ASHISH GARG vs OCEAN SEVEN BUILDTECH PVT LTD

ffi ffi HARERA GUt?UGt?AM CORAM: Shri Arun Kumar Shri Vijay Kumar Goyal Shri Ashok Sangwan BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision: 20.02.2024 Complaint No.

8094 of 2022 and others Chairman Member Member Page 1 of22 NAME OF THE BUILDER Ocean Seven Buildtech Pvt.

Ltd.

PROJECT NAME The Venetian, Sector- 70, Gurugram, Haryana s.

No.

Case No.

Case title Appearance 1. cR/8094/2022 Shri Vimal Dimri (Complainant's Father) Adv.

Arun Kumar (Respondent) 2. cR/6256/2022 Renu l.iumari Earsivl,al Vs.

M/s 0cezrn Seven tluildtech Private Limrited Complainant in person Adv.

Arun Kumar IRespondent) 3. cR/782s/Z0ZZ rG; S. lver Lin trg t Ilr rite Adv.

Arun Kumar IRespondent) None (Complainant) r 4. cR/t481/2023 Complainant in person Adv.

Arun Kumar IRespondent) 5. cR/1.503/2023 Sumit Kaial Vs.

M/s 0cean Seven Buildtech Private Limited Complainant in person Adv.

Arun Kumar (Respondent) Gaurav Dirnri Vs.

M/s Ocean Seven Iluilcltech Pri'yate Limil.ed M;rnish KumLar Vs.

Mfs Ocean Seven [tuildtech Private Limited ffiHARERA ffiguRUGRAM The terms and involved in all to deliver timely the unit along with interest.

Complaint No.

8094 of 2022 and others part of the promoter thus seeking refund of PageZ of22 ORDER L.

This order shall dispose of 5 complaints titled above filed before this authority under section 31 of the Real Estate (Regulation and Development) Act, 20L6 [hereinafter referred as "the Act") read with rule 28 of the Haryana Real Estate (Regulation and Development) Rule s, 2017 (hereinafter referred as "the rules") for violation of section L1,(4)[aJ of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obli nsibilities and functions to the allottees as per the agreement ted inter se parties.

2.

The core issues ema similar in nature and the complainant(sJ in th allottees of the project, namely, The V being developed by the respo tech Private Limited. fulcrum of the issue 3. e issue 3.

The detzrils of the complaints, uni clause, due date of possession, total , ,date of agreement, possession consideration, total paid amount, and relief sought are given Project Name and Location "The Venetian", Sector- 70, Gurugram, Haryana.

Affordable group housing colony DTCP license no. and other details 103 of 2019 dated 05.09.2019 valid up ro- 04.09.2024 Licensee- Shree Ratan Lal and others Proiect area 5.10 acres Nature of the project ffiHARERA ffiGURUGRAM Complaint No.

8094 of 2022 and others Building plan approval dated 07.02.2020 (As per DTCP website) Environment clearance dated Not yet obtained RERA Registered/ not registered Registered vide no.

39 of 2020 dated 27.1,0.2020 valid up to- 02.09.2024 Occupation certificate Not yet obtained Possession clause as per Affordable Housing Policy, 20t3 7(, Ail u) able Hou: shall be years frt fing Policy,2073 required to be necessarily tm the approval of building gntal clearance, whichever is 'eferred to as the "date of cr the purpose of this policy. zwed beyond the said 4 years encement of project of ..:::=::]" rT\ s.

Complaint no., Case title, Date of filing of complaint and reply status Unit no, and size Due dater possessio Total sal considerat and Total amor paid by tl rnt te rnt Date of request of refund by the complainant Relief sought complaina 1. cR/8094/2022 Gaurav Dimri Vs.

M/s Ocean Seven Buildtech Private Limited DOF: 06.01..2023 RR:20.12.2023 1.602, tower 4 571.10 5 sq. ft. (carpet area) Not executed Cannot br: ascertained AP: Rs.

8,83,785/- 18.1L.2022 Refund along with interest and compensati on Page3 of22 BBA ffi ffi ilq{s q{i HARERA GU11UGllAM Complaint No.

8094 of 2022 and others Page 4 ofZ cR/62s6/2022 Renu Kumari Barsiwal Vs.

