ANISH MAHAVIR PRASAD GOEL vs ATHENA INFRASTRUCTURE LTD.

SHARERA & crnrrr+lrtr lV r.

AnisI [4ahavir Prasad Goel R/o: - F-5, Dwarka Road, PushpanjaliBiiwasan, New Delhi.

Complainant Versus 1. l\.{/sAthena Infrastructure Ltd.

Regd. office: lvl'62 & 63,1n Floor, Connaught plac€, New Delhi 110001.

2. lndianbulls Hous,ng Finance Limited Regd.

Office: M 62 &63, 1n Floor, Respondents Nerv Delhi 110001.

ORDBR 1.

This complaint has been filed by the complainant/allottee under s€ct,on 31 ofthe Real Estate (Regulation and Development) Act, 2016 (in short, the Actl read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 [in short, the Rules) for violation of section 11(41(a) of the Act wherein it is inter a/ia prescribed that the promoter Complarnt No 6467 of Z0Zz BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.: 6467 ol2O2Z Orderpronourcedon, 16.10.2024 CORAM: ShriAshok Sangwan APP[ARANCE: GunjanKumar (Advocat€) RahulYadav lAdvocate) Gaurav Dua (Advocate) Complainant Respondent no.1 Respondentno.2 tr ,lb 2.

E 4- HARERA ComplarniNo 6467o12022 GURUGRAN/ for rll oblgarion(. responsrbrlines and tuncl,oni under the provisions ofthe Act or th€ Rules and regulations made there under or to the allottees as per th€ agreement tor sale executed tnterse.

A.

Unit and project details 2.

The particulars of uni! sale consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, ifany, have been detailed in rhe lo,lowing tabular form: "lndiabulls Enisma", sector 110, Gurugram Name and location ofthe 15.6 acres 213 of2007 dated 05.09.2007 valid riII04.09.2024 10 of2011 dated 29.01.2011 valid tiI28.01.2023 M/s Athena lnlrastructure Privaie Limited 64 ol 2012 dated tiI19.06.2023 i.3s10f2017 dated 20 -11.2017 valid ti1131.08.2018 ii.354 of 2017 dated 17.77.2077 HRERA registered/ not Registrred vide no.

20.06.2012 valid I)T(:P S.

No.

1 HARERA P" GURUGRAM Complaint No.

6467 of 2022 vatid ti1130.09.2018 iit.353 0f2017 dated 20.11.2017 valid till 31. d till 31.03.2018 iv.346 0f 2017 dared 04.17.2017 validtill31.08.2018 Not placed on record .10.2013 per page no.58 ofcompla,ntl Date ofexecution oiflat no.62 ofconpla,nt) ,450 / applicant ledger on paEe no 5,84,354/-irom own funds + Rs.2,20,00,000/- by resPondent no.

2) GURU Clause 21 (The Developer sholl endeavor to complek the construction ofthe soid building /Unitwithin slsM 8 Tri-partite Agreement -m+.rozoi: :0 11 12 13 14 16 f'i11'1'Il 'Rs.2.65.84.354/- HARERA E GURUGRAIV Complaint No.6467 of2 date of execution of the Flat BuveB Agreement s blect to ttmelv pavment by the Buyer(s) ol Total Sole Price payoble according to the Paynent Plon applicoble to him or as demanded by the Developer- The Developer on completion ol the consiuction lopmentsha issue frnal ca ce to the Buyer, who shall in 60 days theteol renit oll take possession oJ the .j 04.10.2013 + grace qJ 9l ofcomplaint) LecarnoticesTlr (As on page no.

104 of comPlaintl 11.03.2019 (As on page no.

10S ofcomplaintl 26.O3.20\9 Notice for loan re'cal1 18 20 ts HARERA GURUGRAl\/ Occupation Certificate complarnt No 6467 of2022 (As on page no.

108 ofcomplarn0 i7.09.2018 [As on page no.44 ofreply] 10.72.2014 30.04.2019 46 otreplyl a ract ofthe complaint 3 The complainanthas made the following submissions:' I.

That respondent no.

1 is a company incorpo.ated under the Companies Act, 1956 and the respondent no.2 is a financial institution which provides financial supportto the prospective home_ buyers.

Both the respoDdents are collectively and jointly liable lbr their unlawfulacts and conducts against the complainants. ll.

That the project was financed by lndia Bulls Housing Finance Limited (hereinafter referred to as "respondentno 2"l, who is a sisterconccrn of the respondent no.1.

Thus the rep.esentatives of respondent no 1 mad€ attractive claims of subvention scheme leading the complainants to oPt for it.

