UMA DEVI LAKHOTIA vs RAMPRASTHA ESTATES PVT. LTD.

ffi HARERA S- e[nuerw CORAM; Ashok Sangwan ORDER 1.

This order shall dispose ofall the 2 complaints titled as above filed before the authority under section 31 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred as,,the Act,,) read with rule 28 of the Haryana Real Estate [Regulation and Development] Rules, 2017 [hereinafter referred as "the rules") for violation of section j.1(4)(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

NAME OF THE BUILDER M/s Ramprastha Developers Private Limited PROIECT NAME "Ramprastha City" s.

No.

Case No.

Case title APPEARANCE 1. cR/7278/2022 Uma Devi Lakhotiya Y/s M/s Ramprastha Developers Private Limited Prashant Khatana Advocate IComplainant.) R.

Gayatri and Navneet Kumar Advocates (Respondent) 2. cR/7279 /2022 Deepika Lakhotiya v/s M/s Ramprastha Developers Private Limited Prashant Khatana Advocate (Complainant) R.

Gayatri and Navneet Kumar Advocates (Respondentl BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision; 24.O1.2024 Complaint No.

7278 of 2022 and l other Member Page 7 of 27 r,.

HARERA ffiGURUGI?AM 2.

3.

Complaint No.

7278 of 2022 and 1 other The core issues emanating from them are similar in nature and the complainant(sJ in the above referred matters are allottees of the project, namely, " Ramprastha City" (Residential plotted colonyJ being developed by the same respondent/promoter i.e., M/s Ramprastha Developers Private Limited.

The terms and conditions of the agreement to sell and allotment letter against the allotment of plot in the upcoming project ofthe respondent/builder and fulcrum of the issues involved in all these cases pertains to failure on the part of t}le pfomoter to deliver timely possession ofthe plots in question, posselsioii{leng with delayed possession charges along with inte with interest and other.

The details of the complaints, reply.to gtatus, plot no., date of agreemenr, possession clause, due date of possession, total sale consideration, total Ha Possession Clause: - Not Provided Proiect Name and Location Proiect area DTCP License No.

Name ofLicensee RERA Resistration paid amount, and relief sought are given in the table below: "Ramprastha City", Sectors 92, 93 & 95, Gurugram, 12 3.5687 acres 44 0f 201.0 dated 09.06.2010 valid upto 08.06.2016 Licensee- Ram rastha Housin Pvt.

Ltd. and others Re stered vide no.

13 0f 2020 dated 05.06.2020 Page 2 of 2l Sr.

No Complaint No., Case Title, and Date offilingof complaint Reply status Plot No.

Date of execution of plotbuyer's agteement Due date of Possession Total Considerat ion / Total Amount paid by the comPlaina nts [In Rs.l Relief Sought 1. cR/727A /2022 Uma Devi Lakhotiya M/s Ramprastha Developers Private Limited Date ofFiling of complaint- 17.11.2022 Reply received 05.04.20 23 Not allotte d I 10.05.2012 (Page no.

128 ofthe complaint) 10.05.2015 lCalculated lnfrostruct Oas. vs.

D'Limaand Ors. (72.03,201 8-SC); MANU/SC// 0253/2018 l TSC:' 30,00,000/- + EDC/IDC and other charges payable to SOVernment 30,00,000/, (as per agreement dared 10.05.2012 on page 129 comPlain0 of300 sq. yards plo!, n along with delayed n charges 2. cR/?

279 /2022 Deepika Lakhotiya M/s Ramprastha Developers Private Limited Date ofFiling of complaint- 17.1r.2022 Reply received 05.04.20 23 Not allotte d 10.05.2012 (Page no.

128 ofthe complaint) 10.05.20 r5 lCalculated as per lnfrastruct Off. vs.

D'Limaond Ors. (12.03.201 8 - SC); MANU/SC/ o253/2O18 l TSCi - 30,00,000/- + EDC/IDC and other charges payable to 30,00,000/ (as per agreement dated 10.05.2012 on paqe 129 complain0 Allotment of300 sq. yards plot, Possessio n along with delayed possessio n charSes Noter In the table referred above certain abbreviations have been used. been used.

