PRAVEEN JAIN vs IREO PVT LTD

Complaint No.

3079 of 2021 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no, ,: 3O7g of ZOZI First date ofhearingt 06,70.2O2L Order reserve on ,t OT.Og.ZOZT Order pronounced, o L4,O3,ZOZ3 Ireo Private Limited Office: A-1 1, First FIoor, Neeti Ba Complainant Respondent Member Member Advocate for the complainant Advocate for the respondent Versus New Delhi-110049 CORAM: Shri Ashok Sangwan Shri Sanjeev Arora APPEAMNCE: Shri Sanjeev Sharma Shri M.K Dang ffiHARERA S" eunue-nnr'r Praveen Jain R/O: DD-4, Ansal Villas, Chattarpur, New Delhi-110074 ORDER 1.

The present complaint dated 03.09.2021 has been filed by the complainant/allottee under section 31 of the Real Estate [Regulation and Development) Ac!

2016 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation ancl Development) Rules, 2017 (in short, the Rules) for violation of section 11(4) (a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the rules and PaEe I of 26 HARERA ffi.GURUGRAN/ 2.

3079 of 2021 regulations made thereunder or to the allottee as per the agreement for sale executed inter se.

A.

Unit and proiect related details The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: s.N.

Particulars Details 1. "lreo City" Sector-60, Gurgaon 2.

Nature ofthe project Residential colony 3.

Project area 251.196 acres +.

DTCP licetse no.

63 0f 2009 dated 03.11.2009 Validity status 02.11,.202+ Area 104.8841 acres Name oflicensee Commander Realtors Pvt.

Ltd.

RERA registered/not registered Not registered 5.

Plot no.

D 11_01 (annexure- 2 on page no.

33 o the complaintJ 6.

Plot area 507.4 sq. yd. (annexure- 2 on page no, 33 o the complaint) 7.

Date of allotment Ietter 13.03. ter 13.03.2072 (annexure- 1on page no.21 o the complaint) 8.

Date ofplot buyer agreement o7.o6.2072 (annexure- 2 on page no.

27 o the complaint) PaBe2 of 26 Name and location ofthe project HARERA GURUGRAI/ Complaint No.

3079 of 2021 Date of environment clearance 24.72.201_3 (annexure- R-12 on page no.

49 ofreply) Date of consent to establish 7+.02.2074 (annexure R-13 on page no.

55 ofreplyl Approval of part zoning plan 15.03.2027 [as per documents submitted by respondent during proceedings dated 07.09.2022) HARE GURUG W POSSESSION AND biect to Force as defined herein having complied its obligations under and conditions of Agreement including but of all dues and documentation as prescribed by the Company, the Company proposes to offer conveyance ofthe said plot to the allottee within a period of 36 months from the date of receipt of (Commitment Period).

The the Allottee having complied with all formalities or Page3 of 26 9.

10.

1,1,.

72.

Possession clause ffiHAREBA *-@- eunuennu Complaint No.

3079 of 2021 The complainant has submitted that: 3.

That believing on the assurances ofthe respondent, the complainant booked a unit in the said project.

The unir bearing no.

D11_01 Allottee further agrees "nd understands that the Company shall additionally be entitled to a period of 6 months ("Grace Period"), after the expiry of the said Commitment Period to allow for unforeseen delays beyond the reasonable control ofthe Company. (emphasis supplied) Due date of possess 14.02.20t7 culated from the date o t to establish) Total sale dated 24.05.2021 o.80 of complaint) w** .2021 on page no.80 of no.

61 of reply) as per additional document filed by respondent.l Facts of the complaint Page 4 of26 13.

14.

15.

Amount paid by the complainant 1,6.

Completion certificate Not obtained 77.

18.

0ffer ofpossession 4. ffi HARERA .*--m- eunuennH,r 7.

6.

3079 of 2021 admeasuring tentative area of 507.40 sq. ft. was allotted vide allotment Ietter dated 13.03.2012.

3.03.2012.

That pursuant to the issuance of the provisional allotment letter dated 13.03.2012, the official plot buyers agreement was executed between the complainant and the respondent on 01.0 6.2012.

As per the plot buyer's agreement dated 0 l.O6.ZOl2, the basic sale price of the plot was agreed to be Rs.

5,1.2,42,400/- and in addition that it was agreed that the complainant shall also make payments towarcl EDC Charges @ Rs.

2663.9 per sq. yard, IDC Charges @ Rs.

406.63 per sq. yard and PLC charge @ Rs.

18,500/- per sq. yard.

