SHARMILA vs PERFECT BUILDWELL PRIVATE LIMITED

complaint No.

5126 of2023 and 3 others BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM CORAM: Ashok Sangwan Member ORDER 1.

This order shall dispose ofall the 4 complaints titled above filed before this authority under section 31 of the Real Estate (Regulation and Development) Act,201,6 [hereinafter referred as ,,the Act,,] read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 (hereinafter referred as "the rules") for violation ofsection 11(4) (a) of the Act wherein it is inter alia prescribed that the promorer shall be responsible for all its obligations, responsibilities and Date of order: 09.LO.2024 Name ofthe Builder Perfect Buildwell Pvt.

Ltd.

Project Name Zara Aavaas S.no, Complaint No.

Complaint title Attendance 7. cR/5726/2023 Deepakshi Sachdeva V/s Perfect Buildwell Pvt.

Sunidhi Sharma (Complainant) Rahul Singh IResDondent') 2. cR/5372/2023 Sharmila V/s Perfect Buildwell Pvt.

Bhuwan Chandra (ComplainantJ RahulSingh fResDondent) 3. cR/s470/2023 Manoj Kumar V/s Perfect Buildwell Pvt.

Ltd- Sunidhi Sharma (Complainantl Rahul Singh fResDondentl cR/5477/2023 Rohit Soni V/s Perfect Buildwell Pvt.

Sunidhi Sharma (Complainant) RahulSingh IRespondent] Page 1of 15 Complaint No.

5126 of 2023 and 3 others 2. functions to the allottees as per the agreement for sale executed inter se parties.

The core issues emanating from them are similar in nature and the complainant(s] in the above referred matters are allottees of the pro.iect, namely, Zara Aavaas, Sector 104, Gurugram being developed by the respondent/promoter i.e., perfect Buildwell pvt.

The terms and conditions ofthe application form, fulcrum ofthe issue involved in all these cases pertains to failure on the part ofthe promoter to deliver timely possession of the units in question, seeking award of delay possession charges.

The details of the complaints, unit no. , unit no., date of agreement, possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given in the table below: "Zara Aavaas", Sector 104, Gurugram.

5 acres Affordable group housing colony 72 of 2074 dated 10.06.2074 Valid up to 09.12.2019 Licensee- Perfect Buildwell pvt.

Ltd. & lother 08.12.2014 09.0 3.2015 3.

Registered vide no.

152 of 2017 issued Valid up to 31.12.2019 04.L2.2019 3, Possession i nsto I I ments o f the toto I cost o n d o th e r 3.7 "Unless a longer period is permitted by the DGTC? or in the policy ond subjecl Lo the force mojeure crcumstonces us stated in clause 16 hereof, interyention of stotutory authorities, receipt of occupotion certificate and tineiy compliance by the Aportment Buyer(s) of oll his/her/hc;r obligotions, formolities and documentotion os prescribed by the Developer from time to time ond not being in default under ony part of this Agreement, including bu;not limited on 28.08.2017 Project Name and Location Nature of the project DTCP license no. and other details Building plan approval dated Environment clearance dated RERA Registered/ not registered Possession clause Page 2 of 15 Proiect area Occupation certificate Complaint No.

5126 of 2023 and 3 others s.

No, complaint no., I unli , - nse-f oui aate of Case title, I no. l lpossession oate offfline I and I l ofcomplaint I size i I and repty I I status I ] | Total sale Otrer of consideration i pos"ession. and I possessio.

Total amount I certincate paid by the I complainani l Relief sought 1. cR/5126 /2023 Deepakshi Sachdeva V/s Perfect BuildwellPvr Lrd.