They are elaborated as followsr Abbreviation Full form TSC- Total Sale consideration AP- Amount paid by the allotteefsl ffiHARERA Heunuennnr Complaint No.

7278 of 2022 and l other Page 3 of 21 ffiHARERA S-ounuerw Complaint No.

7278 of 2022 and l other 4.

The aforesaid complaints were filed against the promoter on account of violation ofthe agreement to sell against allotment of plots in the upcoming project ofthe respondent/builder and for not handing over the possession by the due date, seeking award of possession along with delayed possession charges.

5.

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(fJ of the Act which mandates the authority to ensure compliance ofthe obligations cast upon the promoters, the allottee(s) and the real estate agents under the Act, the rules and the regulations made thereunder.

6.

The facts ofthe complaints filed bythe co mplainan r(s) /allottee (s) are also similar. out of the above-mentioned case, the particulars of lead case CR/7278/2022 titled ds Uma Devi Lakhotia V/s IuI/s Ramprastha Developers Privote Limited are being taken into consideration for determining the rights of the allottee(s) qua delayed possession charges along with interest and others.

Proiect and unit related details The particulars of the project, the details of sale consideration, the amount paid by the complainant(s), date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: CR/7278/2022 titled as Uma Devi Lakhotia V/s M/s Ramprastha Developers Details "Ramprastha City", Sectors 92, 93 & 95, Gurugram, Haryana 123.5687 acres Residential Colon 44 of2010 dated 09.06.2010 valid upto 08.06.2016 A.

7.

Private Limited.

Particulars Name ofthe project Proiect area Nature ofthe proiect DTCP license no. and validiW status Page 4 of 2Y HARERA ffiGURUGRAI/ 5.

RUGRAI/ 5.

Name of licensee Ramprastha Housing PW.

Ltd. and others 6.

RERA Registered/ not registered Registered vide no.

13 of 2020 dated 05.06.202 0 7.

RERA registration valid up to 31.12.2024 8.

Plot no.

Not allotted 9.

Plot area admeasuring 300 sq.

Yds. (Page no.

129 oFthe comDlaint) 10.

Date of execution of agreement 70.o5.2012 fage no.

128 of the complaint] 11, Possession clause Not Provided 72.

Due date of possession 10.05.2015 [Calculated as per Fortune Infrasfu'ucture and Ors. vs.

Trevor D'Lima and Ors, (72.03.2078 - SC); MANU/SC/0253/2018t Total sale consideration Rs.30,00,000/- + EDC/IDC and other charges payable to government [As per agreement dated 10.05.2012 ol pase 729 of comolaintl 14.

Amount paid by the complainant Rs.30,00,000/- [As per agreement dated 10.05.2012 on page 129 of comolaintl 15. occupation certificate /Completion certificate Not received 1,6.

0ffer of possession Not offered Facts ofthe complaint The complainant has made the following submissions in the complaint: - The complainant booked a plot in the year 2012, vide agreement dated 1,0.05.20L2, measuring 300 sq. yds. with the respondents in Sectors 92 and 95 of Gurgaon, Haryana in a township being developed by the respondent.

The project was to be launched shortly and possession of the plot was to be given within a reasonable time from the date of execution ofthe agreement. vage s or zI Complaint No.

7278 of 2022 aod l other B.

8.

I.

HARERA ffiGURUGRAI/ Complaint No.

7278 of 2022 and l other III.

The said project has been launched, but even after expiry of more than ten years of payment and agree&gllt,.the allotment and possession has not been offered to the complaiii.ii(The agreement executed between the parties clearly proviaes tniiiiiie of delay in launch oftownship and II.

Thatthe complainanthad paid an amount of Rs. unt of Rs.30,00,000/- at the time of execution ofthe agreement on the written assurance that the possession ofthe booked plot would be delivered within a reasonable period of time and the complainant chose to trust the respondent in view of its then prevalent reputation in the market and thus parted with her hard-earned money. consequent lack of interest by the complainant herein, the respondent will pay the amount equivalent to the prevailing market rate in the area.

