HAWA SINGH YADAV vs OCEAN SEVEN BUILDTECH PVT. LTD.

ffiuqRERA S- ouRuonRu BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision: 24.01.2024 Ocean Seven Buildtech pvt.

Ltd.

PROIECT NAME Golf Heights Appearance Adv, Harshit Batra (Complainant) None (Respondents) Adv.

Harshit Berra (Complainant) None IRespondenrs) ,-- Adv.

Harshit Batra (Complainant) None (Respondents) Adv.

Harshit Ba rr,r (Complainant) None IRespondentsJ Adv.

Harshit Batra IComplainant) None Complaint No.

847 of 2021 and others NAME OF THE BUILDER Case title cR/847 /2021 Suhas Goyal V/s 0cean Seven Buildtech Pvt.

Ltd. and Key 4 you cR/B6s/2021 Alok Goyal V/s 0cean Seven Buildtech Pvt.

Ltd. and Key 4 You cR/923/2027 Hawa Singh Yadav V/s 0cean Seven Buildtech Pvt.

Ltd, and Homzcare Consultancy pvt.

Ltd. cR/92s/2027 Manish Kumar Agrahari V/s Ocean Seven Buildtech pvl Ltd. and Homzcare Consultancy Pvt.

Ltd. cR/e26/2021 Nitin Kumar V/s 0cean Seven Buildtech Pvt.

Ltd. and M/s STG Realty cR/1747/2027 Manoj Singh V/s Ocean Seven Buildtech Pvt.

Lrd. cR/1270/2021 Beauty Raniand 0rs.

V/s 0cean Seven Buildtech pvl Ltd. and Gurgaon Huda Affordable Housing (Respondents) ] Adv.

Harshit Batra (Complainant) None IRespondents) Adr.

H*rlrl, B** I (ComplainanrJ None (Respondents) Page 1of21 .v s.

No.

Case No.

1l 2 3 4 6 7 8 cRl7236/2021, Umesh KumarV/s ocean Seven Buildtech P!t.

Ltd. and Gurgaon Huda Affordable Housing Adv.

Harshit Batra (Complainantl None (Respondentsl 9 cR/7323 /2021 Gena Deviand ors.

V/s 0cean Seven Buildtech PvL Ltd. and Future Capital Realty Adv.

Harshit Batra (Complainant) None (Respondentsl 10 cR/7726/202L Rashmi Kumari V/s Ocean Seven Buildtech Pvt.

Ltd. and Gurgaon..!uda Affordable tl6rising Adv.

Harshit Batra (Complainant) None (Respondents] 11 cR / 4680 / 2020 / 821 / 2021 A fralv/s or:ean l. and Ine Adv.

Harshit Batra IComplainant) None (Respondents) Seven M/s )uruLcLrl rv!, Lt( Team Realistic C WHARERA ffi aJRriGRANl CORAM: Ashok Sangwan This order shall di authority under {i:lqq Complaint No. plaint No.

B47of 2021 and others Member ed above filed before this Estate (Regulation and 1. section Development) Act, ?0L6 [hereinafter referred as ,,the Act',) read with rule 28 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017 (hereinafter referred as "the rules"l for violatioqof sectio n 11[4)(a] ofthe Act wherein it is inter alia prescribed that, the promoter shall be responsible for all its obligations, responsibilifies and functions to the allottees as per the agreement for sale executed inter se between parties.

2.

The core issues emanating from them are sihilar in nature and the complainant(s) in the above referred matters are allottees of the project, Page 2 of 2l HARERA GURUGRAM Complaint No.847 of202L and others terms and conditions of the buyer's agreements fulcrum of the issue involved in all these cases pertains to failure on the part of the promoter to deliver timely possession of the units in question, seeking refund of the unit along with interest.

3.

Despite service of notices through speed pos! email as well as through publication in the daily newspapers i.e., "Dainik Bhaskar" [Hindi) and ',The Hindustan Times" [English) on 03.04.2023, the respondent failed to submit any reply and also failed to put in appearance before the authority.

Therefore, authority was left with n'O !. !her option but to proceed ex-parte against the respondents vide order dated 23.08.2023.

Thereafter, on proceedings dated 22.7L.2023, the proxy counsel for respondent no.1 IMs.

Garima) appeared on its behalfand stated that reply,/r'ill be submitted very shortly.

