No.

3823 ot2021 e to complete th€ consrrucrion session within a neriod ol16 charge IFMS twice from complainanrs.

In total the respondent increased the sale consideranon by Rs.1,12,576l- ( Rs.30076/, r Rs.82,500/, without any reaso[ which is a unilateral and unfajr trade practice.

The complainants opposed rhe increase in sal€s consideration attime ofpossession butrespondent did not pay any attent,on to complainants, period, from the date ofstart dent h3s breached the terms llits obligations and ithin the agreed Ume e entire sale consideranon along with applicable taxes to the respondent for the said ilat.

As per the statement dated 24.08.2021, issued by rhe respondent. upon the request of the conrpla Rs.1,01,86,322l- towards totalsale considerahon plus taxes as on today to the r€spondentand now nothing is pending ro be paid on the part of complainants.

Although the respondent had charged additional amount of Rs.1,12,5 76l- from thecomplainants on sales pricewithoutstatinganyreasonforthesameandrespondentalso squeeze money amounting Rs.5,89,942l- by way oa imposing they have already paid lder buyer agre€ment *di HARERA GURUGRAN/ delay payment charges at xiii.

That on the date agreed for the delivery of possession oisaid unrt as per date ol booking and later on according to the llat buyers agreement, the original buyer's & subsequent allottee(sl had approached the respondentand its officers for inquiringrhe status oi delivery ol possession but none had bothered to provide any satisfactory answer to the alottees abour the complerion and delivery said flat.

The alottees therealter kept running from pilla. rom pilla. to post asking for the deiivery of his home butcould not succeed in getting a.y reliable answer. xiv.

That the conducLon partofRespondent regardjng delay in deliv.ry of possession of the said flat has clearly manilested that respondent never ever had anyintention to deUverthe said flat on time as agreed.

It has also cleared the air on the lact that all the promises made by the respondent at the time of sale oi involved flat were lake and fahe.

The respondent had made all those false, rake, wrongaul and fraudulent promises just to induce lhe complainants to buy the said flat basis its ralse and irivolous promises, whi.h the Respondent never intended to fulfill.

The respondent in its advertisements had .epresented falsely regardine the delivery date ofpossession and resorted to all kind ofuDfair trade practiceswhile transacting with the compla'nantt.

Complaint No.

3823.f ?0ZL rate ol 24th on delav of lnstallment Prge 10.r ]r ITHARERA ($, GuRTJGRAII/ xv.

That the offer of possession offered by respondent through "intimation of possession" was not a valid offer of poss€ssion because respondent offered the possession on dated 01.05.2019 with stringent condition to pay certain amounts which ar€ never be a part of agreement and project was delayed approx. three years.

At the time of offer otpossession respondent did not even adjusted the delay penalty @ Rs.7.5/-sq. fr per month (from possession 01.06.201 elay payment, builder charged th. penalty @ in delay in possession Compla'nr No 3821 of 202I I respondent did not at "Curgaon CreenJ' is is illegal, arbitrary. respondent along with emanded two vear advan.e Maintenance charges from complainants which was never agreed under the buyer's agreement and respondent also denranded a lean marked FD ol Rs-2,93,729/- in pretext of future liab'lity against HVAT which are also a unfair trade practice. practice.

Complainants informed the respondent about his unfair calculation ot delay possession penalty and also enquire the construction status olrest of project throush telephonically but noth,ng changed aDd respondent does not want answer any enquiry befor€ getting complete paymeDt against his flnal demand.

Respondent left no u HARERA ConplaintNo.

1823 of ?021 real,ty it is very small as compare to 8 acre and respondent also bu,ld car parking underneath Central Park', joSgers park is no GURUGRAIV other option to complalnants, bur to pay rhe payment two year maintenance cha.ges Rs.1,44,540/- and fix€d deposrt of Rs.2,93,729/ with a lien marked in favou. of Emaar MCF Land Limited and Rs.4,11,600/- towards E-Stamp dury and Rs.45,000/. towards registrat,on charges of above said unit no.