The conduct of the respondent in not ofFering the possession to the complainant of her plot even more than ten years after the acceptance of the total consideration amount clearly speaks of gross deficiency in service and one which amounts to unfair and restrictive trade practice.

That a letter dated 10.10.2017 was sent by the complainant to the respondent seeking allocation ofthe plots or payment of Rs.

1.5 Crores to the complainant if they fail to allocate her plot within the next 15 days.

No response was forthcoming from the respondents to this letter.

The respondent kept on corresponding over the phone and even met the AR of complainant a Few times, but they were not willing to adhere to the contract and compensate the complainant at the agreed market rate of her plot on account of their gross deficiency in service in not delivering the possession to the complainant within reasonable time and instead continued making lame excuses to buy time.

Page 6 of 21 IV, V.

HARERA W,GURUGRANI Complaint No.

7278 of2022 and l other VI.

That in March 2019, Mr.

Saurabh Rana (Director of respondentJ during conversation with the authorised representative of the complainant offered an alternative plot of 600 sq. yds. instead of two booked plots of 300 sq. yds. (one plot of 300 sq. yds. was booked by daughter of the complainantJ and verbally asked for Preferential Location Charges and several other charges in gross violation of the agreement but did not make an offer in writing iust to further buy time. buy time.

But the same was not acceptable to the complainant reither wanted immediate delivery of the booked plot or compensation at prevailing market rates as agreed in the agreement.

After several physicalvisits to the respondent's office and several requests, the respondent gave a written offer to the complainant which was not very clear in terms and conditions and also in violation of the agreement.

Accordingly, the complainant gave a written reply to the offer of one alternative plot of 600 sq. yds. instead of two booked plots of 300 sq. yds. and after that the respondent became quiet.

VII.

That the complainant undertakes to bear the External and Internal Development Charges (EDC/[DC] of the booked plot once the land is formally allotted to her and upon possession of the same since already 10 years have passed by and the conduct of the respondent has rather been to cheat and harass the complainant.

However, the respondent via their associates and their group companies are selling plots in the same project to the new buyers, obviously at the much higher rates since the prices have multiplied manifold over the period of time and they have been mistreating and defrauding their older buyers such as the complainant herein.

4/ Page 7 of 2l HARERA Complaint No.

7278 of 2022 and 1 other ffiGURUGRAIU Vlll.

The complainant, after losing all the hope from the respondent and also losing considerable amount of money, is constrained to approach this Authority for redressal of her grievance.

C.

Relief sought by the complainant: - 9.

The complainant has sought following relief(sJ i.

Direct the respondent to allot and handover the possession of the plot of 300 sq. yards in conformity with the agreement and to pay interest on the amount paid.

10.

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(a) (a) of the Act to plead guilry or not to plead guilty.

D. guilty.

D.

Reply by the respondent.

11.

The respondent has contested the complaint on the following grounds: - i.

That the complainant has approached the respondent in the year 2012 to invest in the future potential project of the respondent named "Ramprastha City" located in Sector 92 and Sector 95, Gurugram against which a tentative registration was issued after receipt of a payment of Rs.30,00,000/- for booking a plot of 300 sq. yds. and it was also mentioned that a specific plot number shall be earmarked once the zoning plans have been approved by the concerned authorities.

The complainant has been made clear about the terms and conditions at the time ofbooking ofthe plot itself. ii.

That the complainant has paid an amount of Rs.30,00,000/, for plor which is part or total consideration of the plot.

It is submitted that the said payments were not full and final payments and further payments inter alia towards government dues on account of EDC/IDC charges are Page I of 21 ffi HARERA S* GURUGRAM vl.

7278 of 2022 and l other lll. payable at the time of allotment of plot and execution of plot buyer agreement.

That further no date of possession has ever been mutually agreed between the parties.