I1l. r it.

I1l.

That relying upon the representations and the goodwill ofrespondent no 1, the complainants filed the applicatioD form dated 07.01.2013 lor provisional booking of residential unt nn I_032 3rd floor dnd paid an amount o1Rs.1,00,000.

The complainants have pard 15% of the total cost of the provisional allotted unit i.e Rs.44,84,354/_ on 13 02 2013.

Noti.e for termination 2\ 22 r $_ IV_ HARERA GURUGRA]V ComplarnrNo 6467 of 2022 That it is pertinent to note that after the repetitive following and perusal of complainants for execuhon of agreement.

The flat buye. agreement was executed between the complainants and the respondent no.

1 on 04.10.2013.

As pei clause 21 of the Buyers Agr€ement it was agreed that the unit shall be complete in all respects and thereby the possession shall b€ handed over within the period of three years along w,th grace period of 6 months from the date of execution oi the Buy€rs agreement.

That the total sale consideration of the unit is ,65,450.

Thereafter, a tripartite agreement was executed beFvee and respondent no.2 recoding mplainant, .espondent no.1 and conditions of the arrangcmcnt amongst the three parties. is pertinent to b.ing to the no. t have not provided the executed in between notice ot the authority that respo copy oltri p:rt,te agreementto th It is submitted that a loan agreem notice oi the authority that resl at respondent no.

2 has rllocated a rotalloan am 0,000/- to the complainants.

The respondent Do.

I respondent no.

1 offers Hence, the respondent no.

I is now trying to shift tlte onus offailure upon the shoulder of complainant and to draw undue ill€gal advantagewhich isnon estin the eyes oflaw.

VL That somewhere in december, 2013 the first allottee of the unit, Mr- Mahav,r Prasad Goel got expired.

Hence, the second allottee named as Anish Mahavir Prasad Goel being the son of Late Mahavir Prasad Goel submitted the requisite documents to respondent no 1 to remove the name of Late Mahavir Pmsad Coel. msad Coel.

In 201a, th€ complainants visited the project slte and was aPpalled to see that the prciect has only been oompleted till basement portion.

Thus, the complainattts und€r utter shock went to the office of respondent no 1in order to enquire regardingthe failure.

Vu.

That the complainants made several telephonic communications and also bv visited the office of teiterdrat no.

1 io know about the status or tne atoresara proyect, iMffi;"", "".

I pard no heed to the "n..,n,.,rions wtrict/earli$&itbe pre-determined mala fi de f,,,d"t",t i"r",,ie{fi$Hii#d\ the complarnants. rt ts nrnrrer suumitty'$i/resp"atmi,.

LLct+, *peatedlv ensased i" p-.ai"g ra[e"$,r".yi(ardl]rlrniiir{at trre unit woura ue h""d"d ",* *\6\4"1a t {nfa{"i"!*"d in the nat buver ,preement. vur. rr,,, ,""p""a*, "\lth$"d4'd+'fu 7.83.0e0 in resard to p,y.";t or vAr li"bNEEEHideposiL rhe demand orvAr :iil'tffi tt#'RHR;fl ff ;Trfl il:,1 "i ,0, ',"u,,',y'ry trF tpJi$i]9er zpu to 2014. rhus, rhe respondent-bullder has raised the arbitrary demand in order to hide its failure for not paying VAT liability since 2011, whereas, the complainants made the booking on07.01.2013 thercfore th€ demand raised is uniustified and arbitrary' vlde notice dated 15012016, respondent no.

1 received a recovery notice from the Haryana Excise *HARERA $- crrnlrcnnut complainr No.

6467 of 2022 HARERA GURUGRAN/ That the compla compla'nt No.

6467 of 2022 and Taxation Department for not comply,ng with the VAT for the period ot2011 to 2014.

IX.

That it is submitted that respondent .o.

1 failed to hand over possession of the allotted unit to the complainants within the stipulated time period which is expressly mentioned under clause 21 of the flat buyer's agreement. lt is submitted that there has been no event ofunforeseen circumstances or force majeure which may have delayed the delivery ol possession.

The complarnants so far have made a rotal payment of Rs.2,65,a4,354l against the total sale .onrderahon of Rs. hon of Rs.3, amounts to 87% ofthe total ge amornt, re5Ponde t x. fair trade practice of el the allotted unit of interest @18% p. a.tual realisation for oney along with the respective payment till actual obl,gations.

Whereas respondent no.

1 neithe. repl,ed nor refunded back the money xl. 'lhat the complainants filed a police complaint against respondent no.

