SHASHI YADAV vs FOUR S DEVELOPER PRIVATE LIMITED

Complaint no. complaht {ited on I Dare otde.ision R/o:- 418,llrban [state, Sector 7, curugram- 122001 Versus I Iqls 45 Developers Private Limited.

2.

ShriSarfaraz ( Real Estate Agent of MS Realtors) Both baving office at. - 2 floor, HUB 66, Ansal Essencia, Sector65, Gurugram, Haryana - 122002 CORAMI Shrivijay Kunrar Goyal APPEARANCE: sh SukhbirYadav(Advocate] Sh ShashiYadav (Complaina.t in person) Sh.

Dhruv Rohatsi lAdvocate) 1 Complarnt No.

985 orl022 HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM 9AS ol2022 10.03,2022 o4.o2,2024 HARERA GURUGRA]V BEFORE THE ORDER The present complaibthas been filed by the complainanr/allotte€ under sectibn 31 ofthe Real Estate (Regulation and Developmenr) Act, 2016 (in short, the Actl read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 [in short, the Rules] for violation ofsection 11(4)(a) oitheActwherein it is interalia prescribed that the promoter shall be responsible for all obligarions, respons,bilities and functions to the allottee as per the agreemenr for sale executed iraer se them. *HARERA $-ctrnucnnttr ComplainINo.9SSof 2022 A.

Unitand proiect related details 2.

The particulars of unit details, sale consideration, the amount paid by the complainant, date ofproposed handing over the possession, delay period, ilany, havebeen detailed in the followi.g tabular form: Drrails 1.

Name and location of Aradhya Homes, Sector 67-A, Curugram Nature ofthe project 3.

2.58 acres ,1. &gistered vide no.27 ot 2020 Wd 22.06.2020 5 31.01.2021 6 4143, 3d floor 1.

Total a u. s-07 -242r Page 41 ofthe complaint) t0 Date ol buyer's 11 Cannot Afcenalr€d 12 Due date olpossession 1:l Total sale consideration Rs 1,38,00,000/ 14 Amount paid by the Rs.5,00,000/- (Annexure C'2 page 38 of the complaint) Occupation certificate 17 Reiund request made by the complainant r3.08.2021 (Pase no.39 ofthe complaint) HARERA B, GURUGRA[/ Facts ofthe complalnr The complainanthas lnade the following subnissions: - a. ions: - a.

ThataroundJulr 202l, the Complainant atong with herfamity was on the lookout to purchase a residential apartment on readily avaitable basis for their own personat requirement and bona fide use.

The respondenr no.

2 namely Mr.

Sarfaraz ading as authorised and registered real estate agent ot M/s 45 Developers private limired app.oached and represented that the respondent company was developing project of exclusive ,ndependent residential floors under the name and style 'ARADttfA,fioiuEs, in Secror 67-A, curugram and lhdt rhe reipondenr company berng devetoper rs developing the project under'the vide regjstered license and reg,stration certifl care.

It was fu rther rcpresented by.espondent no.

2 that respondent company is a well-estabtished company in rhe field ot real estate and represented that the respondent wi iulnl a their assurances/promises and that all transactions with the respondent willbe iair, transparent and as per established law. b.

That the respondent no.2 shared prospecrus/b.ochure regarding the above-mentioned project followed by various telephonic calls.

Thereafte., th€ respondentNo.2 arranged sitevisit and showed 4 BHK independent floors in phase II oftfie said project to the complainant and her family.

The respondent no.

2 represented to rhe comptajnant that an independent 3rd floor unir bearing no.

4183 in phase II ofthe projectisavailableattoralsaleconsiderationof Rs.1,38,00,000/,. c.

Thatthe respondent no.2 even arrangeda me€ting with the sales ream headed by Mr.

Priyank Shukla, of th€ respondent/promorer. rn the meeting the agents ofthe respondent company represented that the ComDlaintNo 93s nf2n22 t HARERA GURUGRA[/ Complaint No.

