MADHUKAR SHARMA AND OTHERS vs EMAAR MGF LAND LTD.

ffiHARERA #-eunuennl,r BEFORE THE HARYANA REAL TE REGULATORY AUTHORITY, GURU RAM ORDER 1.

This order shall dispose of both the comblaints titled as above filed before this authority in form CRA under spction 31 of the Real Estate fRegulation and Development) Act, 2015 ftrereinafter referred as "the Act") read with rule 28 of the Haryana fleal Estate [Regulation and Development) Rules,20l.7 (hereinafter {eferred as "the rules"J for violation of section 11(aJ(aJ of the Aqt wherein it is inter alia prescribed that the promoter shall fe responsible for all its obligations, responsibilities and function$ to the allottees as per the agreement for sale executed inter se between parties.

2.

The core issues emanating from them are similar in nature and complainant(s) in the above referred rnatters are allottees of No.

4517 of 2022 &2042 ot 2023 Complain LZ.O4.ZOZ4 Date of decisio lndia Ltd.

NAME OF THE BUILDER at Emerald Hills Emerald Pl PROIECT NAME Shri Harshit Batra Shri Sukhbir Yadav cR/ 4517 /2022 Emaar India Ltd.

V/s M Sharma & ors.

Shri Sukhbir Yadav Shri Harshit Batra Madhukar Sharma & ors .V/s Emaar India Ltd. cR/2042 /2023 CORAM: Shri Ashok Sangwan Shri Sanjeev Kumar Arora Member Member the the Page I of24 S.

No.

Case No.

Case title APPEARANCE ffiHARERA S- aJRuGRAN/ project, namely, "Emerald Plaza at Em ld Hills" being developed Emaar India Ltd. by the same respondent/promoter i.e., M 3.

The aforesaid complaints were counter led by the parties against each other on account of violation of the b yer's agreement executed between the parties in respect of said uni 4.

The facts ofboth the complaints filed bythe complainants are similar.

A.

5.

Out of the above-mentioned case, the particulars of lead case CR/4517/2022 Emaar India Ltd.

V/s Madhukar Sharma & ors, are being taken into consideration for determining the rights of the parties.

Unit and proiect related details Both the cases relate to one allotted unit. tted unit. pne among these is filed by the allottee and the other one is filed UV jne Uuitaer, so far deciding both the cases, the facts of first case are feing taken.

But before that the particulars of unit details, sale considjration, the amount paid by the complainant, date ofproposed handing over the possession, delay No.4577 of 2022 &2042 of 2023 Complain period, if any, have been detailed in the following tabular form: s.

N.

Particulars Details 1.

Name and location of the proiect "Emerald Plaza at Emerald Hills" at sector 6$, Urban Estate, Gurgaon, Haryana 2.

Nature ofthe proiect Commercial Complex 3.

Proiect area 3.963 acres 4.

DTCP license no.

70 0f 2012 dated 21.05,2019 RERA Registered/ not registered Not registered 6.

Unit 11o.

EPO-05-019 foase 34 of comnlaintl Page 2 of24 HAR ARERA URUGRAM Complainl No.4517 of 2022 &2042 of 2023 7.

Unit area admeasuring 627.16 sc foase 35 ,ft. rf complaint') B.

Date of provisional allotment letter Not place I on record 9.

Date of builder buyer agreement 28.07.20-, [page 34 1 )fcomplaint) 10, Possesslon clause 76.

POSS) (a) Time Possessl{ (i) Thqt tt Spaces in shqll be d to the A (30) mo hereof, : Allottee(s. with all tl this Agre default ur Agreemer, payable b- Agreemer, to the Cor. give not offering it take posst for his oct of Possess (ii) The understar, be entitlet hundred days ove more parl above in t 16, for a necessa4 the Comn tsslotv ' of handing over n rc possession of the Retail the Commercial Complex elivered and handed over llottee(s), within thirty nths of the execution ubject however to the I having strictly complied e terms and conditions of ?ment and not being in der any provisions of this tand all amounts due and / the Allottee(s) under this t having been paid in time rpany.

The Company shall ice to the Allottee(s), writing, to the Allottee to ssion of the Retail Sp1ces :upation and use ("Notice ton") Allottee(s) agrees and ds thatthe Company shall I to a grace period of one and twenv 020) r and above the above the period icularly spectfied here-in- ub-clause (a)(i) of clause pplying and obtaining I approvals in respect of rcrcial Complex.

