AZAD DABAS vs VSR INFRATECH PVT.LTD.

HARERE ffiGUI?UGIIAM BEFORE THE Complaint No.

1501 of 2019 HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Comnlaint no.

1501 ofZOL9 Date of filing of comnlaint 23.04.20L9 First date of hearing 06.L2.2019 Date of decision 22.03.2023 Complainant Respondents Vsr Infratech Pvt.Ltd Regd.

Office: A-22,Hll View Apartments ,Vasant Vihar,New Delhi-1 1 0057 Valsamma Mathew R/O lPlot No' \4, Ground Floor, Sector-44' Instituliional Area, Rakesh Rajmal Jain R/O Plot No.

1'4, Gro und Floor, Sector-44' Institutional Area, Pulkit Nagpal R/O PIot No.

14, Ground Floor, Sector-44' Institutional Area, CORAM: Shri Ashok Sangwan APPEARANCE: Complainant Respondents Azad Dabas R/O: 3488, Marmac Cresent, L5l4z9, Canada Mississauga Ontario, Versus Sh.

Shriya Takkar [Advocate]r ORDER Page I of22 7.

2.

3.

4.

Member ffiHARERA ffi* GuRuGRAM Complaint No, 1501 of 201,9 1.

The.present complaint has been filed by the complainant/allottee under Section 31 of the Real Estate (Regulation and Development) Act,2016 [in short, the ActJ read with rule 29 of the Haryana Real Estate (Regulation and Development) Rules, 2017 (irr short, the Rules) for violation of section 11[4) [a) of the Act wherein it i:; inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the rules and regulations made there under or to the allottee as per the agreement for sale executed inter se Unit and proiect related dehils 2.

The partir:ulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have treen detailed in the following tabular form: S.No.

Heads Information 1.

Name of the project "68 Avenue", Sector 68, Gurugram 2.

Project area 3.231acres 3.

Nature of the project Commercial Colony 4.

DTCP license no. and validity status 04 of 201,2 dated 23.01.201'2 5.

Name of licensee Sh.

Yad Ram and 6.

RERA Registered/ not registered 119 of 2017 dated 28. dated 28.08.201,7 7.

RERA registration valid up to 30.06.2018 B.

Date of Allotment Lettet' 07.10.2012 (Page 2l of the complaint) 9.

Unit no.

5A8-69, Bthfloor, Tower A + 2 Page2 ofZ 1l ffiHARERS, ffi, eunueRAM Complaint No.

1501 of 201,9 [Page 34 of the complaint) 10.

Unit area admeasuring fsuper area) 704.180 sq.ft. (Page 34 of the complaint) lt.

Space Buyer's Agreement Executed on 25.1 1,,2013 12.

Possession clause 31.

Possession Time and Compensation "The company will be based on its present plans and estimates contemplates to offer possession of the sqid unit to the allottee(s) within 36 months of signing glthis Agreement or within 36 months 'ft. ','rO" start of construction of the said building whichever is later with a grace period of 3 months, subject to force majeure events or governmentol action/inaction". (Page 40 of the complaint) 13.

Due date of possession 25.02.20t7 [Calculated as per SBA) t4.

Total sale consideration Rs.52,94,730/- [Page 34 of the complaint) 15.

Arnount paid by the complainants Rs.

52, 1,7,390/- (As per statement of account on page t6.

Occupation certificate /Completion certificate a2.08.201.9 (Page 44 of the reply) 17.

Offer of Possession 30.08.2018 [Page 69 of the complaint) 18.

Delay in handing over possession till offer of possession 30.08.201B 7 year 6 months Facts of the complaint k Page3 of22 plainants booked a service apartment in the project of the ARER& URUGRAM hat the com H G T ffi ffi wrota mi 3.

Complaint No' 1501 of 20t9 respondent namely "68 AVENUE" located at Sector-68, Gurugram' Haryanaforatotalsalep,riceofRs.S2,g4,T3of-andpaidasumof Rs.3,00,000/- on 30-03 -20'12' That the unit was allotted'ride allotment letter dated 01-10-2012 unit bearing no.