DOF: 24_17.2023 RRr 06.03.2024 3115, 11'h 3,524 sq.ft. carpet and 94 sq. ft. balcon y area (page 1? of compla int) 30.04.20 16 (page 15 of complai n0 09.03.2019 (calculared from the date of tal being later) TC: Rs.21,43,000/- (as per BBA on page 19 ol complaint) Rs- 22,28,7 20 / . [As per SOA on page 42 of complaintl 12.03.2020 [pase 28 or reply) Delay charges 12. harges 12. cR/s372 /2023 Sharmila V/s Perfect Buildwell Pvr.

DOF: 21.17.2023 R* 2A.02.2024 3017, floor, 3,569 sq-ft- carpet and 89 sq. fL balcon yarea Ipace 18 of compla int) 01.12.20 15 (page 16A of complai nt) 09.03.2019 (calculated from the date of tal cl€arance beinglater) I TC: Rs.23,20,500/- (as per BBA on page 20 of complaint) AP: Rs.23,20,500/- [As per deed on page 60 ofcomplainrl 17.OZ_2020 (page 28of reply) Delay charges, Litigation .1 Page 3 of 15 charges .os per the poyiit-plan, stomp duy ina registration charges, the Developer proposes to ofler ]lossesflon oI the Said Apartment to the AportmLnt I I oI-lullding plons or giont of environment cleoronce, I I whichever is later." 3. cR/ s47 0 /2023 Manoj Kumar V/s Perfect Buildwell PvL Ltd.

DOFI 24.7t.2023 RR:06.03.2024 2046, floor, 2,569 sq.ft carpet and 89 sq. ft. balcon y area (page 76 of compla int) 14.05.20 t6 (page 14 of comPlai ntl 09.03.2019 (calculated from the date of tal clearance beinB later) TC: Rs.23,20,500/, [as per BBAon paSe 18 of complaint) AP: Rs.24,42,476/- JAs per payment receipts on page 43-51of complainrl 21.01.2020 (page 26 of reply) Delay charges 14. cR/ s471/ 2023 Rohit Soni V/s Perfect Buildwell Pvt Lrd.

DOF: 24.17.2023 RR:06.03.2024 2041, floor, 2,498 sq.fL carpet and 100 sq- fr balcon yarea (page 17 of compla in0 o1.12.20 15 (page 12 complai nt) 09.03.2019 (calculated from the date of tal being later) TC: Rs.2o,42,000 / - (as perBBAon page l9 of complainr) AP: Rs- 21,81,231 / - IAs perpayment receipts on page 44-53 of complaintl 05.o2.2020 (page 27 of reply) Delay charges nore: ln rhe tabte reterred above certain abbreviations have been-i;i]Tf,liii AbbreviadoD Full form DoF Dare offiling otcomplainr ll Repty received by rhe respondent I L Toral considerarion AP Amount laid by the allottee/s e elaborared as foltows Complaint No.

5126 of2023 and 3 others 4.

The facts of all the complaints filed by tt u .o.lf "in*4q7rf lott""1ij are similar. e similar.

Out of the above-mentioned case, the particulars of lead case CR/5726/2023 titled as Deepakshi Sachdeva V/s perlect Buildwell M" Ltd. are being taken into consideration for determining the rights of the allottee(sl.

Page 4 of 15 Complaint No.

5126 of 2023 and 3 others A, Proiect and unit related detaits 5.

The particulars of the proiect, the details of sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: CR/S126/2023 titled as Deepakshi Sachdeva V/s perfect Buildwell PvL Ltd. s.N.

Particulars Details 1.

Name of the project Zara Aavaas, Sector 104, Dwarka Expressway, Gurugram.

2.

Nature of project Affordable Croup Housing Colony 3.

Project area 5 acres 4.

DTCP license no.

L? of Z0l4 dated 10.06.2014 valid up to 09.t2.2079 5.

Name oflicensee Perfect Buildwell Pvt.

Ltd. & lother 6.

RERA Registered/ not registered Registered Reg. no.

L52 of ZO|T issued on 28.08.20t7 valid up to 31..t2.2079 Not provided 7.

Allotment letter 8.