Page 3 of24 HAREIA URUGRA[/ Complainl No.

4577 of 2022 & 2042 of 2023 (en lPage 42 phasis supplied) )f complaintl 77.

Due date of possession 2a.07.20' INote: includedl 4 irace period is not 12.

Total sale consideration as per payment plan annexed with the agreement Rs.44,74 lpage 51 tse /- )f complaint] 13.

Amount paid by the allottee as per calculation sheet on page 107 of complaint and as per cancellation Ietter dated 73.02.20L4 on page 62 of reply Rs.30,04 329/- 7+.

Cancellation letter issued by the promoter on 1,3.02.20 lPage 62 4 )f replyl 15.

Occupation certiRcate 08.01.20 B 76.

0ffer ofpossession 24.01,.20 [Page 10 I of complaint) Facts ofthe complaint The complainant has pleaded the complai t on the following facts: G B.

3.

That the complainant is a real estate dEveloper and was formerly known under the name and style of M/s Emaar MGF Land Ltd., however, had changed its name to "EMMR INDIA LIMITED" w.e.f .07.10.2020 as is evident from the certificate issued by the Government of India, Ministry of Corporate Affairs, New Delhi and got incorporated under the Companies Act, 1956 (ClN: U45201D12005PLC13 3161) having its regd. office at 306-308, PaEe 4 of 24 .

HARERA GURUGRAM Square One, C-2, District Centre, S New Delhi South Delhi DL Business Park, Sector 28, 110017 and corporate office at Emaa Gurgaon 122002.

That the present Sayantan Mondal, authorized represe complaint is filed by Mr. tative of the complainant, who is duly authorized to act on beh board resolution d ared 10.71.2021. of the complainant vide b.

That licence no.

10 dated 21,.05.20 for development of the t by the Director, Town project was granted to the complai &Country Planning, Govt. ing, Govt. of H upon which the complainant devised the develop ent of a multi-storied commercial complex on a residenti plotted colony under the name and style "Emerald Plaza office{ at Emerald Hills" at Sector 65, Urban Estate, Haryana (hereiriafter referred to as the "Project"J.

That it is pertinent to highlight that the pro.iect has been duly completed after having obtained all the necessary approvals and fulfilling all the requirements as per fhe existing bye-laws.

That at the outset, without prejudice to the contents ofthis complaint, it must be noted that the complainanf holds a good face value in the market and is a renowned teal estate developer of international repute.

That the complainant builder has ensirred due compliance under the rules, regulations of the concern[d laws.

That after having completed the construction of the proiect, the complainant received the occupancy certificate fof the project on 08.01.2018. d.

No.4577 of 2022 &2042 of 2023 Complain Page 5 of 24 HARERA ffi.GURUGRAI/ It is to be noted that almost all units have been handed over to the respective allottees at the time of filing this complaint. e.

That the respondents approached the complainant expressing an intention of booking a unit in the proiect and willingness to pay for the same accordingly, executed and an application form dated L8.07.2010, upon which a provisio4al allotment letter dated 25.08.2010 was made in the name ofthe respondents.

That it was the obligation of the respondents to execute the buyer's agreement in a timely fashion, however, the same was not done.

The complainant had rightly sent the buyer's agreement to the respondent on 15.09.2010, however, the respondent delayed in execution of the agreement, upon which, multiple reminders dated 02.10,2010, 11.01.2011, and 29.07.2011.ltwas finally after almost a year, on 28.07.ZILL,that the buyer's agreement [hereinafter referred to as the "agreement") was executed betlveen the complainant and the respondents for unit no. r unit no.

EPO-o5-019 iir the projea for a total sale consideration/demand of 148,38,255[-. (hereinafter referred to as the "Unit"). g.

That respondents assented to pay the monies against the Unit through a construction-linked plan.

However, respondents had defaulted in the payment against the unit since the very beginning.

Upon the default ofthe respondents, they were served with reminder for payment, as per the terms and conditions of the agreement.

It is due to the delay in making the payments Complain No.4517 of 2022 &2042 of 2023 Page 6 of 24 f.

HARERA CS cr rDr raDA[/ charges.