That as per clause 11.1 of the plot buyers agreement dated 01.06.2 012, the possession ofthe plot in all regard was to be handed over within maximum period of 36 months, from the date of the receipt of the requisite approvals which period was termed as "commitment period" and that further a grace period of six months was agreed beyond the commitment period.

That the complainant made all regular payments as and when demanded by the respondent and has till date made payment of Rs.

5,83,68,424/- to the respondent against total sale consideration of Rs.6,79,73,900/-.

That even after making almost 850/0 payment the complainant was Ieft shocked and surprised, when the complainant in lune 2015 contacted the respondent from getting the possession of the plot and on which the respondent started making one excuses or other to justify the non-completion of the project.

That since June 2015, the respondent even on repeated requests made by the complainant failed to hand over the possession of the 8.

Page 5 of 26 HARERA M GURUGRAM plot.

It was only on Z4.OS.2OZ1, the respondent issued possession notice to the complainant calling upon the complainant to take over the possession of the plot after making balance payment.

9.

That the respondent offered the possession of the plot with a delay of almost 6 years and did not even take in account the delayed possession charges which the respondent was obliged to give the complainant as per law and instead arbitrar d arbitrarily increased the area of plot from 507.40 sq. yards to 518.21 sq. yards and charged additional sum of Rs.

L9,74p64/_,in addition to amount agreed as per provisional allotment letter..subsequently a revised Ietter dated 15.07.2021 was issued by the respondent through mail where by the area ofthe plot was corrected to 504.94 sq. feet only.

That the respondent also increased the EDC and IDC charges lrom the originally agreed.

That vide offer of possession letter the respondent further illegally levied infra_augmentation charges of Rs.

1,08,663/-.

11.

That the complainant immediately on the receipt of the offer of possession letter dated Z4.OS.2OZ| wrote to the respondent vide letter dated 07.06.2027 disputing the above said illegal demands being raised by the respondent through offer ofpossession letter as also demanding his delayed possession charges.

That the respondent through their email dated 1,1.06.2021 and 23.06.2021 tried to.iusti$r their ilregar demands however the same can be said only to be in further distress of the complainant.

The complainant further on receipt of the above said emails wrote letter dated 24.06.202I to the respondent.

PaEe 6 of 26 HARERA W"GURUGRAI/ 13.

That respondent/promoter has collected the considerable amount of the said unit and since then the respondent is using the complainant's hard-earned money for their personal interest and delayed the completion of the above said proiect and failed to deliver the timely possession of the above said plot.

Reliefsought by the complainant: The complainant has sought following relief(s): .

Direct the respondent to handover the possession oFthe plot in question at the original sale consideration as agreed vide plot buyer agreement dated 01.06.2021. .

Direct the respondent to pay interest for the delay in handing over possession from the due date i.e.,01.06.2015 as per RERA Act.

A Act.

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(a) (a) of the Act to plead guilty or not to plead guilty.

D.

Reply by the respondent.

The respondent has contested the complaint on the follor,ving grounds: - 15.

That the complaint is neither maintainable nor tenable and is liable to be out-rightly dismissed.

The plot buyer's agreement was executed between the parties prior to the enactment of the Real Estate (Regulation and Development] Act,2016 and the provisions Complaint No.

3079 of 2021 L2.

C.

PaEe 7 of26 HARERA P**GURUGRAM 1,6.

3079 of 2021 1,7. laid down in the said Act cannot be applied retrospectively.

There is no cause ofaction to file the present complaint.

The complainant has no locus standi to file the present complaint.

That the complaint is not maintainable for the reason that the booking plot buyer's agreement contains an arbitration clause which refers to the dispute resolution mechanism to be adopted by the parties in the event of any dispute i.e. clause 35 of the plot buyer's agreement.

That the complainant after checking the veracity of the prolect namely'lreo City' applied for the allotment of a plot vide bookrng application dated 28.Z.ZOl2.Onthe said application, the respondenr vide provisional allotment offer lefter dated 73.3.2012 allotted to the complainant plot no.

D11_01 having tentative super area of 424.

1 9 sq. mtr. for a sale consideration of Rs.

6,24,45,986 / _ which is exclusive of applicable taxes, Stamp Duty, Registration Charges etc.

Vide letter dated 28.3.2012, the respondent sent three copies of the agreement to the complainant which was signed and executed on 7.6.2072 by him.

That the respondent kept on raising payment demands from the complainant in accordance with the agreed terms and conditions of the allotment as well as payment plan and the complainant made the payment ofthe part amount art amount without any default.