Thus, in the interest ofjustice, the responde.nt no.1 wasgiven an opportunity to file written arguments within a period of Z weeks with an advance copy to the complainant.

However, the same has not been filed within the time allotted. allotted.

Hence, in view of the same, the Authority is deciding the complaint(s) on the basis of these undisputed documents available on record*Ilsubmissigls{ljadS */ tt}Ecomptainant(sl. rhe detai rs "r,h" l"tp("fr *"t'f,r.ftf;r:fu ,."","",, r,.**", clause, due date of possession, total sale consideration, total paid amoun! and reliefsought are given in the table below: 4.

Proiect Name and Location " GolfHeights " at Sector 69, Gurgaon, Haryana.

Proiect area DTCP License No.

Name ofDeveloper 5.4125 acres 28 of201B dated 02.05.2018 valid upto 01.05.2023 0cean Seven Buildtech Private Limited RERA Registration GGM / 2BS / 2078 / 17 dated 12.10.2018 valid upto 20.04.2023 Page3ofZl a,,/ ffiHARERA # ouRUGRAM Complaint No.

847 of2021 and others Possession Clause: 5.2 Possession Time "The Company shall sincerely endeovor to complete construction of the said unit within 5 years from the date ol receiving of licence (commitment period), but subject to force majeure clause of this Agreement ond timely poyment of installments by the Allotteeb).

However, company completes the construction prior to the peiod of5years the Allottee shall notraise an in toking thepossession after payment ofremoining sale price and other charges stipulated in the to Sell.

The Company on obtaining certifrcate for occupation and use by the Competent Authority hand over the said unit to the Allottee for his/her/their occupation and use, subject to the All complied with all the terms and conditions of the said poticy and Apreementto Sell ond payments made as per payment plan." Occupation Certificate: Not yet obtained fiirffi!

Sr.

No Complaint No., Case Title, and Date of filing of complaint Date of apartment buyer agreement , Unit No. # Unit adm easu ring Due date of Possessio n Total Sale Consideration TotalAmount paid by the complainant Relief Sought 1. cR/847 I 202t Suhas Goyal V/s 0cean Seven Buildtech PvL Ltd. and Ors, DOF: 06.07.2023 T 06.04.20r ' (Page 38 {j . ge 38 {j .orO,",n\ 1108, 11rh IPage 42 of compla int) f] T 1 565 sq.

It Icarp et area) 99 sq.ft (balc ony area) I 70.70.2023 ICalculated as 4 years from date of EC i.e., 10.10.2019 as Per the Policy of 2073) Total Sale Consideration: Rs.23,09,500/- (As per BBA on page 47 of complaint) Amount Paid: - Rs.6,23,565/- to Respondent no.1 + Rs.2,00,000/- to respondent no.2 Refund 2. cR/85s / 2027 Alok Goyal V/s ocean Seven Buildtech Pvt.

Ltd. and ors.

DOF: 12.02.2027 20.04.2019 (Page 34 of complaint) 1101, 11!h floor, Tower- 2 compla int) (Page 36 of '565 sq. ft. (carp et area) 99 sq.ft (balc ony area) 70.70.2023 (Calculated as 4 years from date of EC i.e., 10.10.2019 as per the Policy of 2013) Total Sale Consideration: Rs.23,09,500/- (As per BBA on page 40 of complaint) Amount Paid: - Rs.6,23,565/- to Respondent no.1 + Rs,2,00,000/- Refund PaEe 4 of 2l to respondent no.2 3. cR/923/ 2027 Hawa Singh Yadav V/s Ocean Seven Buildtech Pvt.

Ltd. and 0rs.

DOF: 26.02.2021 10.04.2079 (Page 39 of complaint) 408,4th floor, Tower 4 (Page 44 of compla int) 565 sq. ft.

Icarp er areaJ 99 sq.lt Ibalc 0ny area) t0.70.2023 (Calculated as 4 years from date of EC i.e., 10.10.2019 as per the Policy of 2013) L.w IB TotalSale Considerationl Rs.23,09,500/- (As per BBA on page 45 of complaintJ Amount Paid: - Rs.9,35,349l- to Respondent no.l + Rs.1,70,000/- to respondent no.2 Refund 4. cRl92s/ 2027 Manish Kumar Agrahari V/s 0cean Seven Buildtech Pvt.

Ltd. and 0rs, DOF: 26.02.2021 06.04.2019 (page 37 of complaint) t. \ 565 sq. ft.