548-69 in 68 r\venue, sector-68, Gurugram and the same was sent to the complainartts along-with payment plan' That the buyer's agreement was executed between the parties otr 25- 11-201-3.Till date, the complainants paid a total sum of Rs.52,-17,3g0.

2,-17,3g0.731-inrespe:ctoftheabovesaidallottedunit.

That all the negotiations before the booking of the unit and at the tinre of making payment to the respondents in the shape of cheques /bank transfer, the complainant was lured by respondents to invest in the project on the pretexl; that delivery of the apartment will be done within 36 months.

As per clause no' 31 of the space buyer's agreement' the possession of the untt be handed over to the complainants within 36 mr:nths from the datr: of signing of the agreement' Therefore' the due rlate comes out to be 25.02.2017 with a grace period of three months.

That the comPlainant visited the site where the project was being 4.

5.

6.

7. developed by the respondents and shocked to see that the construction *o.rf was under construction thereon was very slowly completing and r.o*l physical verification at project site, it transpires that the Page 4 of22 HARER& Complaint No.

1501. of 2019 ffi- GURUGRAM respondents are unable l.o deliver or handover the possession of dwelling unit to the complainant in near future.

B.

That, thereafter, complainant repeatedly followed-up with the officials of the respondents for cornpensating them for delayed possession but the respondents evaded the complainant on lame excuses' While executing Space buyer's agreement with complainants, the respondents falsely promised and assured the complainants that no completion certificate and occupation certificate is required from any authority' 9.

That the respondents ignc red all the lawful ancl genuine requests of the complainants to compensate them.

It is pertinent to mention here that the terms of the agreement are completely unilateral and favoured only the company and the same have been formulated in a way that they can take undue advantage of their dominant position in respect of the projer:t to be developect by them. t by them.

However, the complainant was constrained by the respondents to sign the one-sided agreement with a threat that amount paid by them in shape of booking and other modes would be forfeited, in cal;e complainant do not put their signatures on the agreement.

10.

That now on 30-08 -201,t3, a possession letter in respect of the above said unit was sent to the complainant through post, demanding the sum of Rs.17,15,935.03/- from complainant on account of electric supply' maintenance fee, GST, stamp duty, registration charges, advocate charges etc., but the respondents are nowhere to handover the actual physical possession to the allottees as the construction work of the,,/Y PageS of22 HARER& Complaint No.

1501 of 2019 ffi- GUIlUGIlAM proiect is still going on.

It is worthy to draw the kind attention of this Hon'ble Authority that the respondents have not yet obtained the completion and occupation certificates from the competent authority, 11.

That from the date of booking and till today, the respondents have raised various demands for the payment of instalments on complainant towarrls the sale consideration of the said unit and complainant has duly paid and satisfied all those demands without any default or delay on their part and have also fulfilled otherwise also their part of obligations but the respondents having fraudulent intention of not to deliver the possession of the dwrllling unit to the complainant, delivery date of which was February 201'7.

12.

That the complainant through various modes of communication not limited up-to e-mails tried to find out from respondents if they have received completion and occupation certificate, however, respondents never responded the conrplainants about the same.

13.

That the respondents have recently introduced OYO Leasing Terms and Conditionsr which include minimum rent only of Rs.11,000/- per month for a period of nine years of the lease. the lease.

However, these terms are/were not part of the original agreement executed between complainants and respondent' That as per the original term sheet attached to the contract document of unit to be nranaged by royal orchid.

As per the term sheet of the royal orchid the Management Fee as per item No'9, the basic I/lr Page 6 of22 HARER,Ta Complaint No.

1501 of Z0l9 ffiGURUGRAM *"nrgfirnent fee shall be 2o/o of gross total revenue of the Service I epart,rient, if the gross operating profit within (GOP) is less than 400/o' I L4.

That tn. complainant is retired NRI personnel and want to I use tfl,e unit for their personal use, as the complainant at I o..r.J, have to reside with other relatives.