It is submitted that the respondent vide payment demand letter dated 13.3.2012 had sent the installment for the net payable amount of Rs.

7,24,3g,457 /_ However, the complainant failed to remit the amount despite reminder dated 5.6.2012 and the same was accordingly added in the next installment demand.

PaEe I of26 ffiEARRA H cunueRnur Complaint No.

3079 of2O21 19.

That vide installment dated 28.1.2013, the respondent had sent payment demand for the net payable amount of Rs.

2,02,16,263.10.

However, the complainant yet again failed to make payment towards the said amount and the same was ad.justed/ added in the next installment demand dated 1.S.2013.

20.

That vide payment demand dated 2.4.2014, the complainantwas to remit the amount of Rs. l,O1,Og,1,31^.ZO.

However, the said amount was credited by the complainant towards the total sale consideration only after reminder dated 3.5.2014 was sent bv the respondent.

21.

That the possession ofthe liot is supposed to be offered to the complainant in accordance with the clause 11.1 of the plot buyer,s agreement that the environment clearance issued by State Environment Impact Assessment Authority, panchkula was granted on 24.72.1,3 for the plotted development of 29.79 acres at Sector 60 for which licenses no.

63 of 2009, 707 of 2070 and 60 of 2012 were issued.

That it has been specified in clause 1 of PART A of the environment clearance of the said project that the consent to establish has to be obtained before starting the construction of the project.

It is submitted that the consent to establish of the said project was granted on 74.OZ.ZOl4.

Therefore, the pre-condition of obtaining all the requisite approvals was fulfilled only on L4.02.2014.In terms ofclause 11.1 and 11.3 ofthe agreement, the proposed time for handing over of possession expired only on 14.08.2 018.

22.

That the respondent completed the development ofthe project.

The respondent had also intimated vide its letter dated 02. dated 02.09.2016 Page9 of 26 ffiffiun S- ounuennvr Complaint No.

3079 of ZO21 about the completion of development work.

That the respondent has already applied for the grant of part completion certificate on 12.05.2016 for the area admeasuring 29.79 acres for which licenses no.

63 of 2009, 107 of 2 010 and 6 O of Z0I2 were granted.

Thus, after completing the development works of the proiect in a timely manner, the respondent did everything within its powers and control for obtaining part completion certificate.

However, the respondent came to know on making enquiries in the concerned offices of the authorities in question were not processing such applications of the respondent and even of other developers on the ground that some CBI probe was ordered regarding proposed acquisition and release of HUDA land area measuring about 1400 acres due to which the respondent also suffered unnecessarily and without any fault on its part.

It is submitted that the same falls under the ambit of the definition of force majeure condition as defined in the plot buyer's agreement.

Under these circumstances, requisite approvals were not being issued by the concerned authorities and accordingly the respondent could not have offered the possessio n to the complainant.

However, recently the Hon,ble Apex Court has Vide its order dated 25.08.2020 has directed the builder to handover the possession in accordance with law to the applicants as expeditiously as possible and to execute proper conveyance and held that the judgement and order passed by that court will not come in the way of the applicants and further held that the occupation certificates be issued by the concerned authorities.

Furthermore, it has been observed in the said order that the conveyance deeds would be subiect to the ultimate outcome of the CBI investigation.

The time Page 10 oF 26 HARERA ffi"GURUGRAI/ Complaint No. plaint No.

3079 of 2021 lost on account ofthe Court orders and CBI investigation falls under the ambit of the definition of ,force ma.ieure, condition as defined in Clause 1 of the plot buyer,s agreement as the same was beyond the reasonable apprehension and control ofthe respondent and it courd not have offered the possession despite completing the development of the project on account of non_issuance of the requisite approvals by the concerned authorities.

23.

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.these undisputed documents and submission made by the parties.

E, Jurisdiction ofthe authority 24.

The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below E,l Territoriallurisdiction 25.

As per notificarion no.

1/92/2017-1TCp dated 14.12.2017 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 project in question is situated within the planning area of Gurugram District.

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

E.II Subiect matter iurisdiction Page 11 of 26 HARERA GURUGRAM 26.