1 for refunding the principle amount deposited with respondent builder along with interest @18% p.a. from the date of each respective payment till actual realization.

That the complainants again sent a legal notice on 20.08.2018 to respondent no.

1 in iurtherance to the earlier tegal notice dated 25 06.2018 to cancel the allotted unit of complainants and to refund the principal amount Compla'nrNo.b467of 2022 HARERA GURUGRAN4 xt ll xI xtv. along with interest @ 18% p.a- from the date of each respechve payment till actual realizatlon.

That the complainants being aggdeved previously ffled a complaint befor€ the Adiudicating Omcer, bearing Complaint No.

1092 of 2018 seeking refund.

However, as there was the on-going dispute with respect to lurisdiction of the refund mrtt€6 and all matters vr€re adlourned sine die, the complainants were Ieft wlth no option but to :::H nff:r":$.5M:ncom,a'|nr before'ihe s'ia'ie subseouenttv. *".""*.rf+ffi;it entlv issued an ofter ot *"".",ion' t"t ",,6ffr*fiig*s(A.omprainant' rhat it is *nt*a"a ro .ffitn"t iffi """\'%\ I issued the oner or rm:{{f;'Nffi F}n::#i::::r ,***. *., .\%[I 'l*il "l*ll JSr"*" on zo.oz.zote, ,t'. .".oono"n, n)$*.,lL.ilu.ll-{#*mprainants ror paying o","un,,noun, ,o,,"NGl i$lV,nst the loan sanctioned T:ffi'""#le*R"mTil#:" iJ:";:il ":: carins upon'6.t4ftU@AMlotment or the said unit/flat and mak€ the payment of tle due amount to respondent no.

2.

It is submitted that the complainants received various reminders and notices for repaym€nt of Pre_EMI due to failure of respondent no. ondent no.

1 to perform its liability in terms ofcontracls executed in between complaiMnts, respondent no.

1 and respoodent no 2. compla'nrNo.6467of 2022 HARERA GURUGRAN/ *s oi account.

Howeve., no reply has been indei email and a physicalcopy was sent .stated fact, the complainants iiled fresh aring complaint No.176 of 2021, thereby the amount paid along with interest as I immense loss and mental agony due io vins reliefG): to refund the amount ol Rs.2,65,A4354/ : alongwith presc.ibed rate olinterest 2 to give a no dues certiflcate to the lor a .opy ol the statement received rilldate and a remi again on 29.07.2020 in regar n lurtherance to the above_ complaint beiore SCDRC be: praying for the retund of 1 complainants have suffered delay in possession. liefsought by the complaln e complainants sought lollos 1.

Direct respondent no.

1 paid by the complainant Ii.

Direct respondent no. xvlt.

I C.

R€ 4.

Th That allegedly a cheque bearing no 00671a amounting to Rs' 2,20,00,000.00/- was drawn in favor of respondent no2 bv respondent no.1 retunding the loan amount of the complainants However, this fact was neverdisclosed to the complainants untilthey filed thecomplaint againstthe respond€nts befor€ SCDRC. xVL That the complainants sent a letter dated 13 07.2020 to r€spondent no.2, requesting information on the status ofthe loan repayment and complainants.

D.

Replyofth€ respondent no.1 5.

The r€spondent no. t has contested grounds:- the compla,nt on the following *HARERA $-ctrnLcnlttt I between the parties it was specifically agreed to refer the dispute qua the ag.eement to arbitration.

Thus, the complainants are contractually and statutorily barred from invoking the jurisdiction ofthis authority.

III.

That the complainant has stated that he paid an amount ol Rs.

2,65,84,3s4l- towards th€ sale consideratio! and is claiming relund.lt is suhmitted that the mmDlainant booked the unit under the mbvention scheme payment plan iill possessioD.-t_urther avail'ng a home loan of Rs. oan of Rs.

2,20,00,000/- from respondent no.2 Thc complainants have only paid an amounr of Rs.45,84,354 towards the sale consideration of the subject unit IV.

That under the subvention scheme, a Tripartite Agreement dated 04.10.2013 was executed between the complainanl respondent no.1 and respondent no.2, wherein as per clause 3 of the said agreement respondent no.

1 assum€d the liability of the interest component payable to respondent no.

2 during the subvention period, relevant CooplaintNo.

6467of 2022 At the outset, it is most respectfully submitted that the instant complaint Rted by the complainant is not maintainable against r€spondent no.1 and is liable to be dlsmissed/ rejected at the thresh hold, being ffled in the wrong provisions ofthe law.