That the cause of action 'l ,..ruuld in favour of the complainant and against the respondents on I OS.O+.L012, when the complainant had booked the said unit and it I furthe[ arose when respondents tailed to deliver the possession of the unit within agreed timeline, The-cause of action is continuing and is still subsisting on day-to-da;f basis as the respondents have yet not delivered the possession of the unit to the complainants even after various repeated requestl; made by the complainant to the respondents in this; regard.

15.

That t.he complainant has approached the respondent- builder to know the status of the proiect and also the complainant came to kno'w that the construction is going rrt a very slow pace but the respondent- builder never gave any concrete reply and has not got the delayed possession leading to filing this contplaint seeking delay possession charges and possession of the deposited amount C.

Relief Sought This Authority may be pleased to direct the respondent as follows: o Direct the respondent to pay the interest on the amount received by respondent from the complainant in respect of the unit allotted.

PageT of22 ffiHARERA ffioutUGRAM D.

Reply by the resPondent That the respondent has contested the complaint on the following groun<1s: 1,6. n<1s: 1,6.

That the complainant wa:; allotted the unit bearing No.

SAB-59, Bth Floor, Tower A vide allotnrent letter dated 01.10.2012.\t is submitted that the complainant opted for the cotrstruction linked payment plan.

That the space buyer agr()ement was executed between complainant and the respondents on 25.11.2013, The price of the property for an area n)easuring 704.180 sq. ft. is Rs.

45,38,772/- plus taxes, duties' levies and other charges.

It is submitted that the amount paid by the complainant till date is Rs.52,!7,3901-.

It is submitted that all the demands have been raise,C as per the terms and conditions of the SBA and the payment plan opted by the complainant' It is submitted that the complainant defaulted in making timely payments' The complerinant has not paid the final dern and till date' 1,7.

That in the present cas;e the complainant, was allotted unit vide allotment Ietter dated 01.1.0.2012 .

The buyer's agreement was executed between the parties on 2 5.t'L.2013 and as per clause 3 L of the space buyers agreement the respondent was supposed to hand orrer the poss€:ssion within a period of 36 months from the date of the signing of agreerment or within 36 months from the date of start of construction I\f Complaint No.

1501 of Z0L9 o Dilrect the respondent to pay an amount of Rs.

1,00,000/- as litflgation cost and cost of the present complaint may also be awarded in favour of the complainant and against the respondent.

Page 8 of22 ffiHARERA ffi".cl;RUcRAM complaint No.

1501 of 2019 whichever is later along with a grace period of 3 months.

It is submitted that the agreement was e;<ecuted between the parties on 25'11"201'3 and the construction of the project started on t6'08'201'2' It is submitted that in the present case the project was delayed due to force majeure conditions beyonrl the control of the respondent and the same are covered under clause !i1' 18. e !i1' 18.

That the answering respondent had from time to time obtained various licenses and approvals and sanctions along with permits, if any which are annexed herewith for reference of this Hon'ble Authority' Evidently respondent had to obtain ztll licenses and permits in time before starting construction 1,g.

That it is submitted that the complainant is a defaulter' it is further submitted that the respo:ndent vide reminder letter dated 15'06'2017 informed the complainattt to clear the remaining/pending dues and also to take the possession of the said unit. it is mentioned that the complainant still owes the respondent Rs 17,15,935 plus interest on delayed paYments of Rs 2:,,43,6381-' 20.

That without prejudice to the above submissions with respect to the certificate of registration under the Act' That despite exercising diligence and continuous; pursuance of project to be completed, project of answering respondenI could not be completed as prescribed for the following reasons mentioned ' 21..

That on 19.02 .2013 the office of the executive engineer' Huda Division No.

II, Gurgaon vide Merno No.

3008-3181" had issued instruction to all i,\r Page9 of22 HARERS. complaint No.

1501 of 2079 ffi- GURUGRAM developers to lift tertiary treated effluent for construction purpose for Sewage' Treatment Plant Berhampur, Due to this instruction, the company faced the problem of water supply for a period of 6 months.

Time and again various ortlers were also passed by the NGT staying the construction.

22.

The orders passed by the Hon'ble High Court of Punjab and Haryana wherein the Hon'ble Court has restricted use of groundwater in construction activity and directed use of only treated water from available seaweed treatmr:nt plants.