Apartment no.

3115, 11rh floor, tower 3 adnreasuring 524 sq.ft. carpet area and 94 sq. ft. balcony area fpage 17 of comolaint) 9.

Date of builder buyer agreement 30.04.2076 (page 15 of complaint) 08.72.20t4 (page 16 of complaint) 10.

Date of building plan :pproval 1,1,.

Date of environmental clearance 09.0 3.2 015 (pase 14 of renl 72.

Possession clause 3.

Possessio[ 3.1 "Unless a longer period is permitted by the DGTCP or in the policy and subject io the force majeure circumstances qs stated in clause 16 hereof, intervention of statutory authorities, receipt of occupation certificate and timety compliance by the Apartment Buyer(s) of all his/her/their obligations, formdlities Page 5 of 15 Complaint No.

51.26 of 2023 and 3 others and documentation os prescribed by the Developer from time to time and not being in default under any pdrt of this Agreement, including but not limited to timely payment of installments of the t s of the total costand other charges as per the payment plan, stamp dufi and registrotion charges, the Developer proposes to ofler possession of the Said Aportment to the Apartment Buyer(s) within 40our) years from the date of approval of building plans or grant ofenvironment clearance, whichever is later." (Emphosis sunnlied) 13.

Due date of possession 09.03.2079 (calculated from the date of environmental clearance being later) Rs.21,43,000/- fas per BBA on page 19 of complaint] 1,4.

Total sale consideration 15.

16.

Paid up amount Rs.22,28,720 /- [As per SOA on page 42 of complaint] Occupation certificate 04.72.2019 (page 25 of repl 72.03.2020 fpage 28 of repl t7.

Offer of possession B.

6.

I, Facts ofthe complaint The complainant has made the following submissions: - That the complainant was allotted a unit/flat bearing no.5, 11th floor, in Tower 3, having a carpet area ofSZ4 sq. ft. and a balcony area of94 sq. ft. in the proiect of the respondent named ,,Zara Aavaas,,, Sector_ 104, Gurgaon vide builder buyer agreement dated 30.04.2016 for a total sale consideration is price of Rs 2l,4Z,OOO/_ against which the complainant has made a payment of Rs.2Z,Zg,lZ0 /- ro the respondent in all.

Page 6 of 15 II, III.

5126 of 2023 and 3 others That as per buyer's agreement, the respondent had agreed to deliver the possession of the flat within 4 years from sanctioning of the building plan or grant of environmental clearance whichever is later.

That the complainant used to telephonically ask the respondent about the progress of the project and the respondent always gave the false impression that the work was going in full mode and accordingly asked for the payments which the complainant gave on time and the complainant when visited the site was shocked & surprised to see that construction work is not in and no one was present at the site to address the queries ofthe complainant. mplainant.

That despite receiving 100% payments on time for all the demands raised by the respondents for the said flat and despite repeated requests and reminders over phone calls and personal visits of the complainant, the respondent has failed to deliver the possession ofthe allotted flat to the complainant within stipulated period.

That the complainant has requested the respondent several times to deliver possession of the flat in question along with the prescribed interest on the amount deposited by the complainant, but the respondent has flatly refused to do so.

Thus, the present complaint.

Relief sought by the complainant: The complainant has sought following relief(sJ: I.

Direct the respondent to pay delay possession charges as per the Act.

IV, c.

7.

8.

On the date of hearing the authority respondent/promoter about the contraventions been committed in relation to section 11ta) (a) guilty or not to plead guilty. explained to the as alleged to have of the Act to plead Page 7 of 15 Complaint No.

5126 of 2023 and 3 others D.

9.

Reply by the respondent.

I.

L III.

The respondent contested the complaint by way of reply dated 06.03.2024 on the following grounds: - That after receiving the OC dated O4.LZ.ZO|q, the respondent has immediately offered possession to the complainant and directed the complainant to take possession ofthe unit and to further clear all dues.