That the complainant post understanding the terms & conditions voluntarily €xecuted a flat buyer agreement with respondent no.1 on 04.10.2013.

It is submitted that as per the said agreement, it was specificauy agrced that in the eventuality ol any dispute ii any, with respect to the provisional unit , the same shall be adjudicated through arbitration mechani d in the agreement.

Thus in view of the above, it is hu that in case ot any dispute c.mnlaintNo 6467of 2022 "--------- lt is a|rced that till the connencenent of EM I the borrower sholl pot Pre-EML which is the si ple intercst on the loon anount disbured colculaAd dt the rate ol int rest os nentioned in the respective loan ogreenent oI the BorrcweL however, the Eortuwer hos inforhed IHFL oJ the shene ol otdhgenent between the Bottuwet ond rhe Builder in rerns whereol the Euilde. hercby o$u es the iabiliqr on accourt ol interest potable by the Borowet to |HFL during the Petiod be rcfited mainta,nable and the buyer's agreement is vt. trIAREIA #-eunuenmr para of the Clause 3 is being reproduced hereund€r for ready to as the "tiobitiry Period" Le. till the ddte ol ksuance al offer far posessnn b! t he B uild e....... d e.......' Accordin8ly, respondent n d the liability to pay the pre of the complainants till the Y It is submitted th dote ol erecttion al thee nely poynent by th.

Buye/, refund plus inlerest has been claimed by the complainant.

It is further submitted that th€ flat buyer's agreement itseltenvisages the scenario ofdelay and the compensation thereof.

Therefore, the contention that the possession was to be delivered within 3 years and 6 months of execution of the flat buyer's agreement is based on a complete misreading oa the agreement.

Also, the complainants have been a e21 wilful defaulter since the beginning.

They did trot pay the instalments to respondent no.z on time and accordingly respondent no.2 recalled the loan facility.

VIL The occupation certificate was received for the unit on 17.09.2018 and thur respondent no.1 vide its letter offered possession of the unit to the complainant on 10.12.2018, and vide the said letter the complainant was called upon to remit their outstanding dues towards HARERA GURUGRAl\/ the total sale consideration o Complainr No.6467of 2022 unit.

However, th€ complaiDant |: iled to clear the outstandint nd also never came forward to take phys,cal possessio VI1l.

That the responden f Rs.2,50,088/- towards delay in offering nts.

That pursuant to . interest towards ent ol the EMI ducs .2019 (page 105 of the compla,nt under SARFA ondent no.z recalled the loan make refund to respondent no.z.

That upon recall ofihe loan lacility by respondent no.Z, respondent no.

1 being bound by the terms ofthe tripartite agreement had to cancel the provisional booking of the complainant and pursuant to it , respondent no.

1 refunded the loan amount ol Rs.

2,20,00,000/- to respondent no.2 on 30.04-2019. f.rcility advanced to the complainant and vide the same notice callcd upon respondent no.1 to cancel the provisional booking olthe unit nnd *HARERA S- crnucnlv x xl. lt is pertinent to mention e\ecuted much prior the HA.REM Ru Complahr No. mplahr No.

6467 of 2022 er ag tRl referred to or looked e.uted much before the eement as referred herein ntainable as .espondent no 2 presently governed by the Reserye That the cancellation of the provisional allotment of the complainant was done by respondent no.1 as per the terms and condiiions of the flat buyer agreement In terms of clause 9 ol the said agreement, the complainants agreedthatthe earnest money shall be calculated @15% ot the basic sale price of the unit and turther the complainant also authorized respondent no.1 to forfeit the earnest moneyalongwith the interest and cost ofdelayed payments in case of non-fulfillment ofthe rv( Rt ati 1d ir t, 2016 and 't id lrei commencement oi R L That the being a India and the authonty has no jurisdiction to deal with any matter in respect offinancial institution.

The respondent no.2 is not the developer ofthe project or a real estate agent nor the promoter of the real estate project.

E.

Reply by the respondentno.2 1II, THARERA S- crnuenrur,l Il.

6 ComplaintNo.646Tof 2022 between the complainant and respondent no.1.

On the date of hearin& the authority explained to the respondent/promoter about th€ contravention as alleged to have been committed in relation to section 19(6), (7) & (10) of the Act to plead guilty or not to plead SuiltY.

1V. !A RA[/ ARE URUG H G u ComplaintNo.

6467 of 2022 7.

Copies oiall the relevant documents have been filed record.

The authenticity is not in dispute.

Hence, the decided on the basis of those undisputed documents submissions made by the complainants F.

Iurisdiction of theauthority 8.