That the conduct of th complainant must be highlighted here: the complainant is ued a number of payment re timely payments for the request letters and reminders to ens timely construction of the project. t the continuous defaults, e respondent prima facie from the very beginning, on part of show the wilfulness in causing the ults. h.

That the construction ofthe project i completed to the extent of being habitable and the occupancy ificate has been received on 08.01.2018 after which, the comp inant had lawfully offered the valid legal possession on 24.01.2q18, which the respondents have failed to take, till date.

That mqreover, no delay has been caused by the complainant.

That th]e time for handing of the possession was proposed to be 30 months from the date of execution of the agreement and 120 days grace period, as per clause 16(a) ofthe agreement, and w{s "...subiect however to the allottee(sJ having complied with all ihe terms and conditions of this agreement and not being in defalrlt under any provisions of this agreement and all amounts due [nd payable by the allottee under this agreement having been pald in time to the company..." It must be brought to light that the fomplainant was adversely affected by various construction bpns, lack of availability of building material, regulation o{ the construction and development activities by the iudicidl authorities including NGT No. ng NGT No.4517 of 2022 &2042 of 2023 Complai against the unit that the respondent i as per calculation sheet on 7th luly, liable to pay {11,31,070/- 2022 as delayed payment Page 7 of 24 HARERA ffiGURUGRAI\/ in NCR on account of the environmental conditions, restrictions on usage ofgroundwater by the High Court of Punjab & Haryana, etc. and other force majeure circumstances, yet, the complainant completed the construction of the project diligently and timely, without imposing any cost implications of the aforementioned circumstances on the respondent and demanding the prices only as and when the construction was being done.

That moreover, vide order dated 13.09.2012, the Hon'ble High Court of Punjab and Haryana in CWP no.

20032 of 2008 titled as Sunil Singh v/s MoEF & others vide orders dated 16.07.2012 directed that no building plans for construction shall be sanctioned unless the applicant a$sures the authority that carrying out the construction underground water will not be used and also show all the sources from where the water supply will be taken for construction purposes.

The period of prohibition was till 12.10.2012. lt was due to the ban on the usage of underground water, that the construction activity was brought to a standstill as there were no arrangements by the State government to fulfil the demand of water to be used in construction activity. ,.

That all these circumstances come within the purview of the force majeure clause and hence allow a reasonable time to the complainant builder.

That it must also be noted that the complainant had the right to suspend the construction of the project upon happening of circumstances beyond the control of Complain No.4577 of 2022 &2042 of 2023 Page B of 24 a.

HARERA GURUGRAM 1. the complainant as per clause 16[b]( il, however, despite all the hardships faced by the complainan the complainant did not d to keep the project afloat suspend the construction and through all the adversities. versities.

That it needs to be categorically ted that in Shuchi Sur v of 2027, under similar Venetian LDF Projects LLP 3890 circumstances beyond the control of e complainant builder, as of delivery of possession, occurring before the proposed due da were noted to be valid grounds to e grace period and hence, similarly, the present case.

That it is a matter of fact and law th{t it is the obligation of the respondents under the Act to make t\e due payments, as agreed, to take possession of the allotmeJt within two months of occupancy certificate and to thereaftfr execute the conveyance deed.

The respondents have a corre$ponding obligation as per the agreement to make the due paymlnts against the unit, to take possession within 30 days ofthe lettefofoffer ofpossession, and to have the sale deed executed upon f]ull pay-"rt, being made.

That the defaulting conduct of the .{rnond"nt, is not new and reflects its malafide intentions towards the non-payment of the unit in the pro,ect.

It must be noted that the respondents are bound by the agreement which has been executed between the complainant and the respondents.

The respondents cannot be allowed to wriggle out from its responsibilities due to any reason title the builder with the ame should be done in the Complain No.

4577 of 2022 & 2042 of 2023 Page 9 of24 k. ffiHARERA ffiarnuennl,r whatsoever.

It is categorical to note at upon the non-payment of dues by the respondent's allottees the respondents are liable to pay the delayed payment ch and interests.

That the its obligations, not only complainant has complied with all with respect to the agreement with per the concerned laws, rules and e complainants but also as the local authorities.

However, the re malafide practices.

That the real estate sector is not promoters like the complainant for corresponding and equally weighed erely dependant on the Iike the respondents to perform th part of timely payment inter alia other responsibilities. ibilities.

That fimely payment against the allotment is the essence ofa real esta{e development and cannot be turned a blind eye against.

