MR CHIRAG ARORA AND MRS SUPRIYA MANDAN vs VATIKA LTD.

ffiHARERE S- GURUGRAM Complaint No.5012 of 2023 5012 of2023 02.tL.2023 09.o2.2024 18.09.2024 BEFORE THE HARYAI\JA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.

Date of filing comPlaint First date of hearing Date of decision 1.

Mr.

Chirag Arora 2.

Ms.

Supriy:r Madan Both R/o: A-'2601, Heritalqe Max, Sector- 102, Gurugram,, Haryana l225il :; Versus Vatika Limited Registered office: Vatika Triangle,4th floor, Sushant Lok, Phase 1, BlockA, Mehrauli- Gurugram Road, Gurugralm- 1.22002 CORAM: Shri Ashok Sangwan APPEARANCE: Ms, Priyanka Agarwal [l,.dvocate) Mr.

Venket Rao (AdvocateJ Complainants Respondent Member Complainant Respondent ORDER 1.

The present complaint has been filed by the complainant/allottee under Section 3:1 of the Real Estate (Regulation and Development) Act, 2016 [in short, the Act) read with Rule 28 of the Haryana Real Estate [Regulation and Development) Rules, 201,7 (in short, the Rules) for violation of Section 1 1(4) [a) of the Act rn,herein it is inter a/ia prescribed that the promoter shall be respolsible for alt obligations, responsibilities and functions under the provisions of the Act ror the Rules and regulations made thereunder or to the allottee as per the agreement for sale executed inter se. q Page 1 ol'18 ffiHARER& ffibunuenAHr A.

Unit and proiect rel:rted details 2.

The particulars of unrit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailr:d in the following tabular form: Particulars Details Name of the project Nature of Project RERA Registered or not registered DTCP License and validity status Date of allotment of builder 271. of 2017 dated 09.10.2017 valid upto 08.1,0.2022 94 of 201,3 dated 31.10.2013 valid upto 30.10.2019 11. of 201,5 dated 01.10.2015 valid upto 30.09.2020 01.02.201,6 (Page ZB of reply) HSG-O28-Sector-BBB, Plot No-32, ST' H-33, Level-2 (Page 22 of complaint) 1550 sq.ft.

550 sq.ft.

Super area (Page ZZ of complaint) Clause 13.

SCHEDULE FOR POSSESSION OF THE SAID RESIDENTIAL FLOOR "The Developer based on its present plans and estimates and subiect to all iust exceptions, contemplates to complete construction of the said residential floor within a period of 48 (Forty Eight) months from the date of execution of this agreement unless there shall be delay or there sholl be failure due to reosons mentioned in other clauses herein or due to faiture of the Allottee(s) to pay in time price of the said Residential Floor along with all other charges and dues in accordance with the Schedule of Poyments given in Annexure'1 or os Complaint No.

5012 of 2023 "Xpressions by Vatika", Sector- BBA and BBB, Village Harsaru, Gurugram Independent Residential Floor 25.05.201.6 (Page 20 of complaint) Date of execution buyer agreement Unit no, Unit area Possession Clause 'r demands raised by the PageZof18 V Sr.

No.

1.

2.

3.

4.

5.

6.

7.

B.

9. ffiHARERE ffi ounuennu 10.

Due date of po 11.

Basic Sales Pri 1,2.

Total sale con Amount pa complainant Pryr"."t *. sent by r( colt!!lel!e!!q Cancellation letter 13.

14.

15. by Complaint No,5012 of 2023 the part of the of the terms or ssession rsideration id by the lrninder letters respondent to to time or any failure on Allottee(s) to abide by any conditions of this Agreement." Paee 31 of complaint 25.1,1,.2020 [Calculated to be 48 months from the date of execution of builder buyer agreement dated 25.05.20L6 + Grace Period of 6 months in as per HARERA notification no.

9/3-2020 dated 26.05.2020, for the projects having completion/due date on or Rs.

1,10,12,987.50 /- (As per Account statement dated O9.O2.2OZL ar 56 of complaint Rs.