M/s Ocean Seven Buildtech Private Limited DOF: 07.1.0.2022 RR=20.12.2023 1704, tower 1 556.28 0 sq. ft. (carpet area) Not executed Cannot bt: TC: Rs.

22,92,828 AP: Rs.

8,59,811/- 23.05.

1/- 23.05.2022 Refund along with prescribed rate of interest cR/7825/2022 Ashish Garg Vs.

M/s Ocean Seven Buildtech Private Limited DOF: 02.0t.2023 RRt20.12.2023 1003, tower 4 57t.L area) L8.t2.2027 Refund along with prescribed rate of interest s.

LB9/- cRl1.4BL12023 Manish Kumar Vs.

M/s Ocean Seven Buildtech Private Limited DOF: 03.04.2023 RR:20.12.2023 L207, tower 5 571.10 5 sq. ft. (carpet area) Refund along with prescribed rate of interest AP: Rs.

8,83,785 30.08.2022 2.

3.

Not 'r'd execrftbd Cannot b'e ascertained 4.

Not executed Cannot be ascertained cR/1.503/2023 Sumit Kajal Vs.

0cean Seven Buildtech Private Limited DOF: 03.04.2023 RR:20.1.2.2023 803, tower 4 57L.LO 5 sq. ft. (carpet area) 24.07.20 21, Complet e copy not placed on record Cannot be ascertained TC: Rs.

23,33,+20 AP: Rs.

5,89,189 24.o2.2022 Refund along with prescribed rate of interest Note: In the table referred above certain Abbreviation Full form DOF Date of filing of RR Reply recei TC Total co AP Amount used.

They are elaborated as follows: ffiHARERA ffiaJltUGtlAM Complaint No.

8094 of 2022 and others A.

5.

The facts of all the similar.

Out of cR/80e4/2022 WL Ltd. are being the allottee[s).

Proiect and unit The particulars of paid by the comp t[s)/allottee(s) are lars of lead case Seven Buildtech determining the rights of deration, the amount over the possession, delay period, if any, have been in the following tabular form: CR/8094/2022 titled as Gaurav Dimri Vs.

M/s Ocean Seven Buildtech Page 5 of22 Pvt.

S.

Particulars Details 1.

Name of the project The Venetian, Sector 70, Gurugram, Haryana 5. ffiHARERA S-.

GURUGRAM Complaint No.

8094 of Z0ZZ and others Page 6 of22 Nature of the project group housing colony DTCP license no. arrd.alidfi 03 of 2019 dated 05.OnOLg valid up to 04.09.2024 Licensee- Shree Ratan Lal and others Building plan approval dated .02.2020 (As per DTCP websiteJ Environment clearance aatea RERA negistereaT vide no.

T vide no.

39 of 2OZ0 dated Allotment letter fcarpet area) the complaint) Possession clause as SURU shall be required to be ilding plans or grant of clearonce, whichever rs '.

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

The licenses shall not be renewed beyond the said 4 years period from the date of commencement of Due date of possession Cannot be ascertained ?:r;+o.2oz0 Vdfid upto 02.0g.OZOZ4 [Page 12 of complaint] Not executed 1.602, 'Iype I, tower 4 Il'age '12 of complaint] Unit admeasuring Affordable housing porticy, 201.3 ffi ffi HARERA GURUGl?AM Facts of the complaint The complainant has That the complaina launched by the ent vide cheque dated 20 letter dated 09.03. through successful applicant in flat bearing no.

1 balcony area of 98 B.

6.

I.

8094 of 2022 and others ions in the complaint: - namely "The Venetian" of Rs.1,16,671/- ndent issued allotment inant.

The respondent complainant that he is and have been allotted ZBHK of 571.105 sq. ft. and nd letter, a demand of "l i l;tLi ,,1 pa: Rs.4,72,5L8/- was raised by the reipondent bearing due date of the said demand as 24.03.202t and the same was paid by the complainant well within time on 19.03.2021..

II.

That thereafter, the respondent raised a demand of Rs.2,94,596/- vide letter dated 26.08.2021 and the same was paid by the complainant vide cheque dated 07.09.2021.

Subsequently, a demand letter dated 23.02.2022 was issued by the respondent to the complainant which was due by 09.03.2022.

The said demand was undue and not relevant.

Hence, for the same concern, PageT of22 Total sale price of the flat Amount paid by the complainant Rs.8,83,785/- [As per letter dated 23.02.2022 at page 18 of complaint] Cancellation/refund email by complainant 18.11,.2022 [page 20 of complaint] Occupation certificate Offer of possession t4.

