RISHI GANDOTRA AND GAURAV GANDOTRA vs VATIKA LIMITED

ffiHARERA ffi eunuennvt BEFORE THE HARYANA REAL ESTATE REGUTATORY AUTHORITY' GURUGRAM Date of decision: 03'01'2024 Member 1.

This order shall d ed as above filed before (Regulation and Act") read with rule 28 ofthe Haryana Real Estate [Regulation and Development) Rules' 2017 [hereinafter referred as "the rures") for violation of section 1,1(4)[a) of the Act wherein it is inter alia prescribed that the promoter shall be responsibleforallitsobligations,responsibilit.iesandfunctionstothe allottees as per the agreement fbr sale executed lnter se between parties' 2.

The core issues emanating from them are similar in nature and the complainant(s) in the above referred matters ane allottees of the project' Page 1 of26 I Complaint No.

1955 and 1956 of 2022 CORAM: Shri Ashok Sangwan / M/s Vatika Limited "INXT CitY Certtre" APPEARANCE Shri Amitabh NaraYan, Advocate and Ms.

Ankur BerrY Advocate cR/tess/2022 ShriAmitabh NaraYan, Advocate and s.

Ankur BerrY Advocate cR/L9s6/2022 o ffiHARERA ffialRucnnH,r namelf, "INXT City Centre" being developed by the same resporfdent/promoter i.e., M/s Vatika Limited.

The terms and conditions of the puilder buyer agreement and allotment letter against the allotment of uni{ in the said project of the respondent/builder and fulcrum of the issues involved in these cases pertains to failure on the part of the p.o-fter to complete the construction of the project, seeking unpaid assurep return along with interest at the prescribed rate, refund, etc.

Complaint No.

1955 and 1956 of 2022 3.

The details of the complaints, to,q..!atus, unit no., date of agreement, possession clause, due date o esSion, total sale consideration, total Buyer frcom the date of execution of this agreement till the completion of construction of other owners, on lease, for and on behalf of the Bruyer, as and when the said Building/ said Commercial Unit is ready and fit for occuJr;rtion. uJr;rtion.

The Buyer has clearly understood the general risks involved in giving any prerrrises on lease to third parties and has undertaken to bear the said risks exclusively without any liability whatsoever on the part of the Developer or the Confirming Party.

It is further agreed that: (i)The .Developer will pay to the Buyer Rs.

65/- per sq, ft. super area of the said Commercial Unit as committed return for up to three years from the date of Page2 of26 Proiect Name and "INXT City Centre", Sector 83, Vatika India Next, Gurugram, Haryana.

RA pletion of construction of the said Building or till the said Commercial Unit is put on lease, whichever is earlier.

After the said Commercial Unit is put on lease in the above manner, then payment of the aforesaid comrnitted return will come to an end:rnd the buyer will start receiving lease rental in rerspect of the said commercial unit in accordance with the lease documents as may be executed and as described hereinafter. fv)The Developer expects to lease out the said Commercial Unit (individually or in combination with other adjoining units) at a minimum lease rental of Rs.

65/- per sq. ft. super area per month for the first term (of whatever period).

If on account of any reason, the lease rent achieved in respect of the first term of the lease is less than the aforesaid Rs.

65/- per sq. ft. super area per month, then the Developer shall pay to the Iluyer a onetime compensation calculated at the rate of @ Rs.120/- per sq. ft. super area for every one rupee drop in the lease rental below Rs.

65/- per sq. ft. super area per month.

This provision shall not apply in case of second and subsequent leases/ lease terms of the Commercial Unit. vi) However, if the lease rental in respect of the aforesaid first term of the lease exceeds the arforesaid minimum lease rental of Rs.

65/- per sq, lt. super area, then the Buyer shall pay to the Developer additional basic sale consideration calculated at Rs.

60/- per sq. ft. er sq. ft. super area of the said commercial unit for errery one rupee increase in the lease rental over and above the said minimum lease rental of Rs.

65 /- per sq. ft. super area per month.