Icarp et area] TotalSale Consideration: Rs.23,09,500/- per BBA on 45 of plaint) Paid: - 9,35,349 / - Respondent no.1 + Rs.1,70,000/- to respondent no.2 Refund cR/e261 2027 Nitin Kumar V/s 0cean Seven Buildtech Pvt.

DOF; 23.02.202t 30.04.201!I (page 37 o[ complaint} \ 202, 2nd floor, Tower 3 (Page 44 of compla int) 574 sq.ft. (carp et areal 9B sq.ft (balc ony area) of EC i.e., 10.10.2019 as per the Policy of 2013) Total Sale Consideration: Rs. ation: Rs.23,45,000/- [As per BBA on page 45 of complaint) Amount Paid: - Rs.6,33,150/- to Respondent no.1 Refund 6. cR/r14U 2027 Not executed 7507, Tower 4 574 sq.ft. (carp 10.10.2023 (Calculated as 4 years Total sale Consideration: Rs.23,45,000/- fAs Der Drice Refund MHARERA ffi euRueRRllr Complaint No.

847 of 2021 and others Page 5 of 21 ony | 20131 HARERA GURUGRA[,4 complaint No.

847 of2021and others list on page 26 ofcomplaint) Amount Paid: ' Rs.

I,17 ,250 I - to Respondent no.1(as per receipt dated 26.70.20 from date of EC i.e,, 10.10.2019 as per the Policy of 2013) ( as per allotme nt letter on page 50 of compla et area) 98 sq.ft (balc ony area) Date of allotment letter: 14.03.2019 (page 29 of complaint) Manoj Singh V/s 0cean Seven Buildtech PvL Ltd.

DOF: 08.09.2021 Refund Total Sale Consideration: Rs.23,45,000/- (As per BBA on page 41 of complaint) Amount Paid: - Rs.

9,49 ,7 25 / - to Respondent 1+ 1,80,000/- respondent 10.10.2023 (Calculated :10.2019 04.09.2019 (page 35 of complaint) 1506, 15tr' floor, Tower 4 (Page 40 of cRl7270 / 2027 Beauty Rani and 0rs.

V/s 0cean Seven Buildtech Pvt.

DOF: 22.03.2027 Refund 23,45,000/- (As per price list on page 21 ofconlplaint) Rs.6,:]3,150/- to Respondent 1+ 1,80,000/- to respondent \o.2 Not executed Date of allotment letter: 14.03.2019 lpage 26 complaint cR/1236/ 2027 Umesh Kumar V/s 0cean Seven Buildtech Pvt.

DOF: 19.03.2021 .10.2019 Refund Total sale Consideration: Rs.23,45,000/- [As per price list on page 20 ofcomplaint) Amount Paid: - Rs.

1,17,250 70.10.2023 (Calculated as 4 years from date of EC i.e., 10.10.2019 as per the 574 sq. ft.

Icarp et area) 9B sq.ft Ibalc 7902, Tower 4 (as per allotme nt letter on Not executed Date of allotment letter: 74.03.2019 (page 23 of complaini cRl1323l 2027 Gena Devi and ors.

V/s ocean Seven Buildtech Page 6 of Zl /,/ I 1106, s74 I Tower 1 sq. tt.

I I l I 10.10.2023 Total l;ale I 1 Lcarp [as per I er allotme areaJ nr i 98 letter I sq. tter I sq.ft on fbalc page ony Ze ot L areal com pla I int) l Pvt.

DOF: 79.03.2027 Policy of 2013) to Respondent no.l [as per receipt dated 28.10.2018 cR/77261 2021 Rashmi KumariV/s 0cean Seven Buildtech Pvt.

DOFr 25.03.2027 Not executed Date of allotment letter: 74.03.2079 (page 26 of complaint) 707, Tower 2 (as per allotme nt letter on paSe 23 of compla 574 sq. ft, (carp et area) 98 sq.ft L0.70.2023 (Calculated as 4 years from date of EC i.e., 10.10.2019 as Per the TotalSale Consideration: Rs.23,45,000/- (As per price liston page 23 ofcomplaint) Amount Paid: - k.6,23,770/. to Respondent no.1 Refund tt. cR/4680 / 2020/82r/ 2027 Mohan Agarwal V/s Ocean Seven Buildtech PvL Ltd. and ors.