Cannot be ascertained 15. t6.

L7, Not yet obtained 18.

Not offered ffiHARERA ffi" GURUGRAM Complaint No. plaint No.8094 of 2022 and others the complainant contacted the respondent and got to know that the project is waited for getting necessary clearance i.e., EC.

IIL That the complainant through email dated 23.03.2022 again tried to reach the respondent and stated his concern and requested for the cancellation and refund of the amount paid by the complainant as it was still under clearance process but again failed to get relevant response from the respondent.

Consequently, vide email dated 26.09.2022, the complainant requested the respondent to e property in their other project and adjust the amount paid nant in this project but again no relevant response was p ndent.

IV.

That the complainant uesting the respondent to refund the hard ea subject unit in the said project as after getting Environ t has failed in project.

V.

C.

7.

Thus, the present Relief sought by the The complainant has so s): iire -up amount along with I.

Direct the interest@ 1 II.

Direct the respondent to nt compensation to the tune of Rs.2,00,000/- for ng mental agony by not refunding the amount paid by the complainant.

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

PageB of22 D.

9.

8094 of 2022 and others the interpretation and rights and obligations agreement to validity of the ffiHARERA ffi-" GURUGRAM Reply by the respondent The respondent is contesting the complaint on the following grounds: I.

That this hon'ble authority lacks jurisdiction to adjudicate upon the present complaint.

Both parties have executed an arbitration clause, clearly outlined in the agreement, empowering either party to seek resolution through arbitration.

As per the said arbitration clause, any disputes arising out of the agreement shall be submitted to an arbitrator for resolution. esolution. present matter be referred to arbitration in accordance set forth in the agreement.

That as expressly sti ment to sale, the parties, herein, the com ve unequivocally agreed to resolve any is agreement to sell is at all or any disputes to the terms of this fortified by c arising out of the parties, which settled despite best efforts, shall be settl n proceedings shall be governed n Act, 1996 or any statutory amendmentsT/modifications thereof for the time being in force.

The arbitration proceedings shall be held at the office of the company in Gurgaon by,a sole arbitrator who shall be appointed by the company.

The cost of the arbitration proceedings shall be borne by the parties equally.

The language of arbitration shall be in English.

In case of any proceeding, reference etc. touching upon the arbitration subject including any award, the territorial jurisdiction of the courts shall be Gurgaon, Haryana as well as of Punjab and Haryana High Page 9 of22 ffiHARERA ffiGURUGRAM court at chandigarh.

That the respondent has not fired his first statement before this court in the subject matter.

III' That the comprainant is a w,rfur defaurter and deriberatery, intentionary and knowingly have not paid timery instarments.

The complainant is a defaulter under section 19(6) & 1g(7)of the Act.

It is humbly submitted that the complainant failed to clear his outstanding dues despite severar reminders that were issued by the respondent. ry.

That the complainant,s The present complain! marred by malafide intentions. false, fabricated, and erroneous grounds, is p I the respondent.

The complainant, in onist, seeking to extract money from complaint.

Th rgent and unjustified against the nlawful but also goes V.

That there is mplainant in collusion with any staff t company including ex- employee or that time may put forth the altered affordable ho contradictory to the binding on the company in 10' copies of all the relevant documents have been filed and placed on the record' e 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 complainant.

Page l0 of ZZ ffiHARERA ffi..

GIRUGRAM Complaint No.

8094 of Z0ZZ and others has territorial as well as subject matter present complaint for the reasons given E. furisdiction of the authority 11.

The authority observes that it jurisdiction to adjudicate the below.

D.I Territorial iurisdiction 1'2' As per notification no.

1/g2/2077-7TCp dated 74.72,2077 issued by Town and country Planning Department, the jurisdiction of Real Estate Regulatory Authority, G entire Gurugram District for all purpose with offices situated In the present case, the project in question is situated area of Gurugram District.

Therefore, this auth jurisdiction to deal with the present complai D.II Subiect 13.