This provision is confined only to the lirst term of the lease and shall not be applicable in case of second and subsequent leases/lease terms of the said commercial unit.

Assured return clause in complaint bearing no.

1956-2O22: CLAUSE LZTO THE AGREEMENT DATED 23.05.20T6 Since the Buyer has paid the full basic sale consideration for the said Commercial Unit upon signing of this Agreement and has also requested lbr putting the same on lease in combination with other adjoining units/spaces of other owners after the said Building is ready for occupation and use, the Developer has agreed to pay Rs.

71.50/- per sq. ft. super area of the commercial unit per month by way of assured return to the Buyer from the date of execution of this agreement till the completion of construction CompJ[aint No.

1955 and 1956 of 2022 Page 3 of 26 Y' GURUGRAM ffiHARERA ffi- aJRUG;RAM Complaint No.

1955 and 1956 of 2022 of the said Building.

The Buyer hereby gives full authority and powers of the Developer to put the said Commercial Unit in combination with other adjoining commercial units of other owners, on lease, for and on behalf of the Buyer, as and when the said Buildi{tg/ said Commercial Unit is ready and fit for occupation.

The Buyer has clearly under$tood the general risks involved in giving any premises on lease to third parties and has undertaken to bear the said risks exclusively without any liability whatsoever on the part of the Developer or the Confirming Party.

It is further agreed that: (i)The Developer will pay Rs.

65/- to the Buyer Rs.

65/- per sq. ft. super area of the said tCommercial Only Unit as of completion of construction put o,n lease, whichever is earli the above manner, then end and the buyer *turn for up to three years from the date ing or till the said Commercial Unit is l Unit is e said Commercial Unit is put on lease in rnitted return will come to an hereinafter. (v)The Developer expects to lease out the said Commercial Unit (individually or in comtlination with other adjoining unitsJ at a minimum lease rental of Rs.

65/- per sq. ft. super area per month for the first term (of whateve r period).

If on account of any reason, the lease rent achieved in respect of the first terrn of the lease is less than the aforesaid Rs.

65/- per sq. ft. super area per month, then the Developer shall pay to the Eiuyer a onetime compensation calculated at the rate of @ Rs.120/- per sq. ft. supelr area for every one rupee drop in the lease rental br-.low Rs.

This provision shall not apply in casr: of second and subsequent leases/ lease terms of the Commercial Unit. (vi) Ho,wever, if the lease rental in respect of the aforesaid first term of the lease exceeds the aforesaid minimum lease rental of Rs.

651- per sq. ft. super area, then the Buyer shall pay to the Developer additional basic sale consideration calculated at Rs.

60/- per sq. ft. super area of the said commercizrl unit for every one rupee increase in the lease rental over and above the said minirnum lease rental of Rs.

This provision is confined only to the first term of Page4of26 yl Complaint No.

1955 and 1956 of 2022 the Iease and shall not be applicable in case of second and subsequent leases/lease terms of the said commercial unit.

1 2 3 4 5 6 7 s. no.

Complaint no. / Title/ Date of F;iling / Ilenlv Unit no. and area Date of builder buyer agreemen t Due date of possession Total sale considera tion and amount paid Reliefsought 1. cR/7ess/ 2022 Rishi Gandotra and Gaurav Gandotra v/s M/s Vatika Limited DOF.

05.05.2022 Reply- 24.08.2023 77L6, 11th Floor, Block F ol 500 sq. ft. [Page 57 ol complaintl ; E !

I 23.05,2079 (Deemed due dateJ .."Fortune ;Infrastructure iand Ors, ys. '.4 Trevor D'Lima );and Ors. ^.(72.03. ^.(72.03.2018 ! sc); : MANU/sc/ozss/ 2018 Hon'ble :Apex Court 'observed that "a person cannot be made to wait' indefinitely for the ipossession of the .flats allotted to them and they are entitled to seek the . refund oI the amount paid by " them, along with i compensation. ) Although we are aware of the fact that when there .was no delivery period stipulated inthe agreement, a reasonable time hos to be taken into consideration.

In the facts and circumstances of this case, a time period of 3 years would have been reasonable for TC- Rs.