39,30,437 /- [As per Account statement dated 09.02.2O21ar 56 of complaint 1.0.05.2022 and 3 0.0 5.2 02 3 [Page 35 and 34 of reply, respectively) 27.09.2023 (Page 37 of replyJ cum refund B.

Facts of the comPlariint: 3. ariint: 3.

The complainants harrze made the following submissions: - a) That even after more than 5 years of implementation of the RERA Act,2016, the project in questir:n is still not registered, which is a clear violation of Section 3 of the Act. b) That on 29.05.201,1;, based on promises and commitment made by ther responde:nt, the complainants booked a 3 BR+ residential floor measuring super area 1550 sq. ft,, along with covered car parking in residential floor project "Xpressions by Vatika", Sector BB B, Gurugram, Haryana.

The initial booking amount of Its.

2,00,000/- was paid by the complainants' c) That a tluyer's agreement date d 25.05.2016 was executed between the' parties. 'the respondent assured the complainants that the project shall be' Page 3 of 18 after 25.03.2020'l dated Rs.

91,60 ,500 /' (As per Account statement v ffiHARER& ffieunuennrrl Complaint No,5012 of 2023 completed in time lbound manner and in the garb of this agreement persistently raised demands due to which they were able to extract huge amount of money fro nl the complainants. d) That the complainant:s were allotted unit no.

HSG-O28-Pocket-H-Z-Level-Z, Xpressions by Vatika, Sector-88B, Gurugram, Haryana.

The total cost of the said floor is Rs.

1.,02,',25,500/- including PLC, ED(1, IDC, car parking and club membership and the complainants have paid a total amount Rs' 39,30 ,437 l' in a time bound manner. eJ That as per section 19 t6) the Real Estate [Regulation and Development) Act, Z016, the compJlainants have fulfilled their responsibility in regard to making the necessary payments in the manner and within the time specified in the said agreement and buyer was bound to sign the BBA and agreed to one sided clause of BBA Iike escalation cost, force majeure, clause of due clate of possession, PLC, club charges, other hidden charges.

Therefore, the complainants herein are not in breach of any of its terms ol' the agreement. agreement.

0 That the complain2nts had made timely payment of installments titl 1,g.O4.2OlB and depr:sited Rs.

39,30 ,437 l-.

The respondent in an endeavour to extract money fiom allottees devised a payment plan under which respondent linked rrrore than 600/o of the total sale consideration amount as advance and linked the rest 40%o amount with the construction of super structure only, whictr is not depended or co-relrrted to the finishing of floor and internal developrment of facilities amenities and after taking the same respondent did not even bother about the de'u'elopment of the proiect till date as the whole prroject is not even 500/o complete.

Extracting the huge amount and not spelding the money on a projer:t is illegal and arbitrary and matter of investigation. { Page 4 of 18 ffiHARER& #- eunuenArv Complaint No.

5012 of 2023 g) That the complainants booked apartment on 29.07.2015 (more than B years ago) and as per clause 13 of the buyer's agreement, builder was liable to offer possession on or before 25.05.2020.

However, the respondent failed to complete the project bry the due date i.e., 25.05.2020' h) That the complainants were surprised to see that the respondent has illegally terminated the allotment of the complainants vide termination letter dated 27.09.2'.023, without paying any interest on the delayed possession, or even returning the principal amount paid by the complainants, which is highly illegal, arbitrary and unjust. i) That the respondent has indulged in all kinds of tricks and blatant illegality in booking and drafting of the agreement and has rudely and cruelly dashed the expectations of the complainants to the ground and the complainants are eminently justifield in seeking delay possession charges from the due date of possession i,er.

25.05.2020 to till date of'physical possession of the unit after obtaining 0,C.

C.

Relief sought by thr: complainant: 4.

The comlllainants herve sought following relief(s): I. ief(s): I.

Direct the resporrdent io revoke the cance'llation of allotment of the' complainant's unit[.