Section 11(4)(a) ofthe Act, 201,6 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11[aJ(a) is reproduced as hereunder: Section 11 (4) The promoter shall- [o) be responsib.le for all obligotions, responsibilities and tuncuons under the provisions of this Act or the rules and regulations mode thereunder oi ro *" ,ttix"ii ii r"r"rli', agreement for sole. or to the qssociotion ofottott"rr, irIi" rorJ moy,be, till the conveyance oJ oll the oportmenrr. portmenrr. ,i"i- "-, ouuotngs, os lhe cose moy be, to the oltottees, or fhe common areas to the association ofailottees or the co^p"t"rt orlnor:ij, os Lhe cose may be; Se c ti o n 3 4 -Fu ncti ons oI. th e Auth ori qt : :lg^,!,n: AcL provides to ensure comptiance of Lhe ooi90ltons cost upon the promoters, the ollotties ond th,e reotl estote ogents under this Act and the ,ut", ora ,"guiitiioni made thereunder.

27.

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 the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainant at a later stage.

F.

Findings on the obiections raised by the respondent F.I Obiection regarding jurisdiction of the complaint w.r.t the plot buyer's agreement executed prio" to .o.in;i;t;;.." or,r," a",.

28.

The respondent submitted that the complaint is neither maintainable nor tenable and is liable to be outrightly dismissed as the buyers agreement was executed between the complainant and the respondent prior to the enactment of the Act and the provision of the said Act cannot be applied retrospectively.

Page 12 of 26 Complaint No.

3079 of2021 HARERA M.GURUGRAM Complaint No.

3079 of2021 29.

The authority 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 transaction are still in the process of completion.

TheAct 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. moniously.

However, if the Act has provided for dealing with certain specific provisions/situation in a specific/particular manner, then that situation would be dealt with in accordance with the Act and the rules after the date of coming into force ofthe 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 Neelkomal Realtors Suburban pvt, Ltd.

Vs.

UOI and others. (W.p 2757 of 2017) decided on 06.12.2077 which provides as under: "119.

Under the provisions ofsection 1g,the delay in handing over the posseisron would be counted from the datp mentioied in the agreementlor sale entered into by the promoter and the allottee prior to its registration under REM, IJnder the provisions of REP' , the promoter is given o fqclliry to revise the dote if completion of project and declore the same under Section 4.

ThL REM does not contemplate rewriting of controct between the llat purchaser and the promoter...

122.

We have olready discussed thqt obove stoted provisions of the REP'4 qre not retrospective in nqture.

They may to some extent be having q retroactive or quasi retroactive effect but then oti thot ground the validity of the provisions of RERA cannot be chollenged.

The parliament is competentenough to legistate lqw having retrospective or retroactive effect.

A law cin be even framed to allect subsisting / existing c;ntqctual rights between the parties in the larger pubtic interest, We do iot hove any doubt in our mind that the REP.A has been fromed in the lorgir PaEe 13 of 26 HARERA M"GURUGRAM Complaint No.

3079 of 2O21 public interest after a thorough study ond discussion mode at the highest tevel by the *onairj comnitiei -rni -iitrn Committee, which submitted its detailed reports.,, 30.

Furthet in appeal no.

173 of 2079 titled as Magic Eye Developer PvL Ltd.

Ishwer Singh Dahiya, in order dated 1,2J,2201.

1,2J,2201.9 the Haryana Real Estate Appellate Tribunal has observed_ "34.

Thua.keepi_ng in view our oforesqid discussion, we ore of the considered opinion thot the provisions of the Act ore;;;;i retrooctive to some extent in operation and will be opnlicoile to of completion.

Hence " detoy in theilSe4iiivery of possession as per the:: ditions oI the ogreementlor sate the attottee.stWd "a i" ri"-i,tiiii)iiiriia p os s es s i o n c h a rg es o n the r ea so n a bl e r qie ;i ;r r;;;; r; ; ;;: ;id;; in Rule 15 ofthe rules ond one sided, unfoir ond unreosonable rqte of compensation mentioned in the dareemcnt fnr <nto ic rqte of compensation mentione dgreement for sale is Iiable to be ignored." 31.

The agreements are sacrosanct save and except for the provisions which have been abrogated by the Act itself Further, it is noted thar the builder-buyer agreements have been executed in the manner that there is no scope left to the allottee to negotiate any of the clauses contained therein.

Therefore, the authority is of the vrew 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 and regulations made thereunder and are not unreasonable or exorbitant in nature.

Hence, in the light of above_ mentioned reasons, the contention of the respondent w,r.t. jurisdiction stands reiected.

PaEe 14 of 26 HARERA GURUGRAM F ll obiection regarding comprainant is in breach of agreement for non-invocation of arbitration 32 The respondent submitted that the compraint is not maintainabre for the reason that the agreement contains an arbitration crause which refers to the dispute resolution mechanism to be adopted by the parties in the event of any dispute and the same is reproduced below for the ready reference: "35. ence: "35.