17,50,000 AP- Rs.

17,50,000 o Pay to the complainants an amount of Rs.

22,750/- from April 2018 till October 201.8 i.e. amount of difference in relation to the commitment charges. .

Pay compensation @Rs 71.5- per sq. ft. per month from November 2018 till the complainants withdrew from the project. r The respondent promoters be punished under section 59 of the Act and directed to pay a penalty of 1070 of the estimated cost of the projecL Page 5 of26 t/ HAR RA completion of the contract In view of the above-mentioned reasoning, the date of execution of BBA i.e.

23.05.20L6 ought to be taken as the date for calculating the due date of possession.

Therefore, the due date of handing over of the possession of the unit comes out to be 23.05,2019.

Refund the sum deposited by the comlainants with the resPondent along with interest.

Pay to the complainants an amount of Rs.

22,7501- from APril 2018 till October 2018 i.e. amount of difference in relation to the promoters be punished under section 59 of the Act and directed to PaY a penalty of 10% of the estimated cost of the proiect.

Pay @Rs 7 - per sq. ft. from 2018 till TC- Rs.

17,50,000 t- 7,50,000 Rishi Gandotra and Gaurav Gandotra Yls Irl/s Vatika Limited DOF. ct'.05.2022 Reply- 2:.4.08.2023 Fortune Infrastructure and Ors.

Ys.

Trevor D'Lima and Ors. (72.03. s. (72.03.2078 2078 Hon'ble Apex Court observed that 'a person cannot be made to wait indefinitely for the possession of the allotted to them and they are entitled to seek the refund of the amount paid bY them, along with compensation.

Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable' Complaint No.

1955 and 1956 of 2022 Page 6 of26 r' GURUC;RAM 2 11rl Fo , ft.

56o rintl Complaint No.

1955 and 1956 of time has to be taken into consideration, In the fac* and circumstances of thls case, a time period of 3 yeors would have been reasonoble for completion of the contract In view of the above-mentioned ing, the date 'Iotzrl cons icleration Basic sale price DOF TC BSP AP 4. [t has decided to treat the aforesaid complaints as an ap on for no pliance of statutory obligations on thre part of the p / t in terms of section 34(0 of the Act which ma ty to ensure compliance of the obligations cast upon the s) and the real estate agents under the Act, the autho the al reguli PageT ofz6/ ons made thereunder.

RA 23.05.2016 ought to be taken as the date for calculating the due date of possession.

Therefore, the due date of handing over of the possession of the unit comes out to be 23.05.2019. table referred above certain abbreviations have been used' They are elaborated as HARERA GURUGRAM Complaint No.

1955 and 1956 of 2022 A.

6.

The facts of the complaints filed by the complainant(s)/allottee(s) are also similar.

Out of the above-mentioned case, the ;particulars of lead case CR/1955/2022 titled as Rrshi Gandotra and Gaurav Gandotra V/s M/s Vatika Limited are being taken into consideration for determining the rights olf the allottee[s) qua the reliefs sought by thre complaina:nt-allottees.

Project and unit related details The particulars of the project, the details of sale consideration, the amount paid by the complainant[s), date of proposed hancling over the possession, delay perriod, if any, have been detailed in the ed in the follo'nring tabular form: CR/195,5/2022 titled as Rlshi Gandotra and Gaurav Gandotra V/s M/s Vatika Limited.

S.no.

Particulars Details 1.

Vatika INXT City, gur,re at Sector 83, Gurugram, Haryana 2.

Nature of the project 3.

Area of the project 4.

DTCP license no.

722 of 2008 dated 1.4.06.2008 Valid up to t3.06.2016 5.

HRERA registered or not Not registered 6.

Date of builder buyer pgreement 23.05.20L6 [Page 25 of complaint] Page 8 of26 M HAR LtL6,11m Floor, Block F of 500 sq. ft. [Page 57 of complaint] nit no.