985 of 2022 respondent/promoter has obtained all requisite approvals, sanctlons, etc. from the concerned covt. rned covt.

Departments/Authorit,es and that the respondent has clear title ofland (project site) and that the land was lree from all kinds ofencumbrances and that there was no d,spute of aDy kind and that no litigation ofany kind was pending in respect of the land for the project site.

The respondents persuaded the compla,nant to makethe booking right away to availthe prices, as the prices were soongo,ng to be revised by the respondent.

Further, it was repres€nted to the complainPFt by the respondents that the independent floors in the proiiiat aie readily available and possession shall be delivered in December 2021. d.

Eelieving the representationr assirances and promises made by the respondent/promoter, to be true and relying upon the same, after initial apprchensions, the complainant gave in to ,ncessant persuasion, pressure and coaxing.caused bythe respondents and ag.eed to make initial payment as dqmanded.

Accordingly, the complainant gave a cheque bearing no.

604029 dated 25.07-2021 tot an amount of Rs.5,00,000/' issued in lavour of respondent company.

The said cheque was encashed byiespondent no.1 on 27.07.2021.

Pertinently thesales head namelyMr.

Priyank Shukla acknowledged the receiving ofthe said cheque against the unit bearing no.4183. e.

That after, the initial payment of the aiorementioned amount the respondent no.2 did not show any documents viz.

RERA registration, site and floor plan, project approvals etc. to the complainant.

The complainant made several requests to both the respondents to show all the necessary documents .€lated to the project.

On 06.0a.2021 the husband of the complainant alons with her daughter-in-law, on her U HARERA GURUGRA]\I behalfmet sales head namely Mr.

Utkarsh ofthe respondent company along with respondent no.

2 and boih the respondents again assured to the husband ofthe complainant that documents will be provided. provided.

However, the agent ol the respondent instead of showing the necessary documents; demanded another instalment of 30% of the total sale consideration.

I Despite several requests made by the complainant and her iamily members, the respondents did not produce any documents related to the project for verification bl4th$ complainant.

The complainant got suspic,ous ofthe conduct oftlili:r€t'pondents and did some research and the suspicion of the complainant was fortified when it was apparent that the respondent does not have necessary approvals and the possession cannot be given by Dec€mber, 2021 under any circumstance.

Hence, u nder compelling circumstanc€ the compla,nant wrote an email dated 13.08.2021 to the respondent seeking refund of g.

That the respondent no.

2 acting.through its legal counsel Mr.

Canesh Kanath replied via email dated 14.08.2021 interalia stat,ng that the amount paid by the complainant lF non-refundable.

That it came as a shock to the complainant that the respondent has arbikarily alt€red the unit numberand escalated the price ottotalsale consideration that was represented to the complainantatthe time ofmaklng th€ booking.

Apropos to submit here that the unit ag.eed to the complainant was 3rd floor in unit no- 4183 in phase ll ofthe project whereas the unit ment,oned in the email by the agents ofthe respondent company has allotted a unit bearing no.4143 at total sale consideration ol Rs.1,5 5,00,000/-.

The complainant has not executed any document viz Conplainr No q85 ol2022 *HARERA !i- eunuenml booking application, agreement etc. with the respondent company, therefore the respondent had arbitrarily altered the terms of mutual understanding between the parties.

The complainant has been rendered helpless and has lost all bargaining power with the respondents after the payment ofthe initial amount. h. amount. h.

Thereafter, the complainant tried to contact respondeDt no- 2 and the concerned sales persons in respondent company seeking clarification Complainr No 985of2022 rurlher relused lo \how dny documents related to the prorect w'(l nur along with requestto process the relund olthe amount paid.

However, the respondents blatantly refused to refund the amount paid and lhat the complainant in her email dated 23.08.2021 sent to thc respondents reiterated her claim and g.ievances regarding change of unit and price ol sale consideration.

The respondent/pronroter receiving another instalment of30% ofthe balance s.rle consideratio..

