NITIN KATARIA AND PRITI RANI vs SHREE VARDHMAN INFRAHEIGHTS PVT. LTD

HARER& BEFORE THE HA.II.YANA REAL ESTATE REGULATORY AU'IHORITY, GURUGRAM W* GURUGI?AM Complaint no.

Date of Filing Complaint Date of First Hearing Order Pronounced On 1.

Nitin Kataria 2.

Priti Rani Both R/o: 181, B Bisrara, Village Gurugram, Haryana- L22001.

Versus M/s Shree Vardhman Infraheig hts Pvt.

Ltd.

Regd. office: 302, 3.a lFloor, Indraprakash Building, 2l,,Barakhrambha Road, New Delhi- 110001 Complaint No.

2845 of 2023 2845 of 2023 28.06.2023 24.L1..2023 04.09.2024 Complainants Respondent CORAM: Shri Ashok Sangwan APPEARANCE: Mr.

Kuldeep Kohli [Advocate) Mr.

Shalabh Singhal arrcl Mr.

Gaurav Rawat (Advocates) Member Complainants Respondent ORDER 1.

The present complerint has been filed by the complainants/allottees under Section 31 of the Real Estate (Regulation and DevelopmentJ Act, 2016 [in short, the Act) reacl with Rule 28 of the Haryana Real Estate [Regulation and Development) .Rules, 201,7 fin short, the Rules) for violation of Section 11(4)(aJ of the Act 'wherein it is inter alia prescribed that the promoter shall be responsibL: for all obligations, responsibilities and functions under the provision of the Act or the Rules and Regulations made there under or to the allotltee as per the agreement for sale executed inter se.

Page 1 of 23 HARER& ffi- GURUGRAM Unit and project related details The particulars of ttre project, the details of sale consideration, the amount paid by the compla.inants, date of proposed handing over the possession and delay period, if any, have been detailed in the following tabular form: Complaint No.

2845 of 2023 A.

2.

Sr. no.

Particulars Details 1,.

Name and loc,ation of the proiect "Shree Vardhman Victoria", Village Badshahpur, Secto r-7 0, Gurugram 2.

Proiect area 10.9687 acres 3.

Nature of the project Group Housing Colony IResidential ApartmentJ 4.

DTCP license no. and validity status L03 of 201,0 dated 30.t1.2010 valid upto 29.1,1.2020 5.

Name of the Lir:ensee Dial Soft Tech and two others 6. others 6.

RERA registered/ not registered anrl validity status Registered Registered vide no.

70 of 2017 dated 1,8.08.201,7 valid upto 31,.12.2020 7.

Allotment Letter 29.05.201,3 (lssued in favour of the original allottee i.e., Mr.

Ant Pal) fPage no.50 of complaintJ B.

Unit no.

1801, Tower - C IBBA at pase no.

54 of complaint] 9.

Unit admeasuring 1350 sq. ft. fgea at pase no.

54 of complaint') 10.

Date of buyer's agreement 05.08.2013 (Executed with the original allottee Mr.

Ant Pal) fPaee no.

5]- of complaintl L1.

Endorsement letter endorsing ther unit in favour of the complajlnants 06.08.2015 [Page no.

75 of complaint) 1.2.

Basic Sale Price Rs.71,l-5,040/- [BBA at page 55 of reply and SOA dated 23.02.2024 atpas.e 53 of replvl 13.

Total amount paid by the complainant Rs.66,66,969.39 /- (SOA dated 24.03.2023 at page 81 of complaint and SOA dated 23.02.2024 at pase 53 of replyJ PageZ of23 ffiHAREIB ffi". ounllGRAM B.

3. a) Facts of the compliliint: The complainants have made the following submissions: - That around 201,2, thre respondent issued an advertisement announcing a group housing projr:rct, namely "Shree Vardhaman Victoria" at Sector 70, Gurugram, Haryana and thereby invited applications from prospective buyers for the purcltase of units in the said project. b) That the respondent claimed that they have taken all due approvals, sanctions and gorzernment permissions towards development and construction of the prroject and the original allottees, namely Mr.

Ant Pal s/o Sh.

Ranjeet Singh while searching for an accommodation were lured Complaint No.

2845 of 2023 L4, Date of commencement of construction 07.05.2014 (Page 79 of reply) 15.

Possession cleruse Clause la(a) "The Construction of the Flat is likely to be completed within a period of forty (40) months of commencement of construction of the particular tower/ block in which the Flat is located with a grace period of six(6) months, on receipt of sanction of the building plans/revised plans and all other appro ther approvals subject to force majeure including any re stra in s / restri cti o n s fro m a ny a uth o r iti e s, non-availability of building materials or dispute with construction agency/workforce and circumstances beyond the control of Company and subject to timely payments by the Buyer(s) in the Said Complex." (Emphasis supplied) 16.

Due date of delivery of possession 07.03.2018 (Calculated from the date of commencement of construction) Note: Grace period is included as it is unqualified. t7.

