VEENA SHARMA vs REVITAL REALITY PVT.LTD.

HARERA GURUGRAM Complaint No.

556 of 2022 and 6 others BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Dateofdecision: 25.04.2023 :iu, l NAI\4 E OF THE BUILDER M/S REVITAL REALITY PRIVATE LIMITED.

PROJECT NAME "SUPERTECH BASERA" S.

No.

Case No.

Case title APPEARANCE 1. cR/ss6/2022 Naresh Kumar v /s M/s Revital Realily Private Limited Shri Gagan Raman Advocate and Shri Bhrigu Dhami Advocate 2. cR/557 /2022 Veena Sharma M/s Revital Reality Private Limited Shri Cagan Raman Advocate and Shri Bhrigu Dhami Advocate 3. cR/ss&/2022 NeerajSharma M/s Revital Reality Private Limited Shri Gagan Raman Advocate and Shri Bhrigu Dhami Advocate 4. cR/ssg/2022 Rohit Sharma Y /s M/s Revital Reality Private Limited Shri Gagan Raman Advocate and Shri Bhrigu Dhami Advocate 5. cR /67 2 /2022 Rohtash Rawat M/s Revital Realiry Private Limited Shri Manish Yadav Advocate and Shri Bhrigu DhamiAdvocate 6. cR/3153/2022 Darshan Kaur M/s Revital Reality Private Lim ited Shri Darshan Kaur Complainant in person and Shri Bhrigu Dhami Advocate 7. cR/5756/2022 Ankit Yadav v /s M/s Revital Reality Private Limited Shri Caurav Rawat Advocare and shri Bhrigu Dhami Advocate Page 1 of38 HARERA ffiGURUGRAII CORAM: Shri Vijay Kumar Goyal Shri Sanjeev Kumar Arora complaint No.556 of2022 and 6 others Member Member ORDER 1.

This order shall dispose ofall the 7 complaints titled as above filed before this authority under section 31 of the Real Estate (Regulation and Development) Act,201,6 (hereinafter referred as "the Act") read with rule 28 of the Haryana Real Estate (Rdgulation and Development) Rules, 2017 (hereinafter referred as "the rules") for violation ofsection 11(4)[a) ofthe 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.

2. arties.

2.

The core issues emanating from them are similar in nature and the complainant[s) in the above referred matters are al]ottees of the project, namely, "supertech Baserq" (Affordable Group Housing Project) being developed by the same respondent/promoter i.e., M/s Revital Reality Private Limited.

The terms and conditions of the agreement to sell and allotment letter against the allotment ofunit in the upcoming proiect ofthe respondent/builder and fulcrum of the issues involved in all these cases pertains to failure on the part ofthe promoter to deliver timely possession of the units in question, possession along with delayed possession charges along with interest and other.

Page 2 of38 # HARERA #- eunuennt'l Complaint No.

556 of 2022 and,6 others 3.

The details of the complaints, reply to status, unit no., date of agreement, possession clause, due date of possession, total sale consideration, total Possession Clausei - 3.1 Possession "Subject to force mqjeure circumstqnces, intervention ofStatutory Authorities, receipt oI occupqtion certificate ond Allottee/Buyer hoving timely complied with all its obligqtions, formalities, or documentation, as prescribed by the Developer and not being in default uncler ony port hereofond Flat Buyer's Agreement, including but not limited to the timely payment of instollments of the other chorges as per payment plan, Stomp DuDt ond registrotion chorges, the Developers Proposes to offer possession of the said Flat to the Allottee/Buyer within o period of4 (Jour) years Irom the date ofapproval of building plqns or grant of environment cleqrance, (hereinofter referred to as the "Commencement Date"), whichever is later.

The Developer also ogrees to compensate the Allottee/Buyer @ k.5.00/- (Five rupees only) per sq. ft. of the oreo of the flat per month for ony cleloy in honding over possession of the Flat beyond the given promised period plus the groce period of 6 months ond upto offer letter of possession or octual physicol posse icol possession whichever is earlier". paid amount, and relief sought are given in the table below: Prolect Name and Location "Supertech Basera" Sector- 79&798, Gurugram Haryana.