That the defaulting conduct of the rdspondents is not new and accounts for their malafide intention! towards the non-payment of the unit in the project.

It must be Joted that the respondents are bound by the agreement which hfis been executed between the complainant and the respondentb.

The respondents cannot be allowed to wriggle out from its r]esponsibilities due to any fluctuations in the market or any othqr reason whatsoever.

That the complainant has also tonstantly attempted to communicate with the respondents vi]a email requesting them to fulfil the possession formalities, holVever, the same have not Iations thereunder and pondent has continued its its upliftment - it is the obligation of the allottees o. p.

Complain No.

4517 of 2022 & 2042 of 2023 Page 10 of24 ffiHARERA ffieunuennnr been done till date.

That despite the for taking possession and making p been done by the respondent till date q.

The acts and conduct of the respond t allottee are violative of the terms and conditions of the ag ement and Act, as noted above; and the respondents allotte payment against the unit and take th line with the holding of the Hon'ble S Realtech Pvt.

Ltd.

Vs.

Abhishek nna and Ors., decided on where, Phase 1 of the rr.01.202L - MANU/SC/oO13/202 project had been issued the occupan certificate, consequently, the developer offered the possession to the respective allottees.

The Supreme Court directed such alldttees to take possession of their respective allotments.

Additionally, in a recent case of Emaar India Limited v Ghyanshyam Bhardwaj 3900 of 2021, Haryana RERA, Gurugram bench, this Hon'ble Authority had dirqcted the allottee to take the possession after making the due paynfents against the Unit along with prescribed interest @ 9.30/o p.a..

30/o p.a..

That in the interest of equity, jusHcf and fair play, it must be noted that the complainant has alw{s tuned to its obligations and has waited for an inordinate petiod of time for clearing of dues and taking of possession by the respondents.

Hence, the complainant cannot be made to wait [or a longer period of time Complain No.

4577 of 2022 & 2042 of 2023 lssuance of the reminders the same has not yment, are liable to make the possession.

That this is in preme Court in Ireo Grace r.

S.

Page 1l of24 ffiHARERA #* eunGnnlr t.

Additionally, at the sake of repetitio it is pointed out that the ficate and is habitable for proJect has attained the occupancy c living thus the respondents should payments and should, under no ci wriggle out of its obligations.

Hence, the Hon'ble Authority is req ested to take matter and direct the respondent to omply with its and legal obligations.

Relief sought by the complainant: The complainant in compliant no.

451,7 / 022 has sought following reliefs: a.

Direct the respondent to pay outstanding dues including administrative ch arges of 178,21,17 5 / -. b.

Direct the respondent to pay interest on dues until clearing of all dues w.e.i the date of default till the date of payment. c.

Direct the respondent to take possession ofthe unit and execute the conveyance deed after paying statutory dues of stamp duty. d.

Direct the respondent to actively participate in the execution and registration of conveyance deed. e.

Direct the respondent to clear the CAM, CAE charges of note of the contractual compliant no,2042/2023 has sought following No.4577 of 2022 &2042 of 2023 and the respondents should be bound and the contract. to adhere as under the Iaw e bound to make the due umstances, be allowed to C, 4.

5. <3,60,545 /-.

The complainant in reliefs; Page 12 of 24 ffiHARERA #"GIRUGRAT'/ D.

7.

6.

Refund the entire amount paid by the prescribed rate of interest. interest.

On the date of hearing, respondents/promoter about been committed in relation to guilty or not to plead guilty.

Reply by the respondent.

The respondent has contested the grounds: a.

The respondents/allottee seeks to rai each of which has been taken in the prejudice to others.

Nothing contai unless otherwise specifically admi and tacit denial of any allegation complainant/builder in the complain b.

The present complaint is not maintai submitted that the present complain the Hon'ble Authority.

That complai complaint to direct the respondent and to direct the respondent to take p is not a legal offer of possession.

That the complainant/builder has Authority without clean hands and therefore the present complaint is li ground.

Page 13 of 24 Complai No.

45L7 of 2022 & 2042 of 2023 the au riry the contra ntion section 1 al (a) mplainant along with the explained to the as alleged to have of the Act to plead plaint on the following e the following objections, alternative and is without ed in the complaint may, be deemed to be a direct averments made bv the ble in law or on facts.