That even at the time of booking, it has been clearly stated that a definite plot can be earmarked only once the zoning plans are approved by the Authority which is within the knowledge of the complainant.

That there is no obligation on the part of the respondent to allot or handover any plot to the complainant since the complainant has failed to provide any evidence oF execution of plot buyer's agreement in her favour.

That the complainant was never interested in fulfilling the necessary formalities towards booking ofthe said plot.

Neither the complainant has made any further payment for plot as such in "Ramprastha City" nor did she. submit any application for the same.

It is apparent that the complainant never turned up for the completion of the formalities. rmalities.

That on the specific request of the complainant, the investment was accepted towards a futuristic project and no commitment was made towards any date of handover or possession since such date was not foreseeable or known even to the respondent.

The respondent had no certain schedule for the handover or possession since there are various hurdles in a futuristic project and hence no amount was received/demanded from the complainant towards development charges, EDC/lDC etc., but the complainant was duly informed that such charges shall be payable as and when demands will be made by the government. v Page 9 of 21 HARERA Complaint No.

7278 o f 2O2Z and l other ffiGURUGRAI/ vii.

That the complainant cannot be sald to be genuine consumer by any standards; rather she is a mere investor in the futuristic proiect of the respondent.

An investor by any extended interpretation cannot mean to fall within the definition of a ,,Consumer,, under the Consumer protection Act, 201,9.

Therefore, the complaint is Iiable to be dismissed merelv on this ground. viii.

That the complainant is not entitled to claim possession as claimed by her as the present complaint is crearly time barred.

It is submittecl that the complainant has itself not come forward to execute the buyer,s agreement and hence cannot.ndw push the entire blame onto the respondent for the same.

The objections to the same were to be raised in a time bound manner. ix.

That there is no averment in the complaint which can establish that any so-called delay in possession could be attributable to the respondent as the finalization and approval of the layout plans has been held up for various reasons which have been and are beyond the control of the respondent including passing of an HT line over the layout, road deviations, depiction of villages etc. lages etc.

However, the complainant despjte having knowredge of happening of such force majeure eventualities and despite agreeing to extension of time in case the delay has occurred as a result of such eventualities has filed this fr.ivolous, tainted and misconceived complaint in order to harass the respondent with a wrongful intention to extract monies.

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 based on these undisputed documents and submission made by lhe parties. .r Page 10 of21 HARERA ffiGURUGRAI/ Complaint No.

7278 of 2022 and 1 other E. furisdiction ofthe authority 13.

The respondent raised a preliminary submission/objection that the authority has no jurisdiction to entertain the present complaint.

The objection ofthe respondent regarding re.jection of complaint on ground of jurisdiction stands rerected.

The authority observes that it has territorial as well as subject matter iurisdiction to adiudicate the present complaint for the reasons given below.

Regulatory Authority, Gur 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 Gurugram District.

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

E.

II Subiect matter iurisdiction 15.

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

Section 11(4)[a) is reproduced as hereunder; Section 77(4)(q) Be responsible for oll obligations, responsibilities ond functions under the provisions ofthis Actorthe rulesand regulations mode thereunder or to the ollottees as per the agreementfor sale, or to the qssociation of allottees, as the case may be, till the conveyance of oll the apartments, plots or buildings, as the case may be, to the ollottees, or the common areas to the associ the associotion of ollottees or the competent authority, qs the cqse may be; Section 34-Functions of the Authority: 344 ofthe Act provides to ensure complionce of the obligotions cast upon the promoters,the ollotteesand the rea I estate ag ents under this Act and the rules and regulations mode thereunder. t.

Page 11 ot 21 E.l Territorialiurisdiction 14.

As per notificatton no.

L /92 /2017-1TCP dated 14.12.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estate ffi IAREBA #* euRuenRvr Complaint No.

7278 of 2022 and 1 other 16.

So, in view of the provisions of the Act quoted above, 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 ifpursued by the complainant at a later stage.

F.

Findings on the obiections raised by the respondent F.l, Obiections regarding thqcomplainant being investor.