She was left with no other alternative then to respond to the email d atcd 14.8.2 0 21 sent by respondent/promoter. nggressively responded via emai mail ot eveD date aDd threatened the rid by the con)pl.rlnant s,idroLt t has already paid subnantial amount to the respondent in good faith, whereas after facingmalicious conduct olthe respondents, the complainant is seeking refund ofthe amount paid.

The complainant was in genuine need of a residential apartment and due to the mala fide actions of the respondents, hard earned money oi rhe complainant and her lamily is stuck with the respondent company.

That the respondent is trying to extort money from the complainant wirhout executing any agreement to sell.

Pertinently, submitted here HARERA GURUGRAN1 ComoLarntNo 985 of20ZZ that copy of booking appl,cation or builder buyers agreement was never shared with the complainant and it was never inlormed to the complainant that the advanceamount paid by the complainant is non- reiuDdable.

Further, the project is nowhere near completion.

The r€spondent had no intention of complet,ng the project within the rimeline represented to the complainant.

The acts ofthe respondents of alluring the complainant, demanding and receiving payment without disclosing/showing necessary documents and without disclosing terms otbooking anC*llotmenl are clearly fraudulent a audulent and malafide in nature.

This amouirts to gross mis.epresentation by the respondent company.ltis apparent from the latest photographs taken on ll.72.2}21ofthe site that the.Iroject vras never intended to be completed and is nowhere near completion. k.

That without the o(€cution of the bu,lder buyer's agreement the respondent is not entitled to forfeit any amount paid by her.

Further, the complainant has iequested for refund at initial stage only.

There is no progress in transaction betiveen the parties as neither allotment letter nor any confirmation letter was issued by the respondent company to the complainan!

On the contrary both tbe parties never reached the stage ofexecuting the agreement to sell.

Pertinently the respondent does not have necessary approvals and documents necessary lor the handover of the possession by December, 2021 which was the paramount requirement ol the complainan!

The complainant had cateSorically submitted her requi.ement to the respondeDt at the time of lookout Hence the respondents have delrauded and auured the complainant with false representations in making payment of Rs.5,00,000/'.

That said, now when the *d$ HARERA GURUGRA[/ ComplaintNo c85o12022 compla,nant is seeking refund oithe paid up amount, the respondent is taking advantage of its dominant position and is causing huge wrongfulloss,enormousinconvenience,mentalagony,nentaltorture and hardship to the complainant by threatening to fo rfeit the amount.

C.

Reliefsought by the complainart: 4.

The complainant has sought following rel,ef(sll L Direct the respondent to refund the total amount of Rs.5,00,000/_ received by the respondent to the complainant along with inte.est from the date of actual payme-qt by the complainant till the date of refund of the entire amount;s per provision ol the Act of 201 6. ll.

Directthe respondentto pai litlgation cost of Rs.1,0 0,000 /-.

5.

000 /-.

5. on the date of hearing, the authority exptained to the respondent/ prornoter about the contraventions as alleged to have been committed in relation to section 11[4) (a) ofthe Act to plead gu,lty or not to p]ead guiltY .

Reply by the respondent 'lhe respondent has co.tested the complaint on the followinggrounds a.

That the project namely "Aradhya HomeJ', Sector 674, has been d eveloped on land situated in Teh sil and District c u ru8ram 'lh at th e respondent has already obtained regiskation in respect of the said project vide no.

RC/REP/HAREM/GGM/471 I 143 l2o2A /27 darcd 22.06.2020 from th€ authority.

That the occupaoon c€rtiffcate ofthe said project has already been received ot 12.04.2022. vide memo no.

3774 lrom the District Town Planner, Gurugram.

That the complaint nled by the complainant is highly misplaced, misconceived and premature, hence is not maintainable under the D *HARERA 9t cunuennl,t p.essure oi.espond€nt.

1 prolect and when co complaintNo.9S5of 2022 facts and circumstances of the case.

That the complainant has filed the present complaint based on false and misconceived lacts.

That no cause ofaction arose against the respondent as in terms of the Act o42016, the developer has received the occupation certifi cate and complete their proiecton tim€.