It is is not maintainable before nt has filed the present make outstanding dues ession ofthe unit, which approached this Hon'ble ncealed the material facts, ble to dismiss on this sole HARERA P*GURUGRAM d.

That the respondents were an allotteB/owner of an office space unit no.

EPO-05-019, admeasuring 627.16 sq. ft. in proiect "Emerald Plaza Offices" situated at Sector-65, Gurugram, and have all right and claim on the subject property as per terms and conditions of the buyer's agreement and the Real Estate (Regulation and Development) Act,2016 and the Haryana Real Estate (Regulation and DevelopmentJ Rule,2017 and Regulation thereunder.

That the said office space was booked on 18.07.2010 under the construction link payment plan for a sale consideration of 14+,74,L59/- and a builder buyer agreement was executed on 28.07.2011.

As per clause no. clause no.

16(a) ofthe buyer's agreement, the respondent has to give possession of office space "within a period of 30 (Months) from the execution of buyer's agreement, therefore, the due date ofpossession was 18.01.2013.

The buyer further agrees that even after the expiry of the commitment period, the company shall be further entitled to a grace period of a maximum of 120 days for issuing the possession notice fGrace Period), therefore, the due date of possession with grace period was 18.05.2013.

That the respondents/allottee made [ll the payments as per the agreed payment schedule and demand letters of the complainant/Builder till 22.04.2013 {nd have paid {30,04,329 /- i.e.

67 .l4o/o of the total consideration amount.

Provided that the respondents stopped paying furthe{ installments because the No.

4577 of 2022 &2042 of 2023 Complain PaEe 74 of 24 t HARERA ffi GURUGRAI/ complainant failed to offer possessio of the unit as per the due builder-buyer agreement date ofpossession as mentioned in th i.e., 18.05.2013.

That the complainant has not comp ed the said proiect on or before the due date of possession mentioned in the project brochure an therefore, the allottee/respondents and asked for a refund ofthe paid am That on 13.02.2014, the respondent and as per specifications builder buyer agreement, pped making payment nt along with interest. h. the unit after deducting the earn money.

It is pertinent to 1.2[fl of BBA, the earnest mention here that as per clause no. money is 100/o of the total sale consi ation.

It is pertinent to mention here that the complainan uilder did not pay the balance amount after the deduction 100/o earnest money.

B.

Copies ofall the documents have been and placed on record.

The authenticity is not in dispute.

Hence, the the basis oftheses undisputed documen 9.

The complainant- promoter in complaint filed the written submissions dated 05. aring no.

4517 -2022 has 4.2024 which have been taken on record by the Authority.

Authority. lurisdiction of the authority The authority observed that it has territorial as well as subject matter iurisdiction to adjudicate the present com$laint for the reasons given below.

Complain No.4517 of 2022 &2042 of 2023 nt a cancelation letter of plaint can be decided on E.

10.

E.l, Territorial iurisdiction Page lS of 24 ffiHARERA ffieunuennHrr tt.

As per notification no.

7/92/2017-7TCP ted L4,12.2017 issued by the jurisdiction of Real Town and Country Planning Departmen Estate Regulatory Authority, Gurugram hall be entire Gurugram District for all purpose with offices si ted in Gurugram.

In the present case, the project in question is si ted within the planning area of Gurugram District, therefore th s authority has complete territorial jurisdiction to deal with the pre E,U, Subiect matter iurisdiction ent complaint.

Section 11(4J[a) ofthe Act, 2016 provid that the promoter shall be responsible to the allottee as per agreeme t for sale.

Section 11[4)(a) is reproduced as hereunder: Section 77 (41 The promoter shall- (a) be responsible for all obligations, functions under the provisions of this A bilities qncl or the rules and regulqtions made thereunder or to the a agreement for sale, or to the associotion os per the allottees, as the case moy be, till the conveyance of all the plots or buildings, as the cose may be, to the oll or the common the competent areas to the association of qllottees authoriA, as the cqse m(1y be; Section 34-Functions of the Authority: 34(n of the Act provides to ensure iance of the obligations cast upon the promoters, the ttees andthe real ond regulqtions So, in view ofthe provisions ofthe Act quo d above, the authority has complete iurisdiction to decide the compliance of obligations by the pro section 11(4J[a) of the Act leaving aside omplaint regarding non- ter as per provisions of mpensation which is to be No.4577 of 2022 &2042 of 2023 Complain t2. estate agents under this Act and the ru made thereunder.