The authority observes that it has territorial as well as subject nlatter jurisdiction to adjudicate the present complaint for the reasons given F.l Territorial i urisdiction 9.

As pcr notification no.

7/92/2017'l'tCP datPd 14. datPd 14.12 2017 issued bv Town and Country Planning Department, the jurisdiction ol Real Estate Regulatory Author,ty, Gurugram shall be entire Gurugram District for all purpose with omces situated in Gu.ugranr' ln the present case, the proiect in question is sttuated within the planning area ol Gurugram District.

Therefore, this authorirv has complete te rritorial iurisdiction to deal with the present co m plaint' subtect matter i urisdiction 10.

Section 1l(a)(a) of the Acr 2016 provides that the promoter shall be respons,ble to the atloftees as per agreement for sale Section 11(41(al is reproduced as hereunder: t b? rcsloisible tot oll obl,ldtion:- tesponrb trtet ond f"iaa* ^in the proi,ons of th^ Ad o, rhe rutd and *HARERA S-GuRUGRAI,I regulations nade thqeurder ot to the o ott@s os per the agt@dt Jot ek or to the asocidti@ of allotte$, os the @e not be, ti the conrEronce ol all the opdtunaLt, plott ot buildings, os the ca* at be, to the ollottas, or the connon or@s to the dsclation ofa oto* or the conpetent authoritt, as the case not be, 11.

So, in view ofthe provisions ofthe Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non compliance ofobligations by the promoter leaving aside compensation Complainr No.646? of 2022 ed,ng with the complaint SLP (Civil) No.13005 oJ 12 Further, the aurhori 'hl (1) RCR (c), 3s7 esent matter ,n view of the tt i Newtech Promoten -P. ond Ors.

2020-2021 ono Reoltors Privote beeh not)e onrJ tdking note of pMr ol adjudkotion delineoted wxh the regulotory authorit! and odjwkatiDg ofrce. whot linolly culls out ts that olthaugh the Act indicotes the ditinct dPressons like lelund, interest,'pendlty' ohd conpenetion, a conioint reoding aJ sedons 18 and 1e cteo tty nant*ts that when it cones to rclund aI the ohomL ond inter.st on the reltnd anoun. or dnectins poynent of ihtetest lor delared deliverJ oI posssion, ar Penalty and hre. y and hre.est thereon, it B the rcqulotory outhotit! which has the po\|et to exanne and detemine the outcane ofo comploinL At the sone tine, when it con6 to o question oI seeking the .elieJ oJ odjldging conpentatioh ond interen thereon unde.

Sectjont 12,14, 13 antl 19, the odjudhoting oficet exclusivey has the Power ta detenine, keeping in vE\| the collective reading ofSection 71reod 2 O 20.le.ided on 7 2.0 5.

2 0 2 2 whete *s HARERA GWUGRAN/ Complaint No,6467oI2022 \9ith Secnon 72 ol the AcL iI the odiudicotion under Sectioni 12, 14 ft ond 19 other thon cMryrcation os envkoged, iJ dtended to the odjudicoting ofr.et as proyed thot in otr viw, nay intnd to expond the dnbit ond scop. of the powe^ and functions ol the ddjudkoting ofiet under Section 71 ond thot woukl b. ogainst the nondate ol the a.t 2016,' 13.

Hence, in view of the authoritative pronouncement of th€ Hon'ble Supreme Court in the cases mentioned above, the authoriiy has the iurisdiction to entertain a comPlaint seeking refund ofthe amount and rntcrcst on the relund amount, c.

Findings on the obiections by respondent no.

I C.l Obiection resar 14. reach ofagreement for t the complarnanr has t.D been iDcorporated w.r.t ''ctousel9 Allor anydispute atising out ot torchinq rpon u. in relation to the t't ns afth6 Apphcotion und/or Flot Buyer's ogreenent includns the interprctotton and ealidity of the terns thercoI and fie right ond abligotions althe pa.ties shall be v$led omkoblJ bJ f,Ltuol dinsion loiling vhich the sone sholt be senled through Atuitrctio^.

The Atuination shal be soverned by Arbitrotion ond Cohciliation A.t 1996 or an! stotutor| anendnehts/ odif@tions the@lfot the tine beins ih fotN' fhe venue oI the orbitrdti@ sholl be New Ddhi and it sho be held b! a sale o nrobt who shdll be oppointed bt the Conpary ond whoe decision shall be lnol ond binrJing upon the pdfii* The ou/ts in NN Delhi olone sho hove the jutisdiction ovs the .lispuz onsihg out oJ the Applicotion/Aportmat buvers 15. buvers 15.