IL Direct. the responrCent not to create any third-party interests in the said unit or to alienate the :;aid unit till the final disposal of the present complaint case' IIL Direct the respondent to pay delay possession charges from the due date 9i possession till thLel actual handover of the unit with interest at the ratt: prescribed bY the l\ct.

IV.

Direct the respondent to get the occupation certificate and immediately hand over the legal ph'ysical possession of unit in habitable condition with all amenities mentioned in brochure' V.

Direct the respon6lent to handover the actual physical possession of the full'y furnished unit with all the amenities and fixtures as per the BBA at thc earliest.

VL Direct the respond.ent to quash the one-sided clauses from BBA' VII. pass an order for refund of GST amount levied upon the complainants and taken the benefit of input credit by builder' Page 5 of 18 I{ARERE ffiGURUORAM VIII.

Direct the respondents not to raise any further demands from the complainants till ttrr: final disposal of the present complaint case.

IX.

Direct the respondernts not to impose any tax liabilities on the complainants afterthe lapse of tlne due date of possession, i.e., 25.05'2020, as itthe builder who has indefinitelLlr dslrr.a the project by no fault of the complainants' X.

Impose heavy costs on the respondent for sheer violations of the provisions of the Act and caus;ing untold misery, mental agony, emotional turmoil and continuous harassntent to the complainants' XI.

Initiate inquiry against the respondent for violation of the provisions of REIlA Act, 2916 as even aLfter nearly 6 years of implementation of RERA Act,201.6, the respondent hers; not registered the project in question with the Hon'ble RERA HarYana.

5. arYana.

On the date of he,ztring, the authority explained to the respondent/ promoter about the r:ontraventions as alleged to have been committed in relation to Section 1 t [4) [a) of the Act to plead guilty or not to plead guilty' D.

Repty by the respondent.

The respondent contested the complaint on the following on the following grounds vide its replLy dated 28.02'2024: a) That the complainanlr learned about the residential project launched by the: respondent titled as "Xpressions by vatika" situated at Sector BBA and BBII, Gurugrarn and visited the office of the respondent to know the details of the said project.

The co:mplainant further inquired about the specifications and veracity of the proiect and was satisfied with every proposal demanded necessary for the derrreloPment.

Complaint 5012 of2023 b) That after having keen interest in the project being developed by the being satisfied with specifications of the project, the to book a unit vide Application form dated 29.07 .2075 and paid an amount of Rs.2,00,000/- as booking amount for further registration in the Prroject. cJ That the respondenl. vide allotment letter datetl 1.4.01.201,6 called upon the complainant and requested to come to office on 01.02.2016 for taking the allotment of the unit. ., Page 6 of 18 respondent and Porst complainant decided ffiHARER& ffi eunilGRAM d) That the respondent rride allotment letter dated 01..02.2016 allotted a unit bearing no.

32, Leverl 2 Floor, Street no.

H-33, admeasuring 1550 sq. ft. super area in the aforesaid project. e) That the respondent vide letter dated 29.02.2016 served two copies of the builder buyer agreernent for execution and requested the complainant to return the signed copry of the same for further execution.

0 That on 25.05.2016, a builder buyer agreement was executed between the parties for a total sale consideration of Rs.1,02 ,2!>,500 f -. >,500 f -. gl That as per clause l-3 of the agreement, the possession of the unit was proposed to be hand,ed over subject to force majeure conditions within a period of 48 months from the date of execution of the agreement unless there shall be a delay or there shall be a failure due to reasons beyond the control of the developer or due to the government rules, orders, etc' or due to failure of allottee to pay in time the price of the residential unit along with all other charges and dues in accordance with the schedule of the payment and as pr the same the possession was proposed to be handed over by 25.05.2020. 'Ihe respondent herein shall be entitled for extension for such period of delay caused due to force majeure circumstances. h) That the complainant has defaulted in making payments from initial stages of booking.