13. under.

13.

Page 16 of 24 ffi HARERA S-euniLennl,r decided by the adjudicating officer ifpurs Iater stage. ed by the complainant at a 14.

Further, the authority has no hitch in pro ing with the complaint ond Developers Private Limited Vs urt in Newtech Promoters te of 11,P. and Ors." SCC Online SC 7044 decided on 11..11.2021 w as under: erein it has been laid down "86.

From the scheme of the Actofwhich o detqiled rekrence hos been made qnd taking note of of adjudication delineated with the regulatory authority and adjudicating ollicer, whot finqtly culls out is that althouCh the Act indicates iie distinct expressions like 'refund', 'intefes{ 'penalty' ond 'compensation', a conioint reading of Sections 18 and 19 clearly maniksts thot when it comes to refund of the omount, interest for deloyed delivery of ian, or penalty and interest thereon, it is the regulatory au which has the power to exqmine ond determine the outcqme ofo comploint' At the some time, when it comes to a of seeking the relief of adjudging compensation and intqest thereon under Sections 12,14,18 ond 19, the qdiudicating olftcer exclusively has the power to determine, keeping in view the collective reading of Section 71 read with Section 12 of the Act. if the odjudication under Sections 12, 14, 18 find 19 other than compensqtion as envisaged, if extended to the adiudicating officer as prayed that, in our view, may intend to expand the ambit and scope of the powers qnd functions of the adjudicating offtcer under Section 71 ond that would be ogoinst the mqndote of the Act 2016." 15.

Furthermore, the said view has been reiterated by the division bench of Hon'ble Punjab and Haryana High Court in Ramprastha Promoter and Developers Pvt Ltd. vs llnion af India and others dated 73.07.2022 in CWP bearing no.

6688 of 2027.The relevant paras of the above said iudgment reads as under: No. under: No.4517 of 2022 &2042 of 2023 Complain and to grant a relief of refund in the pr ,udgement passed by the Hon'ble Apex C ent matter in view of the PaEe l7 of 24 HARERA ffiGURUGI?AI/ "23) The supreme court has already ded on the issue pertaining to the competence/power ofthe thority to direct refund of the amount, interest on the refu d omount ond/or directing payment of interest for del delivery of possession or penalty and interestthereu l being within the 1 ofthe 2016 Act. jurisdiction ofthe authoriy under Section Hence qny provision to the contrary under Ruleswould be inconsequential.

The Supreme Court h ng ruled on the competence of the Authority and main inability of the comploint before the Authority under n 37 of the Act, there it thus, no occosion to enter into the ofthe complaint under Rule 28 and/or Ru 2017. e ofsubmission 29 of the Rules of 24) The substqntive provision of the having been interpreted by the Supreme Court; the tqndem with the substqntive AcL les have to be in 25) ln light of the pronouncement ofthe Su reme Court in the the submission of matter of M/s Newtech Promoters (supra), the petitioner to await outcome of the S frled ogainst the judgment in CWP No.iB144 of2018, passed by this Court fails to lmpress upon us.

The counsel representi fqirly concede that the issue in question the parties very as alreody been decided by the Supreme CourL The made in the complaint os extracted in the impugnecl by the Real Estote Regulqtory Authority fqll within th to refund of the amoun, interest on the relief pertaining ;fund amount or directing pqyment of interest for delivery of po.rses.rion.

The power oI adjudication and inotion for the said relief is conferred upon the l(ltory Authority itselfond not upon the Adjudicating Offi 16.

Hence, in view of the authoritative pro Supreme Court in the matter of M/s uncement of the Hon'ble Promoters dnd Developers Private Limited vs State of U,P, and ors, (supra), and the division bench of Hon'ble Punjab and Punjab and Haryana High Court in "Ramprastha Promoter and Developers l,vt, Ltd, Vs Union of lndia and others. fsupra,), the authority has the jurisdiction to entertain a complaint seeking refund of the amount paid by allottee along with interest at the prescribed rate.

No.4517 of 2022 &2042 of 2023 Complain Page lB of 24 ffiHARERA ffi aJRuGRAr,/ F, 17. this authority is as to ofthe amount paid along with interest or they be directed to take th possession of the allotted ng with interest. unit after clearing the outstanding dues al 18.