The respondent contented that as per the terms and conditions ofthe application form duly executed beiween the parries, itwas sPecifically per flat buyer's agreement initiation of arbitration Complaint No.6467of 2022 of any dispute, if any, with respect to the the complainant, the sam€ shall be says that the Provisions oi eddition to and not in HARERA GURUGRAfuI agreed that in the eventuality provisional booked unit bY adjudicated through arbitration mechanism' The authority is ol the opinion that the jurisdiction ofthe authoritv cannot be fettered by the existence ofan arbitration clause in the buyer's agreement as it may be noted rhat section 79 of the Act bars the iunsdiction of civil courts about any matter whicb ialls with,n the puruiew of this authoritv' or auour d,'y urd(Ei the Real Estate appellate Tribunal.

Thus, the intention to render such dispures.s non arbitr .

Also, section 88 oftheAct derogation oi the provisions of any other law fo' the time being in ibrce.

Further, the authoriry puts relianceon cate'a ol judgements of the Hon'ble Supreme Court, Particula'ly in National Seeds Corporation Limited t eddy & Anr. (2012) Z RE SCC 506 wherein it has bee at the remedies Provided unde. the Consumer Protection Act are in addition to or not in derogation ot the other laws in force, Consequently the authority would not be bound to refer parties to arbitration even if the agreem€nt between the parties had an arbitration clause' S'milarlv' in Aftab Singh and ors. v.

Emaar MGF Land Ltd and ors, Consumer case no 701 of 2015 decided on L3.O7.2O17 the National Consumer Disputes Redressal Commission, New Delhi (NCDRC) has held that the *HARERA S- eunuenlv CohplainrNo.646Tof 2022 petition no.

2629-30/201A in I I app€al no.

23512-23513 oI 2017 decided on 10.12.2014 held the aforesard ludgemenr of arbitration clause an agreements between the complainant and builders €ould not circumscnbe thejurisdiction ofa consumer forum.

16. forum.

16.

Wh,le considering the issue ol maintainability ofa complaint before a consumer forum/commission in the face of an existing arbitrarion clause in the builder buyer agreement, the Hon'ble Supreme Courr in case titled as M/s Emaar MGr Land Ltd.

V.

Aftab Slngh ln rer4sion NCDRC.

The relevant t passed by the Supreme 'ced dbow considered the praisions oI bitdti d.L 1996dhd ldtd dnwn thot ol renedt, de\pte thte nsrhet Foruh hdv. ro on hg the opplication.

The.e 6 17.

Ther€fore, in view of the above judgements and considering the provisions of the A€l the Authority is of the view that the complainant is well within the right to seek a special remedy available in a benencial Act such as the Consumer Protection Act and RERA Act, 2016 instead of going in for an arbitration.

Hence, we have no ttungrh on orbttotton Protection Act is o renedy p ?h. t4h.dv undet Cnn.Lh.l tuner ehen there is a defect in ony umer Pratection oct on the *HARERA S-arRUGRAr/ project and is seeking return i hesitation in holding that this Authority has the requisite jurisdiction to entertain the complaint and that the dispute does not require to be referred to arbitration necessarily.

H.

Flndlngs on the relief sought by the complalnant tl.l Direct the r€spondeDt Do.

1 to refuDd the amounr of Rs2,55,84354 /- paid by the conplalnant along with presc.lbed Et€ of iDter€st 18.

In the present case, the complainant intend to vrithdraw from the ComDlaintNo.6467of 2022 amount paid by him in respect of of the Act is reproduced subject unit along with interl e presc.ibed rate as provided under sectioD 18(1) ft) he sholl be lioble on delnt wah6lo nhdraw Jron th rcNdr ovdtlabh to retu tespe.t oI that apartmenL ploL bu vith interest ot such rate as may intluding c.npenflrion in the honner 19.

Admissibility ofrefirnd along with prescribed mte ofinter€st The complainant is seeking refund the amount paid by him at the prescribed rate ofinterest. finterest.

However, the allottee intends to withdraw from the project and is seeking refund of the amount paid by him in HARERA GURUGRA[/ ComblaintNo.64676f 2022 respect ofthe subiect unit with interest at prescribed rate as provided underrule 15 oftherules.

Rule 15 has been reproduced as under: Rule ls.

Presqibed mt ot lnreren- IPtuvlso to section 72, t4tion 18 dn.t sub-stiton (1) on t subsection (7) ol se.tion 191 (1) For the purpoe oI prciso to se.tion 12; section 18 ond sub- sections @ and (r) ol secnon 1e, the "interest dt the rute pfevtibed sholl be the state Bohk ollndio highest na.sinal @st of lendi^q tuE +2%: Provided thot in coy the Sture Bonk oI tndio norginol cost oI behchnolk lehdtng roEs State Bonkollndia oy lx 20.