Dispute Resolution by Arbitration "All or ony disputes arising out or touching upon in relotion to the terms of this Agreement or its terminotion including the interpretotion ond volidiry of amicably by mutual discisridnifailing which the same shalt hp seuled through reference to a sole Art,uoror ro O" opionrri by o resolution ofthe Boqrd of Directors ofthe Company, wnose decision shollbeJinalond binding upon tie parties'fh; atto;;e hereby confrms thot it sholl have no oblection to the qppointment of such sole Arbitrqtor even if the person so appointed, is an employee or Advocate of the Company or is otherwise connected to the Compony and tne lttotteeieretv accepts and agrees that this alone sholl not constitute a prou;d for challenge to the independence or impartiatiry of i" ,oi) sole Arbitrotor to conduct the arbitration.

The a-rbitration proceeclings sholl be governed by the Arbitration ond Conciliation Act, 1996 or any ststutory or"rd.rrt / modificoLions thereto ond sho be held at the Compony,s olfices or at o location designated by the said sole Arbitrotir in Gurgqon, The language of the orbitrotion proceedings and the Award shall be in English.

The company ond the ailottee wi shore the fees ofthe Arbitrator in equol proportion,,.

33.

The authority is ofthe opinion that the jurisdiction ofthe authority cannot be fettered by the existence of an arbitration clause in the buyer's agreement as it may be noted that section 79 of the Act bars the ;urisdiction of civil courts about any matter whlch falls within the purview of this authority, or the Real Estate Appellate Tribunal.

Page 15 of 26 HARERA *@*-,GURUGRAM Complaint No.

3079 of 2021 Thus, the intention to render such disputes as non_arbitrable seems to be clear.

Also, section gg ofthe Act says that the provisions ofthis Act shall be in addltion to and not in derogation of the provisions of any other law for the time being in force. in force.

Further, the authority puts reliance on catena of judgments of the Hon,ble Supreme Court, particularly in National Seeds Corporation Limited v.

M.

Madhusudhan Reddy &Anr, (2012) Z SCC 506, wherein it has been held that the remedies provided under the Consumer protection Act are in addition to and not jn derogation of the other laws in force, consequently the authority would not be bound to refer parties to arbitration even if the agreement between the parties had an arbitration clause.

34.

Further, in Aftab Singh and ors. v.

Emasr MGF Land Ltd and ors,, Consumer case no.

707 of Z07S decided on 13.07.2072, the National Consumer Disputes Redressal Commission, New Delhi (NCDRC) has held that the arbitration clause in agreements between the complainant and builder could not circumscribe the jurisdiction of a consumer forum.

The relevant paras are reproduced below: "49.

Support to the obove view is olso lent by Section 7g ofthe recently enacted.Real Estate (Regulotion and Development) Act,2016 (for short "the Reql Estate Act").

Section Zg of the said Act reods qs follows:- "79, Bar of jurisdiction - No civil court sholl hove jurisdiction to entertain qny suit or proceeding in respect of any matter which the Authoriqt or the odjudicating oJrtcer or the Appellate Tribunal is empowered by or undeir this Act to determine ond no injunction sholt be granted by qny court or other authoriry in respect ofany oction taken or to be token in pursuance of any power conferred by or uncler this Act." It con thus, be seen thot the said provision expressly ousts the jurisdiction of the Civil Court in respect ofany matterwhich the Reol Estate Regulotory Authority, established under Sub-section (1) of PaEe 16 of 26 ffi HARERA ffi GuRUGRAM Section Z0 or the Adiudirating Officer, oppointed under Sub-section (1) of Section 71 or'the Reot-Es;te iii{tiri-iriirrrt *irliiro"a under Section 43 of the Real Estate Act, is ";,p.;*;;;7;;;;;;;r." Hen. ;;r." Hen.ce, in view of the binding dictum ofthe n"i;ti" irpii^""i"'r" i, A.

Ayyaswamy (supra), the matters/aisputes, *nxn ini )riiioa, under the Reql Estate Act are empoweread ,o a"iii",'irli nor- qrbitrqble, notwithstanding an Arbitration egu"i"rt io;;", n" p.arties to such matters, which, to a large ex;ent, ,i"-ri.i'ir-r, ", cllsputes fa ing for resolution under the-Conru."i e"i. -- "- "- 56.