Sr.

No Complaint No., Case Title, and Date offiling ofcomplaint Reply status Unit No.

Date of execution offlat buyer's aSreement Due date of possession Total Considerat ion/ Total AmouIrt paid by the complaina nts (ln Rs.) Relief Sought t. cR/ ss6 /2022 Naresh Kumar v/s M/s Revital Reality Private Limited Reply received on 26.04.20 22 707, floor, /block -3, (Page no.25 ofthe 22.03.201.6 (Page no.

24 ofthe complaint) 22.O1.2020 Note: - lhe due date of possession can be calculated from the date of environment TSC: - 20,24,500 / - [As per payment plan page no.26 ol the complaint) Possessi on along wilh interest after ob!ainin g the OC Page 3 of38 HARERA GURUGRA[/ Complaint No.

556 of 2022 and,6 others Date of Filing ofcomplaint 14.02.2022 compl aint) clearance (22.O1 .2016) APr- 21,12,810 / - [As per receipt information paSe no.

20 &21, and 41 to 47 of the complaint) 2. cR/ss? /2022 Veena Sharma Y /s M/s Revital Reality Private Limited Date of Filing ofcomplaint 74.02.2022 Reply received on 26.04.20 22 1106, 11rh floor, /block -3, IPage n0.25 olthe compl aint) 22.03.2016 (Page no.

24 ofthe complaintJ 22,O1,2020 Noter ' the due date of possession can be calculated from the date of environment clearance 122.01.2076) TSC: - 20,28,500 /- [As per payment plan page no.

26 of the complaint) 19,52,7 60 /- (As per receipt information page no.20 &21, and 40 to 45 of the complaint) Possessi on along with inlerest after obtainin g the 0C 3. cR/ ssB /2022 Neeraj Kumar M/s Revital Reality Private Limited Date of Filing ofcomplaint L4.02.2022 Reply received on 26.04.20 22 0907, 9th floor, tower /block IPage no.25 of the compl aint) 22.03.2076 (Page no.

24 of rhe complaint) 22.01.2020 Note: - rhe due date of possession can be calculated from rhe date ol eovironment clearance (22.01. ce (22.01.2016) TSC: - 20,24,500 / - [As per payment plan page no.25 of the complaint) AP:' 21,12,A101- [As per receipt Possessi on along with interest after obtainin g the OC Page 4 of38 l HARERA GURUGRA[/ Complaint No.

556 of 2022 and,6 others information page no.20 &21, and 41to 47 ot the complaint) 4. cR/ss9/2022 Rohit Sharma V/s M/s Revital Reality Private Limited Date of Filing ofcomplaint 74.02.2022 Reply received on 26.04.20 22 7207, 12tn floor, tower /block 22.03.201.6 IPage no.

24 ofthe complaintl 22-01-2020 Note: - the due date of possession can be calculated from the date of environment clearance (22.01 .2016) TSC:' 20,28,s00 / - (As per payment plan page no.27 of the complaint) 19,52,7 60 /- (As per receipt information page 41 to 48 of the complaint) Possessi along with interest after obtainin g lhe 0C 5. cR/672 /2022 Rohtash Rawat M/s Revital Reality Private Limited Date ofFiling ofcomplaint 1_4.02.2022 Reply received on 26.04.20 22 0206, 2"d floor, /block - 14, IPage no.23 ofthe compl aintl 30.04.2076 (Page no.

22 of the complaint) 22.O1.2020 Note: - the due date of possession can be calculated from the date of environment clearance 122.01.2016) TSC:- 19,24,500 / - [As per payment plan page no.

25 of the complaint) 79,42,273 / - [As per statement ofpayment received dated 25.12.2021 page n0.37 ofthe complaint) Possessi on along with interest Page 5 of38 HARERI M"GURUGRA|'I 4.

The aforesaid complaints were filed violation ofthe agreement to sell and Complaint No.