As can ber clearly seen from the Statement of Accounts, that ther complainants have always delayed the payment of instalments and therefore not abideit by the clauses of the agreement. i) That the respondtent vide letter dated 13.I2.202f informed the complainants about the payment of Rs.20,51,952/- by 31''1'2'2021 which the comtrllainants failed to do. vide letter dated t0.05.2022,the respondent reminded the complainants about the due payment and again oll 30.05.2023 gave thr: complainants last opportunity to pay the outstanding dues. l complaint No.5012 of 2023 PageT of 18 ffiHARERfl #- eunuennM That as per Section 19t6) of RERA, 2016, the Allottee is obligated for timely payments as per the agreement.

So, the timely payments is not only a contractual duty of the complainants but also the legal duty, which the complainants have failed to perform.

Therefore, the complainants herein are at default without the fault of the respondent. k) That as per Section 11(5) of the RERA, 2016, the promoter may cancel the allotment only in terrns of agreement for sale. for sale.

Also, as per clause 19 of the agreement, the respondent can cancel the agreement if the complainants fail to make the paynrent on time.

Therefore, as per the provisions of the Act of 2016, the responclent herein was well within its rights to cancel the allotment of the comprlainants in case of default of payment' ll The respondent vide letter of cancellation cum refund letter dated 27.Og.ZO'23, intimaterrl the complainants that due to their failure to clear the outstanding dues, the company is constraitred to and left with ncl alternative but to cancel the agreement as per the clauses of agreement and also intirnated that the complainants, are left with no right, title, interest, charge or lien over th e unit and the allotment stands cancelled as of date' m) That the complaina,nt further agreed that he shall not be liable for any amount of compensation for such extension which is caused due to reasons beyond the control of the developer.

The relevant abstract of clause 16 is mentioned below for reference: ,,',,,.,,,TheAllotteeagreesnottoclaimCompensationofanynature whatsoever (including the compensation stipulated in Clause L8 of this Agreement)"for the period of extension of time for handing over the possession of the Residentiql Floor""""" n) That the Haryana Government in alliance with the 'fown and country Planning Departme:nt ih exercise of power vested under Section a5[1) of GMDA Act,20!7 transferred the properties falling within the ambit of NH 352W acquired by FxuDA to GMDA for development and construction of NH 352W.

Thus the construction was hindered due to re-routing of High- Complaint No.

5012 of 2023 il PageS of1:S{ ffiHARER+ S-. eunuonnvt tension lines passing through the lands resulting in inevitable change in the layout plans. o) Furthermore, the project was hindered due to force majeure reasons beyond the control of the respondent such as direction of Hon'ble National Green Tribunal, Envinonment Pollution Control Authority, Haryana State ana State pollution Control Board, Commissioner Municipal Corporation Gurugram, Hon'ble Supreme Court, Covid-19 pandemic, etc. which caused a delay of approximately 1.4 years in completion of the project.

The respondent also had to carry out the vyork of repair in the already constructed building and fixtures as the construction was left abandoned for more than 1 year due to Covid-19 lockdown. 'Ihis also led to further extension of time period in construction of ther project and all such factors may be taken into consideration for ther calculation of the period of the construction of the project.

All other averments nlade in the complaint were denied in toto' B.

Copies ol'all the rele,,zant documents have been filed and placed on record' Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of those undisputed documents and oral as well as writtert submissions made bY'the Parties.

E. f urisdiction of the authoritY g.

The authority observes that it has territorial as well as subject matter jurisdiction to adjudlicate the present complaint for reasons given below' E.l Territorial iurisdliction 10.As per norifi.rtion ":no.

1,/9212017-LTCP dated 1,4.12.2017 issued by Town and country Planning Department, 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 prolect in question is situLated within the planning area of Gurugram District' Complaint No.

5012 of 2023 I Page 9 of 18 ffiHARER*, ffi eunuennM Therefore, this authority has complete territorial jurisdiction to deal with the present complaint, E.ll Subiect matter iurrisdiction lL.Section 11(a)(a) of the Act, 201,6 provides that the promoter shall be responsible to the allottees as per agreement for sale. for sale.