0601, Tower 12, Gurgaon Greens in addition to final demand .aised by respondent along with the ofaer oa possession.

Respondent handover the physical possession ofsaid flar on 04.09.2019 after receiving all payments on 31.07.2019 from rhe complainanrs. xvi.

That the GST Tax which has come inro force on 01.07.2017, ir is , aresh tax, andthe possession ofthe apartment was supposed to be delivered to cornplajnant on 14.06.2016, therefore, the tax which has come into existence after th€ due date ofpossession offlat, rhis exka cost should not b€ levied on complainant, since the samc would not have fallen on the complainant ilRespondent had otf.r the possession of flat within the time stipulated jn rhe burlder buyer's agreement. xvii.

That after taking possession of flat on 04.09.2019, th. complainants also identify that some major structural changes were done by respondent in project "Gurgaon Greens" in comparison to features ofproiect narrated to complainants at the omce of respondent, area of central park was told 8 acre but in Pag! l2 ufll trHARERA S- eunuennrtl .onirm or revised t ConDlaint No.

Dlaint No.3423 6f 2021 nt of EDC, IDC, and PLC after ither they provide the were existwhereas respondent charge a PLC ofRs.4,95,000/, from the complainants in pretext of central park.

Most of the amenties are nowhere exist in projectwhereas it was highlightarthe t,me of booking of flaL Respondent did many structural changes and cut down on the internal features of project, based on which respondent sold this flat to complainants and gain exception amount olpront on the cost ofcomplainants and other buyers ol the unit in the project Gur8aon Greens.

Respondent did not even EDC,IDC an adjust the paidtogover the exact amount of pondentdid not even d PLC .har8ed from That the respon ptionally high PLC kom complainants without ever transferring the ownership righrs ol amenities to complainants on the common area of proJcct Respondentcompelled almost every flatowner (total 6721 through unilateral buyer's agreement to pay PLC of Rs.4,95,000/- for central park whereas respondent sell car parking ofRs.3,00,000/- each underneath CentralPark, this wayrespondent seu samearea twice to residents and collectexceptionally high and unilateraland unjustiffed PLC hom the complainants.

Respondent only sp.ead grass on roofofcovered parkingareaand sell it as "Cenkalcreen" ARERA URUGRAI\,4 complaint No.

1823 or?021 at exceptionally high rate of Rs4,95,000/- each.

Further, the respondent did notprovide the final measurement olabove subject unit and no architect confirmation provided by respondent about the final unit area which respondent will going to handover to xix.

That the respondent has committed grave deficiency in services by delayingthe delivery ol possessio n and falsepromises made at the time ofsale of the said flat which amounts to unrair trade prach.e which is immoral as well as illegal.

The respondent has also criminally misappropriatedthe moijey paid by the complainants as sale consideration oisaid flatby not delivering the unit on dgreed timelines. timelines.

The respondent has also acted fraudulently and arbitrarily by induclng the complainants to buy the said flat basis its false a.d frivolous promises and representations about the delivery timelines aforesaid housing proiect.

Respondent using sub standard signage boards all overthe flats and lobby area and other common area which made the project look more sub xx.

Thatthecause of action accrued infavourof the complainantsand against the respondeni on 30.01.2012 when the said flat was booked by original allottee and it further arose when respondent failed/neglected to deliverthe said flaton proposed deliverydate.

The cause ofaction is continuing and is still subsisting on day to c.

4.

HARERA GURUGRAI\I Rellefsought by the complalnant The complainani is seekingthe following relief: ,.

Directthe respondentto paydelayed possession interesr @ 18ryoon account ofdelay in offer,ng possession on the amounr paid by the complainant of Rs.1,01,86,322l, against the sale considerarion oi the said flat from the date of payment till the dare of detivery of excess amount of Rs.l.l2.S76l-, ht by increasing sale price.fte. exe.ution ol buyels between respondent and Complarnt No. l323 ol 2021 ount of Rs.5,89,982l- ii,.