Occupation certificate L3.07.2022 fPase no. ].6 of replv) 18.

Ofl'er of possesrsion 09.08.2022 fPaee no.23 of reply] Page 3 of23 ffiIABEB& ffi". eunlJGRAM Complaint No.

2845 of 2023 by the said advertisements of the respondent and decided to invest their hard-earned money in purchasing the unit at the project. c) That the original allottee after filling an application form booked a unit in the project of the respondent.

The original allottee was confirmed the booking of the unit no.

C-1801 in the said project of the respondent having super area 1350 sq. ft. d) That a buyer's agreement dated 05.08.2013 was executed between the original Allottee ancl respondent at a total sale consideration of Rs.

85,81,963.51,/- for the purchase of the captioned unit including basic sale price, IDC and EDC charges, car parking charges, club membership charges and taxes as applir:able.

The original allottee had paid an amount pf Rs.24,90,264/- till the time of execution of the buyer's agreement. e) That as per the clause 1a(a) of the buyer's agreement, the respondent proposes to hand o\/er the possession of the unit within 40 months from the date of start of rconStruction of the said tower of the allotted unit.

Further, the allottee agrees and understands that the respondent shall be entitled to a grace period of six months.

Hence the start of the construction as per A-H Form ofthe said project uploaded on the official website of HARERA, Gurugram vide registration no. "70 of 201.7 dated 18. dated 18.08.20L7" is 1,2.12.201-2.

Therefo,r'e, the due date of delivery of possession comes out to be 12.04.2016 without grace period whereas 12.1,0.2016 along with the grace period of 6 months.

0 That the original allottee vide endorsement letter dated 06.08.2015, endorsecl the above-mentioned unit in favour of the complainants, i.e., Nitin Kataria, and Pr:iti Rani. g) That as per the demaLnds raised by the respondent, based on the payment plan, the complainants to buy the said unit paid a total sum of Rs.

66,66,969.34/- out r:Ithe total sale consideration of Rs.

B5,B].,963.51,/-.

Page 4 of 23 1/ ffiHARER& ffi- CunUGRAM Complaint No.

2845 of 2023 h) That the complainant.s contacted the respondent on several occasions but the respondent was; never able to give any satisfactory response to the complainants regardring the status of the construction.

The complainants kept pursuing the nratter with the representatives of the respondent by visiting their office regularly as well as raising the matter to how the delay in the project will ber compensated, but to no avail.

The complainants even visited the site multiple times but were shocked to see that there was no progress regarding the construction of the commercial unit.

Further, the responde:nt was never definite about the delivery of the possession. i) That the possession of the said unit was to be offered by 12.04.2016 without grace periodt or by 12.1,0.201-6 along with the grace period of 6 months, but the compllainant did not receive any offer of possession or any handover letter despite paying more than 700/o payment to the respondent. j) That after a delay of L0 years, the complainants received an offer of possessi<ln letter dated 09.08.2022.

As per the said offer of possession, the department of To'nrn and Country Planning, Haryana has granted the occupancy certificate for the said unit and the unit was ready for possession, k) However, the said offer of possession contained various demands which were payable re payable by the complainants to the respondent for taking the possession of the saicl unit.

An amount of Rs.

4,22,817 /- towards CGST and SGST along with the interest on the same was demanded from the complainants whichr they are in no circumstances liable to pay as the GS'l' Scheme was rolled out in |uly 201,7 , whereas the due date of possession of the present unit wasrr\pril201,6.Therefore, due to the fault in making delay Page 5 of 23 Y ffi l) LlARER& GURUG|IAM Complaint No.

2845 of 2023 on part of the respondent, the complainants are not liable to pay the government charges; that were rolled out after the due date of possession.

That the respondent thereafter issued a Statement of Account dated 24.03.2023 in the fa'your of the complainants as per which the respondent received a total ermount of Rs.66,66,969.34/- against the total consideration of Rs. €15,81,963.5t / -.

That even though the previous allottees and the complainants had made several requests and representations through various correspondence to the respondent and has shown intentions for taking over the physical possessi<ln of the saiicl unit, the respondent caused a delay of more than 10 years in handling ,eysr' of the said unit.

Therefore, the complainants through this complalint request the Authority to grant delay possession charges in lieu of tLre delayed time period which the respondent took in order to provide ther possession of the said unit.

That it has been hehi by the Honourable NCDRC, New Delhi in many cases that offering of possession on the payment of charges which the flat buyer is not contractually bound to pay, cannot be considered to be a valid offer of possession.

In the present case asking for charges as elaborated above, which ttre allottees are not contractually bound to pay is illegal and unjustifir:d and the:refore not a valid offer of possession.

Further, mere execution of the saler deed will not deprive the complainants from their m) n) right to seek the cornpensation. pensation. o) That no negotiations were permitted in relation to the buyer's agreement dated 05.08.2013, I'he complainants were told that the agreement to sell and purchase will encompass all the relevant issues at hand.