Section 11(aJ [aJ e promoter shall be responsible to the Section 1.L(4)[a) is reproduced as hereu Section 77 @) rhe (a) be and functions under the regulations made for sale, or to the thereunder or associotion of all the may be, to the allottees, or the or the competent authority, Page l1 ofZZ common areas to the association of r as the case may be; Section 34-Functions of the Authority: Sa(fl of the Act provides t.o ensure c'ompliance of the obligations cast upon the promoters, the allottees antl th,e real esiate ,grni, under this Act and the rules and regulations made thereunder.

1'4' so' in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of ffiHARERA ffi" GURUGRAM clearly on the 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.

15' Further' the authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the Hon'ble Apex court in Newtech promoters and moters and Developers Private Limited vs state of u.p. and ors.

2027-2022 (l)RcR (civil), 3s7 and reiterated in case of M/s Private Limited & other Vs Union of India & others 73005 of 2020 decided on 12.05.2022 wherein it under: "86.

From the reference has been made and regulatory delineated with the although the 'penalqt'and culls out is thot 'refund', 'interest', Sections 18 and L9 delivery of authority which a complaint.

At relief of adjudging L4, 78 and 79, the Complaint No.

8094 of Z02Z and others and interest for delayed it is the regulotory the outcome of io a question of seeking the thereon under Sections 1.2, determine, exclusively has the power to Section 72 of Section 7L read with other than 72, 74, 18 and 19 officer as to the adjudicating scope ofthe 77 and that the ambit and under Section Act 20L6." 16' Hence' in view of the authoritative pronouncement of the Hon,ble Supreme court in the cases mentioned above, the authorify has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

Page 12 of 22 F.

1,7, ffiHARERA ffianllGRAM Findings on objections raised by the respondent F'I obiection regarding complainant is in breach of agreement for non-invocation of arbitration.

The respondent had raised an objection for not invoking arbitration proceedings as per the provisions of flat buyer's agreement which contains provisions regarding initiation of arbitration proceedings in case of breach of agreement.

The following clause has been incorporated w.r.t arbitration in the buyer's agreement: "33.

Dispute Resolution by Arbitration All or any disputes arising out of or touching upon or in relation to the terms of this Agreement including the interpreiation and validity of the terms thereof and the respective rights and obligations of the pariies shall be settled amicably by mutual discussion failiig which the same shalt be settled through arbitration. bitration.

The arbitration it ott t, governed by the Arbitration and conciliation Act 1996 or any statutory amendments/modiftcotions thereto for the time being in force.

The arbitration proceedings shal/ be hei'd. at an appropriate locaiion in New Delhi by a sole Arbitrator who shall be appointed by the Managing Director of the Seller and w'hose dec:ision sholl be final ind binding upon the Parties.

The purchaser(s) hereby confirms that he shay hive no obiection to this appointment of tlitte Sole Arbitrator by the Managing Director of the Seller, even if the persion so appointed, es a Sole Arbitretor, is an employee or advocate of the Setler / Conftrming party or is otherwise connected to the seller / confirming parq,and the-purch'aser(s) confirms that notwithstanding such relation,ship / 'connection, the plurchaier(s) shall have no doubts qs to the independence or impartiality of the said Sole Arbitrator.

The Courts at New Delhi and Delhi High iourt at New Delhi alone shall have the jurisdiction.,' The authority is of the opinion that the jurisdiction of the authority cannot be fettered by the existence of an arbitration clause in the buyer,s agreement as it may be noted that secti on79 of the Act bars the jurisdiction of civil courts about any matter which falls within the purview of this authority, or the Real Estate Appellate Tribunal.

Thus, the intention to render such disputes as non-arbitrabte seems to be clear.

Also, section BB of the Act says that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

Complaint No.8094 of Z0ZZ and others Page 13 of 22 18.

HAREl1A Complaint No.

8094 of 2022 and others ffiGURUGI?AM Further, the authority puts reliance on catena of judgments of the Hon'ble Supreme Court, particularly in National Seeds Corporation Limited v.

M, Madhusudhon Reddy & Anr. ddy & Anr. (2012) 2 SCC 506, wherein it has been held that the remedies provided under the Consumer Protection Act are in addition to and not in 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.

Therefore, by applying same analogy the presenie of arbitration clause could not be construed to take away the jurisdittion of the authority. t9.

Further, in Afr,ab Singh and ors. v.

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

707 of 2015 decided on 13.07.2077, the National Consumer Disputes Redressal Commission, New Delhi (NCDRC) has held that the arbitration clause in agreements between the complainants and builders could not circumscribe the jurisdiction of a consumer.