That however there was no sewage treatment plant available which led to scarcity of water and further delayerd the project.

That said order coincided with launch of project and caused a huge delay in starting project itself.

23. tself.

23.

That evidently there was liot of delay on part of government agencies in providing relevant perml,ssions, licenses approvals and sanctions for project which resulted in inadvertent delay in the project which const,ttute a force majrlure condition, as delay caused in these permlssions cannot be attributed to respondent, for very reason that respondent, for Very rea:ion that respondent has been very prompt in making applications and replying to objections if any raised for obtaining such Permissic ns' 24.

That delay has also been caused as the occupation certificate could not be issued since there was an order passed by the Hon'ble Punjab and Haryana in the matter titted as: Mukesh Sharma vs.

State of Haryana and Ors. (CWP No.

23839 of 2014) that no Occupation Certificate be issued D/v Page !0 of22 ffiHARERA S.- GURUGRAM Complaint No.

1501 of 2019 in the sector/area or for brrilding where water supply connection has not been made available by HUDA.

It is clarified that these directions are in relation to Sectors 6tl-80, Gurgaon only' 25.

That the sudden surge reqttirement of labour and then sudden removal has created a vacuum for lerbour in NCR region, That the projects of not only the respondent but also of all the other developers/builders have been suffering due to such shortage of labour and has resulted in delays in the trlroject's beyond the control of any of the developers' In addition the respondent states that this further resulted in increasing the cost of construction to a great extent' 26.

That it is submitted that even today in current scenario where innumerable projects are under construction all the developers in the NCR rr3gion are suffering from the after-effects of labour shortage on which the whole construction industry so largely depends and on which the Respondent have no control whatsoever. hatsoever.

That the Ministry of environment and Forest and the Ministry of mines had imposed certain restrir:tions which resulted in a drastic reduction in the availability of bricks; and availability of'Sand which is the most basic ingredient of construction activity.

That said ministries had barred excavation of topsoil for manufacture of bricks and further directed that no more manufacturing of bricks tle done within a radius of 50 km from coal and Iignite- based thermal prlwer plants without mixing 25o/o of ash with soil.

27.

That shortage of bricks in region has been continuing ever since and the, \( Page ll of 22 ffi ffi mcis wqi 28.

HARER& Complaint No.

1501 of 2019 GUI?UGRAM respondent had to wait many months after placing order with concerned manufacturer rvho in fact also could not deliver on time resulting in a huge delay in project.

That sand which is used as a mixture along with cement for the same construction activity was also not available in the abundan(:e as is required since mining Department imposed serious restrictions against manufacturing of sand from Aravali region.

This acute shortage of sand not only delayed the project of the answering Responclent but also shot up the prices of sand by more than hundred percettt causing huge losses to respondent' Zg.

That rn addition the current Govt. has on 08.11.2016 declared demonetization which se'uerely impacted the operations and project execution on the site as the Iabourers in absence of having bank accoults were only being; paid via cash by the sub-contractors of the company and on the declaration of the demonetization, there was a huge r:haos which ensuedr and resulted in the labourers not accepting demonetized currency after demonetization.

That in July 2017 the Govt' of India further introducr:d a new regime of taxation under the Goods and Service Tax which further created chaos and confusion owning to lack of clarity in its implementation. mentation.

I'hat ever since July 2017 since all the materials required for the project of the company were to be taxed under the new regime it was an uphill task of the vendors of building material along with all other necessary materials required for construction of the project wherein the auditors and CA's across the country were advising everyone to wait for clarities to be issued on, \- \ Paget2 of22 ffiHARERA ffi"ouRUGRRtrl Complaint No.

L501 of 201,9 various unclear subiects of this new regime of taxation which further resulted in delays of pr'ccurement of materials required for the completion of the project.

30, That it is further submittecl that there was a delay in the project also on account of violations of the terms of the agreement by several allottees.

That because of the reces;sion in the market most the allotees have defaulted in making timely'payments and this accounted to shortage of money for the project whir:h in turn also delayed the project.

31.

All the other averments m;ede in the complaint were denied in toto.