However, the complainant chose to delay the matter on one pretext and another.

The complainant was duty bound to take possession of the residential unit within 2 months of OC however, complainant delayed the physical taking over without any reason.

That as per clause 2.4 of the apartment buyer,s agreement, the complainant had to make payments for electricity connection charges, power backup charges, piped gas charges, etc. rges, etc.

Thus, any payments or demands raised under the heads of IFSD (lnterest Free Security Deposit), administration charges, meter connections charges, advance electricity consumption deposit are within the terms ofthe apartment buyer's agreement and nothing illegal has ever been demanded from the complainant.

That the primary relief sought by complainant being .,delay interest,, in handing over the possession is untenable in view of the fact that there was no delay in granting the possession of the flat. tt is humbly submitted that there was a change in the timelines of the project and the said changes and alteration were not on account of any attribute due to the negligence or conduct of the respondent.

It is further pertinent to mention that the timeline alteration was on account of reasons beyond the control ofthe respondent and the complainant has been aware of the alteration in the timeline to offer possession and completion of the project.

Page I of 15 Complaint No.

5126 of 2023 and 3 others iv.

That the various contentions raised by the complainant are fictitious, baseless, vague, wrong and created to misrepresent and mislead this Authority, for the reasons stated above.

Hence, the complaint is liable to be dismissed with imposition of exemplary cost for wasting the precious time and efforts ofthe Authority.

10.

Copies of all the relevant documents have been filed and placed on the record.

Their authenticity is not in dispute.

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

E. ,urisdiction of the authority 11.

The authority has complete territorial and subrect matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.I Territorialiurisdiction As per notification no. l/92/2012-1TCp dated t4.72. ted t4.72.20t7 issued by Town and Country Planning Department, the iurisdiction 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.

Therefore, this authority has complete territorial iurisdiction to deal with the present complaint.

E.II Subiect matter iurisdlction Section 11(4)(aJ of the Act, 2015 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section 71.....(4) The promoter shall- (a) _be responsible for all obligotions, responsibilities ond functions under the provisions of this Act or the rules and regulotions mode thereunder or to the allottees as per the ogreemeit 1or sale, or to the ossociotion of qllottees, as the case moy bq till tie conveyance ofoll the apartments, plots or building, os the case moy be,'to the Page 9 of 15 72.

5126 of 2023 and 3 others qllottees, or the common oreos to the ossociation ofallottees ot the competent authority, as the case mqy be; Section 34-Functions oJ the Authoriq,! i4(l) of the Act provides to ensure compliqnce of the obligations cast upon the promoters, the ollottees ond the real estote ogents under this Act and the rules and regulotions made thereunder.

So, in view ofthe provisions ofthe Act quoted above, the authority has complete iurisdiction to decide the complaint regarding non- compliance of obligations by the promoter.

Findings on the obiections raised by the respondent/promoter: F.l Obiection regarding the proiect being delayed because of force maieure circumstances.

The respondent/promoter vide written submissions dared 07.7O.ZOZ4 has raised the contention that the construction of the project was delayed due to force majeure circumstances such ban on construction due to orders passed by NGT, EPCA, Courts/Tribunals/Authorities erc. ities erc. to prevent pollution, demonetization, implementation of new tax law i.e.

GST, etc.

However, all the pleas advanced in this regard are devoid of merit.

As per clause 1(ivl of the Affordable Housing policy, 2013 it is prescribed lhat "All such projects shall be required to be necessarily completed within 4 years from the date of opproval of building plans or grant of environmental clearonce, whichever is later.

This date sha be referred to as the "date of commencement of project" for the purpose of this policy.

The respondent has obtained environment clearance and building plan approval in respect of the said proiect on 09.03.2015 and 08.1.2.2014 respectively.

Therefore, the due date of possession was 09.03.2019.

Hence, events alleged by the respondent do not have any impact on the proiect being developed by the respondent.