This agreement and various clauses therein amount to an unconscionable agreement, i.e., an agreement containing terms that are so extremely unjust, or overwhellrningly one-sided in favour of the party who has the superior bargaining;power, that they are contrary to good conscience.

Page 6 of 23 ffiHARERA #* eunuennrv q) Complaint No.

2845 of 2023 p) That the buyer's agreement in clause 13(a) stipulates payment of r) compensation on account of delay in handing over possession of the unit in the project.

The so-called compensation payable as per the said agreement is Rs.

10/- per sq. ft. per month of the super area till the date of notice of possession.

However, the said amount is atrociously low and unfair.

No compenszrtion was provided to the complainants till date.

That the respondentl has arbitrarily demanded for payment of interest on account of delayed payment at the rate of 240/o as per clause 5[b) whereas under clause l4(b), the compensation for delay stipulated for the as per buyers is merely Rs. :10/- per sq. ft.

That as per Section .Ll3 of the RERA Act.

2016, the promoter is liable to pay delay possession charges to the allottees of a unit, building or project for a delay or failure in handing over of such possession as per the terms and agreement of the saler.

That the complainants after losing all the hope from the respondent, having their dreams r;hattered of owning a flat and having basic necessary facilities in the vicinil.y of the project and also losing considerable amount, are constrained to zrtrlproach this Hon'ble Authority for redressal of their grievance. s) C.

4.

Relief sought by thre complainants: The complainants h;x'v€ sought following relief(s): I. ief(s): I.

Direct the respondent to pay delay possession charges on total amount paid b), the complainants at the prescribed rate of interest as per RERA front due date of possession till date of actual physical possession.

II.

Order the resprondent to pay the balance amount due to the complainants fr,om the respondent on account of interest as per the guidelines laid down in I{ERA, 20L6.

IIL Direrct the opposite party to pay interest by lgtn of every succeeding month till the,r'arlid offer of possession.

IV.

Direrct the respondent to not charge any charges which the complainants eu'e not legally bound to pay as same is not part of the agreement' Page 7 of 23 D.

6. a) ffiLlArlEBE ffi- eunUGRAM Complaint No.

2845 of 2023 V.

Direct the resprsnflsnl to set aside the entire GST amount so demanded fronr the complainants in the statement of account along with interest so demanded from the complainant at the prescribed rate of interest as per RERA Act,2016.

5. on the date of hearing, the Authority explained to the respondent/promoter about the contraventions as alleged to have been committed in relation to Section 11[4) of the Act to plead guilty or not to plead guilty.

Reply by respondent: The respondent contested the complaint on the following grounds: That the present complaint filed under Section 31" of the Real Estate (Regulation and De'u,ellopment) Act, 201,6 is not maintainable as there has been no 'r,iolation of the provisions of the Act.

The complaint under Section 31" can only be filed alter a violation or contravention has been established by the authority unclelr Section 35.

Since no violation or contravention has been esterblished, thr: complaint should be dismissed.

Additionally, Section 18 of the Act of 2016, under which the complainant seeks relief, is not applicable to the present case as it does not have retrospective effect and cannot be applied to transactions entered into before the Act of 2016 came into force. nto force.

Thereforr:, Section 18 cannot be applied in the present case as buyers' agreement vvas executed before the Act of 201,6. b) That the unit in querstion was originally allotted to Mr.

Ant Pal and a flat buyer agreement d;ated 05.08.2013 was executed between the original applicant and the respondent, c) That the said original applicant sold his allotment to the complainants sometime in August 2i015.

Thereafter, they informed the respondent about the same and requested to . transfer the unit in the name of the complainants throur6lh letter dated 06.08.2015.

The said request was approved, and the respondent transferred the right to purchase the said unit in name of the complainants.

Page 8 of 23 ffiHARERA ffi cl;RUcRAM complainr No.

2845 0f 2023 d) That the payment plan opted for payment of the agreed sale consideration and other charges; was a construction linked payment plan, The respondent from tinre to time raised demands as per the agreed payment plan, ho',vever the complainant committed severe defaults and failed to make the payments as per the agreed payment plan, despite various call letters and reminders from the respondent. e) In the said Agreement no definite or firm date for handing over possession to the allottee was given.

However, clause M (a) provided a tentative period within which tthe project/flatwas to be completed and application for OC was to be rnade to the competent authority was given.

As thc possessi<)n was to bre handed over only after receipt of OC from DTCP Haryana and it was not possible to ascertain the period that DTCP, Haryana would taker in granting the OC, therefore the period for handing over of possession was not given' in the agreement.

The occupancy certificate in respect thereof was applied on 23.02.2021, as such the answering respondent cannot be held liable for payment of any interest andf or compensation for the period beyond 23.02.2021.

3.02.2021.