32.

Copies of all the relevant do have been filed and placed on record. 'Iheir authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submissions made by the parties.

E. lurisdiction of the authoritY 33.

The authority observes thrat it has territorial as well as subject nlatter jurisdiction to adjudicate the present complaint for the reasons given below.

E.

I Territorial iurisdiction As per notification no.

1/92 /',2017 -ITCP dated 1,4.1,2.2017 issued by Town and country Planning Delrartment, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

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

I{\r- Page 13 of22 HARER& Complaint No. plaint No.

1501 of 2019 ffiGUIIUG|?AM Therefore, this authority has complete territorial jurisdiction to deal with the present comPlaint.

II Subiect matter iurisdiction 34.

Section 11[4)[a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section 77 ft) The Promoter shall- (a) be responsible for all obligotions, responsibilities and functions under the provisions of this Act or the rules and regulations mode thereunder or to the allottees as per the agreement for sale, or to the association of allottees, as the case iay be, tilt the conveyonce of all the apartments, plots or buildings, as the case may be, to the allottees, or the common Qreos to the association of allottee:: or the Competent authority, as the Case moy be; Section 34'Functions of the Authority: 3a(fl of the Act provides to ensure complionce of the obligations cast upon the promoters, the allottees and the real estate ogents under this Act and the rules and regulations made thereunder, 35.

So, irt view of the 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 whictr is to be decided lly the adjudicating officer if pursued by the complainant at a later sta,ge.

F.

Findings on the obiections raised by the respondent F.Iobiectionregardingdelayduetoforcemeaiure Page 14 of22 36. ffiHARERtr' ffi- GURUGRAM 37.

Complaint No.

1501 of Z0l9 That it is pertinent to mention here that delay has also been caused as the 0C could not be issued since Hon'ble Punjab and Haryana .

The authority is of the considered view that if there is lapse on the part of any competent authorit'g concerned in granting the occupation certificate within reasonatrle time then the respondent should approach the competent authority for getting the time period be declared as '7. red as '7.ero time period' for computinLg delay in completing the project.

Hou'ever, for the time being, the au1:hority is not considering this time period as zero period and the respondent is liable for the delay in handing over possession as per provisions of the Act' The respondent-promoter raised the contention that the construction of the project was delayed due to force maieure conditions such as demonetization , water supply for a period of 6 months , Hon'ble High court of Punjab and Haryana wherein the Hon'ble court has restricted use of groundwater in crlnstruction activity and directed use of only treated water from available sewage treatment plants , stay of construction by order of National Green Tribunal , and non-payment of instalment by different allottee of the project , banned construction in Delhi NCR, demonetization, various orders passed by NGT but all the pleas advanced in this regard are devoid of merit.

First of all the unit in question was allotted in the year 2012.

The agreement to sale was executed between the parties on 25.t1,.201,3 and as per terms and conditions of the said agreement for sale the due date of handing over of possession was 25.02.201.7 These periods were for very shorto Af Page 15 of22 ffiHARERA #- GURuGRAM Complaint No.

1501 of 2019 duratidn of time.

Thus, the promoter respondent cannot be given any I lenien{y on based of aforesaid reasons and it is well settled principle I that a $erson cannot take benefit of his own wrong.

G.

Finding$ on the relief sought by the complainants G.I Direct the respondent to pay the interest on the amount received by respondent from the complainant in respect of the unit allotted.

38.

The complainant is admittedly the allottees of respondent - builder of a commercial unit for a total sum of Rs.

52,94 ,7301-.

A buyer's agreement was executed between the parties in this regard on 25.11.20L3' The due date for completion of the project was fixed as 25.02. as 25.02.2017 So, in this way,the complainant pai<l a total sum of Rs. /- 52,17,930/- against the allotterd unit.

The occupation certificate of the project was received on OZ.OB.ZO19 and the poss;ession was offered to the complainants on 30.08,2018.

39.

At this stage, the authority would express its views regarding the concept of 'valid offer of possession'.

It is necessary to clarify this concept because after valid and lawful offer of possession liability of promoter for delayed offer of possession comes to an end.