Direct the re n delay payment ot _07 _2019. e ih a..ord.n.e w h ords and details oi 24.07.2079. vi.

Direct the respondent to retum entireamount paid as VAT tax paid by the complainant beBveen the period from 01.04.2014 to 30.06.2017. vii.

Direct the respondent to issue necessary instruction to complainants bankto removethe lien marked overRxed deposit of Rs-2,52,929/- in favour of respondent on the pretext of future payment of HVAT for the period of01.04.2014 to 30.06.2017.

Dircct the respondent to return an unreasonably chnrged by respo t d viii.

Direct the respondent to get th€ flat measurem€nt don€ by independent architect and furnish the report ofactual size of flat to complainants and adjust the cost in accordance of actual size deliver to complainants. ix. nants. ix.

Directthe respondent to charge electricity charges accordance with consumption of units by complainants and restrain respondent HARERA GURUGRAN4 i.

That at the Complarnt No 3823 or202I at the ,nstant complaint is from chargingnxed m,nimum charges on electricity meters. complainants as cost oathe litigation. r xi.

Directtherespondentto proport,onate amount oIPLC out of Rs.4,95,000/- c acre central green area. is Authority maydeems ir.!mstan.es oa the Relly filed by The respondent ha the following grounds: : D, 5. lc to be reteded on thrs untenable both in iacts and in lawand is liable ground alone.

That thecomplainant was handed over the physical possession of the unit on 04.09.2019 which is renected in the un't handover letter dated 04.09.2019.

The complainant,s in the p€aceful possession ofthe unit since more than two years and the present complaint is filed with a malalide intention. ii.

That the address of the respondent mentioned in the proforma is not functionaland unregistered.

That the respondentwas tormerly known und€r the name and style of M/s Emaar MGF Land Ltd., sidering It ds HARERA GI]RUGRAI\,4 i\. however, had changed its name to Emaar India Limired" !v.e.f.

07.10.2020 as is evident from the certificate issued by rhe Covernment of India, Minist.y of Corporate Affairs, New Delhj and got incorporated under the Companies Act, 1956, havrng its ReEd Office at 306-308, Square 0ne, C-2, Disrrict Centre, Saket New Dethi South DelhiDL l l00lTandcorporateolfice at Emaar Business pnrk, Sector 28, Curgaon 122002.

That Nl r.

Vjkrant RohiUa [the "Original Allottee"] being inrerested in the real estate development of the responden! hcence no.

75 ol 2012 dated 3].O7.2072 for development of a group housing cotony was granted to the complainant by the Director, Town & Country PlaDning, Co,,t- ofHaryana upon which the complainant devised rhc development ofthe project, under the name and style ol"Gurgaon Greens" situated at Sector 102, Gurugram, Haryana, tentah na, tentahvely nppUed for provisional allotment oithe unit vide applicahon who was allofted unit no.

CCN-12-0601on sixth floo. in building/tower no.

12, having a super area of 1650 sq. ft. vide an allotment letter dated 25.01.2013 and coDseq uently through the buyer's agreement dated 01.04.2013.

That thereafter, the unit was transferred to Mr.

P.aveen by th. o.iginal allottee vide a nomination letter dated 25.04.2013 Subsequently the unit was assigned to the complainants, vide a nomination letter dated 060a2019 The nnminarion lefiers dar.d aomplaintNo J823ol 2021 I}HARERA S-GURUGRAN/ v.

That the complainants have not come before this Authoriry with clean hands and has suppressed vital and material fa6rs from this Authority.

The correct facts are set out in the succeeding paras of thepresentreply.

That it mustbe noted, whilstthere is no doubtthat Comblaint No.34236f 2021 25.04.2011, 06.08.2019, a<rignmenr docket rn Iavour oi 14r. omplainant has entered into the shoes of theoriginal allo er, the same is not absolute. vj.