The relevant paras are reproduced below: "49.

Support to the above view is also lent by Section 79 of the recently enocted Real Estate (Regulation and Developrnent) Act,2016 (for short "the Real Estate Act").

Section 79 of the said Act reads' as follows:- "79.

Bar of jurisdiction - No ctivil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating oJficer or the Appellate Tribunal is empowered by or under this Atct to determine and no injunction shall be granted by an.y court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act." It can thus, be seen that the said provlsion expressly ousfs the jurisdiction of the Civil Court in respect of any matter which the Real Estate Regulatory Authority, established under Sub-sectit-tn (1) of Section 20 or the Adjudicating )fficer, appointed under Sub-section (1) of Section 77 or the Real Estate Appellant Tribunal established under Section 43 of the Real Estate Act, is empowered to determine.

Hence, in view of the bind'ing dictum of the Hon'ble Supreme Court in A. ourt in A.

Ayyaswamy (supra), the matters,/disputes, which the Authorities under the Real Estate Act are empowered to decide, are non-arbitrable, notwithstanding an Arbitration Agreement between the parties to such matters, which, to a Page \4 of22 ffiHARERA ffiGURUGrIAM complaint No.

B0g4 of 2022 and others large extenl are similar to the dis:putes falling for resolution under the Consumer Act. 'Si;a.

Consrquently, we unhesitatingly reject the arguments on behalf of the Builder and hold that an Arbitration Clause in the afore-statea *iia of Agreements between the Comptainants and the Builder iannot circumscribe the iurisdiction of a Consumer Fora, notwithstanding the amendments made to Section I of the Arbitrotion Act.,, 20' While considering the issue of maintainability of a complaint before a consumer forum/commission in the fact of an existing arbitration clause in the builder buyer agreemen! the hon'ble Supreme Court in case titled as M/s Emaar MGF Land Ltd. v.

Aftab Singh in revision petition no.

2629-3O/2OLS in civil appeal no.

235 L2-23513 of ZOLT decided on tO.L2.2O1B has upheld the aforesaid judgment of NCDRC and as provided in Article 1,41 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts within the territory of India and accordingly, the authority is bound by the aforesaid view.

The relevant paras are of the judgment passed by the Supreme Court is reproduced below: "25.

This Court in the series of judgmenfs as noticed above considered the provisions of Consumer Protection Acl:, 1986 as well as Arbitration Act, 1996 and laid down that complaint under C'onsumer Protection Act being a special remedy, despite there being an arbitration agreement the proceedings'before Consumer Forum have to go on and no error committed by Consumer Forum on reiecting the application.

There is i. here is i.eason for not interjecting proceedings under Consumer Protection Act on thet strength an arbitiation"ogrrr^rnt-by Act, L996' The remedy under C'onsumer Protection Act is a remedy provided io a consumer when there is a defect in any goods or services.

The complaint meons any allegation in writing made by a complainant has also been explained in Section 2(c) of the Act.

The remedy under the Consumer protection Act is confined to complaint by' consumer as defined under the Act for defect or deftciencies caused by a servit:e provicler, the cheap and a quick ,emidy ha, been provided to the consumer which is the object and purpose of the Act as noticed above." 21'' Therefore, in view of the above judgrnents and considering the provision of the Act, the authority is of the view that complainant is well within his Page 15 of 22 Complaint No.

8094 of 2022 and others ed by the respondent are as to what document Housing Policy, 2073. cannot defeat the lisniissal of complaint and 6 .ohjection raised by the G.

24. ffiHARERA ffi" GURUoRAM rights to seek a special remedy available in a beneficial Act such as the Consumer Protection Act and RERA Act, 201,6 instead of going in for an arbitration.

Hence, we have no hesitation in holding that this authority has the requisite jurisdiction to entertain the present complaint and that the dispute does not require to be referred to arbitration necessarily.

F.II Apprehension by the respondent regarding fabrication of the documents by the complainant-allottee.

22.

The respondent has raised an obj n that it has apprehension that the present complaint is found ricated, and erroneous grounds, is perceived as an attempt to e respondent.

It is further stated that the complainant, in an extortionist, seeking to extract money from urgent and unjustified complaint.

23. laint.

23.

The authority vague and false as is fabricated which Further, the the said allegations during the course of a ed to corroborate the same by placing on record ty is of the view that only apprehension respondent stands rejected.