On the other hand, if the possession Ls not valid and lawful, liability of promoter continues till a valid ofl'er is made and allottee remains entitled to recei,re interest for the delay caused in handing over valid possession.

The authority after detailed consideration of the matter has arrived at the conclusion that a vslid offer of possession must have following i components: lr.- V Page 16 of 22 HARER& ffi" GUI?UGIIAM 40. i.

Poss;ession must be offered after obtaining occupation certificate. ii.

Ther subject unit should be in habitable condition. iii.

Possession should not be accompanied by unreasonable additional demands.

In the case at hand, the offer of possession was made on 30.08.201,8 without the occupation certificate being obtained.

The occupation certificate was obtained later on i.e on 02.08.2019.

Thus, the olfer of posserssion is invalid Per s;e.

In the present complaint, [he complainants intends to continue with the project and is seeking delay possession charges as provided under the provir;o to section 1B[1) of the Act. sec.

1B(1) proviso reads as under. "section 7B: - Return of amount and compensation 1B(1). lf the promoter fails ttt complete or is unable to give possession of an opartnnent, plot, or building, -- provitled that where an allotrce does not int:end to withdraw from the proiect, he sha,ll be paid, by the pror,"toter, interest for every month of delay, till the honding over of the possessiort , at such rate as may be pres ay be prescribed." 42.

Clause 23 of the buyer's agreement (in short, agreement) provides for handing over of possession and is reproduced below: 31.

Possession Time and Conrpensation "The company will be based on its present plans and estimates contemplates to offer possession of the said unit to the allottee(s) within 36 rnonths of signing of this Agreement or within 36 months from the start of construction of the said building whichever is later with a grace period of 3 months, subiect to force maieure events or g ov ern mental a ctio n / in a ctio n".

L501 of 2019 41.

Page1-T of22 ffiHARERA ffi GURUGRAM Complaint No.

1501 of 2019 43.

Admissibility of delay possession charges at prescribed rate of interest: The complainants are seeking delay possession charges however, proviso to sectiotn 1B provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules.

Rule 15 has been reproduced as under: Rule 75.

Prescribed rote af interest- [Proviso to section 12, section 18 and sub-section (4) and subsection (7) of section 1el 1)t For the purpose of proviso to section L2; section L8; and sub- se,ctions (4) and (7) of section L9, the "interest at the rate prescribed" sltall be the State Bank of lndia highest marginal cost of lending rate +20/0.: p,rovided that in case the Stqte Bqnk of India marginal cost of lending rote (MCLR) is not in use, it shqlt be replaced by such benchmark le'nding rates which the State Bqnk oflndia may fix from time to time fctr lending to the general Public' 44.

The lergislature in its wisrlom in the subordinate legislation under the provision of rule 15 of thr: rules, has determined the prescribed rate of' interest. interest.

The rate of interest so determined by the legislature, is reasonable and if the sairl rule is followed to award the interest, it will ensure uniform practice in all the cases' 45.

Consequently, as per website of the State Bank of tndia i'e', https://sbi.co.in, the marginal cost of lending rate [in short, MCLR) as on date i.e., 13.10 .ZOZI i',; @7.300/0.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2o/o i'e.,9 '300/o' Page lB of22 ffiHARERA ffi- GURUGRAM Complaint No, 1501 of 2079 46.

The definition of term'interrest' as defined under section Z(za) of the Act provides that the rate of interest chargeable from the allottees by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottees, in case of default' The relevant section is reproduced below: ,,(za) "interest" means the rates of interest payable by the promoter or the qllottee, as the case mqY be.

Explanation. -For the purpose of this clause- (0 the rate of interest chwgeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable rc pay the allottee, in case of default. (ii) the interest payable b.v the promoter to the allottee shall be from the date the promoter received the amount or ony part thereof till the date the amount or part thereof and interest thereon is refunded, qnd the interest payoble by the allottee to the promoter shall be from the date the allottee defaults in payment to the promoter till the dttte it is Paid;" 47.

Therefore, interest on the delay payments from the complainants shall be r:harged at the prescribed rate i.e,, 9.300/o by the respondent/promoter which is the same as is being granted to the complainants in case of delayed possession charges' 48. arges' 48.