That, the complain picture in 2019, i.e.. when ady delayed from the Virender Singh Raghave and Anjana Raghav. ge of complarnants cannor, ementforselland the own aboutthe sam€, the circumstance whatsoeve. be liable tobe dismissed with costs against the complainant. vi,.

Thatsince the complainants wer€ alr€ady in knowledge ofthe delay caused, they had consequently agreed to not take any compensation or rebate that the original allottee might have been entitled to, as evident from the assignment docket document no.

14 annexed herewith.

That in lieu ofthe knowledge ofsuch delay, the proposed date ofdelivery ofpossession was 02.07.2019.

Moreover, it must be allowed to take benefit oftheir own wrong.

He.ce, the complanrt Ls HARERA GURUGRA[/ categorically ooted thatthe otrerotpossessio. was made to the firsr subsequent allottee, Mr.

Praveen Kumaron 01.06.2019. viii.

019. viii.

That the complainants were nominated after having rhe possessjon was offered to the first subsequent allotree.

That the complainants bought the unit with the prior knowledge of rhe offe. ofpossess,on being already made and thus w,th no anticiparion ol any delay whatsoeve..

That thereafter, wirhout any delay, the comptainants were handed over the unltonb4.09.2019.

Complarnt No la2l of l0l1 That the respoDdent has complied withallofits obligations, nor only with respectto the agreementwiih the complainanrs bur also as p.r the concerned laws, rules and regulations thereunder and the local autho.ities.

Thaldespite the innumerable hardsh,ps being faced by the respondent, the respondent completed the construction oI the project and applied for pari occupation certificate vide.rn application lor issuance oioccupation certificare dared 31.12.2018, belore the concErned Authorlty and successfully attained the occupatjon certifi@te dated 30.05.2019.

It is ro be noted rhat rhc construction ofallthe booked apartments has been completed out of which 563 units were handed over at the time ol filing thN rhdr lheredlLer. dno only after obrr.n,nB rh. reqJbire pei n..i,on . the respondent legally offered the possession of the unit to the complainants on 01.06.2019 and request the payment olfinaldues t& HARERA GURUGRAN/ and takingthe possession ofthe Unit on or before 02.07.2019.

That consequently, the possession of the unit was taken by the complainants on 04.09.2019 and the conveyance deedwas executed on 09.09.2019.

That the project has been duly complered after having obtained all the necessary approvals and fulfillingallthe requiremenrs as perthe exist,ng bye laws.

That at the outse! without prejudice to the contents ofth,s complaint, itnitstbe noted that the complainant is a renowned real estale developer ofinternarional repute_ xii. pute_ xii.

That the complaints after havinBexecuted the conveyance deed for morethan twoyears, takingand enjoying peaceful possessio n olrhe unit, and havingenjoyed suchpossession forsuch a lons period, the complainants should not be entitled to claim the jnteresr on the delayed possession.

The complaints should be liable to be dism rssed with hea\,y costs.

Thus, the presentcomplaint is devoid olany cause oaactron and is nothing bot an abuse process of Law.lt is submitted that a contract ls deemed to be concluded aater execution of conveyance deed.

It is also submitted thar the complainants executed a unit hand over letter where it is stated that the complainant upon acceptance of possess,on, the liabilities and obl,gations of the compaDy as enumerated in the allotment letter/buyers agreement stands satisfied.

Complaint No.3823 oi Z0Zl HARERA GURUGRA[/ Complaint No.

3821 of 2021 xiii.

That through the preseDt compliant, the complainants have sought delayed possession charges.

Thatwithout acceptingthe contents ol the complaint and without prejudice to the present reply, even it in any circumstance, whatsoever, if the delay possession charges are considered to be a statuto ry right, the complainants have dept over their rights iora longperiod oftime.That theAct came into force on 01.05.2016 and the rules wcre implemented on 28.07.2017 and the complainants were nominated on 06.08.2019, i.e., much after RE&q beins in fo.ce and even after the offer or possession bein8 made That no perso n should be allowed to misu se the p rocess o f law Alter having slept over their rights for a number ol years, Ihe complainants should not beallowed to get any reliefwhatsoever xiv.'Ihat timely payments lrom the alloBees are key to timely delvery of Unit.