Moreover, some of the events mentioned above are of routine in nature happening annually and the promoter is required to take the same into consideration while launching the project.

Thus, rhe promoter/respondent cannot be given any leniency on based of F.

13.

Page 10 of 15 G.

5126 of2023 and 3 others aforesaid reasons and it is well settled principle that a person cannot take beneftt ofhis own wrong, Findings on the reliefsought by the complainant.

G.I Direct the respondent to pay delay possession charges as per the Act In the present complaint, the complainant intends to continue with the project and is seeking delay possession charges as provided under the proviso to section 18(1) ofthe Act.

Sec.

18(1) proviso reads as under. "Section 78: - Return of amount and compensqtion 18(1). lfthe promoter foils to complete or is unoble to give possession of on aportment, plot, or building, - Provided that where qn ollottee does not intend to withdrow from the project, he sholl be paid, by the promoter, interest Ior ;very month of deloy, till the honding over of the possession, qt such rote as may be prescribed." Clause 3.

Clause 3.1 of the buyer's agreement provides for handing over of possession and is reproduced below: "3.

Possession "3(1) Unless q longer period is permitted by the DcTCp or in the policy and subject to the force mqjeure circumstonces as stated in clause 16 hereof, intervention of stqtutory authorities, receipt of occupqtion certificate qnd timely complionce by the Apqrtment Buyer(s) of oll his/her/their obligotion, formalities and documentation os prescribed by the Developer from time to time ond not being in defqult under qny pqrt of this AgreemenC including but not limited to timely psyment of instollments oI the totol cosi ond other charges as per the payment plqn, stamp duqt ond registrotion charget the Developer proposes to oller possession of the Said Apartment to the Apartment Buyer(s) within 4(Jour) yeors Jrom the dqte ofapproval ofbuilding plons or grant ofenvironment cieorance, whichever is later,,," [Emphasis supplied) The respondent/promoter has proposed to handover the possession of the subject apartment within a period of 4 years from the date of approval of building plans i.e., OA.|Z.ZO|4 or grant of environment clearance i.e.,09.03.2015, whichever is later.

Thus, the due date of possession come out to be 09.03.2019.

14.

15.

Page 11 of15 Complaint No.

5126 of 2023 and 3 others 17.

Admissibility of delay possession charges at prescribed rate of interest: Proviso to section 18 provides that where an allottee does not intend to withdraw from the pro,ect, 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 rate of interest- lProviso to section 72, section 78 and sub-section (4) ond subsection (7) oI section 791 (1) For the purpose of proviso to section 12; section 78; ond sub" sections (4) ond (7) of section 19, the "interest ot the rate prescribed" sh cribed" sholl be the State Bonk of lndiq highest mqrginol cost of lending rate +2ak,: Provided thot in case the State Bank of tndio marginal cost of lending rate (MCLR) is not in use, it sholl be reploced by such benchmork lending rates which the State Bank of India may lix from time to time for lending to the general public.

The legislature in its wisdom in the subordinate legislation under the provision ofrule 15 ofthe rules, has determined the prescribed rate of interest.

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

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in. the marginal cost of lending rate (in short, MCLR) as on date i.e., 09.10.2024 is 9.10%.

Accordingly, the prescribed rate of interest will be marginal cost oflending rate +2% i.e., ll,l0o/o.

The definition of term 'interest' as defined under section 2(za) of the Act provides that the rate of interest chargeable from the allottee by the 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 ofdefault.

The relevant section is reproduced below: "(zo) "interest" means the rotes of interest payoble by the promoter or the qllottee, os the case moy be.

18.

19.

20.

Page 12 of15 Complaint No.

5126 of 2023 and 3 others 27.

22.