The on consideration of the documents available on record and subrrLissions made by troth the parties regarding contravention of provjsions of the Act, the authority is satisfied that the respondent is in contravention of the section 1,t(4)(a) of the act by not handing over possession by the due darte as per the agreement.

By virtue of clause 3 L of the agreement executed between the parties on 25'11'2013, the possession of the subject apartment was to be delivered within stipulated time i.e., by 25.02.201.7.

As far as grace period is concerned,p ^( Page19 of22 ffiHARER& #- GURUGRAM Complaint No.

1501 of 2019 the same is allowed for the reasons quoted above.

Therefore, the due date of handing over pos:;ession is 2 5.02.201,7 ' Accordingly, it is the failure of the respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

Accordingly, the non-compliance of the mandate contained in ser:tion 11tal(a) read with proviso to section 1B(11 of the act on the part of the respondent is established.

As such the allottee shall be paid, by ttre promoter, interest for every month of delay from due date of possr3ssion i.e., 25.02.2017 till the occupation certificate i.e 02.0 B.2O1,g plus two months which comes to 02.10' Zotg at prescribed rate i.e., 9.30 o/op.a. as per proviso to section 1B[1) of the act read with rule 15 of ttre rules' 49.

Since the respondent offered the possession without obtaining the occupration certificate s0 the respondent is directed to offer the possession within one month to the complainant ' G.II Direct the respondent to pay an amount of Rs' 1,00'000 l- as litigation cost and cost of the present complaint may also be awarded in favour of the complainant and against the respondent' 50.

The the complainant is s;eeking above mentioned relief with regard to compensation. pensation.

Hon'ble Supreme Court of India in civil appeal nos' 6745- 67 4c) of 2021 titled as ttl/s Newtech Promoters and Developers Pvt' Ltd. v/s state of up & (lrs.

2027'2022 (1) RCR (c) 357, has held that an allottee is entitled to claim compensation & litigation charges under sections L2,!4,1,8 and section 1,g which is to be decided by the 1/Y Page2O of22 ffiHARERA ffiCUNUGRAM Complaint No.

1501 of 2019 adjudi{ating officer as per section 71 and the quantum of compensation I & litig{tion expense shall be adjudged by the adjudicating officer having I due refiard to the factors mentioned in section 72.

The adjudicating I officerlhas exclusive jurisdiction to deal with the complaints in respect of compensation & legal expenses.

Therefore, the complainants are advised to approach the adjudicating officer for seeking the relief of litigation expenses.

Directions of the authorit5r 51.

Hence, the authority hereby passes this order and issues the following directions under sectiort 37 of the act to ensure compliance of obliga.tions cast upon the promoter as per the function entrusted to the authoritY under section 3 (fl: i.

The respondent is directed to pay delayed possession charges as per the proviso of sectiott 1Bt1) of the Real Estate [Regulation and De,relopment) Act, 201.6 at the prescribed rate of interest i.e., 9 '300/o p.a. for every month o{'delay on the amount paid by the complainant to the respondent fronr the due date of possessio n i.e 25.02.2017 till the occupation certificate i.e 02.0 B.2O1g plus two months which colmes to 02.10.2019 iIS per proviso to section 1B[1) of the Act read with rule 15 of the rul'es. ii.

The respondent is directed to handover the possession of the allotted unit to the complainant r:ompletes in all aspects as per specifications of buyerr's agreement within two months from date of this order' iii. rder' iii.

The rate of interest chargeable from the allottee by the promoter' in case+ Page2l of22 ffiHAR ffiGURI) of R& ult shall be charged at the prescribed rate i.e., 9.30% by ent/promoterwhichisthesamerateofinterestwhich shallbeliabletopaytheallottee,incaseofdefaulti'e', dela possession charges as per section Z(za) of the Act' 52.

Com nt stands disPosed of.

53.

File b consigned to registrY. (Ashok respo prom the the the Haryana rl Estate Regulatory Authority, Gurugra Dated: ?,?,03.?.023 Page22 of22