It must be noted that the payments against the unit were delayed.

A .umber of payme.t request letters and reminde:s at various instances had been sent lo the complainant for payment of rr- That no denand was raised before-hand by it. and by it.

In order to ensure utmost transparenry, the respondent raised demands as and when the construction was being done.

The comPlainants have caused delay which has been criticalto therespondent and stands in gross violation of ihe agreement.

That such delay has gravely hampered the smooth tunctioning and construction of the proiect.

This clearly HARERA GURUGRAl\/ Complarnt No 3821or202 L shows the mala fide conduct exe.cised by the respondent whi.h is in complete breach ofthe terms oithe agreement. xvi.

That the delivery oipossession of the unit by rhe respondent was ''subject to the allottee having rimely complied wirh att the terms and condi tions ol this agreement and notbeingin delauh underany provisions of this agreement and compliance with all provjsions, lormalities, documentation etc...". xvii.

That all these circumstances come within rhe puNiew oirhe torce majeure clause andhence allowa reasonable time to the respondenr builder.

That the respondeni had the righr ro suspend rhe construction of the project upon happening of circumstances beyond the control of the complainant as per clause 14[b)il), however, despite ail the hardships faced by the respondent, the respondent did not, suspend theconstruction and managed to keep the projectafloat through all the adversities. xviii.

That the complainr is a frivolous att€mpt of the complainant to extract monies out ofthe respondent.

That lhere exists no cause ol action ior the complainant to file the present complaint.

That the respondent has made good on all parts of his .esponsibilities and obligations uDder the agreement read with the transfer documents and under the law, rules and regulations.

That ior the reason of non existence oi an .xisting cause of action, this complaint is liab.c to dismissed on this ground alone.

That after having slept on thcir HARERA GIJRUGRAI\,4 rights for ComplaLni No.1823 of 2021 a number of years, the complainants cannot be rightly have the pr€sent claims. xix. aims. xix.

Moreover, without accepting the contents ol the complaint in any ma nner whatsoever, the bonafide conduct of the respondent has to be highlighted as the respondent has raised various credit memosl for TDS Certificate, on account oiGST Nligration, on account ofanti- profiting amounting and on account of EPR as is ev,dent trom the statemenr ol accounts dated 17.10.2021.

The respoDdeDr also credited an amount of Rs.34,132l- towards antj'profiting Moreover, the respondent has dso credited a sum of Rs.3,128,/- as beneiit on account of EPR (early payment rebate). without prejudice to the rights ofthe respondent, delayed interest ifany has to calculated only on the amounts deposited by the auo$ees/complainants tow:rds the basic principle amount ol the unit in question and not on any amountcredited bythe respondent, or any payment made by the allottees/complainants towards delayed payment charges (DPC) or any taxes/statutory payments That in lightofthe bona ndeconductofthe respondent, the p€aceful possession having been taken by the complainants, non'existence of cause ot achon and the fiivolous €omplaint flled by the complainants, this complaint is bound be dismissed with costs ,n favour of the respondent.

1rHARERA &eunubnnrr,r ComplaintNo.

3823 of 2021 xxi.

That the construction of the project/allotted unit in question already stands completed and the respondent has already offered poss€ssion of the unit in question to the complainant.

Furthermor€, the project of the respondent has been registered under the Act, 2016 and the Rules, 2017.

Registration certincate granted by this Authority vid€ memo no.

HRERA-139 /201712294 dated 05.12-2017 has been appended with this reply.

It is pertine.t to mention that the respona applied for extension ol the registration and the validity of registration certilicate was extended rill 3l l2 2019 It needs to be highlighted that an arnount olRs.45,000/, towa.ds E- Challan due and payable by the complainants. plainants.

The complainants have intentio nally reirained lrom remining the aforesaid amount to the respondent.