23.05.20t9 (Deemed due date) Fortune Infrastructure and Ors. vs, Trevor D'Lima and Ors. (72.03.2078 SC); MANU/SC/O?53/2078 Hon'ble Apex Court observed that "a person cannot be made to wait indefinitely for Che prrssession of the flats allotted to them and they are entitled to seek the refund of the '.amount paid by them, along with compensation. :Although we are aware of the fact that when there t was no delivery period stipulated in the agreement, a reasonable time has to be taken \into consideration. ,ln the focts and circumstances of this cese, a time period of 3 years would have been reasonable for completion of the contracL e date of handing over on lease, for and o,n behalf of the Buyer, as and when the said Building/ said Commercial Unit is ready and fit for ocr:upation.

The Buyer has clearly understood the general risks involved in giving any premises on lease to third parties and has undertaken to beirr the said risks exclusively without any liabiltir whatsoever on thry44 olltte Assured return/ committed rerturn as Per Annexure A of BBA Page 9 of26 Complaint No.

1955 and 1956 of 2022 r 7. tL. )ossession 12.

GURUG Complaint No.

1955 and 2022 1956 of Developer or the Confirming Party.

It is further agreed that: (i)The Developer will pay Rs, 65/- ro the Buyer Rs.

65/- per sq. lt. er sq. lt. super area of the said Commercial Only unil as committed return for up to three years from the date of completion of construction of tlhe said Building or till the said Commercial Unil; is put on lease, whichever is earlier.

After the said Commercial Unit is put on lease in the abov,e manner, then payment of the aforesaid commil.ted return will come to an end and the buyer will start receiving lease rental in respect of the said commercial unit in accordance with the lease documents as may ;;,,.:,beSxecuted an d :rs d escri b ed he rei nafter, (v)The Developer expects to lease out Commercial Unit (lndividually or in nation r lease with other adjoining units) at a minim rental ofRs.

65/- per sq. ft. super area month for the first term (of whatever period on in account ofany re,ason, the lease rent respect of the first term of the lease is the aforesaid Rs.

65/- per sq. ft. super a per month, then the Developer shall pay to a onetime compensation calculated at' @ Rs.120/- per r;q. ft. super area for Buyer rate of one rupee drop in ther lease rental below Rs. sq. ft. super area per month.

This not apply in case of second and s/ lease ternns of the Commercial Unit. w€rr',if the lease rental in respect of t safil,,first term of the lease exceeds t 'saiil friinimum lease rental of Rs.

65/- p siiier area, then the Buyer shall pay to t dIUT tr afore sq. ft. s-'' Developer additional basic sale - per sq. fL super area unit for every one rental over and rental ofRs.65/- month.

This first term of the subsequent leases/lease terms commercial unit.

L4, total sale consideration Rs.

17,50 ,000 /- [Page 27 of cornplaint] 15. rmount paid by the omplainants Rs.

17,50,000/- [Page 23 of cornplaint] Page 10 of261/ RA B.

7. ffiHARE ffiarRUG Facts o The a.

The the Compl;rint No.

1955 and 1956 of 2022 the complaint plainants have made the following submi:;sions in the complaint: ndent misled the complainants by giving false promises that rojectwould be completed by 31.05. by 31.05.2017,, The respondent further an assured return,/r rent/cornmitment charges @ Rs. e rate of Rs.

3500 per sq. ft. of approxim;ately 500 sq. ft' super area -with the tax amount of Rs.

76,125/-. 'fhe payment of sale price made vide cheque number 000191 dated on 20'03 '2016 for Rs' 6,6L2.5.Thereafter, a builder buyer agreement dated 23'05'2016 executed by the respondent.

The tabulation in relation to the t made to the respondent is provideil below: tv pn 7L co. squ Ind con Cer Thr 29. blo po! reI Th sal at alc wa 18 wa ..'t,..1 i 0/- per sq. ft.till the cP; n of the project.

Thereafter, upon tal at the rate of Rs.65/- Per d. ffer of possession Not obtained upation certificate ced by the promised ameniti Page 11 of26 feet was respondent allotted the unit bearing no.

71L6 vide letter dated .20L6 on F, by Not offered of e.