Section 11[4)(a) is reproduced as hereunder: "Section 17, @) fhe promoter :;hall- (a) be responsib,le for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereu,nder or to the allottees as per the agreement for sale, or to the' association of allottees, as the case may be, till the conveyqnce of alt the apartments, plots or buildings, as the case may be, to t,he allottees, or the common areas to the associotion of allottees or the competent authority, as the case may be; Section 34-Funcl:ions of the Authority: 34(fl of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the ru,les and regulations made thereunder." 12.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance ol' obligations by the promoter leaving aside compensation which is to be decided by the adjucllicating officer if pursued by the complainants at a later stage.

F.

Findings on the objiections raised by the respondent.

F.I Obiections regarding force maieure.

13.

The respondents-promoter has raised the contention that the constructiort of the tower in which the unit of the complainant is situated, has been delayed due to force majeure circumstances such as orders passed by National Green Tritlrunal to stop construction, Ilon-payment of instalment by allottees, The plea of the respondent regarding various orders of the NGT and other authorities advanced in this regard are devoid of merit' 'f he orders passed by Irl{}T banning construction in the NCR region was for a r' Complaint No.

5012 Page 10 of 18 ffiHARERI ffi ounuenAu very short period and thus, cannot be said to impact the respondent-builder leading to such a dela,y in the completion. ompletion.

Also, there may be cases where allottees has not pairl instalments regularly but all the allottees cannot be expected to suffer because of few allottees, Thus, the promoter respondent cannot be given any Ieniency on based of aforesaid reasons and it is well settled principle that zr person cannot take benefit of his own wrong.

F.ll Obiection regarding delay in completion of construction of proiect due to outbreak of Crovid'19.

14, The Hon'ble Delhi High Court in case titled as M/s Halliburton Offshore services Inc. v/s vedanta Ltd. & Anr. bearing no. o.M.P (7) (Comm.) no.

BS/2020 and LAS ,?696-3697/2020 dated 29.05.2020 has observed as under: "61).

The past non-performance of the Contractor cannot be condoned due to the C0VID-19t lockdown in March 2020 in lndia.

The Contractor was in breach since Sep,tember 2019, )pportunities were given to the Contractor to cure the same repeatedly.

Despite the same, the Contractor could not complete the Project.

The outbreak of a pandemic cannot be used as an excuse for non-p,erformance of a contract for which the deadlines were much before the' outbreak itself'" 15.

In the present case also, the respondent was liable to complete the' construction of the project and handover the possession of the said unit b1' ZS.OS.ZO20.

As per HARERA notification no.

9/3-2020 dated 26.05.2020, an extension of 6 months is granted for the projects having completion/dur: date on 6r after ZS.0',3.2020.

The completion date of the aforesaid project in which the subject unit is being allotted to the complainant is 25.05.2020 i'e , before 25.03.2020. 'Iherefore, an extension of 6 months is to be given over and above the due date of handing over possession in view of notificatiotl no. g 13-2020 date d L6.05.2020, on account of force majeure conditions clue to outbreak of Covid-19 pandemic.

So, in such case the due date for handing over of possession comes out to 25.11'2020' Complaint No.

5012 of 2023 r' Page 11 of 18 ffiHARER}. ffiHARER}. #- eunuennu @l G.

Findings on the relit:f sought by the complainant.

G.l.

Direct the respondent to revoke the cancellation of allotment of the complainant's uttjit.

G.ll Direct the respondent not to create any third-party interests in the said unit or to alienate the said unit till the final disposal of the prcsent complaint case.

G.III Direct the respondent to pay delay possession charges from the due date of possession tilt the actual handover of the unit with interest at the rate presr:ribed bY ther Act.

G.IV Direct the respondent to get the occupation certificate and immediately hand over the lergal physical possession of unit in habitable condition with all amenitiers mentioned in brochure' G.V Direct the respondent to handover the actual physical possession of the fully furnished u:nit with all the amenities and fixtures as per the BBA at the earliest.

16.