17.

The respondent has taken a not consumer and therefore, complainant is an investor and ntitled to the protection of the Act and thereby not entitled to file the complaint under section 31 of the Act.

The respondent also submitted that the preamble of the Act states that the Act is enacted to protect the interest of consumers of the real estate sector.

The authority observes that the respondent is correct in stating that the Act is enacted to protect the interest of consumer of the real estate sector.

It is settled principle ofinterpretation that the preamble is an introduction of a statute and states main aims & objects of enacting a statute but at the same time, the preamble cannot be used to defeat the enacting provisions of the Act.

Furthermore, it is pertinent to note that any aggrieved person can file a complaint against the promoter if he contravenes or violates any provisions of the Act or rules or regulations made thereunder. hereunder.

Upon careful perusal of all the terms and conditions of the agreement executed between the parties, it is revealed that the complainant is a buyer and paid totalprice of Rs.30,00,000/- to the promoter towards purchase ofa plot in the project ofthe promoter.

At this stage, it is important to stress upon the definition ofterm allottee under the Act, the same is reproduced below for ready reference; * Page 12 of 2l Complaint No.

7278 of 2022 and l other 18.

HARERA *@*GURUGRAII "2[d) "ollottee" in relation to a real estate project meonsthe person towhom a plot, apartment or building, as the case may be, hos been allotted, sold (whether as freehold or leosehold) or otherwise transferred by the promoter, qnd includes the person who subsequently ocquires the soid allotment through sale, tronsfer or otherurise but does not include a person to whom such plot, aportment or building, as the cqse may be, is given on renti' ln view ofabove-mentioned definition of"allottees" as well as all the terms and conditions ofthe apartment application for allotment, it is crystal clear that the complainant is an allottee as vide agreement dated 10.0S.2012, the promoter has agreed to allot a.plot admeasuring 300 sq. yards to the complainant.

The concept of ot defined or referred in the Act, As per the definition given n 2 of the Act, there will be "promoter" and "allottee" and there cannot be a party having a status of "investor".

The Maharashtra Real Estate Appellate Tribunal in its order dated 29.01.2019 in appeal no.

00060000000105 57 titled as M/s .trusrrti Sangam Developers PvL Ltd.

Vs.

Sartapriya Leasing (p) Lts.

And qnr. has also held that the concept of investor is not defined or referred in the Act.

Thus, the contention of promoter that the allottee being investor is not entitled to protection ofthis Act also stands rejected.

II Obiection regarding maintainability ofcomplaint.

19. laint.

19.

The counsel for the respondent has raised an objection that the complaint is barred by limitation as the complainant has approached the respondent in the year 2012 to invest in one ofthe futuristic projects of the respondent situated in Gurugram.

They have paid a booking amount of Rs.30,00,000/- on 09.05.2012.

The respondent further submitted that the complainant has itself not come forward to execute the buyer's agreement and hence cannot now push the entire blame onto the respondent for the same.

The objections to the same were to be raised in a time bound manner.

Hence, the complaint is not maintainable on the above-mentioned ground.

Page 13 of 21 Complaint No.

7278 of 2022 and 1 other 20.

0n consideration of the documents ava able on record and submissions made by the party, the authority observes that the prolect in question is an 2L.

22. ffiHARERA # cllRtcRAr,/ ongoing project, and the respondent/promoter has failed to apply and obtaining the CC/part CC till date.

As per proviso to section 3 of Act of 2016, ongoing proiects on the date of this Acr i.e.,28.07.2077 for which completion certificate has not been issued, the promoter shall make an application to the authority for registration of the said project within a period ofthree months from the daie ofcommencement ofthis Act and the relevant part of the Act is reproduced hereunder: - Provided that projects thqt ore ongoing on the date of commencement of this Act and for which the completion certiJicate his not been issued, the promotershall make.an dpplieation to the Authorit)/for registration of the said project withlll a leriod of three months fiom tie dote oJ commencement of thls Act: The legislation is very clear in this aspect that a project shall be regarded as an "ongoing proieCt" until receipt of completion certificate.