As clause tZ of the builder buyer dgr€€rxL€nt, the to pay Rs.

71.50 per sq ft super area of the said com th by way of assured return to the buyer from the of on of the builder nt i.r:.

May 23, 2016 the also n of constructi Further, the same that the the complainants - per sq. to bui ng or till on lease, wh is earl ', th ts of the w.e.f.

I e bank account lainants at the per sq. ft. t of Rs.

71.50 pe only ll Febru rate was uni HAR Rs. the super area years had unit committed up construction of said red the the t. ft. ally rbe by the respondent to Rs.

65 per sq. ft.

T'hat this ratr: red con letion of the project.

The project has not erven been comp from Rs.

71.50 per sq. ft. to Rs.

6li per sq. ft. onl leave alone the promised amenities.

The ent made the payment of the assurred returns at th of per sq. ft. till September 2018.

However, after Septembe ndent abruptly stopped making payment of any 0r.8, Lt by Complaint No.

1955 and 1 2022 Name of bank 20.03.20L6 '1,8,26,725 way assured returns. ,/ PageLZ of26 Complaint No.

1955 and 1956 of 2022 h. of 2022 h.

To this date, the respondent has not even registered the project with the Hon'ble Real Estate Regulatory Authority, Gurugram, Haryana.

The Iand proposed to be developed far exceeds five hundred square meters.

Even the apartments proposed to be developed are in thousands.

The projgct comes within the ambit of RERA Act and was mandatorily requfred to be registered.

The respondent has not complied with the said pandate provided under Section 3 of the Real Estate (Regulation $.,{gspondent has not registered the ded by Section 3 of REM.

0n coulcl not have advertised, \ ' li, ingited persons to purchase a unit or 4*",I0, winds the mandate of . e$'has committed an offence h'Seetiori 59 of the RERA Act.

The and Mr.

Manish Agarwal are liable to be imprisoned for a term of three years or with further fine of 10 per cent or vrjith both on account of continued violation of Section 3 of the RERA Act.

The complainants have been regularly and repeatedly following up with the respondent and its officials and enquiring about the payment of the assured returns and the status of the proiect.

However, there has been neither any payments of the assured returns from October 201,8 nor delivery of possession of the commercial unit.

When the Page 13 of26 HARE Act.

The respondent is Iiable to pay a penalty of 1,0o/o of the ted cost of the real estate project. 'Ihe directors of the rdent, namely, Mr.

Gautam Bhall:r, Mr.

Anil Bhall:t, Mr.

Brij 'e Singh, Mr.

Surender Singh, Mr.

Vijenden Kumar, Mr.

Keshav fha ffiHARERA ffiarnuennrr,r the work on the project site was still not completed.

The survey of the project site revealed that there was a lot of r,vork that needed to be done.

Photographs taken by the complainants of the project reveal that the project with all the promised amenities is far from complete.

As per the website of the Directorate of Countny Town and Planning, Haryana, the license to gl;lstl.Uft is valid orrly till 13th |une 2016.

Thereafter there are no dp. are no dp.guments/ informertion on the website of further extension of license to cbnstruct in favour of respondent. t/ Page 14 of26 Complaint No.

1955 and 1956 of z022 complainants visited the project site, they were surprised to find that C.

8.

1955 and 1956 of 2022 sum deposited by the complainants with the respondent along with interest. about the contraventions as section L7(4) (a) of the Act t D.

10. ng of rd/ or Th$ respo mparp{ having -not takenr registration from SEBI rrd cannot run, operate, continue an ass assured return scheme.

The Boar implications of enactment of BUDS Act read with the Companies Act, 20L3 and Companies (Acceptance of Deposits) Rules,201,4,resulted in making the assured return/committed return and similar schemes as unregulated schemes as being within the definition of "Deposit". b.

As per Section 3 of the BUDS Act, all unregulated deposit scheme has been strictly banned and deposit takers such as builders, cannot, Page 15 of2{ the till HAR b.

Pay an amount of Rs.

22,750/- per month from April 20t8 October 1-8 i.e. amount of difference in relation to the c.