0 The said tentative period given in clause 1 (a) of the Agreement was not the essence of the contract and the allottee(s) were aware that there could be delay in handing over of possession.

Clause 14(b) even provided for the compensation to be paid to the Allottee(s) in case of delay in completion of construction whir:h itself indicate that the period given in clause 1a[a) was tentative and not[ essence of the contract. g) That the tentative pr:riod i.e., 46 months for the completion as indicated in the flat buyer agreement was to commence from commencement of construction of the particular tower/block in which the flat was located on receipt of sanction r:f the building plans/all other approvals.

The last approval required f,or commencement of construction being "Consent To Page 9 of 23 i) ffiHARERA ffieunusnnrvr Complaint No.

2845 of 2023 Establish [CTE)" wils granted to the project on 1,2.07.2014 by Haryana State Pollution Board. h) The said tentative / estimated period given in clause M (a) of the FBA was subject to conditions such as force majeure, restraint/ restrictions from authorities, ror-?v'sLilability of building material or dispute with construction agency 7'work force and circumstances beyond the control of the respondent and timely payment of instalments by all the buyers in the said complex including the complainant.

As aforesaid many buyers/ allottees in the said r:r:mplex, including the complainants.

The construction activity in Gurugram has also been hindered due to orders passed by Flon'ble NGT/State Govts. /EPCA from time to time putting a complete llan on the construction activities in an effort to curb air pollution.

The Hon'ble National Green Tribunal, New Delhi [NGT) vide its order 09.11.2017' banned all construction activity in NCR and the said ban continued for almost 17 days hindering the construction for 40 days. r 40 days. j) The District administration, Gurugram under the Graded Response Action Plan to r:urb polluti,on banned all construction activity in Gurugram, Haryana vide from 01,.11.2018 to 10.11,.2018 which resulted in hindrance of almost 30 days in construction activity at site in compliance of direction issued by EPCA vicle its notification No.

EPCA-R/2018/L-91 dated 27.1,0.20'LB. k) The Environmental Pollution (Prevention and Control Authority for NCR ("EPCA") vide its rrotification bearing No.

EPCA-R/2019 /L-49 dated 25.10.2019 banned construction activity in NCR during night hours (06:00 PM to 06:00 AM) from 29.1,0.2019 to 30.10.2019 which was later on converterl into comprlete 24 hours ban from 01.11,.2019 to 05.11.2019 by EPCA vide its notificra[ion No.

EPCA-R/2019 /L-53 dated 01.11 .201,9. l) The Hon'ble Suprerne Court of India vide its order dated 04.1,1.2019 passed in Writ Petiti.on No.

1-3029/1.985 titled as," MC Mehtavs Union of y Page 10 of23 HARER& ffi.

GUI?UGRAM Complaint No.

2845 of 2023 India" completely branned all construction activities in NCR which restriction was partlty modified vide order dated 09.12.2019 and was completely lifted b'y the Hon'ble Supreme Court vide its order dated 14.02.2020. m) The unprecedented s,ltuation created by the Covid-19 pandemic presented yet another force majeure event that brought to halt all activities related to the project including construction of remaining phase, processing of approval files etc.

Ttre Ministry of Home Affairs, GOI vide notification dated March 24,2020 bear:ing no.

4O-3 /2020-DM-l(A) recognised that India was threatenc'd with the s;pread of Covid-19 epidemic and ordered a complete lockdown in the enrtire country for an initial period of 2l (twenty) days which started frornL March 25, 2020.

By virtue of various subsequent notifications, the Nlinistry of Home Affairs, GOI further extended the lockdown from time to time. e to time.

Even before the country could recover from the Ist wave of Pandemic, the second wave of the same struck very badly in the March/April 2021, disrupting again all activities.

Various state governments, inclurling the Government of Haryana have also enforced several strict measiLrres to prevent the spread of Covid-19 pandemic includinl; imposing curfew, lockdown, stopping all commercial, construction activity.

The pandemic created acute shortage of labour and material The nation witnessed a massive and unprecedented exodus of migrant labourers fr,om metropolis to their native village.

Due to the said shortage the construrction activity could not resume at full throttle even after lifting of restrictions on construction sites. n) That every responsible person/institution in the country has responded appropriately to overcome the challenges thrown by COVID-L9 pandemic and have Suo-Moto extended timelines for various compliances.

The Hon'ble supreme court of India has extended all timelines of limitations for court proceedirrgs with effect from 15.03.2020 till further order; the Page 11 of 23 ffiHARER* ffi*GuRUGRRtvt Complaint No.2845 of 2023 Hon'ble NCDRC had also extended the timelines on the similar lines; RERA authorities also had extended time periods given at the time of registration for completion of thLer project; even income tax department, banking and financial institutions have also extended timelines for various compliances. o) That after the receipt of OC, the offer of possession was sent to the allottees on 09.08.2022.

The rlefaults in payment by the complainants and other allottees adversely aLffected the pace of construction and caused significant financial losses.