Since no completion certificate has yet been obtained by the promoter_builder with regards to the concerned proiect.

Moreover, it is observed that vide agreement dated 10. dated 10.05.2012, it was agreed between the parties that the promoter shall give possession of a plot having size of 300 sq. yards to the complalnant on launch of the said colony in Sector 90 and 95 of Gurgaon.

Further, it was agreed that on completion of the process of allotment to all allottees, the promoter will get the plot registered in name of the complainant on payment of stamp duty and other charges payable to the government.

However, despite receipt of full consideration amount from the complainant back in 2012 against the booked plot except stamp duty and other charges payable to the government, the respondent-promoter has not even allotted a specific plot to the complainant and also no effort has been made by it to get the Page 14 ofZl^/, HARERA GURUGRAM Complaint No.

7278 of 2022 and l other plot registered in her name till date.

As the respondent has failed to handover the possession of the allotted plot to the complainant and thus, the cause of action is continuing till date and recurring in nature.

The authority relied upon the section ZZ of the Limitation Act, 1963, Continuing breaches and torts and the relevant portion are reproduced as under for ready reflerence; - 22.

Continuing breaches and torts- In the cose of a contlnuing breach ofcontrqct or in the cqse ofq continuina tort, a fresh period of limitation begins to run qt every moment of the time during which the breqch or the tort, as the cqse may be, continues.

23.

Keeping in view the aforesaid facts and legal position, the objection with regard to the complaint barred by Iimitation ls hereby rejected.

F.III Obiections regarding the circumstances being .force majeure,.

24.

The respondent contended that the project was delayed because of the 'force majeure' situations like delay on part of government authorities in granting approvals, passing of an HT line over the layout, road deviations and depiction ofvillages etc. which were beyond the control ofrespondent. espondent.

However, no document in support of its claim has been placed on recorcl by the respondent.

Hence, all the pleas advanced in this regard are devoid take benefit of its own wrong arld the obi€ction ofthe respondent that the project was delayed due to circumstances being force majeure stands rejected.

Findings on the reliefsought by the complainant.

G.I The respondent be directed to allot and handover possession of the plot in conformity with the agreement.

The complainant has booked a plot admeasuring 300 sq. yards in the proiect of respondent named "Ramprastha City" located in Sector 92, 93 G.

25.

Page 15 of Zlv HARERA ffi, GURUGRAM and Sector 95, Gurugram by making a payment of Rs.30,00,000/- vide receipt dated 09.05.20L2- Thereafter, an agreement was executed between the parties on 10.05.20L2, vide which it was provided that the promoter has developed a township in Sector 92 & 95 of Gurgaon and is agreed to sale a plot of 300 sq. yards to the complainant on launch of the said project.

Further, it was agreed that on completion of the process of allotment to all allottees, the promoter will get the plot registered in name of the complainant on payment,ofttqmp duty and other charges payable to the government.

However, despite receipt of full consideration amount from the complainant back i allotted a specific plot to the complainant and also no effort has been made by it to get the plot registered in her name till date.

Thus, in view of the agreed terms of the agreement dated 10.05.2012 and Section 11(4)(al ol the Act of 2 016, the respondent-promoter is directed to allot a specific plot number to the complainant within a period of one month and handover possession of allotted plot admeasuring 300 sq. yards in her favour in the CC from the competent authority. interest on the amount paid as per Act, 26. r Act, 26.

In the present complain! tie,complainant intends to continue with the project and is seeking delay possession charges as provided under the proviso to section 1.8(1) ofthe Act.

Sec.

18[1) proviso reads as under. "Section 78i - Return of amount and compensotion 18(1).

If the promoter fails to complete or is unable to give possession of an aportmenl, plot, or building, - Provided thot where an allottee does not intend to withdrow from the project he sholl be paid, by the promoter, interest t'or every month of delay, tilt the handing over of the possession, at such rqte os moy be prescribed." eag.rcorzl payable to the government, Complaint No.