The above-mentionecl reliefs sought by the complainants are being taken together as the findings in one relief will definitely affect the result of the other relief and the same being interconnected' 1,7.lnthe present compllaint the complainant is seeking relief w.r.t setting aside the cancellation letter dated 27.09.2023.

The complainant was allotted unit no.

HSG-028-Sector-tl8B, Plot No-32, ST.

H-33, Level-2 in the respondent's project at total sale consideration of Rs.1,10,12,987 '501-' A buyer's agreement was e>lecuted between the parties on 25.05.2016. 'f he: possessign of the unit was to be offered within a period of 48 months fron't the date of execution of the agreement along with a grace period of' 6 monrhs in lieu of ILAREPU^ notification no, 9/3-2020 dated 26.05,2020 with respect to covid-L9.

Therefore, the due date of handing over possession comes outt to be 25.1,1,.2020.

The complainants paid an amount of Rs.39,30,437 l- tcwards the subject unit, and are ready and willing tr: retain the allotted unrit in question' 1B.The respondent h;as sent demand letter dated 1'0. dated 1'0.05'2022 asking the complainant to pay'a sum of Rs.20,70,263'4Ol- towards "On Start 6f Page 12 of 18 r' ffiHARER,*' ffi eunuennM Flooring work inside the unit'i payable within 7 days of receipt of this demand letter.

Thereaftel reminder letter dated 30.05.2023 was issued by the respondent promoter reminding the complainant to pay the outstanding amount within a period of 7 days of the receipt of the said notice, failing which the responden.t would be constrained to cancel the unit in question with immediate efltrct, thereby refunding the amount paid by the complainant after forfeiting the earnest money as per the terms agreed' 19.

The complainants submitted that they had made timely payment of instalments till 1,g.Otl.zO1B and deposited Rs.

39,30,437 l-' The respondent in an endeavour to r:xtract money from allottees devised a payment plan under which respondent linked more than 600/o of the total sale consideration amount as advance and linked the rest 40o/o amount with the construction of super structure only, which is not dependent or co-related to the finishing of floor and internal development of facilities amenities.

However, the project is not even 50o/o complete' 20.

On the other hand, the respondent cancelled the allotted unit of the complainant vide cancellation letter dated 27.09.2023.

Now, the question before the Authority is whether the cancellation is valid or not?

21.

The authority has g,lne through the schedule of payments [Annexure I) oi the agret:ment executed between the parties, same is extracted below for ready ref'erence: - Complaint No, 5012 of 2023 HSG-028-At the time of booki HSG-028-Within 45 daYs of booki HSG-028-Within 90 rlays of bookin H SG-o z B-Within 1 B0r dayqglbqg\i HSG{28-0" Crri,t.tion of super structure 2,00,000.0 5.00/o BSP 10.00/o BSP -- s.0% BSB 20.0% BSP HSG-028-0n start of Flooring inside the unit HSG-028-On installation of lift 20.0% BSP 10.00/o BSP BSP +100.00/o of EDC/lDC + of PLC + 100.0% of Car + 100.

Car + 100.0% of Electric Meters + 30.00/o 100.00/o )y HSG-0 2B-On Offer ol' Possession work Parkin Page 13 of 18 ffiHARERE ffieunuenAHl 100.0% of Gas Pipeline STP + 100.0% of IFMS + and Registration charges + 100.0% of Stamp Duty + Escalation in construction cost flf An 22.

After, considering ther documents available on record as well as submissions made by the parties, it can be ascertained that the complainants have paid only Rs.55,39,5 L3/- towards the unit in question.

Therefore, the authority is of considered view that the respondent is right in raising demands as per payment plan agreecl between the parties, i.e., towards the stage "On Start of Flooring work inside the unit".

23.The respondent sent reminder letters dated 1.0.05.2022 and 30.05.2023 to make payment of ttre outstanding amount.

However, the complainant continuecl with his default and failed to make payment even after receipt of reminders leading to r:ancellation of unit vide letter dated 27 .09.2023.

24.