Therefore, the complainant should be held liable for payment of interesrt at the agreed rate mentioned in the agreement to compensate for the losses caused by the defaults of delay payments.

7.

Copies of all the relev'ant documents have been filed and placed on record. on record.

Their authenticity is not in dispute.

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

E. f urisdiction of the authority: B.

The authority has teruitorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.

I Territorial iurisdiction 9.

As per notification no.

1/92/2017-|TCP dated 1,4.12.2017 issued by'fown and Country Planning Department, the jurisdiction of Real Estate Regulatory Authori[r, 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 authrority has complete territorial jurisdiction to deal with the present complaint.

II Subiect matterr iurisdiction 10.

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

Section l1(4)(a) is reproduced as hereuLnder: Page 12 of 23 t/ ffiHAI?ERA #" eunuenArv Complaint No.

2845 of 2023 Section 11@)(a) Be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the allottercs os per the agreement for sale, or to the association of allottees, a:; the cose may be, till the conveyonce of all the apartments, plots or buildings, as the case may be, to the allottees, or the common are'as to the association of allottees or the competent authority, as the case may be; Section 34-Func:tions of the Authority: 34,(fl of the Act trtrovides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Ac't and the rules and regulations made thereunder.

1,1,. der.

1,1,.

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

F.

Findings on the obierctions raised by the respondent: F.l Obiection regarding iurisdiction of the complaint w.r.t the apartment buyer's agreement executed prior to coming into force of the Act.

12.

The respondent subn:itted that the complaint is neither maintainable nor tenable and is liable to be outrightly dismissed as the buyer's agreement was execruted between the parties prior to the enactment of the Act and the provision of the said Act cannot be applied retrospectively.

13.

The auttrority is of' the view that the provisions of the Act are quasi retroactive to some extent in operation and will be applicable to the agreements for sale entered into even prior to coming into operation of the Act where the trans;erction are still in the process of completion.

The Act nowhere provides, nor can be so construed, that all previous agreements would be re-written after coming into force of the Act.

Therefore, the provisions of the Act, rules and agreement have to be read and interpreted harmoniously.

However, if the Act has provided for dealing with certain specific provisionsT's;ituation in a specific/particular manner, then that situation would be dleralt with in accordance with the Act and the rules after Page 13 of 23 ffiHARERA ffi, eunl.rcRAM Complaint No.

2845 of 2023 the date of coming; into force of the Act and the rules.

The numerous provisions of the Act save the provisions of the agreements made between the buyers and sellers.

The said contention has been upheld in the landmark judgment: of Neelkamal Realtors Suburban Pvt, Ltd.

Vs, UOI and others. (W.P 27'37 of 2017) decided on 06.72.2077 which provides as under: "1,L9. er: "1,L9.

Under the provisions of Section 1B, the delay in handing over the possession would be counted from the date mentioned in the agreementfo,.,sale entered into by the promoter and the allottee prior to its registratiion under RERA.

Under the provisions of RERA, the promoter is given a facility to revise the date of completion of project and declare tlite same under Section 4.

The RERA does not contemplate rewriting of controct beh,veen the flat purchaser and the promoter......

L22.

We have already discussed that above stated provisions of the RERA qre not retrospective in nature.

They may to some extent be having a retroactive or quasi retroactive effect but then on that ground the v,xt!idity of the provisions of RERA cannot be challenged.

The Parliament is competent enough to legislate law having retrospective or retroactive effect.

A law can be even framed to affect .subsisting / existing contractual rights between the parties in the larger public interest.

We do not have any doubt in our mind that the RERA has been framed in the larger public interest after a thorough .study and discussion made at the highest level by the Standing Committee a'n'd Select Committee, which submitted its detailed reports." 1.4.

Also, in appeal no.

1i'3 of 201,9 titled as Magic Eye Developer Pvt.

Vs.

Ishwer Singh Dahi.Va, in order dated 1,7 .12.2019 the Haryana Real Estate Appellate Tribunal has observed- "34.

Thus, ke'eping in view our aforesaid discussion, we are of the considered otrtinion that the provisions of the Act are quasi retroactive to some extent in operation and will be applicable to the agreements .for sale entere,d into even prior to coming into operation of the Act where the tronsaction are still in the process ol completion.

Hence in case of delay i,n the offer/delivery of possession as per the terms and conditions of tlhe agreementfor sale the allottee shall be entitled to the interest/dela_yed possession charges on the reasonable rate of interest as pr rest as provided in Rule 15 of the rules qnd one sided, unfair and unreesonablet rate of compensation mentioned in the agreement for sale is liable l:o'be ignored." 15.

The agreements arr3 sacrosanct save and except for the provisions which have been abrogated by the Act itself. lrurther, it is noted that the Page L4 of23 r' ffi, ffi HARTRP, GURUGRAM Complaint No.