7278 of 2022 and 1 other stamp duty and other charges dent-promoter has not even Complaint No.

7278 of2022 and 1 other 27.

28.

HARERA P*GURUGRAM Clause 6 of the agreement dated 1,O.OS.2O|Z, provides for the time period ofhanding over possession and the same is reproduced below: Clause 6 "That thefirstparty promise to give possession ofa plot size of 300 Sq.

Yds to the second party on lounch of ihe said . colony in township in sector -92 & 95 of Gurgaoi,'.

The incorporation of such clauses is not only vague and uncertain but so heavily loaded in favour of the promoter and against the allottee.

The incorporation of such clause in.the qgreement by the promoter is just to evade the liabiliry towards timeli:4glivery of subject plot and to deprive the allottees oftheir right accruing after delay in possession.

This is just to comment as to how the buildelhas misused its dominant position and drafted such mischievous clause in the'igreement and the allottee is left with no option but to sign on the dotted lines.

However, the respondent has cleverly omi$ed to mention the due date for handing over of possession.

Therefore, the due date has been calculated keeping in view the judgment of the Hon'ble Supreme Court in the case of Fortune Infrastructure and Ors, vs.

Trevor D'Lima and Ors, (12.0J. s, (12.0J.201g - SC); MANU /SC/o 2 5 3 / 2018 observed that;' "15.

Moreover, a person cannot be modeto wqit indefnitely for the possession ofthe llots ollotted to them and they are entitled to seekthe refund ofthe omount poid by them, along with compensotion, Although we ore awqre of the fact that when there was no delivery period stipulated in the agreement, o reasonable time hos to be taken into consideration. ln the facts and circumstonces ofthis case, o time period of 3 years would hove been reasonable for completion of the contract i.e., the possession wos required to be given by lost quorter of2014.,' ln the instant case, the promoter has agreed to allot a plot in its project vide agreement dated 10.05.2012.

In view of the above-mentioned reasoning, the date of signing of the agreement to sell 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 plot comes out to be 10.05.201S.

Page 17 of 27 29. ffi HARERA HoURUGRAM 30. payment of delay possession .nr.ru, ,[il..*"d o* of ,**J, The complainant is seeking delay possession charges at the prescribed rate of interest proviso to section 1g provides that where an allottee does not intend to withdraw from the projecg he shall be paid, by the promoter, interest for every month ofdelay, till the handing over ofpossession, at such rate as may be prescribed and it has been prescribed under rule 15 of the rules.

Rule 15 has been reproduced as under; Rule 15. prescribed rate of sub-section (4) dnd subsect to section 72, section 7g and 1el 31. @ For the purpose ofl and (7) of section 19, _1-2;-,:ection 18; and sub-sections (4) State Bank of Indiq h d.t the rate prescribea" snon ti iile ,al cost oflendino rate +i%l: Provided that in cosi rate (MCLR) is not in L nk oflndia malginal cost oflending t be replaced -by trrn L"lrrirrri tendins rates which n" *rr" eiii "itriir', may lix from time to time for lending to the generol public. ol public.

The legislature ln its wisiom in the subordinate legislation under the provision of rule 15 of the rules, has determined the prescribed rate of interest.

The rate ofinterest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure unifbrm practice in all the cases.

Consequently, as per website ofthe State Bank oflndia i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLR) as on date i.e., 24.0j..2024 is 8.85o/o.

Accordingly, the prescribed rate ofinterest wir be marginar cost o[ lending rate +2o/o i.e., l}.gso/o.

The definition of term ,interest,as defined under section 2[za) of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: Page 78 of 27 32.

33.

7278 o f 2022 and l other ffiHARERA ffi aJRTIGRAI/ Complaint No.

7278 of 2022 and 1 other "(zo) "interest" means the rates of interest poyable by the promoter or the ollottee, os the cose moy be.