Consequently, we unhesitatingly reject the orguments on beholfof the Buitder and hotd that an eititroiion ctr^i irii" ii"r".ri"*a kind ofAgreements between the Comploinorr, ina *i euTilr rrrro, circu m.scribe the jurisdiction ofa Consume, r*o, roiiirtiriino tn" amendments made rc Section B of the Arbitrotii, iii...- -'- - ' 35.

While considering the issue of ,*int"in"Uiiity oi a complaint before a consumer forum/commission in the fact of an existing arbitration clause in the builder buyer agreement, the Hon,ble Supreme Court in case titled as M/s Emaar MGF Land Ltd.

V.

Aftab Singh in revision petition no. ?629_g0/ZO:.} in civil appeal no.

23S12- 23513 of 2Ol7 decided on LO,IZ,ZOL} has upheld the aforesaid judgement of NCDRC and as provided in Article 141 of the Constitution of India, the law declared by the Hon,ble Supreme Court shall be binding on all courts within the territory of India and accordingly, the authority is bound by the aforesaid view.,l.he relevant para of the judgement passed by the Supreme Court is reproduced below:, L", I \ .J \7 , {/-{. i V j 25.

This.Court in the seies ofjudgments as noticed obove considered Ene prov$tonsoJ Consumer protection Act, 19g6 aswell os Arbitrotion Act, 1996 ond loid down thot comptaint una", conruiii'priiiion Act being a, special remedy, deipite there t"irg ,i iiiii;ii, ogreement the proceedings before Consume, porrinru" to oooiiii no error committed by consumer Forum on rejectirg tne of,p cotiiii,. cotiiii,.

There is reqson Ior not interjecting pro""rairgr"ura"i [oiliii, rrorecdon Acton the strength on orbitrotion agreement by Act,1996.

The remedy under consumer protection A"t iri ,"iiai piiii't i consumer when there is o dekct in ony gooas oi servicei ine comptotnt meons any ollegation inwriting mode bya complqinant hos Page 17 of 26 Complaint No.

3079 of2021 &HARERA S*eunuennrr,r olso been explained in Section 2(c) of the AcL The remedy under the consumer protection ect is corsneh ti i;;r;;;rl';;Z:.:,:,:: deJined under the A" f", a"f"ri i,ri)ir;;;;ili;';;r:!o';;';:::r,:: provider, the cheap and a quick remidy n", tiir'ir"rh"a"i, ,n" consumer which is the obiecs.qni pyt_ps5s ofthe Act as noticed obove." 36.

Therefore, in view of the aUove i,iag",i,"rir-r"i' .rrr"".,r, ,n" provisions of the Act, the authority is of the view that complainant is well within right to seek a special remedy avairable in a beneficiar Act such as the Consumer protection Act and RERA Act, 2016 instead of going in for an .

Hence, we have no hesitation in holding that this au the requisite iurisdiction to entertain the complaint referred to arbi e light of the above- mentioned re that the ob,ection of the responden G.

Findings on .

Direct the ssession ofthe plot in question at th on as agreed vide plot buyer agreement da over possession from Act.

37 ln the present comprainb the comprainant intends to continue with the project and is seeking delay possession charges at prescribed rate of interest on amount already paid by him as provided under the proviso to section 1g(1) ofthe Act which reads as under:- "Section 7g: - Return ofamount and compensation ;tan erl r pay interest for the deiay in handing e due date i.e.,01.06.2015 as per rhe Page 18 of26 Complaint No.

3079 of 2021 ffiHARERA *e" GtJRucRA[/ Complaint No.

3079 of 2021 18(1).

021 18(1). lfthe promoter fails to complete or is unable to give possession ofan qpartment, plot or building, - Provided that where on allottee does not intend to withdraw from the projecC he sholl be paid, by the promoter, interest for every month ofdelay, till the hqnding over ofthe possession, at such rate as moy be prescribed." 38.

Clause 11.1 ofthe plot buyer's agreement (in short, the agreement) dated 01.06.2012 provides for handing over possession and the same is reproduced below: "11,1 Subject to Force Majeure, os deJined herein ond further subject to the Atlottees having cAmpliea iitn a its obligations under the terms and conditions of this Agreement and not having defaulted under any provision(s) of this Agreement including but not limited to the timely payment of oll dues ond charges including the total Sole Considerotion, registration charges, stamp duty and other charges and also subject to the Allottees having complied with o formalities or documentation as prescribed by the Company, the compuny proposes to offet of conveyance of the so id plot to the allottee within a period of36 monthsfrom the date ofreceipt ofrequisite approvqls ("Commitment Pertod"), The Allottees further agrees and unclerstonds thot the company shall additionally be entitled to a periocl of6 (six) months ("Grace period"), ot'ter the expiry ofthe soid Commitment Period to ollow t'or unforeseen deloys beyond reqsonqble conto I of the company,,' 39.