Hence, on this ground alone the complaint is liable to be dismissed.

That the complainant had booked th€ unit bearing no.4183 in the project olthe respondent n: .,e., Aradhya Homel wrthoul any f.

That the complain xeating to respondent by her act d. ainant was aware about the said came to meet the answering rroject details on publicdomain oi the above-mentioned floor. :d to complainantto clear her purchas,ng the said unit/floor but respondeni was helpless due to complainant misconduct- g.

That the respondent suffered damages/losses as the said unit /floor was notalloBedto any third partyand it got stucked forconsiderable period oftime in th€ name of complainant and therefore the amount given agai given against the booking otfloor has been forfeited and therelore the €omplainant is not entitled for the refund ofany alleged amount. dues because they are facing many problems because of complainant's conduct as many customer were in queue for *HARERA *db- cLrnuenlut 7. lJ, I llistrict.

The.efo.e, this authority has complete territorial jurisdiction to dealwith the present complaint.

E.ll Subiect matter jurisdiction 10.

Section 11t41(a) of the Ac!

2016 provid€s that the promoter shall be responsible to the allottees as per agreement lor sale Section 11[4)(a] is reproduced as hereunder: 'tilr rn" p,o.ot",,nat tire Curugram District for ComElaintNo.9S5of 2022 Copies ofall the relevant do€uments have been filed and placed on the record.

Their authenticity is notin dispute.

Hence, the €omplaint can be decided on the basis of these uodisputed documents and submission made by the parties as well as the written subm,ssion of the complainant.

The respondenthas filed the written submissions on 08.02.2024 which are taken on record.

No additional facts apart from the reply has been st.ted the written submissions lurisdiction of the autho 'Ihe applcation ol the .esp arding rejection of, complaint on ground of jurisdicrio authoriw observes that it lction to rdJUdrcatc the present complaint for Resulatory Authority, 14.12.2017 issued by isdiction of Real Estate T =l e juri HARERA GURUGRAI\,4 (a) be resporsible lot oll obligonons, responsibtltttes ond lunctions u^det the prclisions of this Act or the rules ond regulotions ndde rhereundet q to the ollottees os pet the ogeenent lot sole, ar to the o$aciotion ofollottees, as the cose na! be, ttll ke conveydhceofoll the opd.tnenLt, plots ot buildings, as the cdse na! be, to the ollottees, or the connon arcas ta the oeciotion olollottees o. the canpetent outhority, os the cde noY be) Sectiot 34. ectiot 34.Functions ol the Authonty: 34A of the Act proides to ensurc conpliohce ol the obligotions cost upoh the prohoters, the olloiees ohd the reol estotc agents undet thisActond the rulesond rcgulations node thereundet.

11.

So, in view ofthe provisions oftheAct quoted above, the authority has complete jurisdiction to decide the complaint regarding non_ complianceof obligationsbythepromote.leavingasidecompensation which is to be decided by the adjudicating ofticer if pursued by the complainant at a later stage.

12.

Further, the authority has no hltch in proceeding with the complaint and to grant a reliet ot reiund in the pres€nt matter in view of the judgement passed by the Hon'ble Apex Court in lvewtech Pmmoaers anit Developers Prlvate l,lnlted vs State ol U,P, ond ors (Supra) ond reiterated in cdse of M/s Sano Realtors Prlvak Limited & other vs Union oJ lndto & others SLP (CMI) No.