Explqnation. -For the purpose ofthis clquse_ O the rate of interest chargeqble from the allottee by the promoter, in cose of default, shall be equql to the rote of interestwhich the promoter shqll be liqble to pay the ollottee, in cose ofdefault; (i, the interest payoble by the promoter to the allottee shall be from the date the promoter received the amount or ony port thereoftill the date the amount or port thereof ond interest thereon is refuided, and the interest payoble by the allottee to the promoter shall be from the date the ollottee defaults in payment to the promoter ti the (late it is paid;,, 34.

Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., 10. i.e., 10.8S%o by the respondent/promoter which is the same as is being granted to her in case of delayed possession charges.

35.

On consideration of the documents available on record and submissions made by both the parties regarding contravention of provisions of the Act, the authority is satisfied that the respondent is in contravention of the section 11(4)(a) ofthe Act by not handing over possession by the due date as per the agreement.

The possession of the plot was to be delivered by 10.05.2015.

However, the respondent has not even allotted a specific plot number to the complainant despite receipt of considerable amount of money from her and has also failed to handover possession of the plot till date of this order.

Accordingly, it is the failure of the respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period, The authority is of the considered view that there is delay on the part ofthe respondent to offer of possession of the allotted plot to the complainant as per the terms and conditions of the agreement dated 10.05.2012 executed between the parties.

Further no CC/part CC has been granted to the project.

Hence, this project is to be treated as on-going proiect and the provisions of the Act shall be applicable equally to the builder as well as allottees.

Page 79 of 27Y ffiHARERA ffiounuonnvr 36.

Accordingly, the non-compliance of the ffi;;;;# 11(4J[a] read with section l acr.L,r^L^r t8(l) ofthe Act on the part ofthe respondent is established.

As such, the comnrain,hr i. ^-';rr ^ r - I - "' *^v rlrPulrucllt ls at rate of the prescribed .nmplainant is entitled to delay possession charges handing over of possessic t @70'85% p a w e'f 10 05 2015 till actual obtaining compretion .". retion .".'n ot o""t of possession plus 2 months after ri[icate/part completion certificate from thc competent authority or, whichever is earlier, as per section 1g[1) ofthe Act of 2016 read with rule 15 ofthe rules.

H.

Directions of the authority 37.

Hence, the authority hereby passes this order and issues the following directions under section 37 cas t u p o n th e p ro,, ",". rr, ".

T:"r;;: jil:::T:T::ffiff :: : :: section 34[0: The respondent/promoter is d th e co mp r ai n an t ro.ur. r., r, ll'J":J:#: H:::' ::ilf"T: parties vide agreement dated 10.05.2012 within a period ofone month.

The respondent/promoter is dir asainst the paid-up amount*T:":.:l:il:;:::X ff ffi TT: every month of delay from the due date ofpossession i.e., 10.05.2015 tili acrual handing over of posses months arter obtainins .",;il;"fi;:"U;:::'":"ilil:; certificate from the competent authority, whichever is earlier, as per section 18[1] of the Act of 2016 read with rule 15 of the rules.

The respondent shall not charge anything from the complainant which is not part of the agreement to sell dated 10.05.2012.

Il. iii. iv.

The respondent/promoter is directed to offer possession of the allotted plot within 30 days after obtaining completion certificate/part Complaint No.

7278 o f 2022 and l other PagezD ofzt ,/ ffiHARERA # GURUoRATv rules.

38.

This decision shall mu this order.

Complaints stand File be consigned Datedt 24.07.2024 Complaint No.

7278 of 2022 and l other completion from the competent authority.

The complainant w.r.t. obligation conferred upon her under section 19(10J ofAct ofZ016, shall take the physical possession of the subject plot, within a period of two months of the completion certificate. v.

The arrears ofsuch interest accrued from due date ofpossession ofeach case till the date of order by the authority shall be paid by the promoter to the allottee within a period of 90 days from date of this order and interest for every month I be paid by the promoter to the t month as per th as per rule 16(2) of the allottees before 10th of th Hge w of.

39.

40. mentioned in para 3 of Haryana ReIlEstate Regulatory Authorjty, Gurugram GURUGRAM Page 2l of 2t