2845 of 2023 agreements have been executed in the manner that there is no scope left to the allottee to neg;otiate any of the clauses contained therein.

Therefore, the authority is of the view that the charges payable under various heads shall be payable as per the agreed terms and conditions of the agreement subject to the condition that the same are in accordance with the plans/permissions approved by the respective departments/competent authorities and are not in contravention of any other Act, rules, statutes, instructi<lns, directions issued thereunder and are not unreasonable or exorbitant in nature.

F.ll Obiections regarding force maieure.

16.

The respondents-promoter has raised the contention that the construction of the tower in which the unit of the complainant is situated, has been delayed due to forcer majeure circumstances such as orders passed by National Green Tribunal to stop construction, non-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.

The orders passed by N{3T banning construction in the NCR region was for a very short period of time and thus, cannot be said to impact the respondernt-builder L:ading to such a delay in the completion.

Also, there may be cases where allottees has not paid instalments regularly but all the allottees cannot be ,expected to suffer because of few allottees.

Thus, the promoter respondenI cannot be given any leniency on based of aforesaid reasons ernd it is well settled principle that a person cannot take benefit of his own \ /rong.

F. /rong.

F.llI Obiection regarding delay in completion of construction of project due to outbreak of Covid-19.

1,7.

The Hon'ble Delhi I tigh Court in case titled as M/s Halliburton Offshore Services Inc.

V/S Vedantq Ltd. & Anr. bearing no, O.M.P (1) (Comm.) no.

Page 15 of 23 t/ ffiLHRELA ffi- eunUGRAM Complaint No.

2845 of 2023 BB/2020 and LAS :7696-3697/2020 dated 29.05.2020 has observed as under: "69.

The past non-performance of the Contractor cannot be condoned clue to the C0l4D-19 lockdown in lvlarch 2020 in India, The Contractor tvas in breach s:ince September 2019. )pportunities were given to the )ontractor t(, cure the same repeotedly.

Despite the same, the |ontractor could not complete the Project.

The outbreak of o Ttandemic cannot be used as an excuse for non-performance of a r:ontract for w'hich the deadlines were much before the outbreak itself." 18.

In the present cas€) also, the respondents were liable to complete the construction of the project and handover the possession of the said unit by 07.03.2018.

It is clairning benefit of lockdown which came into effect on 23.03.2020 whereas; [he due date of handing over of possession was much prior to the event of outbreak of Covid-19 pandemic.

Therefore, the authority is of the view that outbreak of a pandemic cannot be used as an excuse for non-p€rlbrrmance of a contract for which the deadlines were much before the outbreak itself and for the said reason, the said time period cannot be excluded while calculating the delay in handing over possession.

G.

1,9.

That the complainants were allotted unit no.

C-1801, tower C, in the responde'nt's project[ at basic sale price of Rs.74,15,040f-.

A buyer's agreement was executed on 05.08 .2013 between the original allottee, Mr.

Ant Pal and the respondent.

Later, the said unit was endorsed in favour of the complainants onL 06.08.2015.

6.08.2015.

The possession of the unit was to be offered within 40 months from the date of commencement of construction and it is further prov'ided in agreement that promoter shall be entitled to a grace period of six rnonths.

The date of construction commencement was initially to be commenced from 07.05.201.4 as per the intimation/demand letter dated 1,6.04.2014 issued by the respondent.

Therefore, the due date of possession comers out to be 07.03.2018 including grace period of six Findings regarding relief sought by the complainants.

Page 16 of23 V ffiHARERA ",-e- gunugnnrv 20.

2t. complaint No.

2845 0f 2023 months heing unquzrlified and unconditional.

The respondent obtained the occupation certificate from the concerned authority on 13.07.2022 and thereafter, offered the possession of the unit to the complainants vide the offer of possession letter dated 09.08.2022.

G.l Direct the rer;pondent to pay delay possession charges on total atnount paid try the complainants at the prescribed rate of interest as per RERA [t'om due date of possession till date of actual physical possession.

G.ll Order the respondent to pay the balance amount due to the cclmplainantrs from the respondent on account of interest as per the guidelines lairl down in RERA, 2016.

G.lll Directthe opposite partyto pay interestby lgtt of every succeeding month till thr: valid offer of possession.

G.lV Direct the rerspondent to not charge any charges which the complainants are not legally bound to pay as same is not part of the agreement.

The abor,'e-mentionr:d reliefs sought by the complainants are being taken together as the findiings in one relief will definitely affect the result of the other relief and the rsilme being interconnected.

In the present complaint, the complainants intend to continue with the project and are seel<ing delay possession charges as provided under the Proviso to Section 1B[1) of theAct. of theAct.

Section 1B[1) proviso reads as under: "Section 78: - Ileturn of amount and compensation 1tl(1).

If the prornoter fails to complete or is unable to give possession ofan apartment, plot, or building, - Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of deiay, till the handing over of the possession, at such rate as may be prescribed." 22.