Pay Rs 71.5/- per sq. ft. per month from November 20L8 withdrew from the project. till 9.

On the Reply the The complaint before this Ld.

Authority as the relief-s being on the deposit schemes have been banned.

HARERA GURUGRAM CompJlaint No.

1955 and 1956 of 2022 directly or indirectly promote, operate, issue any advertisements soliciting participation or enrolment in; or accept deposit.

Thus, the section 3 of the BUDS Act, makes the assured return schemes, of the builders and promoter, illegal and punishable under law.

Further as per the Securities Exchange Board of Inclia Act, L992 collective investment schemes as defined under Section 11 AA can only be run and operated by a registered person/company. n/company.

Hence, the assured return scheme of the become illegal by th igite parties/respondent company has on of lraw and the opposite parties/respondent compan5/"cannot be made to run a scheme which d. commercial space for earning rental inconrr:.

Furthermore, as per clause 12[viii) of the agreement, the said cornmercial space shall be deemed to be legally possessed by the complainants.

Hence, the commercial space booked by the complainants are not meant for physical possession.

The complaint has been filed by the complainants just to harass the respondent and to gain unjust enrichment.

The actual reason for filing of the present complaint stems from the chan;ged financialvaluation of the real estate sector, in the past few years and the allottee malicious intention to earn some easy buck.

The Co',rid pandemic has given Page 16 of26 ,. ffiHARERA *e- alnuonnr'r though the circumstances, construction.

The respondent construction township'Vati in projects comprised in trol ofthe respondent such as the follows: [a) Non acquisition of land by Haryana Urban Development Authority (HUDA) to lay down of Sector roads 75 rntr and 60 mtr wide and the consequent litigation for the same, the issue is even yet not settled completely; (b) Labour issue, disruptions/delays in supprly of stone aggregate and sand due to court orders of the courts;, unusually heavy rains, / PageLT of26 Complaint No.

1955 and 1956 of 2022 people to think beyond the basic legal way and to attempt to gain financially at the cost of others.

The complainants have instituted the present false and vexatious complaint against the respondent company who has already fulfilled its obligation as defined under the BBA dated 23.05.2076.

The complainants entered into an agreement i.e. builder buyer's agreement dated 23.05.20L6 with respondent company owing to the name, good will and the respondent company.

That according to the terms o 23.05. s o 23.05.201 6, the construction was duly informed to the of unit was comp complainants vi B.

That due to external circumstances timeline al setback due to external company was facing urnprteen rozrdblocks in ffiHARERA fficuRuGRAM delay in supply of cement and steel, declaration of Gurgaon as 'Notified Area'for the purpose of ground water, (cJ Total and Partial Ban on Construction due to the directives issued by the National Green Tribunal during various times since 201,5. (d) The National Green Tribunal (NGT)/llnvironment Pollution Control Authority (EPCA) issued directivr:s and measures IGRAP) to counter the deterioration in Air quality in Delhi-NCR region especially during the wjntqi months over the last few years.

Among various measures NGT, EP!1 HSPCB and Hon'ble Supreme court imposed a complete ban onicrinstruction activities for a total of 70 days over various pefl,gds from Novembe r 2l,oL5 to December 201,9. (e) Additionally it imposed a set of partial re,strictions, some of which are i.

No construction activities between 6 pm till 6 am (L7 4 days) ii.

Stop the usage of Diesel Generator Sets (128 days). iii.

Stop entry of Truck Traffic into Delhi, iv.

Close brick kilns, Hot Mix plants and lStone Crushers. v.

Stringently enforced rules for dust control in construction activities and close non-compliant siites. vi.

This year, partial restrictions continued to be in place in NCR region. t0 The several stretches of total and partial r:onstruction restrictions have led to significant loss of productivity' in construction of our projects.

We have also suffered from der:nobilization of the labor working on the projects, and it took sevr:ral additional weeks to resume the construction activities with thre reQuired momentum.