DOFr 15.L2.2020 05.04.2019 [Page 4B of complaint) TotalSale Consideration: Rs.23,45,000/- As per tlBA on mplaint) 9,49,725 / - Respondent no.1+ Rs.1,90,000/- to respondent no.2 Refund 2073) ffiHARERA HaJRUoRAM Complaint No.

847 of 2021 and others 5.

The aforesaid co against the promoter on acc buyer's agreement executed between the parties in respect of said units for not handing over the possession by the due date, seeking refund ofthe total paid up amount.

6.

It has been decided to treat the said complaints as an application for non- compliance of statutory obligations on the part of the promoter /respondent in terms of section 34(0 of the Act which mandates the authority to ensure compliance ofthe obligations cast upon the promoters, Page 7 of 2l 23of ony compla area) int) complaint No.

847 of 2O2t and others 7.

A, 8.

HARERA ffiGURUGRAM the allottee(s) and the real estate agents under the Act, the rules and the regulations made thereunder.

The facts of all the complaints filed by the complainant[s)/allottee(sJare similar.

Out of the above-mentioned case, the particulars of lead case CR/847/2021titled as Suftos Col al V/s Ocean Seven Buildtech pvL Ltd. and Ors. are being taken into consideration for determining the rights of the allottee(s). lottee(s).

Proiect and unit related details The particulars ofthe project, the details ofsale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have !een detailed.in the following tabular form: CR/847/2021 Suhas Goyat V/s Ocedi Seven Bu dtech pvt.

Details "Golf Heights", Sector 69 Gur Affordable Hou 28 of 2018 dated 02.0S.2018 GGM/28s/2018/ 17 dated 12.10.2078 valid upto 20.04.2023 74.03.2079 e 31 of complaint 1108, 11th floor, Tower 1 Page 42 of comolaint 565 sq. ft. (carpet area) 99 sq.ft (balcony area) Page 42 of com laint 06.04.201.9 (Page 38 of complaint) 5.2 Possession Time "The Company shall sincerely endeavor to complete construction of the said unit within rs ftom the datg of reclyjng of l Particulars Name of the proiect Nature ofthe proiect DTCP license no. and validity status RERA Registered/ not Allotment Letter Unit no.

Unit area admeasuring Date of execution of Apartment Buyer's reement Page 8 ot 21 Possession clause 5 HARERA ffi.

GURUGRAM Complaint No.847 of 2021. and others licence (commitment period), but subject to force majeure clause of this Agreement and timely payment of instqllments by the Allottee(s).

However company completes the construction prlor to the period of 5 years the Allottee shqll not raise an in taking the possession after payment of remaining sole price and other charges stipulated in the to Sell.

The Company on obtoining certificate for occupation and use by the Competent Authoriry hond over the soid unit to the Allottee for his/her/their occupation ond use, subject to the All complied with all the terms and conditions of the said policy ond Agreement to Sell and poyments made os per Payment Plan." 10.

Possession clause in Affordable Housing Poliry 1 (iv) All such projects 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. is later.

This date shall be referred to as the "date of commencement of project" for the purpose of the oolicv.

1t.

Date of environmental clearance 10.10.2 019 (as per averments made by the complainant on Dase 5 of CRA comDlaintl 12.

Date of approval building plans of 20.07.2018 (As per proiect details 13.

Due date of possession 10.70.2023 fCalculated as 4 years from date of EC as per the policv of 2013.) L4, Total sale consideration Rs.

23,09,500/- (As per BBA on page 47 ofcomplaintl 15.

Amount paid by the complainant Amount Paid: Rs.

6,23,565/- ro Respondent no.1 + Rs.2,00,000/- to Respondent no.2 t6.

1i.

Occupation certificate 7!CprndgliSryq4rfilqle Offer of possession Not obtained Not offered Page 9 ol21 I MHARERA #" eunuonnvr Complaint No.

847 of 2021 and others B.

Facts ofthe complaint 9.

The complainant has made the following submissions in the complaint: - I.

That the complainant booked a unit in the project ofthe respondent no.1 named "Golf Heights" at Sector 69, Gurugram under the Affordable Housing Policy 2013 and was allotted a flat bearing no.

110g, in Tower-1 having carpet area of 565 sq. ft along with balcony with area of 99 sq. ft in the said project vide allotment letter dated f4.0.3.2079.