The leg,slature in its wisdo bordinate legidation under the provision olrule 15 o ined the prescribed rate of red by the legislature, is award the interest, it will "[za) "inrerest" eons the rctes oI interdt Poyable by the pnnotet ot the dllott*, as the case ndt be.

Explandtion, For the purpov olthis clouv- term ',nterest' as defrned under section 2{,al or dre 21.

Consequently, a Bank of India i.e., rate (iD short, I4CLRI as REG on date i.e., 16.10.2024 is cordingly, the prescribed rate of interest will be marginal cost oflending rate +2yo i.e., 11.10ol0.

22.

The definition Act provides that the rat€ of interest chargeable from the allottee by th€ promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case ot default.The relevant section is reproduced below: ITHARERA S-criRrr+AM Complarnt No 6467 ol202Z (i) the rate of inteBt charyeobte fton the otouee bt the pnnots, in cav ol deloute sho be equdt to the .ate ol interest |9hich the prohotet shall be liable to po! the allotta, inNsoldefoult; (ii) rhe intercst patable by the pro oter to the allottee sho be lron the dote the p.onoter rcceive. r rcceive.l the onount or ony porr thet@Iti the dote the omountor part thereol ond intercst ther@n is refunded, and th. ihtercst palable bt the ollottee to the pronoter sholl be fron the dote the otlottee defoutrs ih patnent to the pronot* till the dot4 it is poidi 23.

In the present €omplaint, the complainant was allotted u.it no.

1032 on 3"d floor in Tower-l in the prciect "lndiabulls Enigma" for a total consideration of Rs.3,02,65,4E0 /-,,end a sum of Rs.2,65,a43s4/.was paid, out of which the complainant paid an amount of Rs.45,84,354/, of this ow. tunds and Rs.2,20,00,000/' was disbursed by respondent no.2 as loan.

The complainant optedfor a loan from respondent no.2, which included thesubvention scheme UIlthe possession ofthe unit is handed over to the complainant.

Thereafter, the complainant and both the r€spondents entered into a tri-partite agreement on 04.10.2013 wherein respondent no.

1 undertook the liability to till the offer of possession to respondent no.

2 pay the Pre EMls complainant.

In pursuance of this, respondent no.2 disbursed the payment of Rs.2,20,00,000/' .

24.

As per Clause 21 of the builder buyer agreement dated 04.10.2013, the due date for completion of th€ project and offer of possession was 04.04.2017.

The respondent no.

1 obtained the occupation certificate on 17.09.2018 (as on page no.

44 of respondent no.1 replyl and thereafter, offer of possess,on was made to the complainant on *HARERA S-clrnrcnnnr ComplarnrNo 64b7of 2022 10.12.2018.

1 thereafter stopped paying th€ ,nterest on Pre-EMIs to respondentno.2.

25.

The complainant on 25.06.2018 sent a noti€e to respondent no.1 through its directors, requesting respondent no.1 to cancel the booking ofthe said unit and refund the amount back with interest to the complainant.

The relevant para of the notice is reproduced as 5 pleoy note thot l Yat 26. l Yat 26.

Thus, itcan willinsness nrst expressed his The complainant be ascertained thatthe complainant has to surrender the unit on 25.06.2018. requested the respondent that hewishes to withdraw from the proiect and made a request for retund ofthe paid"up amount on its failure to give possession of the allotted unit in accordance with the terms ol buyer's agreement.

That respondent no.2 issued notice for loan recall and enforcement ofsecurity to the complainant and respondent no.

1 on 11.03.2019and26.03.2019.Asperclause8&9 of thesaid notice '' )7 Thot vnl all.e\a. n.

1 IHARERA $- eLrnLrGnAM cnmnl2inr No 6467 nf2022 27.

Further, clause 9 of "ctole &Thot in Ems of Clolv No9 of the Triportite Agtqnent, upon occuftence ol evenr ol deloult w.tet the Loon asrenent, ond upon intinotion by IHFL to Buildet, the Duilder is bound ta concel the ollotnent ol the Prapqay ond the Buildet is lioble to relund the aubtandins anount under the l@n Fdcilib/ ta lllFL os pet the ''ctause 9 fhot since event ol delottt hos oeuftd, the Loon FociliE hos been re called ond Rt2,2s,99,491/-(Rupes Two Crore rwenry Five Lokhs Ninety Nine fhousond Four Hundted Ninet! lout only), (hereinaliet refemd to as 'Due Anount") has becone due ond payobte asan Morch 11,2019 olang ||ith futlre int*esa we hmb! coll upon tou the Botowa(s) to nake the potnert oI Due Anount wirhin 15 (Fifteen) days lron the issuonce ol the peent nonce qith intidorion to the Build .