556 of 2022 and,6 others against the promoter on account of allotment letter against the allotment 6. cR/3753 /202 2 Darshan Kaur M/s Revital Reality Private Limited Date ofFiling ofcomplaint 01.06.2022 Reply received on 23.1.202 2 0807, Bdl floor, tower /block -7, (Page no.17 ofthe compl aint) 28.04.2016 (Page no.

16 ofthe complaint) 22.0r.2020 Note: - the due date of possession can be calculated from the date of environment clearance 122.01.2016) 19,28,500 / - [As per payment plan page no. n page no.18 of the complaint) 19,29,899 / - [As per outstanding stalemenl dated 03.09.2019 at page no, 14 ofthe complaintJ Possessi on along wilh interest 'f cR/s7s6/202 2 Ankit Yadav M/s Revital Reality Private Limited Date of Filing ofcomplaint 26.08.2022 Reply received 0n 23.1-L.2A 22 1007, 1Oth floor, /block (Page no.41 ofthe compl ain0 71.1?120t5 (Pa8e no.

40 ofthe complaint) 22.o1.2020 Note: - the due date of possession can be calculated from the date of environmen! clearance [22.01.2016) 19,28,500 /" [As per payment plan page no.

43 of the complaint) 19,45,601/ - [As per outstanding statement dated 17.08.2018 at page n0.

30 olthe complaint) Note: In the table referred above certain abbreviations have been used.

They are elaborated as followsl Abbreviation Full form TSC: - Total Sale consideration AP: 'Amount Daid bv the allolteefsl Page 6 of38 HARERA GURUGRAM Complaint No.

556 of 2022 and 6 others of units in the upcoming proiect of the respondent/builder and for not handing over the possession by the due date, seeking award of possession along with delayed possession charges.

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(f) 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.

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

Out of the above-mentioned case, the particulars of lead case CR/556/2022 Naresh Kumar V/s M/s Revital Reality Private Limited are being taken into consideration for determining the rights of the allotteeIs] qua delayed possession charges along with interest and others. nd others.

Proiect and unit related details The particulars ofthe proiect, the details ofsale 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/S56/2022 Naresh Kumar V/s M/s Revital Reality Private Limited.

S.N.

Particulars Details 1.

Name of the project "Supertech Basera" sector- 79&798, Gurugram 2.

Project area 72.L0 area 6.

A.

7.

Page 7 of 38 HARERA GUl?UGRAM Complaint No.

556 of2022 and 6 others 3.

Nature of project Affordable Group Housing Project 4.

RERA registered/not registered Registered vide no.

108 of 2017 dated 24.08.20L7 5.

RERA registration valid upto 31.01.2020 6.

RERA extension no.

74 0f 2020 dated 22.06.2020 7.

RERA extension valid upto 3t.07.202't_ 8.

DTPC License no.

163 of 2014 dated 72 .09 .20-t_4 764 of 201.4 dated t2.09.2014 Validity status 1.L.09.201.9 1.1 .09 .201_9 Name of licensee Revital Reality Private Limited and others 9.

Date of approval building plans of t9.12.2014 fas per information obtained by the planning branchl 10.

Date of grant of environment clearance 22.0L.20L6 [as per information obtained by the planning branchl 1,1,.

Unit no.

7 07, 7th floor, tower/block- 3, IPage no.

25 of the complaint] 12.

Unit measuring 495 sq. ft. (Carpet areaJ Page B of 38 *HARERA #, eunuennri,r Complaint No.

556 of 2022 and,6 others 97 sq. ft. (Balcony areal fPage no.

25 ofthe complaint) 13.

Allotment letter 29.72.20L5 (Page no.22 ofthe complaintl L4.

Date of execution of flat buyer's agreement 22.03.20L6 (Page no.

24 of the complaintJ 15.

Possession clause 3.1 Possession Subject to force majeure circumstqnces, intervention of Statutory Authorities, receipt of occupation certilicate and Allottee /Buyer having timely complied with all its obligations, formalities, or documentation, as prescribed by the Developer and not being in default under any part hereof ond Flat Buyer's Agreement, including but not limited to the timely pa timely payment of instollments of the other charges as per pqyment plan, Stamp Duty and registration charges, the Developers Proposes to olfer possession of the sdld Flat to the Allottee/Buyer within a period of 4 (four) years from the date of approval of building plans or grant of environment clearance, (hereinofter referred to as the "Commencement Dote") , whIchever Page 9 of 38 HAR ER,q, GUl?UGRAN/ Complaint No.