Thereafrer, a builder buyer agreement was.e.x9g.!!ed betlveen the complainant and respondent no.1 regarding the Eaid'illotment for a total sale consideration of Rs.2 3,09,500/- on 06.04.2019.

II.

That the respondent no.z is RERA registered agent having registration number 317 of 201,7 dated L4.09.2017 and was responsible for facilitating the agreement of sale between the complainant and respondent No.1 by acting as an agent.

That the complainant was deceived by respondent no.

1 to pay a sum of Rs.200,000/- towards the misrepresentation that the complainant,s application will only be selected if he pays the said amount immediately.

The complainant being in need of a home for himself and his family paid the said amount to the respondent no. ondent no.z in cash and the same was acknowledged by 1t vide acknowledgement slip dated 29.70.ZOtg.

That the complainants had paid a sum of Rs.6,23,565/- to the respondent- promoter which is more than 27o/o of the total sale value even before entering into any written agreement to sell [BBA), which is a clear violation ofSection 13 ofthe Real Estate Regulation and Development Act, 201.6.

III.

IV, Page lO of 27 + ffiHARLRA ffi ounuonRut Complaint No.

847 of 2021and others V.

That the respondent no.1 has used its dominant position to create arbitrary clauses in the BBA, such as clause 4'5 (i), where the interest on delay/failure of instalment is set @ 15% which is not justified' VI.

That the respondent started issuing demand letters to the complainant demanding payment for the next instalment' However' the complainant was surprised to see that there was no mention of Rs'2,00'000/- that was paid by the complainant at the time of booking to the respondent no 1 in cash mode.

VIL That the complainant had several times visited the site and was devastated to see the fact that the construction ofthe project had not even begun Evcn 16 months after the execution of the builder buyer agreement and after paying a large sum of money to the promoter, there was no progress in the construction at all The complainant also came to know that the promoter received the Environment Clearance only on 10 1Ct 2019' but the promoter had mentioned in the agreement that all the rr:quired approvals havc already been obtained.

VIII.

That the complainant when contacted the other allottees of the same proiect, he was surprised to know that the allottees who sought a loan from the bank to purchase the unit in the project were denied by the banks ontheaccountthattherewasnoconstructionontheprojectsiteatal] while specifically mentioning "thot the progress of properqt wos not up to mark in comparison to the demand roised by the builder' Thus' the bank shall not be proceeding with the disbursement reques ent request' lX.

That the complainant came to the knowledge that the said land in project is a land in dispute in the month of June 2019 only by the way of a Public Notice in the Hindustan Times where M/s Unitech had published two public notices against the respondent no 1 that the land in the said proiect Pagc 71 ot 27 '' HARERA ffi eunuonnr'r is under litigation vide civil suit bearing no.51912017 and is pending against the landowners ofthe project in question and the respondent No 1 in the court of Ms.

Suyasha lawa Cl(lD), Gurugram.

The public notice was to inform the public not to invest in the project.

X.

That the respondent no.1 has sent many demand letters to the complainant demanding the instalments.

However, the complainant has denied paying such instalments because of the fact that no construction had taken place at all at the proiect land XI.

That the complainant has paid an amount of Rs.8,23,565/- towards the payment of the total sales consideration of the unit [Rs.6,23,565/- + Rs.200,000/- as paid on 29.10.2018) and thr:re is not an iota of construction to be seen at the project land.

Xll.

That the latest picture ofthe site shows that no construction has been do nc despite the Iapse of more than 2 years from the date ofbooking which goes to show that the respondent no.1 had a malafide intention from the beginning.

The complainant cannot be expected to wait indefinitely for the possession of the unit when he has already paid a substantial amount and no construction has been done on land which is already disputed' Moreover, with the current progress of the construction as well thc litigation pending on the project land, it is impossible for the respondent no.1 to start the construction and to hand over the possession at the due time.

C, Relief sought by the complainant: - 10.

The complainant has sought following relief(s): I.

Direct the respondent to refund the entire paid-up amount along 4 Page 12 of 27 Complaint No. plaint No.847 of 2027 and others with prescribed rate of interest.

NARERA Complaint No.

847 of 2021and, others ffiGURUGRAII 11.

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] ofthe act to plead guilty or not to plead guilty.

12.

Copies of all the relevant documents have been filed and placed on the record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis ofthese undisputed documents and submission made by the complainant.

D.