That the complalnants have consciously detiruhed rn hrs oblgations rs e buyer's agreement as wellas under the Act.

The compiainants cannot be permitted to take advantage of hi5 own Wrongs.

The instant complaint constitutes a gross misuse of process of law.

Without admitting or acknowledging in any manner the truth or correctness ofihe frivolous allegatioDs levelled by the complainant and withoui prejudice to the contentions otthe respondent.

The complainantand responde.t have filed the written submissions on 27-04.2023 and02-09.2022 respectively which are taken on record.

No HARERA GURUGRAIV additional facts apart from written submissior)s.

Complcinr No.1823 of 2021 E, 7.

JurisdiGtion of the authorlty Th€ authority observed that it has terratorial as well as subject matter jurisdiction to adjudicate the present complaint lor the reasons given the complaint or reply have been srated the Ll. t.

E,l Terrltorialiu.isdictior As per notification no.

7/92/2077-1TCP dated 14.12.2017 issued by Town and Country Planning Department, Haryana the ju.isdicrion ol Real Estate Regulatory Authority, curugrarn shall be entire Gurugram D istrict fo r a1l purpose with offices situated inCurugram.ln the presenl case, the projecl in question is situated within the planning area of Curugram District, theretore this authority has complete terntoflal Jurisdictjon to dealwith the present complaint.

E.ll Subiect-matt.riurisdiction Section 11(41(a) of the Act provides that lhe promoter shall be responsible to the allottee as peragreement ior sale.

Section 11[4)(a] is reproduced as hereunder: iilt rr," p-..t-,nat (u) be responeble for all obligations, responebilitiesand lunctons uhdet the polisians aJ thk Act ot the rules ond resuluttons nadc thercundet o. rcundet o. ta the ollottees as per the ogree ent lo sole, or ta the asoctatrcn ofallattees, as rhe case nay be, ttll the conveyance ofall the oportm.nts, ploE o. bu dtnstasthe.ose oy be, totheollottees or the connoh oreosto the o$a.iatn t olallottcesa. the canpctent outhaut/, asthe coseno! bc, Se.tion 3 4- Fun.tions of the Authority: *HARERA !-S- crnrcnnv anmDlarni Nn ll32? of 2{r21 34(D ofthe Act ptovitts to ensurc conptia^ce oJthe obtigotions cast upon the prcnotqs, the allottees ond the reol 6tate ogents undq this act ond the .ulet on.l rcgulatiohs nad? thffiundcr 10- So, in view ofthe provisions ofthe Act quoted above, th€ authority has complete iurisdiction to decide the complaint regarding non complianceof obligationsbythepromoterasperprovisionsof section 11(4)(a) of the Act leaving aside compensation which is to be decided bythe adjudicaring offi cerif pursued bytheconplainantat a later stage.

Ij.

FindiDgs on the obiections raise F,l Obiection regarding ty of .omplaint on account ot compl.inantbeineinve 11 The respondenr rook a s plainant is investor and not the protection ofthe Act enes or violates any ade thereunder.

Upon careful perusal of all th ons olthe allotment letter i! term allottee under the Act, the same is reproduced below for ready "2(d) "ollotEe" ih relotion to o reol estate prcject neons the Pe.tuh towhono plot,opartnentorbuilding,dsrhecose o! be, has beq attodcd, sold (whether 6 freehold ot teosehotd) or otheNise tansk ed by the prcnoter, ond includes the pNn eho subvquehtry o.quires the soid ollotnent thrcugh sole, rrander ot otheNise but do6 not ihclude o pe6on to whon suclt Plot opoftnent at building, os the cose nay be, is given on rcnti" der sectio.

31 of the eved person can file a th GURUGRAIV HARERA CohplajntNo.

3823 of 20?1 ln view of above-mentioned definition of "allotree" as well as all the terms and conditions of the buyer's. e buyer's. agreement executed between promoter and complainanl it is crystal clear that the complainant are allottee(s) as the subject unitwas alloned to them by the promoter.