Explanation, -For the purpose of this clouse- (i) the rate of interest chargeable from the ollottee by the promoter, in case of default, shall be equal to the rote of interest which the promoter shall be liqble to pay the allottee, in cose ofdefoult; (ii) the interest payable by the promoter to the qllottee shall be from the date the promoter received the omount or ony port thereoftill the date the amount or pqrt thereof qnd interest thereon is refunded ond the interest pqyable by the allottee to the promoter shall be from the dote the allottee defaults i defaults in poyment to the promoter till the dote itis paidi' Therefore, interest on the delayed payments from the complainant shall be charged at the prescribed rate i.e., 11.10y0 by the respondent/ promoter which is the same as is being granted to her in case of delay possession charges.

On consideration of documents available on record as well as submissions made by the parties, the Authority is satisfied that the respondent is in contravention of the provisions of the Act.

By virtue of clause 3.1 of the agreement executed between the parties on 30.04.2016, the possession of the subject apartment was to be delivered within 4 years from the date of approval of building plans i.e., 08.72.2014 or grant of environment clearance i.e., 09.03.2015, whichever is later.

Therefore, the due date of handing over possession was 09.03.2019.

The occupation certificate was granted by the concerned authority on 04.12.2019 and thereafter, the possession of the subject flat was offered to the complainant vide offer of possession letter dated 12.03.2020.

Copies of the same have been placed on record.

The authority is of the considered view that there is delay on the part of the respondent to offer physical possession of the subiect flat and it is failure on part of the promoter to fulfil its obligations and responsibilities as per the buyer's agreement dated 30.04.2016 to hand over the possession within the stipulated period.

Page 13 of 15 23.

5126 of 2023 and3 others Accordingly, the non-compliance of the mandate contained in section 11(4)(a) read with section 18(1) of the Act on part of the respondent is established.

As such, the allottee shall be paid, by the promoter, interest for every month of delay from due date of possession i.e., 09.03.2019 till expiry of 2 months from the date of offer of possession or actual handing over of possession, whichever is earlier, as per section 18(1) of the Act of 2016 read with rule 15 of the rules.

G. rules.

G.II Direct the respondent to pay litigation cosL The complainant in CR/5372 /2023 has sought an additional relief w.r.t compensation.

Hon'ble Supreme Court oflndia in civil appeal nos.

67 45-67 49 of 2021 titled as M/s ivewtech Promoters and Developers PvL Ltd. v/s State of Up & Ors. (supra), has held that an allottee is entitled to claim compensation and Iitigation charges under sections 1.2,14,18 and section L9 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation and litigation expense shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.

The adjudicating officer has exclusive iurisdiction to deal with the complaints in respect of compensation.

Therefore, the complainant is advised to approach the adjudicating officer for seeking the relief of litigation expenses.

H, Directions ofthe authority 25.

Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authoriry under section 34(0: i.

The respondent is directed to pay interest to the complainant against the paid-up amount at the prescribed rate i.e., 11.10%o per annum for every month of delay from the due date of possession i.e., 09.03.2019 24.

Page 14 of15 11.

5126 of 2OZ3 and 3 others till the expiry of 2 months from the date of offer of possession or actual handing over of possession, whichever is earlier, as per section 18[1] of the Act of 2016 read with rule 1S of the rules.

The respondent shall not charge anything from the complainant which is not the part of the buyer,s agreement or provided under Affordable Housing Policy, 2013.

The rate of interest chargeable from the allottee by the promoter, tn case of default shall be charged at the prescribed rate i.e., 11. i.e., 11.10% by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottee, in case of default i.e., the delayed possession charges as per section 2(za) ofthe Act.

A period of 90 days is given to the respondent to comply with the lv. lll.

27.

28. directions given in this order and failing which legal consequences would follow.

26.

This decision shall mutatis mutandis apply to cases mentioned in para 3 ofthis order.

Complaint stands disposed of.

File be consigned to registry. [Ashok Sa Memb Haryana Real Estate Regulatory Authority, Gurugram Dated: 09.10.2024 Page 15 of 15