Jurisdiction ofthe authority 13.

The authority observes that it jurisdiction to adjudicate the below.

D.l Territorialiurisdiction has territorial as well as subject matter present complaint for the reasons given 14.

As per notification no.

1/92/2017-1TCP dated 14.12.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Curugram District.

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

D.ll Subiect matter iurisdiction 15.

Section 11(aJ(a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11[aJ[a) is reproduced as hereunder: Section 11 (4) The promoter shall- (a) be responsible for all obligqtions, responsibilities and functions under the provisions of this Act or the rules ond regulotions mode thereunder or to the allottees os per the agreement for sole, or to the Page 13 oF21 HARERA Complaint No.

847 of 2027 and others GURiJGRAM qssociation of qllottees' os the case moy be, till the conveyonce ofall the opartments, plots or buildings, as the case may be, to the ollottees, or the common oreos to the ossociation oI allottees or the competent authori nt authority' as the case maY be; Section 3 4-Functions of the Authority: 34(fi of the Act provides to ensure compliance oI the obligations cost upii tie promoters, the ollottees ond the real estate agents under this Act and the rules and regulations mode thereunder' 16.

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

17.

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 Cou rl in Newtech Promoters and Developers Private Limited Vs State of It.P. and Ots.

2027-2022 (7) RCR (Civil)' 357 and reiterated in case of M/s Sana Realtors Private Limited & other Vs Ilnion of India & others SLP (Civit) No.

73005 of 2020 decided on 12,05.2022 wherein it has been laid down as under: "86.

From the scheme of the Act of which o detoiled reference hos been mode qnd toking note of power of odjudicotion delineated with the regutatory aut\olity qnd odiudicating olfcer' whatfinolly cullsout is thqt although the Act inidicotes the distinct expressions like 'refund', 'interest" 'penatty' ond 'compensatioh', a conjoint reoding of Sections 18 and 19 ileorly manifeststhotwhen itcomes to refund ofthe amount, o-nd interest. on tie refind qmount, or directing payment of interest for delayecl delivery ojpossession, or penolty ond interest thereon, it is the regulatory autho;ity which has the power to exomine ond determine the outcome of o compliint.

At the some time, when it comes to o question ofseeking the reliefof odjudging compensqtion and interest thereon under Sections 12' 14,'18 ond 19, the adjudicating officer exclusively hqs the power to de:termine, keeping in vier the collective reoding oJ Section 71 reod with Sec d with Section 72 ofthe Act. ifthe qdjudicotion under Sections 12, 14, 19 and 19 other thqn compensation os envisaged, if extended to the adiudicoting ofjicer as proyed thot, in our view, may intend to expond the ambit ond Page 14 of 21 HARERA Complaint No.847 of 2021. and others ffiGURUGRAIVI scope ofthe powers ond functions ofthe qdjudicating olftcer under Section 71 ond that would be qgainst the mandate of the Act 2016." 18.

Hence, in view ofthe authoritative pronouncement of the Hon,ble Supreme Court in the cases mentioned above, the authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

E.

Findings on the relief sought by the complainant.

I Direct the respondent to refund the paid-up amount along-with prescribed rate of interest.

19.

The complainant was allotted a unit bearing no.

1108, in Tower-1 having carpet area of 565 sq. ft along with balcony with area of 99 sq. ft in the project of respondent named "Golf Heights" at Sector 69, Gurugram under the Affordable Housing poliry 2013 vide allotment letter dated f 4.0.3.2019.

Thereafter, a builder buyer agreement was executed between tlte complainant and respondent no.1 regarding the said allotment for a total sale consideration of Rs.23,09,500 /- on 06.04.2019.

As per clause 1(ivl of the policy of 2013, all projects under the said policy shall be required to be necessarily completed within 4 years from the date of approval of build ing plans or grant of environmental clearance, whiche,rer is later, Thus, the possession of the unit was to be offered within 4 years from the approval of building plans (20.07.2078) or from the date of environment clearance 10.10.2019 (as admitted by the complainant).

Therefore, the due date of possession has been calculated from the date of environment clearance i.c., 10.10.2019, as per policy of 2013, which comes out to be 10.10.2 02 3.

As per record, the complainant has paid an amount of Rs. unt of Rs.6,2 3,565/- to respondent no.1 and an amount of Rs.2,00,000/- was paid in cash to the respondent no.Z to confirm the booking of the flat.