As per clause B of the agreement to sell, the respondent has a right to cancel the unit and forfeit the earnest money where an allotment of the unit is cancelled due to default of complainant to make timely payments as per the agreed payment plaLn, Clause B of the buyer's agreement is reproduced under for readY reference: ,,8, TIME IS THEESSI|NCE FOR PAYMENT OF SUMS DUE BY THE ALLOTTEE enott,t"o,or jl,i'of ,fJ,;"{,::{:iY!:;'y,o:i:Xf ,;##:":;:!,:X; Agreement, the Diveloper shall cancel the allotment ond shall forfeit Earnest Money os described above and may recover simple interest @ 7g%o per annum on the unpaid amount/installments/charges, ete falling due as przr the terms of this Agreementfor the period of delay in payment of iuc,h unpaid amount/installments/charges, Upon such cancellatioi, the ,Allottee shall be left with no right and/or interest in the saicl Residential Floor in any manner whatsoever and the Developer shall be freet to deal with ,the same in any manner it likes The amount, if an unt, if any, after deduction of the Eiarnest Money and other qmounts as stated above, shall be refunded by the' Developer to the Allottee without any interest or compensation whatsoever.

Without prejudice to its aforesaid right to cancel the allotment a's aforesaid, the Developer may, in case of exceptional cirr:umstonces, utoive the said breach for a short period of delay, subject to the Allottee pL-ving penal simple interest @ 1B0/o p.a on unpaid y complaint No.

5012 of 2023 Page 14 of 18 ffiHARER,,}, ffieunuenAM amount/installme,nts/charges, etc falling due as per the terms of this Agreement, for the period of delay in payment of such unpaid amount/installme,nts/chorges, etc It is made clear and so agreed by the Allottee that exercise of discretion by the Developer in the case of one allottee shall not Lte construed to be a precedent and/ or binding on the Developer to exerci:;e similar discretion in the case oJ'other allottees." 25.

Further; Section 19(6,) and Section 19(7) of the Act of 2016 casts an obligation on the allol-tee to make necessary payments in a timely manner.

The respondent has given sufficient opportunities to the complainants and finally cancelled the allotted unit of the complainant vide letter dated 27.09.2023.

Hence, c:ancellation of the unit in view of the terms and conditions of the buyer's agreement dated 25.05.2016 is held to be valid.

26.

Now the second issue for consideration arises as to whether after cancellation the balernce amount after deduction of earnest money of the basic sale considerat.ion of the unit has been sent to the claimants or not.

The issue with regard to deduction of earnest money on cancellation of a contract arose in cases of Maula Bux VS.

Union of India, (1970) 7 SCR 928 and Sirdar K.B.

Ram Chandra Rai Urs, VS.

Sarah C. .

Sarah C.

Urs,' (2075) 4 SCC 736, and wherein it vl,as held thatforfeiture of the amount in case of breach ol contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of section ',74 of Contract Act, 1872 are attached and the party so forfeiting must prove ,actual damages.

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

Natiortcti Consumer Disputes Redressal Commissions in CC/435/2019 Ramesh Malhotrtt VS, Emaay MGF Land Limited (decided on 29.06.2020) and Mr.' saurav sanyal vs. x|/s IREO Private Limited (decided on 12.04.2022) and followed in CC/276C;/2017 in case titled as Jayant Singhal and Anr.

VS.

M3M Intliq Limitecl decided on 26.07.2022, held that 10% of basic sale price is reasonable amount to be forfeited in the name of "earnest money'.

Keeping in view the principles laid down in the first two cases, a regulatrotl v Page 15 of 1B Complaint No.

5012 of 2023 ffiHARER,*-, ffi eunuennM known as the Haryana Real and not binding on tlie buYer." 27.So, keeping in view the law laid down by the Hon'ble Apex court and provisions of Regulation 1L of 2018 framed by the Haryana Real Estate Regulatory AuthoritSr, 5,u.rgram, and the respondent can't retain more than 1,00/o of sale consiclreration aS earnest money on cancellation' So, the respondent/builder is directed to refund the amount received from the complainant after derrluctingl.0o/o of the basis sale consideration and return the remaining amount along with interest at the rate of t1".I}o/o fthe State Bank of India highest marginal cost of lending rate (MCLR) applicable as on date +ZcYo) as pre:;r:ribed under Rule 15 of the Haryana Real Est;rter (Regulation and Development) Rules, 2017, from the date of termination/cancellation i.e.,27.09.2023 till the actual date of refund of thtr amount within the tirrnelines provided in Rule 16 of the Haryana Rules 201''7 ibid.