Clause 1,tr[a) of the arprartment buyer's agreement provides the time period of handing over possession and the same is reproduced below: "14.a The construction of the flat is likely to be completed within a period of 40 months of commencement of construction of the particular towc?r/ block in which the subject llat is located with a grace period o.f 6 months, on receipt of sanction of the building plans/ revised ,olans and all other approvals subject to force maieure including any restrains/ restrictions from any authorities, non- at,ailability of b,uilding materials or dispute with construction agency/ Page1^T of23 / HARERE ffiGURUGIIAM workforce and circumstances beyond the control of company and subject to timel,v payments by the buyer(s) in the said complex.

Due date of poss;e:ssion and admissibility of grace period: The promoter has proposed to hand over the possession of the said unit within 40 months from ther date of commencement of construction and it is further provided in a,greement that promoter shall be entitled to a grace period of six months.

The date of construction commencement was initially to be cornrnenced from 07.05.2014 as per the intimation/demand letter dated 1,6.04.2014 issued by the respondent.

Therefore, the due date of possession comes out to be 07.1,1,.2018 including grace period of six months being unqualified and unconditional.

Admissibility of clelay possession charges at prescribed rate of interest: The comprlainant[s) are seeking delay possession charges. n charges.

However', Proviso to Section 18 provides that where an allottee does not intend to withdraw from the project, they 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 of the rules.

Rule 15 has been reproduced as under: "Rule 75, Pres,cribed rate of interest- [Proviso to section 12, section 18 anal:sub-section (4) and subsection (7) of section 791 (1) For the pur,oose of proviso to section L2; section 1-B; and sub- sections (4) and (7) ofsection L9, the "interest at the rote prescribed" shall be the Sta,te Bank of lndia highest marginal cost of lending rate +rlo/0.: Provided that in case the State Bank of lndia marginal cost of lending rate (MCLR) is: not in use, it shall be replaced by such benchmark lending rates u,hich the State Bank of India may fix from time to time for lending to th,e general public." 25.

The legislature in its wisdom in the subordinate legislation under the provision of Rule 15 of the 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 prac'[ice in all the cases.

Complaint No.

2845 of 2023 23.

24.

Page 18 of23 ffiHARERA ffi.. eunl.lGRAM Complaint No.

2845 of 2023 26.

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., 04.09.2024 is 9.L00/0.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +20/o i.e., 11.1,00/o.

The definition of terrn 'interest' as defined under Section Z(za) of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of clefault, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default. f default.

The relevant section is reproducerc[ below: "(za) "interest" means the rates of interest payable by the promoter or thet allottee, as the case may be.

Explanation, --For the purpose of this clause- (i) the rate of interest chargeable from the allottee by the promoter, in case of otefault, shall be equal to the rate of interest which the promoter sh'all be liable to pay the allottee, in case of default; (ii) the interestl paltable by the promoter to the allottee shall be from the date the promoter received the amount or any part thereof till the date the afiount or part thereof and interest thereon is refunded, and the interest payable by the allottee to the promoter shall be from the date the allottee defaults in payment to the promoter tfll the date it is paid;" Therefore, interest r:n the delay payments from the complainant shall be 27. charged at the pres(lribed rate i.e., 11.1,0 o/o by the respondent/promoter which is the same as is being granted to them in case of delayed possession charges.

29.

On consideration of the circumstances, the evidence and other record and 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 1a(a) of the Lruyer's agreement dated 05.08.2013, the possession of the said unit was to Lre delivered within a period 40 months from the date commencement of construction i.e.

07.05 .2014 and it is further provided in agreement that promoter shall be entitled for a grace period of six months.

As far as g;race period is concerned, the same is allowed being y 28, Page 19 of23 ffi ffi HAREB& GURUGRAM Complaint No.

2845 of Z0Z3 unconditional and utlqualified.

Therefore, the due date of handing over of possession comes out to be 07.03.2018.

In the present complaint the complainant was ofllered possession by the respondent on 09.08 .2022 after obtaining occupation certificate dated 1,3.07. ed 1,3.07.2022 from the competent authoriry, The authority is of view that there is a delay on the part of the respondent to offer physical possession of the allotted unit to the complainant as p(3.r the terms and conditions of the buyer's agreement dated 05.08.2013.

30' Section 19(10) of ther Act obligates the allottee to take possession of the subject unit within 2 months from the date of receipt of occupation certificate.

In the present complaint, the occupation certificate was granted by the compretent authority on 13.07.2022.

The respondent offered the possession of the unit in question to the complainant only on 09'08.202'2, so it can be said that the complainants came to know about the occupation certiflicate only upon the date of offer of possession.

Therefore, in the interrest of natural justice, the complainants should be given 2 months' time l[r'om the date of offer of possession.

These 2 months, of reasonable time is being given to the complainants keeping in mind that even after intimation of possession practically they have to arrange a lot of logistics and requisi,te documents including but not limited to inspection of the completely finished unit but this is subject to that the unit being handed ovLrr at the tinte of taking possession is in habitable condition.