556 of 2022 and,6 others is later.

The Developer also agrees to compensate the Allottee/Buyer @ Rs.5.00/- (Five rupees only) per sq. ft. of the area of the flat per month for ony deloy in handing over possession ofthe Flat beyond the given promised period plus the grace period of 6 months and upto offer letter of possession or actuol physical possession whichever is earlier. (Page no.

28 of the complaint).

16.

Grace period Not allowed The promoter has proposed to hand over the possession of the said flat within a period of 4 years from the date of approval of building plans (L9.1.2.20L4) or environment grant of clearance, (22.01.2016) (hereinafter referred to as the "Commencement Date"], whichever is later and has sought further extension of a period of 6 months (after the expiry of the said time period of4 year) but there is no provision in relation to grace period in Affordable Group Housing Policy, 2013.

As such in absence of any provision related to grace period, the said grace period of six months as sought by the respondent Page 10 of 38 HARERA W"GURUGRANI promoter is disallowed in the present case.

17.

Due date of possession 22.0r.2020 [Note: - the due date of possession can be calculated by the 4 years from the date of environment clearance (22.01,.20L6)) 18.

Total sale consideration m Rs.20,28,500/- (As per payment plan page no.

26 of the complaint) 19.

Total amount paid by the complainant Rs.21,72,A10 /- (As per receipt information page no.

20&21, and 41 to 47 of the complaint) 20. laint) 20.

Occupation certificate Applied but not yet obtained as stated by the counsel of respondent during proceeding.

21.

Delay in handing over possession till the date of order i.e., 25.04.2023 3 years 3 months and 3 days Facts ofthe complaint The complainant has made the following submissions in the complaint: - a.

That the present complaint is being preferred by the complainant i.e., Mr, Naresh Kumar under section 31 of Act,20).6 for seeking direction against the unlawful actions of M/s.

Revital Reality Pvt.

Ltd. who Complaint No.

556 of 2022 and 6 others B.

L Page 11 of38 HARERA Complaint No.

556 of 2022 and,6 others ffi"GURUGRANI b.

C. despite assuring the possession of the unit purchased by the complainant has failed to deliver the possession till date.

That the complainant under the misrepresentation and false assurances made by the respondent and believing the same to be true & correct; applied for allotment of a unit in the project namely 'Supertech Basera'which the respondent was developing at Sector- 79, & 798, Gurgaon, Haryana.

Hence, the complainant filed an expression oF interest in the said pro.iect & paid a sum of Rs.

2,63,400/- to the respondent.

Thereafter, he paid a booking amount of Rs.1,01,425/- to the respondent.

The same was acknowledged by the respondent vide acknowl,edgment letter.

That based on the representations made by it, the complainant applied for allotment of a flat in the aforesaid project vide application no.

917 dated 30.L2.201.4.

That vide offer of allotment letter dated 29.12.2075, respondent offered a residential unit bearing no.707,7tb floor, tower-3 in the project.

The total consideration for the purchase was Rs.20,99,498 /- inclusive of tax.

That despite the fact that the complainant paid booking amount in the year 2014, the respondent deliberately executed the flat buyer's agreement on a later date.

That in view of the unit offered; a Flat buyer's agreement dated 22.03.201,6 was executed between the parties. e parties.

Where the complainant agreed to pay the total amount of Rs.20,99,498/- for the said unit, and the respondent assured that the delivery of possession of the said unit shall be within 4 years from the date on which the building plan gets approved. d.

Page 12 of38 HARERA q& ct lDt t/:DAt\/ e.

That the building plans got approved on 1,9.1,2.2074 as mentioned in the flat buyer's agreement.

Hence, as per flat buyer's agreement the date of delivery of possession of the unit was supposed to be 19.L2.201A.