G.

7 ibid.

G.VI Direct the respondent to quash the one'sided clauses from BBA' G.VII pass an order'f,or refund of GST amount levied upon the complainants and taken the tlenefit of input credit by builder' G.VIII Direct the respondents not to raise any further demands from the complainants tilll the final disposal of the present complaint case' G.lX Direct the respondents not to impose any tax liabilities on the complainants ,ft". the lapse of the due date of possession' i'e'' 2S.0S.2020, as jit the builder who has indefinitely delayed the proiect by no fault of t'e complainants' page 16 or rh 5*, "^r^ I I Complaint No. _ , Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builder) Regulations, 11[5) of 201,8, was farmed providinSS as under- ,5, AMOT]NT OF EARNIEST MONEY Scenorio prior to t,\,e Reql Estate (Regulations and Development) Act,2016 was different.

Frauds wetr€ carried out without any fear as there was no law for the same but now, in tiew of the above facts and taking into consideration the judggments of Hon'ble Notional Consumer Disputes Redressal Commission and the Uoi'Ole Supreme Court of lndia, the authority is of the view that the forfeiture amoLtnt of the earnest money shall not exceed more than L00/o of the consideration amount of the real ,estate i.e. apartment/plot/building as the case moy be in all cases where the cqncellation of the ftat/unit/plot is made by the builder in a unilateral menner ctr the buyer intends to withdraw from the proiect and any agreement containing any clause contrary to the aforesaid regulations shall be void ffiHARER* ffieunuenAM Complaint No.5012 of 2023 G.X Impose heavy costs on the respondent for sheer violations of the provisions of the Act and causing untold misery, mental agony, emotional turmoi.l and continuous harassment to the complainants.

28.

In view of findings o1i the Authority above, the aforesaid relief no. relief no.'s VI-lX stands redundant and therefore, no directions to this effect are required.

G.XI Initiate inquiry ag,ainst the respondent for violation of the provisions of RERA Act, 2O16 as even after nearly 6 years of implementation of RERA Act, 20L6, the respondent has not registered the proiect in question with the Hon'ble R'IIRA HarYana' 29, The planning branch of the Authority is directed to take necessary action under the provision ,of the Act of 2OL6 for violation of proviso to Section 3[1) of the Act.

H.

Directions of the aut.horitY 30.

Hence, the authority' hereby passes this order and issues the following directions under Seclcion 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under Section 3a[f : I.

The respondent is directed to refund the paid-up amount of Rs.39,30,437 /- after deducting the earnest money which shall not exceed the 10% of the basic sale consideration along with interest at the prescribed rate, i.e., 1,1,tOo/o per annum from the date of cancellation, i.e., 27.09.2023 till the actual date of refund of the amount within the timelines provided in Rule 1'6 of the Rules ' 201'7 ' ibid.

The amount already paid by the respondent to the complainant' if any may be acljusted from the refundable amount and shall return the balance amount to the complainant' IL A period of 90 days is given to the respondent to comply with the directionsgiveninthisorderandfailingwhichlegalConsequences would follow.

It PagelT ot 1B I ffiHARERA #*eunuenArrl IIL The Planning branch of the Authority is directed to take action under the provision of the Act of 201'6 for violation to Section 3(1) ol'the Act.

31.

Complaint stands disprosed of.

32.

File be consigned to rr:gistrY. [MenSer) Haryana Real Estate Regulatory AuthoritY, Gurugram necessary of proviso Complaint No.

5012 of 2023 Dated: L8.O9.2024 ly,n(x Safgwan Page 18 of 18