The concept of investor is not defined or referred in the Acr.

As per the def,nition given under section 2 oftheAct, there will be "promoter" and "allottee" and there cannothe a hrvinga starus of "investor".

Thus, the contention of promoter l enntled iu protection ofthi C.

Findings on the re re allottee being investor are not possesslon.

13.

The original allo sion inrerest @ I8o/o n the amount paid by tted a unit bearing no. e 66 Floor of BurldinB -12 apartment buyer's agreement was also executed between the original allotteeandtheresponde.tregardingthesaidallotmenton0l.04.20l3.

Thereafter the original allottee i.e., Vikrant Rohilla sold.his unit to the first subsequent allottee namely Praveen Kumarvide nomination letter dated 25.04.2013.

The occupation certificate was received from the conrpetent authority on 30.05.2019 and possession of the unit was offered to the nrst subsequent allottee vide ofer of possession letter "Gurgaon Creen' at sector.l02 letter dated 25.01.2013 and an dated 01.06.2019.

Thereafter, the onginal allottee requested the respondent to transfer/sell the said unlt to the complainant vide agreemenr to sell dat€d 13.7.2019.

Accordhgl, the respondent vide nomination le$er dated 06.0820r9, conRrming substitution ofname in the aforementioned apartment and the said apartment was transferred/endorsed in the nam€ of the complainant Fu(her, the HARERA GURUGRAN/ ComplaintNo.

3823 o12021 possessron oithe Lrnit was han ver to the compiainants herein vide unit handover letter dated C .

Also, the conveyance deed 19 was also executed by it ,n bearing vasika no.

6456 tavour oithe complai 14.

Consideringthe a rirvisolrh.viPwth:r nt allotte€ who had ee on 06-08.2019 i.e. .2019 i.e., oafered to the first sub btect unit was already imply means that the ready subject unit is situatedhas already been completed and the possess'on of the same has been offered to the first subsequent allottee on 01.06.2019 after issuance ofthe occupation certificate by the concerned authority.

Moreover,theyhave notsutreredanydelayasthe subsequent allottee/complainants herein came into picture only on 06.08.2019 i.e., after offer of possession which was made on 01.06.2019 to th€ first subsequent allottee. h is pertinent to mention here that the present to move in propertywas off lrHARERA S- crnrcnntr Complaint No.

3823o1202r allottee never suffered any delay and also respondent builder had neither sent any payment demands to the complainant norcomplainanr pajd any paymentto the respondent.

So, there is.o equity in favour of the complainant.

Hon'bleApex Courthas also categorically held in many judgements that the rules and procedure are handmaid ofjusti€e and nol its mistress.

Hence, in such an eventualiry and in the interest ot natural just,ce, delay possession charges cannot be granted to the complainant as there is no iniringement of any oi his right (being subsequent allottee) by the respondent-promoter.

15.

In the light olthe facts mentioned above, the complainants herein who have become a subsequent allottee ai such a later stage is not entitled to any delayed possession charges as he has not suffered any delay in the handing over of possession.

Hence, the clalm of the complarnant w.r.t. delay possession charges is rejected being devoid ofmerits.

G,ll Direct the respondent to .etun .n ercess amounr of Rs.1,12,5161., uDreasonably charged by respondent by increaslng sale prlc€ after executior of buyer's agreement between r€spondert an.l complalmnas.

G.lU Direct the respondent to return the amount of [s.5,89,982/- charged by respondentas iDter6t @24% on delay paymert of installmert' for the period of30.11,2016 to 31,07.2019.

C.

7.2019.

C.lV Direct the respondent to charge m.intenan.e ln a..ordan.€ with buyers agreement and furnish the records and details or malntenance calculatlons to the complalnants.

G.V Direcr the respondent to retur! entlre amount paid as GST tax paid by the complainaDtbetween the period from 01.07,2017 to 24.07.2019.