In the present matter vide clause 16 of e BBA, the promoter has subject apartment within proposed to hand over the possession of a period of 30 months from date of execu on of BBA i.e., 2A.07.2011.

Hence the period of 30 months expires present matter the BBA incorporates ualified reason for grace the possession clause for period/extended period of 120 days in applying and obtaining necessary app ls in respect of the commercial complex however, the sr." *[." ,ot obtained within the above mentioned timeline and accordingly, the grace period of 120 days is not allowed to the promoter.

Therefore, the due date of handing over ofpossession ofthe subject apartment comes out to be 28.07.2014.

19.

The promoter filed a complaint before the authority bearing no.

CR/4517 /2022 on \4.07.2022 and thereafer the allottee also filed a complaint bearingno.

CR/2042/2023 on [5.05.2023.

It is necessary to mention here that both the complaint$ were related to the same apartment and hence, both were clubbed together in order to avoid conflicting orders.

Now, the matter t"f[." tt " authority is as to whether the allottee has right to seek refund or not, when the promoter is unable to give possession of rfnit in accordance with the Complain No.

4517 of 2022 & 2042 of 2023 Findings on the relief sought.

The foremost question that arises befo whether the allottees are entitled for refu 2A.O1 .2014. .O1 .2014.

Since in the Page 19 of 24 ffiHARERA ffieunuennl,,t terms of agreement for sale.

The allottee allotted unit no.

EPO- 05-019 having an area of 627.16 sq. ft. vide BBA dated 28.07.2071,.lt is a matter of record and fact that the subiect unit was to be handed over to the complainant-allottee on or re 28.01.2014, the same being the due date ofpossession vide clause 16 ofthe BBA.

However, when the respondent started raising demands as per the schedule of payment, the complainant started defaulting in making the said payments.

Hence, the respondent was compelled to issue various payment request letters, demand notices etc. to pay the demanded amount.

As per calculation sheet submitted by the promoter in complaint bearing no.

4517 -2022 the complainant has not paid a single penny after 22.04.2013.

Accordingly, the respondent issued the cancellation letter dated 13.02.2074 despite issuance of various reminder letters and after giving reasonable time to the complainant for making payment of outstanding dues to the tune of < 6,45,37 5.39 /-.

20.

Furthermore, it is pertinent to mention here that the promoter has received the occupation certificate on 08.01.2018 and thereafter, the possession was offered to the allottee on 24.07.2018.

To this the counsel on behalf of the promoter during the course of hearing on 05.01..2024 stated that he revive the said unit of the allottee on his personal request whereas, the counsel failed to issue any such communication and the same was also denied by the counsel for the allottee.

Also, the counsel for the allottee also denied having received the offer of possession dated 24.01.2018.

Since, the promoter Complain No.

4517 of 2022 &2042 of 2023 Page 20 of24 HARERA ffiGURUG]?AI/ cancelled the said unit way back in the vear 2014 and instead of refunding the money back to the allo e, filed the complaint for seeking direction against the allottee to the possession ofthe unit after lapse of almost B years filed the com laint against. t against.

In light ofthe above mentioned facts, the authority ob rves that on one hand the unit way back in the year 014 and on the other hand promoter had itself cancelled the subject 2014 vide cancellation letter dated L3.02. the promoter came before this authori praying for such reliefs r act wherein it cancelled which is itself in contradiction to his earl the said unit.

Further, this authority holds its opinion that since the respondent failed to show any proof of r{vival of unit on request of complainant-allottee, therefore the said cancellation is being upheld by the authority and it was an obligation pn the part of promoter to refund the balance amount after issuancg of the cancellation letter dated 13.02.2014 however, it is a mrn". o[fr.t th"t the promoter has not refunded a single pennyto the comptaifrant-allottee till date hence it is a recurring obligation ofthe promoteT towards the complainant- allottee to refund the amount paid after ffrfeiture of earnest money i.e., 10 of the total sale consideration as defined in the agreement dated 28.07.2011vide clause 1.2 (0(D.

21.

Furthermore, the Hon'ble Apex Court of l4nd in cases Mqula Bux Vs.

Union of India (1973) I SCR 928 and Sitlar KB Ram Chandra Raj Urs Vs.

Sarah C.