The buyer's agreement is a plvotal legal document which should ensure that the rights and liabilities ofboth builders/promoters and buyers/allottee are protected candidly.

The buyer's agreement lays down the terms that govern the sale of different kinds of properties like residentials, commercials etc. between the buyer and builder.

It is in the interest of both the parties to have a well-drafted buy er's agreement which would thereby protect the rights of both the builder and buyer in the unfortunate event of a dispute that may Page 19 o Page 19 of 26 ffi HARERA *s- GURUGRAT,/ arise.

It should be drafted in the simple and unambiguous language which may be understood by a common man with an ordinary educational background.

It should contain a provision with regard to stipulated time ofdelivery ofpossession ofthe apartment, plot or building, as the case may be and the right of the buyer/allottee in case of delay in possession of the unit.

In pre_REM period it was a general practice among the promoters/developers to invariably draft the terms of the plot buyer,s agreement in a manner that benefited oniy the promoters/developers.

It had arbitrary, unilateral, and unclear clauses that either blatantly favoured the promoters/developers or gave.them the benefit ofdoubt because of the total absence of clarity over the matter.

40 The authority has gone through the possession crause of the agreement.

At the ouBet, it is relevant to comment on the pre_set possession clause of the agreement wherein the possession has been subjected to all kinds of terms and conditions ofthis agreement and the complainant not being in default under any provisions of this agreements and in compliance with all provisions, formalities and documentation as prescribed by the promoter.

The drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promoter and against the allottee that even a single default by the allottee jn fulfilling formalities and documentations etc. as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning.

The incorporation ofsuch clause in the plot buyer's agreement by the promoter is just to evade the Iiabilitv PaEe 20 of 26 HARERA GURUGRAIV towards timery derivery ofsubject unit and to deprive the alottee of his right accruing after delay in possession. ossession.

This is just to comment as to how the builder has misused his dominant position and drafted such mischievous clause in the agreement and the allottee is left with no option but to sign on the dotted lines.

41.

The respondent promoter has proposed to handover the possession of the subiect plot within a period of 36 months from the date of requisite approvals plus grace period for unforeseen delays beyond the reaso ol of the company i.e., the respondent/promoter. ing of the clause 11.1 of the agreement, it beco the possession in the present case is approvals" which is so vague and a sion clause is read in entirety I session is only a tentative peri promoter is aiming to extend this ti other. ne eventuality or the by the State Environment Impact Assessment Authority, panchkula on 24.12.20L3.

Furthermore, it has been specified in clause 1 of PART A of the environment clearance of the said project that the consent to establish has to be obtalned before starting the construction of the project.

The relevant is reproduced below for ready reference.

Psrt A Specilic Conditions d tl 42.

PaEe 2l of26 HARERA P* GURUGRAM Construction phase i.

Consent For Establish,, sha be obtained from Haryano State pollution Control Boord under Air ond Woter Act qnd a copy shqlt be submitted to the SEtAA, Horyana before the start ofony constructiotl work at site.

43.

The consent to establish of the said project was granted by the competent authority on l4.OZ.ZO14- Before starting any construction in plotted colon, the promoter is obligated to obtain consent to establish.

Therefor€,.the pre_condition of obtaining all the requisite approvals was fu,lfilied only on 1,4.02.2014.

In the light ofthe above-mentionea reasoni, the authority is ofthe view that the date of'consent to establisht,.ought. to be taken as the date for determining the due date ofpossession ofthe unit in question to the complainant.

44.

By virtue ofplot buyer,s agreement executed between the parties on 07.06. on 07.06.2012, the possession of the booked unit was to be delivered within 36 months from the consent to establis h (14.02.2014) which comes out to be 1,4.02.201-7.

45.

Admissibility of grace period: The respondent promoter had proposed to hand over the possession ofthe plot within 36 months from the date of requisite approvals.

The respondent promoter has sought further extension for a period of 6 months for unforeseen delays in respect ofthe said project.

46 ln the present compraint the counser for the respondent submitted that the proiect could not be completed due to CBI probe on acquisition and release of HUDA Iand area and requested for consideration the zero period for calculating the interest.

However, the counsel for the respondent could not produce any documentary Page 22 of 26 ffiHARERA flru" eunuonnvr Complaint No.