1955 and L956 of 2022 Page 18 of26 Upon the issuance of the DTCP License, the concerned department levied a certain fee in order to fulfil the EDC development work, which has been delay,ed and not comp the government authorities. thorities.

The incomplertion of such devel works resulted in minor alterations in timelines of the however the respondent yet managed to r:omplete the 1,1,.

Copi of all the relevant documents have been filed and authenticity is decided on these undi co E. of the 72.

The dent to en present plaint fo autl has torial as 13.

E.

I As per erritorial and Co ntry Pla Re pu with offices situated in Gurugram.

In the present case, th inq on is situated within the planning area of Gurugram Therefo this authority has complete territorial jurisdiction to the complaint. ect matter i urisdiction Authority, Gurugram shall be entire rGurugram E.

II Complaint No.

1955 and 1 2022 ment nd IDC ute.

Hence, the compl and submission by t ect, the be the ing ju on of rity ct. on can n to adj .-12.201,7 issued on of Real at it the all ject trict. with 19 of26 t/ HARERA record.

Their ffiHARERA ffiarRuGRAM Complaint No.

1955 and 1956 of 2022 74.

Section 77(4)(a) of the Act, 201,6 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 17(4)[a) is reproduced as hereunder: Section fi@)(a) Be responsible for all obligations, responsibilities antd functions uncler the provisions of this Act or the rules and regulations: made thereuneler or to the allottees as per the agreement for sale, or to the association of allottees, as the case may be, till the conve,yance of all the apartments, plots or buildings, q the case may be, l:ct the allottees, or the common areas to the assdCiatibn;.of allottees or the competemt authoritlt, as the case moy b?, ,," ' .

Section 34-Functions of thi Authority: 34(fl of the Act provides to ensilrg'compliance of the obligations cast upon the promoters, the allottees.afid the real estate agents under this Act and the rules and regulationsmade thereunder.

15. under.

15.

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

Findings on the obiections raised by the respondent.

F.I Obiection regarding force maieure.

The respondent-promoter has raised the contention that the construction of the tower in which the unit of the complainaLnt is situated has been delayed due to force majeure circumstances such as orders passed by the Hon'ble SC, NGT to stop construction, notification of the Haryana state pollution control board, etc.

Further, the respondent cited lack of labor and construction material.

The plea of the respondent regarding various orders F.

1,6. v Page 20 of26 ffiHARERA ffiaJRuGRAM G.

77.

1955 and 1956 of 2022 of the SC, etc., and all the pleas advanced in this regard are devoid of merit.

The orders passed by SC banning construction in the NCR region were for a very short period of time and thus, cannot be said to impact the respondent- builder leading to such a delay in the completion.

Further, the promoter should have foreseen issues such as labour :rnd material shortage beforehand and thus, the promoter-respondent cannot be given any leniency on the basis of afo and it is a well-settled principle that a person cannot take be wn wrong.

G.II Pay to the complainants an amount of Rs.21,,,7 50 / - per rnonth from April 20LB till Octoller 2018 i.e. amount of diifference in relation to the commitment charges.

18.

79.

G.III Pay compensation @Rs 7L.5/- per ft. month from The aforesaid reliefs being connected are therefore dealt with together.

The complainants were allotted unit no.

1,1,16,11th floor, block/tower F in the project "Vatika INXT City Centre", Gurugram, Haryana of the respondent/builder for a total consideration of Rs.

L7,50,000/-. ,50,000/-.

The agreement to sell was executed between the parties on 23.05.201,6.

Page 2l ot z{ Findings on the The common issues ffiHARERA ffi GuRUGRAM Complaint No.

1955 and 1956 of 2022 However, there was no timeline provided for the possession. ltherefore, in view of the judgement in Fortune Infrastructure and Ors. vs.

Trevor D'Lima and Ors. (72.03.2018 SC), MANU/SC/0ZST/2078, where the Hon'ble Apex Court observed that "a person cannot be made to wait indefinitelyfor the possession of theflats allotted to them and the-v are entitled to seek the refund of the amount paid by them, ttlong with compensation.