It is further clarified that ttre delay possession charges shall be payable from the due date of possession till the expiry of 2 months from the date of offer of possession (09.08.21022) which comes out to be 09.10.2022, or till the date of actttal handing over of possession of the unit, whichever is earlier.

31.

Accordingly, the non-c:ompliance of the mandate contained in Section 11(4)[aJ read with Ser:tion 1Bt1] of the Act on the part of the respondenr is established, As such the complainant are entitled to delay possession / Page 2O of 23 ffiHAREB* ffi- eunUGRAM Complaint No.

2845 of 2023 charges at prescribed rate of the interest @ 1.1.10 o/o p.a. w.e.f.

07.03. .f.

07.03.2018 till expirt, of 2 months from the date of offer of possession [09.08.2022) i.e., up to 09.10.2022, as per the provisions of Section 1B(1) of the Act read with Rule 15 0f the Fi.ules, ibid.

32.

Further, the respondernt is directed to handover physical possession of the subject unit within 3i0 days from the date of this order as occupation certificate of the project has already been obtained by it from the competent authority.

G.V Direct the respondent to set aside the entire GST amount so demanded from the complainants in the statement of account along with interest so demanded from the complainant at the prescribed rate of interest as per RERA Act,2O16.

33.

The counsel for the complainants submitted that GST came into force on 01.07.201,7 and the possession was supposed to be delivered by 12.1,0.2016.

Therefore, the tax which came into existence after the due date of possession and this extra cost should not be levied on the complainants.

The au[hority has decided this issue in the complaint bearing no.

4031 of 2079 titled as "Vorun Gupta V/s Emaar MGF Land Ltd." whr:rein the authority has held that for the projects where the due date of prossession rr'/as prior to 01.07.2017 (date of coming into force of GST), ther respondent/promoter is not entitled to charge any amount towards GST from thr: complainant/allottee as the liability of that charge had not trecome duel up to the due date of possession as per the buyer's agreements.

34.

In the present complaint, the possession of the subject unit was required to be delivered by 07.03.2018 and the incidence of GST came into operation on 01,.0i'.2017.

It is however important to note that the complainants cannot be burdened to discharge a liability which had accrued solely duer to respondents' own fault in delivering timely possession of the suLrject unit.

Therefore, the respondent is only entitled Page 2l of 23 ffiHARERT: ffi..eunuennnrr Complaint No. plaint No.

2845 of 2023 to charge taxes fixecl by the government from the complainants effective upto the due date of possession, i.e., from 01.07.2018 till 07.03.2018 only and the respondent/'promoter is liable to bear any government taxes levied upon after ther due date of possession.

H.

Directions of the Authority: 35.

Hence, the authorify hereby passes this order and issue the following directions under Section 37 of the Act to ensure compliance of obligations cast upon the promr:[ers as per the functions entrusted to the Authority under Section 34(t) rcf the Act of 2016: l.

The respondent is directed to pay delayed possession charges at the prescribed rate of interest i.e., 1,1.1,0o/o p.a. fbr every month of delay on the amount praid by the complainant to the respondent from the due date of possession 07.03.2018 till the date of offer of possession [09.08.2022) pluLs two months i.e.,09.10.2022 or till the date of actual handover of possession, whichever is earlier, as per Section 1B(1) of the ,{ct of 201,6 read with Rule 15 of the Rules, ibid.

The arrears of interest accrued so far shall be paid to the complainant within 90 days from the date of this order as per Rule 16(2) of the Rules, ibid.

The rate of interest chargeable from the allottees by the promoter, in case of default :shall be charged at the prescribed rate i.e., 11.10o/o by the respondent/promoter which is the same rate of interest which the promoter shall Lre liable to pay the allottees, in case of default i.e., the delayed possesslon charges as per Section 2(za) of the Act' The respondent is directed to issue a revised statement of account after adjustme:rt of delayed possession charges, and other reliefs as per above withir:r a period of 30 days from the date of this order.

The complainants iare directed to pay outstanding dues if any, after adjustment of delay possession charges within a period of next 30 days, thereafter.

Page 22 of 23 III. ffiHARERA #" eunuennnrr IV.

Complaint No. plaint No.

2845 of 2023 The respondent is directed to handover physical possession of the subject unit wil.trin 30 days from the date of this order as occupation certificate of ttre project has already been obtained by it from the competent auttrority.

The promoter irs entitled to charge GST from the complainants for the period starting lfrom 01.07.2017 till 07.03.2018 only.

However, the promoter cannot charge any GST from the complainants after 07.03.2018, as the same was to be borne by the promoter-developer the complainants V.

VI.

36.

37.

Complaint stands disposed of.

File be consigned to the registry, Dated: O4.O9.2024 Member Regulatory Authority, Gurugram Page23 of23