3079 of 2021 proof before the authority on question of whether zero period imposed by the DTCp is applicabre to the concerned area of Iand of the project vide order dated 07.09.

2022, two weeks, time was given to the respondent to submit any documents allowing zero period by DTCP.

However, despite ample opportunity, the respondent has failed to place on record any relevant document in this regard.

In such a scenario, no zero period or grace period is allowed to the respondent.

47.

Admissibility of delay possession charges at prescribed rate of interest: proviso to section 1g 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 1S has been reproduced as under; Rule 15. prescribed rate of interest_ [proviso to section 12, section 1B qnd sub_section (4) and subsiction 721 olseriior'l11 (1) For the purpose of proiso to section tz, i"iii, ii,'ira',rt- sections (4) and (7) of section tg, the . tg, the .,interest ot thi rote prescribed', shall be the State Bank oI lndia hiqhesit mtarqinal cost oflending ro te +20k.: provided that in cose the Stote Bonk oI lndn mor.qtnal cost of lending rate (MCLR) is not in use, it sholl b" ,"ptiria iy ,urn benchmork tending rotes which the Smte Bor*il iriii ioy lir from time to time for lending to the generol public.

48.

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

The rate ofinterest 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.

Page 23 of26 HARERA GUl?UGRA[/ Complaint No.

3079 of 2021 49.

Consequently, as per website of the State Bank of India i.e.. https://sbi.co.in, the marginal cost of lending rate (in short, MCLRJ as on date 14.03.2023 is 8.70%.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2o/o i.e., 1,0.70o/o per annum.

50.

The definition ofterm ,interest, as defined under section 2 [za) of the Act provides that the rate ofinterest 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 of default.

The relevant section is reproduced below: "(zq) "interest" means the ratesaofinterest payable by the promoter or the allottee, os the case may be, Explanation. -For the purfose ofthis clause_ (i) the rate of interest chqrgeable from the allottee bv the promoter, in cose ol default, sholl be equol ro the irc o1 interest which the promoter sholl be liabte to pay the o ote;, in case of defqult; (i0 the interest poyable by the promoter to the allottee sholl be from the dote the promoter received the omount or ony port thereof till the date the omount or port thereof and iitirest thereon is refunded, and the interest payqble by the allottee to the promoter shall be shall be from the date the all;uee defautts in payment to the promokr till the date it is poid;,, Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., 10.700lo by the respondent/promoter which is the same as is being granted to the complainant in case of delay possession charges.

On consideration of the circumstances, the evidence and other record and submissions made by the parties, the authoritv is satisfied that the respondent is in contravention ofthe provisions of the Act.

By virtue of plot buyer,s agreement executed between the parties on 0t.06.2012, the possession of the booked unit was to be 51.

52, PaEe24 of26 Qa.02.2074) which comes out to b e 74.02.201.7 .Thegrace period of 6 months is not allowed in the present complaint for the reasons menHoned above.

The counsel for the complainant stated at bar that the completion certificate for the plot has still not been obtained by the respondent.

Accordingly, non-compliance of the mandate contained in secrion 11(al (al read with proviso to section 18(1) of HARERA GURUGRAM delivered within 36 months from the date of consent to establish the Act on the part of nt is established.

As such the complainant is entitled possession charges at the prescribed rate of in .a. for every month of delay on the amount possession i.e.,1 dent from due date of ssion of the subject plot after ob authority plus m the competent ion whichever is earlier as per ofthe Act read with rule 15 ofthe rul DirecHons ofthe au H.

53.

Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compriance " !q{arif${+f.t$Fl!q\s&moter as per the f unctionenrrustelirdrh;;rtff ";i,;.)'u.li."uJns+1g, The respondent is directed to pay interest at the prescribed rate of 10.7070 p.a. for every month of delay from the due date of possession i.e., 74.02. e., 74.02.2017 till the offer of possession of the subject plot after obtaining completion certificate from the competent authority plus two months or handing over ofpossession whichever is earlier. completio W,9 PaEe 25 of 26 ffiHARERA ffiGURUoRAM ll.

54.

55. (Member) ryana Real Estate Datedt 1-4.03.2023 The respondent is directed to pay arrears of interest accrued within 90 days from the date of order and thereafter monthly payment of interest to be paid till date ofhanding over ofpossession shall be paid on or before the 10th ofeach succeeding month.

The complainant is also directed to pay the outstanding dues, ifany. tv.

Iu.

The respondent s complainant whi agreement.

The complaint Files be consign .}- ir, Kuma S' anything from the the builder buyer ,RUGRAM HARERA GL Page 26 of 26