13005 ol 2020 decided on 12.05.2022 whercin ith,as been laid down as under: "36 from th. shne of the Act of whici a detoiled rcJetence hos been node ond toking note ol power of adjudication delineakd wth the regulotory duthonE and adidnating oftceL whot fnallr culh out is that olthough the Act indicotes the distinct .xpressions like tefund, lntetett, peno\ry' ond conpensotion, a conjoinr rcoding al Sections 13 dnd 19 clea y nontesL\ thot wheh itconesta rcfund ol the onount,o^d interestonthe refund onorna otdrccttlq Povnent oJ interqt lot delayed deliverJ of Posessioh, ot penalty and intetest thereon, it 6 the regulotary authorit! which hos the poeet tu exanne and deternine the autcone olo conplainL At the so e ttme |9heh t cones to a qustion of seekihg the reliel of adtudging conpensotion ond interesttheteon undet Sections 12 14 fiond19, the odjtdicating alfcer exclusivel! hds the pawer ta d.tetnine keeping inviewrhe co ective reoding ofkction 71rca. ion 71rca.lwith Sectian 72 of the Act i[the odjudication under Sectians 12,14 18ond 19 other thon conpensdtian os envisosed, il dtended to the ComDlaintNo.985ot2022 *HARERA s-cLrnrcnnl,t Comph'ntNo.985olZ02Z odjudicdung olicet os ptoted thot, in out view, no! intend to expond the anbit and rope of the powe$ ondfundnns ofth. adiudicotins oJlcet undet s.dion 71 ond thot woltd be dgoihst the nondate of the Act 2a16." 13.

Hence, in view of the authoritative pronouncement of the Hon'ble Supreme Court in the cases m€ntioned above, the authoriry has the jurisdiction to entertain a complaint seeking refund ol the amount and interest on the refund amouDt- F.

EindinSson the relief sought by the cohplainant F.l Direct the respondebt io refund the total amount ol Rs.5,00,000/- received by the r€spondeot to the complainant along wlth lnterest toop the, date of actual payment by the complainant Ull the daerfrefund ot the enrire amount as per provision otthe Act of2016. " 14.

The complarnant submirs rhar sld paid an dmounr ol R(.5.00.000/_ through cheque dateal25.07,2021, for which no receipt was issued by th€ respondent 1n this r€gard.

Vide email dated 14.08.2021, the .espondent issued a plot bearing no.

4143, ln 3'n floor, lor a total sale consideration ot Rs.1.55 Crore and with a payment term: "(il 30% amount of, the sale considerat,on wirhjn 15 days from the date of booking i-e., onlbeiore 10.0&2021and (iil Balance 70% at the time ol offer otpossession." The complainant stopped further payment due to fai)ure on the partofthe respondent to provide the relevant documents after multiple reminders, Hence, the compla,nant vide email dated 23.08.2021 requested the respondent tor refund ofthe paid up amount of Rs.5,00,000/- as soon as possible.

15.

The respondent submits that it had made many calls and requested to the complainant to clear her dues because they were facing many problems because ofher condurtas many custom€r were in queue for purchasing the said unit/floor, butthe res butthe respondentwas helpless due to complainant misconduct.

Thatthe complainant cheated the respondent IARERA GURUGRAN/ by ber act and theretore the respondent has suffered a huge loss because of default committed by the complainant by not making the further payments towards the booking ofthe above mentioned floor.

16.

Upon perusalofthe documents on record, the authority observes that the pleas raised bythe respondentare not sustainab le for the lollowing reasons. rirstl, the complainant has made a payment ofRs.5,00,000/ to the respond€nt towards bookingamount and the respondenthas also admifted payment oithe same in the reply so filed by the respondent.

However, the respondent has failFd to issu€ any re€eipt w.r.t to the payment made by the complaliiadallottee and has not annexed the same with the reply nl€d by the ieipondent.

Secondty, the respondent vide email dated 14.09.2021 has raised a demand of 30% of the conside.ation which was payable within 15 days from the date ol booking i.e., 10.08.20 21 without execution on the agreement ior sale as mandated by section 13 ol the Act of 2016- Thlrdly, it is pertinent to note that the respondent has even tailed to place on record any application form through which lhe conplainant has approached the respondentforbookingolaunitlnthesaidpro)ect.Also,therespondent upon receipt of the booking amouDt has failed to issue any allotment letter in favour of the complainant allotting a unit in the said project.

The respondent has failed to state any rcason as to why an allotment lett€r was not issued by respondent despite rece,ving the said amount from thecomplainant.

Further, the respondent failed to place on record anydocumentbywhichtherespondenthasraisedfurtherdemand from the complainant which she failed to pay.