G.vl Dlrect the respondentto return entlre amoutrt pald as vAT tax paid by the complainantbetween the period from 01.04.2014 to 30.06.2017, G,VU Dire.t the respondeDt io issue re.essary instruction to .omplaiD.nts bank to rehove the lien n.rked over nxed deposit t s_ HARERA GURUGRAIV Complarnr No.

3823 of 2021 otRs,2,52,929/- iD favour ofrespondent on the pretext offuture payment of IIVAT for the perlod of01,04,2014 to 30.06,2017, G,VlllDirect the respondent to get the flat measurement done by independent archltect and furnish the rcport of actual size otnat to cohplalnants aod ad,ust ihe cost itr accordan.e ofa.tual size deliver to complalnants, C.lX Dire.t the respondent to charg€ elect.i.ity charges accordance with consumption of units by .omplalnalt! and restrain respondentfrom charging nxed minimum charges on etecricity C.X Direct the respordent to pay .n amount ol Rs.55,000/- to the complainants as cost oathe present litigatlo..

G.Xl Direct the respondent to returtr an proportlonate anourt of PLC out ofRs.4,95,000/- charged for vlewinga 8 acre centralsreen 16.

The above-mentioned reliefsoughtby the complainants are being taken together as the findings in one relieiwill definitely affect the result of 'hF olher r elief dnd lhe \Jme b" nB rnter, onne.teo.

17.

In tie abovc mentioned reliefsought by the cornplainants the financial liabiliriF\ berwepn th. allorle€ dnd lhe promorer.ome\ ro a1 pnd rrr, r the executioD oi the conveyance deed.

The complainants could have asked fo. the claim before the conveyanc€ deed Bot executed between 18. \4o eoler.

Ihe clause I 3 of rhe conveyance deed ddred 0q 0q. red 0q 0q.20 I q rs also relevantand reprodu€ed hereunder for ready reference: 13.

Thot the otuol, physicol, vocant possession olthe eid Aparthent hos b.en honded over to th.

Vendee ond the vendee hereby conlrns toking over potses\ion ofthe soid Apoftnent / pa.king space{s) fro the vendos ofter sotisfying hinef/ herktlrhat the construction os aha the votious installotions like electnlcotion work, sanitory Ittings, \|atq and seweroge connectian etc have bun ode and pfovided in accordonce with the drowingt desiqns dhd specilicatiohs as ostee.l ond orc in good oder ond condition ond thot the vndee k fully sotxfed in this regord an l hos no @mpldint or cldim in respe.l oJ the ofta ol the soi.l apdrtnena any item ol work, not*iaL quotiE olwork, instatlotion, .ompenmtion lor deldt, il ony. vith nrpc.t to the soid Apo.tmenL "tc thctpta :-1,- Therefore, after o(ecution of the conveyance deed the complainant_ allottee cannot seek any refund of charges other than statutory ben€fits ilanypending- oncetheconveyancedeed isexecuted and accounts have been settled, no claims remains.

So, no directions in this regard can be etrectuated at this stage.

20.

In the present case, the Authoritv (Shri' Arun Kumar' Hon'ble ChairpersoD, Shri. vijav Kumar Coval, Member & Shri' Sanieev (umar Arora, Member) heard the complaint and reserved the order on 02.A7 2024, the same was flxed for pronouncement oi order on 03.09.2024.

On 16.082024, one ofthe m€mber Shri Sanieev KL'mar Arora got retired and has been dlscharged hom his duties from the Aurhority.

Hencq rest of the presiding officers of th€ Authoritv have pronounced the said order.

21.

Hence no case for DPC is madeout' 22.

Complaint as well as applications, ifanv' stands dismissed benrg not maintainable The cas€ stands disposed off accordingly' 23.

File beconsisned to registry' Complarnt No.3823 of 2021 ',8t't- r&' (Arun Kumar) Chairman Regulatory Autho ritY, Cu.ugram HARERA GURUGRAM Haryana Real Estate Dated:03.09.2024 (viiay Kf-mar Goyal) r Goyal)