Findings on the relief sought by the complainant.

G.I Direct the respondent to refund the paid-up amount along-with interest.

The complainant was allotted a unit bearing no.

1,602, in Tower-4 having carpet area of 571-105 sq. ft. along with tlalcony with area of 98 sq. ft. in the project of respondent named "Venetian" at Secto r 7 0, Gurugram under the Page 16 of22 ffiHARERA fficllRUcRAM Complaint No.

8094 of 20ZZ and others Affordable Housing Policy, 20L3 vide allotment letter dated 09.03.2021.

Thereafter, builder buyer agreement was not executed between the complainant and respondent in respect of the subject unit.

As per clause 1(iv) of the policy of 20t3, all projects under the said policy shall be required to be necessarily completed within 4 years from the date of approval of building plans or grant of environmental clearance, whichever is later.

Thus, the possession of the unit was to be offered within 4 years from the approval of 7.02.2020J or from the date of environment clearance fnot ).

Therefore, the due date of possession cannot be asce rd, the complainant has paid an amount of Rs.B,B3, failure on the part of the 25. respondent in authority and construction of the unit/flat vide As per the clause 5 amended by the State regarding surrender o from the concerned respondent to start nt has surrendere Housing Policy, .20t9, the relevant 2 013 as provision and the same is reprr Clause 5(iii) ,2013 flats availablefor allotment, may also be prepored during the draw of lots who can be offered the allotment in case some of the successful allottees are not able to remove the deftciencies in their application within the prescribed period of 15 doys. f 15 doys. [0n surrender of flat by any successful allottee, the amount that can be forfeited by the colonizer in addition to Rs.

25,000/- shall not exceed the following: - by the allottee has been laid down PageLT of22 ffiHARERA ffi- GURLJGRAM Such flats may be applicants falling in deficiencies by any , surrender offlat, and on such cases.

If any the waiting list, he booking amount waiting list booking without any i the booking In the present matter, allottee vide letter da respondent in respondent to ca Complaint No.

8094 of 2022 and others mittee for offer to those However, non-removal of not be considered as 000 shall be applicable want to continue in shall refund the ny penalty.

The after which the applicants, be refunded back of lots". dered by the complainant- failure on the part of the 26. clearance and has requested the r*Efund the entire amount paid by 27. him along with interest.

The counsel for the responclent states at objection to refund the amount subject Affordable Housing Policy, 2013. that the to deduction respondent has no of amount as per 28.

The authority vide proceedings dated 02.01,.2024 has allowed refund as per clause 5(iii) of the Affordable Housing Policy, 201,3 and interest to be paid from the date of seeking cancellation till realisation of the amount.

Page lB of22 In case of surrender of flat before commencement of project Upto 1 year from the date commencement of the project 1% ofthe cost offlat Upto 2 year from the date commencement of the project 3% ofthe cost offlat After 2 years from the date of commencement of the proi 5olo of the cost of flat intained for o period of Sr.

Particulars Amount to be forfeited (aa) Nil (bb) Icc) (dd) HARERA Complaint No.

8094 of Z0ZZ and others ffi" GUIIUGI?AM 29' However, it has come to the notice of the authority that the respondent has failed to obtain environmental clearance from the competent authority till date' It is pertinent to mention here thar as per the clause 5 (iii)[bJ of the Afford the Affordable Housing Policy, 2013 as amended by the State Government on 22'07 '2015 provides that if the licensee fails to get environmental clearance even one year of holding draw, the licenr:ee is liable to refund the amount deposited by the applicant al:ng with an interest of l\o/o,if the allottee so desires' The relevant provision is reproduced below for ready reference: "The flats in a specific project shall.bie allotted in one go within four months of the sanction of buitding plons.

In case, the numbe, ojoiitirrtio'rs ,ereived is less thon the number of sonctioned flots, the allotment can be made in two or more phases.

Howeuer, the licenceet will start the constructio, "rti ,f*r receipt of environmentar crearance from the competent authorityt, The licencee will start receiuing the further insiallments only once the environmental_ clearance is reiived.

Further, if the licei:icee, fait to get environmentar crearance even afier one year of holding of draw, the licencee is liabte to refund thi omouni a"poirted by the applicant alongwith an interest of lzot/o, if the ailottee so desires.,, 30' Also, the respondent has raised an ob,jection that complainant allottee is a wilful defaulter and has failed to make payment of the instalments and has thus violated provisions of secllion 19t[61 & (7) of the Act.