Although vte qre aware of the fact that when the,re wqs no delivery period stipulated in the agreement, ? re,lslnable time has to be taken into "..i... \. , consideration.

In the facts and circumstances of thi:; cese, a time period of 3 years would have been reasonabir,p, completion of the contract. lnview of the above-mentioned reasoning, the date of the agreement to sell dated 23.05.201.6 ought to be taken as the date for calculating the due date of possession.

Therefore, the due date for handing ov'er the possession of the trnit cornes out to be 23.05.2019.

20.

It has come on record that against the total sale consideration of Rs.

17,50,000 f -, the complainants have paid a sum ,of Rs.

17,50,t100/- to the respondent.

However, the complainants contended that the unit was not offered to them despite this, and no occupation certificate has yet been obtained.

Hence, in case allottees wish to withdraw from the project, the promoter is liable on demand to return the amount received by the promoter with interest at the prescribed rate if it fails to complete or is unable to give possession of the unit in accordarrr:e with the terms of the agreement for sale.

This view was taken by the Flon'ble Suprelme Court of Page22 of26 9/ ffiHARERA ffiGuRUGRAM Complaint No.

1955 and 1956 of 2022 India in the cases of Newtech Promoters and Dev'elopers Private Limited vs. imited vs.

State of U.P. and Ors. (supra) reiterated in the case of M/s Sana Realtors Private Limited & other vs.

Union of India & others SLP (Civil) (supra) wherein it was observed as under: - "The unqualified right of the allottees to seek refund referred I|nder Section 18(1)(a) and Section D@) oJ- the Act is not dependent on any contingencies or stipulat'ions thereof.

It appears thot the legislature has. consciously provided this right of refund on demand as an ttnconditional absolute right to the allottees, if the apartment, plot or b terms of the agreem orders of the attributable an obliga the rate compensa ' to give po:ssession of the 'time stipulated under the unforesee'n events or stay in ,either way not promoter is under nd with interest at 21.. functions under the provisions of the Act of ,1.01,6 or the rules and regulations made thereunder or to the allottees as per the agreement for or is unable to give possession of the unit in accordance with the terms of the agreement for sale or duly completed by threl date specified therein.

Accordingly, the promoter is liable to the allottees, as he wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by respondents/promoter in respect of the unit with interest at such rate as may be prescribed.

Page23 of26 tV 22.

HARERA GURUGRAM Complaint No.

1955 and 1956 of 2022 23.

11(4)(a) read with section 1B(1) of the Act on the part of the respondenr is established.

As such, the complainants are entitlect to a refund rcf the entire amount paid by him at the prescribed rate of interest i.e., @ B.B5% p.a. [the State Bank of India highest marginal cost of lending rate [MCLR.) applicable as of date +2o/o) as prescribed under rule 15 of the Haryana Real Estate fRegulation and Development) Rules,201,7 from the date of each payment till the actual date of refund of the amount within tfre timelines provided in rule 16 of the Haryana Rules 201,7 ibid.

25. ibid.

25.

Further, it comes to the notice of this Authority that the comlllainant has already received a certain amount towards assured return as per the terms agreed between them.

However, in this case tlhe allottee intends to withdraw from the project.

Therefore, a refund of the paid-up amount will Page24 of 26 HARERA GURUGRAM be granted only after deducting the amount/assured return already credited in the account of the complainant.

26.

The authority hereby directs the promoter to return the amount received by it i.e., Rs.17,50,000/- with interest at the rate of 10.85% (the State Bank of India highest marginal cost of lending rate (MCLR) applicable as on date +2o/o) as prescribed under rule 15 of the Haryana Real Estate (Regulation ,{ Page25 of26 Complaint No.

1955 and 1956 of 2022 of the Rules ibid.

16 of the Rules ibid.

28.

This this of 90 days is given to the respo:ndent to comply ons given in this order failing which legal consequ ints stand disposed of.

True certified cropy of this Complaint No.

1955 and 2022 HARERA GURUGRAM File be consigned to Haryana utatis mutandis apply to cases mentioned in para 3 of Authority, Gurugram 1,.2024 Page26 of26