Due to inordinate delay on part ol' the respondent to start construction of the pro ect in question, the Page 15 ot 21 ffi HARERA ffi eunuennvr Complaint No.

847 of 2021 and, others complainant has surrendered the unit/flat by filing the present complaint on L2.02.2021 i.e., after 1.4 years from the date of commencement of the pro,ect.

20.

As per the clause 5 (iiD[h) of the Affordable Housing Policy, 2013 as amended by the State Government on 05.07.2019, the relevant provision is reproduced as under: Clause 5(iii) (h) ofthe affordable housing policy "A wqiting list for a maximum e total qvoilable number oI fiats ovoilable for allotment, may ared during the drow oflots who can be offered the oll t in case some of the successful ollottees qre not able to remove the de in their appliccttion within the prescribed period of 15 days. [On surrender of Jlot by ony successful allottee, the amount thqt cqn be forfeited by the colonizer in addition to Rs.

25.000/-sholl not exLppd thp following: - Sr.

No, Particulars Amount to be forfeited (aa) In case of surrender of flat beFore commencement of project Nil (bbl Upto 1 year from the date of commencement of the project 1Yo ofthe costofflat [cc) Upto 2 year from the date of commencement of the project 3Yo ofthe cost of flat (dd) After 2 years from the date of commencement of the project 5olo ofthe cost offlat ' ,' Such llats moy be considered by the crimmittee for offer to those opplicqnts folling in the waiting list.

However, non-removol of deficiencies by any successful opplicont sholl not be considered as surrender offlat, ond no such deduction of k 25,000 shall be opplicoble on such coses. uch coses. lf any wait listed candidote does not wqnt to continue in thewaiting list, he moy seek withdrawol ond the licencee shallrefund the booking amount within 30 days, without imposing ony penqlty, The waiting list shall be mointained Ior o period of 2 yeors, after which the booking qmount shall be refunded bock to the waitlisted oppliconts, withoutony interest All non-successful opplicants shallbe refunded bock n the booking omountwithin 15 dqys ofholding the draw oflots", Page 16 oF21 Complaint No.

847 of202L and others 21.

22.

Complaint no.

Date of surrender Forfeiture ofamount in addition to Rs.2 5,00 0/- cR/847 /202r 72.02.2027 Respondent is erntitled to forfeit 30/o o the consideration money in addition t, Rs.25,000/- as mandated by the Polic' of 2013 as amended by the Stat Government on 05.07.2019 since th request for surrender is upto 2 yea from the date oF commencemcnt o project. cR/865 /2021, 1.2.02.2021 Respondent is,entitled to forfeit 30lo o the consideration money in addition t Rs.25,000/- as mandated by the Polic of 2013 as amended by the Stat Government on 05.07.2019 since th request for surrender is upto 2 yea from the date of commencement c project. cR/923 /2027 26.02.2021, Respondent is entitled to forfeit 30lo ( the consideration money in addition t Rs.25,000/- as mandated by the Polic of to cy te 1e ar of "f-l to :y te le ar of of to cy tr HARERA ffi aJRriGRAl/ Since the surrender of the unit by the complainant was done after commencement of construction, hence the respondent is entitled to deduct the amount in accordance with clause 5 (iii)(h) of the Affordable Housing Policy,2013 as amended by the State Government on 05.07.2019.

The date of commencement of project has been defined under clausel (ivl to mean the date of approval of building plan or grant of environmental clearance, whichever is later.

In the instant case, the date of grant of environment clearance i.e., L0.70. e., L0.70.2079 is laterdndhence, the same would be considered as date of commencement of proj,ect.

Accordingly, the details of the amount to be refunded as per the policy in each case is as under: Page 17 of2l 4 ffiHARERA S-arnLrennl" Complaint No.