In this regard, the authority observes that as pen clause 5(iii)(b) of the Affordable Housing Policy, 20L3, the licencee will start receiving the further installments only once the environmental clearance is received.

As delineated hereinabove, the respondent has failed to obtain environmental clearance till date, thus, are not entitled to receive any further payments.

Hence, the objection raised by the respondent is devoid of merits.

31' Further, as per amendment dated 09.r07.2018 in Affordable Group Hosing Policy, 2013, the rate of interest in case of default shall be as per rule 15 of Page L9 of 22 HARERA Complaint No. plaint No.

8094 of 2022 and others GUI?UGtlAM the Haryana Real Estate (Regulation and Development) Rules,2017.

Rule 15 of the rules is reproduced as under: Rule 1.5.

Prescribed rate of interest- [Proviso to section L2, section 1B and sub-section (4) and subsection (7) of section 191 For the purpose of proviso to section 12; section 78; and sub- sections (4) and (7) of section 79, the "interest at the rate prescribed" shall be the State Bank of India highest marginal cost of lending rate +20/0.: Provided that in case the State Bank of India marginal cost of lending rate (MCLR) is not s.hall be replaced by such benchmark lending rates k of India may fix from time to time for I public, 32.

The legislature in its 15 of the rules has d interest so determi is followed to awa CASES. ate legislation under the rule of interest.

The rate of ble and if the said rule form practice in all the 33.

Thus, the complai nd of the entire amount deposited along with rate as per aforesaid provisions laid down under 34.

Hence, the respo nd the entire paid-up amount as per clause amended by the rate of interest i.e., @10.85% p.a. (the State Bank of India highest marginal cost of lending rate (MCLR) applicable as on date +20/o) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Rules, 2017 from the date of each payment till the actual realization of the amount within the timelines provided in rule 16 of the Haryana Rules 2017 lbid.

Page2O of22 Affordable Housing Policy, 2013 as 22.07.2015, along with prescribed G'II Direct the respondent to pay to the complainant compensation to the tune of Rs.2,0o,ooof- for causing mentar agony by not refunding the amount paid by the complainant 35' The complainant is also seekingielief w.r.t. compensation.

Hon,ble Supreme court of India in civil appeal nos.6745-6249 of 2021 titled as M/s Newtech Promoters and Developers pvt.

Ltd. vs. state of up & ors. up & ors.(supral has herd that an allottee is entitled to claim compensation & Iitigation charges under sections 1,2,1,4,r-B and section 19 which is to be decided by the adjudicating officer as per section 7L of compensation & Iitigation expense shall be adjudged by ting officer having due regard to the factors mentioned in udicating officer has exclusive ffiHARERA #* cuRUGRAM jurisdiction to deal expenses.

Therefo adjudicating offi provisions of the H.

36.

Directions of the Hence, the authority directions under section Complaint No.

8094 of 2022 and others of compensation & legal sed to approach the mpensation under the and issue the following compliance of obligations casted upon the promoter as per the f'unctions entrusted to the authority under section 34(0 of the Act: i' The respondent is directed to refund the entire paid-up amount as per clause 5(iiiJ[bJ of the Affordable Housing policy, Zor3as amended by the State Government on 'zz.0z.2o1s, along with prescribed rate of interest i.e., @L0.85o/o p.a. as prerscribed under rule 15 of the Rules, 2017 from the date of each payment till the actual realization of the amount.

Page 2l of 22 ffiHARERA ffiGURUGRAM ii.

A period of 90 days is given to directions given in this order fai follow. iii.

The respondent is further di against the subject unit before along with interest thereon to e complainant(s), and even i[, any transfer is initiated with respect to subject unit, the receivable shall be first utilized for cleari lottee-complainantIs).

This decision shall mutatis mu to cases mentioned in para 3 of this order wherein details t is mentioned in each of the complaints.

The complaints 38.

39.

Files be consigned (ash5k I,:f r;ay Kumar Goyal) Member Haryana ', Gurugram Dated: 20.02.2024 Page 22 of 22 the respondent to comply with the ing which legal consequences would not to create any third_party rights full realization of paid-up amount 37. t v_.

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