Please note that in the event the Due Anount is not poid wnhih the penad oI15 (Fifteen) dots, the ecurit! unde. the fnpottxe Agreenenr sholl stond nvoked.

Unles otheNise intinoted, on the nvocotion of vcuriry,.the Builder i,e. the Adresee no I shott wfthD t aht furthq notice Iron |HFL, concel the ollotmeht oI rhe Ptoptq undet intinotiah to IHFL oid rcnit the tLn ol k22,599,494.16/ in Iowur of IHFL. r of IHFL. tt k petinent to nention hete thor the rnittonce of oforenid sum h wthout pteiudice to the rishb of t FL to be enrided to ltture interest ond othet choryes till the octual date of polnent in Etds of the Loon Agteenenl" IE phasis tupptied] L.lk. ahout .rncellation IE phons SuPptiettl 28.

The above said unit was allotted to complainant on 04.10.2013.There is a delay in handing over the possession as due date of possession /wrthdrawalby allottee.

The relevant part ofthe dause rs reproduc.d 9-"fhe D*elopet ontthe Euyer hereb! ogrce rhat the eomest mone! fo. the pwpos of this Flot Dtrers Aqremqt shall be calculoted @15s, of the B6k Selling Ptue of the UniL the Bulet hdeby authoris rhe Developer to Ioten the eornest none! dlon! eith the inzren and c6t on delored polnenL' in cose of non-fuAttement olthe rems ond conditions hereih contoined" C.m.laint No 6467 of2022 in making the pa the compla,nant and e of the complainant cancelled the unit of amount of Rs.2,20.00,000/ io resPondent no.

2 also agreed to hrve received.

In clause )o i at page no.

9 of the reply filed by respondent no.

2, respondent no.2 has clearly admitted that rcspondent no.l has retunded the amount ofP6.2.20 crores disbursed by it on behalf of the 30.

Thur keeping in view the aforesaid factual and legal provisions, th€ respondent tro.1 cannot retain the amount paid by the complainant against the allotted unit and is directed to refund the same in view of iPHARERA S-crntEnm,t was 04.04.2017 whereas, the offer of possession was made on 10.12-2018 and thur b€comes a cas€ to grant delay possession charges.

However, the complainant wants to surr€nd€r the unit and want retund.

Keeping in view ofthe aforesa,d c,rcumstances that the respond€nt-builder has already otrered the possession of the allotted unit after obtaining occupation certincate from the competent dulhoflty, it is concluded thdi the complrinanl surrendered the unit after the due date ofpossession and before the occupation certificate r { ficate r {dr a, was received by the respondent-promoter. d .espond to the pleas 29 The respondent/p paid'up amount but d HARERA GURUGRAN/ the agreement to sell for allotment along w,th interest at the rate of 11.100/o (the state Bank of India highest marginal cost of l€nding rate TMCLR) applicable as on date +2%) as prescribed under rule 1s of the Haryana Real Estate (Regulntion and Development) Rules, 2017, from the date of each payment till the actual realization oi the amount within the timelines provided in rule l6 of the Haryana Rules 2017 ibid.

Directions ot the authority 31.

Hence, the authoriry hereby passes tbis orde. and ,ssues the iollowing directions under sectron 37 of the Act to ensure compliance ol obligations cast upon the promoter as per the function entrusted to the authority undersection 34(0; ComplarntNo 0467 of 2022 The respondent no.1 is directed to ref,und the iull paid up amount of Rs.45,84,354 /- alongwrth interest at the prescribed raie i.e., 11.100/o on the balance amount, from the date ofeach pavment till rhe actual realization oithe amount within the timelines provided in rule 16 ofthe Haryana Rules 2017 ibid.

1 is directed to obtain a no dues certificate kom respondent no.2 and provide the same to the complainants within a period oi30 days hom this order.

A period of90 days is giveD to the respondent to comply with the directions given in the order and failingwhich legalconsequences v *HARIBA $- crrnuennu would follow.

32.

Complaint stands disPosed of.

33.

Filebe consign€d to registry' Dated:16.10.2023 HARERA GURUGRAM p.\dil ll# w*p (Ashol'. sanCwln'l u,rvana reaitsrate Reg;latory Authority Curugram