847 of 2027 and others te 1e af of of to cy Lte he ar of of to cy te 1e ar of rcy ate the ear of ;a to cy rte he rar of of to of 2013 as amended by the Stat( Government on 05.07.2019 since th( request for surrender is upto 2 year from the date of commencement o project. cR/92s/2021, 26.02.2021 Respondent is entitled to forfeit 3% o the consideration money in addition t( Rs.25,000/- as mandated by the Polic' of 2013 as amended by the Statl Government on 05.07.2019 since th, request for surrender is upto 2 yea from the date of commencement o .p!oject. cR/926/2021, 23.02.2021, Respondent is entitled to forfeit 30lo o the consideration money in addition t Rs.25,000/- as mandated by thc Polic of 2013 as amended by the Stat Government on 05.07.2019 since th request for surrender is upto 2 yea from the date of commencement L project. cR/r7+r/2021 08.09.2027 Respondent is entitled to forfeit 30/o the consideration money in addition Rs.25,000/- as mandated by the Poli, of 2013 as ;rmended by the Sta Government on 05.07.2019 since tl request for surrender is upto 2 ye from the date of commencement project. cR/L2L0/2021 22.03.2021 Respondent is entitled to forfeit 3olo the consideration money in addition Rs.z5,000/- as mandated by the Poli of 2013 as amended by the Sta Government on 05.07.2019 since tl request for surrender is upto 2 ye from the date of commencement project.

Page 18 of 21 Y I ffi HARERA ffi anuennvr cR/L236/2021, 19.03.2027 Respondent is entitled to forfeit 3% the consideration money in addition Rs.25,000/- as mandated by the Polir of 2013 as amended by the Sta Government on 05.07.2019 since tl request for surrender is uPto 2 Ye from the date of commencement project. cR/7323 /2021 19.03.

021 19.03.2021 Respondent is entitled to forfeit 370 the consideration money in addition Rs.25,000/- as mandated by the Pol of 2013 as amended by the St Government on 05.07.2019 since I request for surrender is upto 2 Yr from the date of commencement project. cR/1726/2021 25.03.2027 Respondent is entitled to forfeit:10/o the consideration money in addition Rs.25,000/- as mandated by the Pol of 2013 as amended bY the Sti Government on 05.07.2019 since 1 request for surrender is upto 2 Yr from the date of commencement project. cR/4680 /2020 1_5.L2.2020 Respondent is entitled to forfeit 3olo the consideration money in addition Rs.25,000/- as mandated by the Pol of 2013 as amended bY the Sti Government on 05.07.2019 since t request for surrender is uPto 2 Yr from the date of commencement project.

847 of 2021and others rof rto licy .ate the ear of of to cy ate the ear of ^# l rn to :licy ;tate I the year ,t of ] /o of nto rlicy tate the lear tof The respondent/promoter is directed to refund the paid-up amount after deduction of 3olo of the consideration money in addition to Rs.25,000/- as per clause 5[iii)[h) ofthe ofAffordable Housing Policy 2013 as amended by Page 19 of 27 23.

HARERA GURUGRA[/ Complaint No.847 of 202L and others the State Government on 05.07.2019, along with prescribed rate ofinterest i.e., @10.850/o p.a. (the State Bankof India highest marginal costof lending rate IMCLR) applicable as on date +20/o) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Developmentl Rules,2017 from the date surrender/withdrawal of allotment till the actual realization of the amount within the timelines provided in rule 16 of the Haryana Rules 2 0 1 7 ibid.

24.

The respondent no.2 is directed to refund the brokerage amount of Rs.2,00,000/- received by it from the complainant after deduction of C.5% of the sale consideration of the unit.

F.

Directions ofthe authority 25. hority 25.

Hence, the authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of obligations casted upon the promoter as per the functions entrusted to the authority under section 34(l) of the Act: i.

The respondent/promoter is directed to refund the paid-up amount received by it from each ofthe complainant(s) after deduction of 3%r of the consideration money in addition to Rs.21i,000/- as per ciause 5(iii)(hl ofthe ofAffordable Housing Policy 2013 as amended by rhe State Government on 05.07.2019, along with prescribed 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 +270) as presffibed under rule 15 of the Haryana Real Estate (Regulation and Development] Rules, 2017 from the date surrender/withdrawal of allotment till the actual realization ofthe amount.

Page ZO of 27 ffiHARERA #,eunuennrr,r The complaints stand dispos ii.

The respondent no.

2 (i.e., real estate agent) is directed to refund the amount of Rs.2,00,000/- received by it from the complainant(sJ, after deduction of 0.50lo of the sale consideration of the unit_ iii.

A period of 90 days is given to the respondent to comply with the directions given in this order failing which legal consequences would follow.

26.

This decision shall mutatis mutandis apply to cases mentioned in para 4 of this order.

Files be consigned to regi Haryana Real Esta Dated: 24.07.2024 Complaint No.847 of 2O2l antl others Page 2l ofZl 27.

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