No demand letter or reminder has been placed on record.

Moreover, the respoDdenthas nevershared any copy ofagreement with the complainant and no BBA was executed ComplarntNo. mplarntNo.985 of 2022 *HARERA S- crnttcnlttt complaint No 985 of2022 inter se parties.It is b€yond the imagination of the authority as to why the .espondent has forfeited the booking amount paid by the complainant without even fulfilling the obligations cast upon it and in absenceof anyapplication aorm/allotmentlette./BBA.

17.

Also, the Maharashtra Real Estate Appellate Tribunal in the case titled as Mr.

Dinesh R Humone .tnd Anr. versus Piramal Estate tuL Ltd. doted 77.03.2027,rhe following has been observed: ''ln the instont cose the tronsoctton al solc and purchose ol the llot is concelled at initial stose.

Allott@s nerety boakea the lat ond poid sone onount to\|otds boakins ond Muted lettet lot tequett al reeflotion of Lae llut i pnNea |a.a t \?@l4r thet ? . na p,ag,.-,1th. t,o..o.tan oro aeithpr ohotnpat lqLer not djnqtnoton teue, t, $ed b) P.a4o'p, Agrcenent fa. sote ts not ercuela Aeween the pontes Panres never reoched to the stoge oJ decunns as.eenent Jot tute.

There was na attenpt ta execute asreetueht on the port ol eithet port!. tn such .ncunstoncet Attonees .onnat ctdin rcfund onthebosis olbindins ellect ot cloure (13) of "nodet osrcenent" for sote under rules ol RERA.

In foct, ctotn al Attottees lor refuntt canhot be supported br cto^e 1e olhodet agreenent lor soh undet REP.4 rules Refuna alanount paid ro prcnoter con be denonAed os per Section 13 of REM on the g.otnd thot pronoter lails ta give possesean onagreed doEorloihtaca plete the prctect os Per terms an.l condition\ ofdgreement fat sale-frunsaction in the inslant cate B not goeerned b!

Section 18 aJ REF,. ln thb pecullat motten though the cloim ol retund b not govened by ohy sp.c$c preli'ioi of RER4 it cannot be ignored thot object ol RE,, ls to pfotect in .rest ol consuner, so, whotever anount is poi., by home-b4!e. to the prMoter shoul.l be refun.let! to the A ottee on hh withdraMl FM th. pNjecl" 18.

Njecl" 18.

1n view of the reasons stated above and iudgement quoted above, the respondent was notwithin its rightto retain amounts received irom the complainant.

Thus, the complainant is entitled to get refund of the entire amount paid by her.

The authority hereby directs the respondent-promoter to return the amount received by it i.e, Rs 5,00,000/' within a period of90 days from this order. r.l I Dlrec! tte respondcnt to pay lldsadon cost of Rs.1,0o,000/-.

19.

The complainant is seekingabove mentioned reliefw.r.t. compensation.

Hon'ble Supreme Court of India in case titled as M/s Newtech *HARERA *.eunuennlr G.

20.

ComDlaint No.

985 of 2022 jurisdlction to deal with the a,nt in respect of compensation & u., - >/ tviiay ld-ma r Goya I ) Member Haryana Real Estate RegulatoryAuthorty, Gurugram Promoters otd Developers M.

Ltal.

V/s State ol Up & Ors.

2021- 2022(1) RCR (C), 357 held that an allottee is entitled to claim compensation &litigation charges undersections 12,14,18 and section 19 which is to be decided by the adjudicating officer as per sedion 71 and the quantum of compensation & lit,gation expense shall be adjudged by the adiudicating officer having du€ regard to the factors mentioned in section 72.

The adjudicaring omcer has exclusive Directlons of the authori Hence, the authority r and issues the following ensure compliance oi ction entrusted to the d rhe prrd-up amou nt leibantwithin90d.vr ch legal consequence will oiRs.5,00,000 from the date of follow 21.

Complaint stands disposed oi.

22.

Iile be consigncd to registry.

Page 15 of15