Urs, (2015) 4 SCC 136, anf, followed by the National Consumer Dispute Redressal Commissiqn New Delhi in consumer case no.

2766/2077 titled as Jayant Singhal and Anr.

Vs. ll/s M3ltl Complain No.

4577 of 2022 & 2042 of 2023 Page 21of 24 ffiHARERA ffi arnuennu India Ltd. decided on 26.07,2022,look amount in case of breach of contract forfeiture is in nature of penalty, then Contract Act, 1872 are attracted and th party so forfeiting must prove actual damages.

After cancellation o allotment, the flat remains with the builder as such there is hardly actual damage.

So, it was held that 1070 of the basic sale price i forfeited in the name of earnest money.

22. money.

22.

Further, the Haryana Real Estate Regul tory Authority Gurugram (Forfeiture of earnest money by the buil 2018, states that: der) Regulations, 11(5J of "5, ATIIOUNT OF EARNEST MONEY Scenario prior to the Reol Estote (Regulations and Development) Act, 2016 was dilferPnL Frquds were cqtied out without qny feqr as there +,'/as no law for the same but now, in view of the above fa[* and taking into consideration the judgements of l!7on'ble Nationat Consumer Disputes Redressal Comlnission ond the Hon'ble Supreme Court of lndio, the Futhority is of the view thqt the forfeiture omount oI the eornest money shall not exceed more l4on 100k oI the consideration amount of the reol esfite i.e. aporlment /plot /building qs the cose moy be in qll cases where the concellation of the llot/unit/plot is maFe by the builder in o uniloterol monner or the buyer in\ends Lo withdraw fiom the project ond ony agreemefit contoining any clause contrary to the aforesoid regul+tions sholl be void qnd not binding on the buyer.

23.

It is evident from the above-mentioned fa4ts that the complainant had paid a sum of 130,04,329/- against tptal sale consideration of 144,7 4,759 /-ofthe unit allotted to him od 28.07.2011.

4577 of 2022 &2042 of 2023 Complain view that forfeiture of the ust be reasonable and if visions of Section 74 of reasonable amount to be Page 22 of 24 HARERA MGURUGRAI/ 24.

The legislature in its wisdom in the subo legislation under the provision of rule 15 of the rules, has dete ined the prescribed rate of interest.

The rate of interest so dete ined by the legislature, is reasonable and ifthe said rule is followed ensure uniform practice in all the cases. award the interest, it will 25.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in. the marginal cost oflending rate (in short, MCLR) as on date i.e., 12.04.2O24 is 8.85%.

Acco y, the prescribed rate of interest will be marginal cost of lending rate +2%o i.e. , L0.85o/o.

16.

85o/o.

Thus, keeping in view the aforesaid factual and legal provisions, the respondent cannot retain the amount paid by the complainant against the allotted unit and is directed to refund the amount paid along with interest at the rate of 10.850/o (the Stf,te Bank of India highest marginal cost of lending rate IMCLRJ apfllicable as on date +20lo) as prescribed under rule 15 of the Uaryana {.eal Estate IRegulation and Development) Rules, 2017 from the date of cancellation i.e., 73.02.201,4 till the actual date of refundl of the amount within the timelines provided in rule 16 of the Hatana Rules 2017 ibid after forfeiting the earnest money which shall not exceed the 10% of the basic sale consideration ofthe said unit.

G.

Directions ofthe authoritv 27.

Hence, the authority hereby passes this o4der and issue the following directions under section 37 of the A.! to "rrr." compliance of obligations casted upon the promoter as per the functions entrusted to the authority under section 34(f) oftn! ect: No.

4517 of 2022 &2042 of 2023 Complain Page 23 of 24 ffiHARERA #aJRuGRArv i.

The respondent is directed to 130,04,329/- along with the interest 10.85% after deducting earnest mon consideration of unit i.e., {43,80 cancellation i.e., 13.02.20L4 till date of ii.

A period of 90 days is given to the directions given in this order and fail would follow.

28.

The complaints stand disposed of.

True be placed on the case file of each matter.

29.

File be consigned to registry.

Member Haryana Real Estate Regulatory Datedt 12.04.2024 No.4517 of 2022 &2042 of 2023 the paid-up amount of the prescribed rate i.e., i.e., 1070 of the basic sale /- from the date of refund. ondent to comply with the which legal consequences copies of this order Page24 of24 "..('\6