Further, as per clause 3.1, the respondent could have also utilized the grace period of 6 months in case the delivery of possession ofthe unit could not be delivered by 1,9.1,2.2018.

Since the respondent miserably failed to hand over the possession ofthe u nitby 1,9.1,2.2018, the grace period was utilized which led to the new date of possession f.

The complainant in consonance to the unit purchased, paid a sum Rs.21,12,81.0 /- against which separate receipts were issued by it acknowledgment of the payment. g.

That the complainant kept on enquiring about his unit from the respondent who assured him that the delivery of the unit would be given as per the stipulated Umeframe.

However, the respondent failed to handover the possessioir ofthe unit despite availing the grace period i.e., by 19.06.2019.

Thereafter, the complainant through repeated telephonic conversations with the officials ofthe respondent, asked the respondent to complete the project & provide delayed penalty as the respondent Failed to deliver the possession as per the prescribed date in the agreement i .e.,by 19.06.2079.

However, the respondent not only avoided sharing the details of handing over of the unit with the complainant on one pretext or the other but also kept mum on the aspect of delayed penalty.

Complaint No.

556 of 2022 ard 6 others of in Page 13 of38 ffi HARER,. #-eunuennlrr h. t. l. k.

Complaint No. plaint No.

556 of 2022 and 6 others That the respondent has delayed the project beyond reasonable time and despite that the respondent has not provided any delayed penalty to the complainant regarding the same That as per section 1.9(6J of the Act, 2016, he has fulfilled their responsibiliry in regard to making the necessary payments in the manner and within the time specified in the flat buyer's agreement.

Therefore, the complainant herein has not breached any of the terms of the agreement dated 22.03.20L6.

That however to the utter dismay of the complainant, the respondent could not complete the said project & failed to deliver the possession of the unit by the due date as proposed in the flat buyer's agreement dated 22.03.2076 i.e., 19.06.2019 (includinggrace period of 6 monthsJ.

The respondent owing to his dishonest intentions even after taking timely payments against the unit purchased has failed to deliver the possession of the unit, thereby infringing the rights of the innocent complainant who has spent their hard-earned life savings in the purchase ofthe said unit.

That the inconsistent and lethargic manner in which the respondent has conducted his business and its lack of commitment in completing the project on time has caused the complainant great financial and emotional loss.

That keeping in view the inability of the respondent in developing the project in time and in the light of the half-hearted promises made by the respondent, the chances of getting physical possession of the apartment as per the agreement in near future seems bleak and that Page 14 of38 Complaint No.

556 of 2022 and,6 others C.

9.

10, D, HARERA M GURUGRAM the same is evident of the irresponsible and desultory attitude and conduct of the respondent, consequently injuring the interest of the buyers including the complainant who has spent their entire hard earned savings in the purchase of the unit and now stands at a crossroad to nowhere. o nowhere.

Reliefsought by the complainant: - The complainant has sought following relief(s) a.

Direct the respondent to pay delayed penalty due to delay in handing over of the possession @ 18% per annum, from the due date of possession till the date of actual possession of the unit is not handed over to the complainants, in favour of the complainant and against the respondent. b.

Direct the respondent for issuing offer of possession Ietter to the complainant after obtaining OC/CC from the relevant authority.

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) (aJ ofthe Act to plead guilty or not to plead guilty.

Reply by the respondent.

11.

The respondent contested the complaint on the following grounds: That the answering respondent is one of the leading real estate developers in the State of Haryana and NCR.

It has several projects across the state, and such has built a great reputation for having the highest quality of real estate developments.

The respondent has been Page 15 of 38 ,.rlii -:$ HARERA GURUGRAIV iv. ll.

556 of2022 and 6 others represented in the instant proceedings by its authorized representative, Ms.

Isha Dang.

That one of its marquee projects is the "Basera", located in sector 79, 79-B, Gurugram, Haryana.

The complainant approached the respondent, making enquiries about the project, and after thorough due diligence and complete information being provided to him, sought to book an apartment in the said proiect.

The complainant submitted an application for allotment ofa unit in the above noted project.

That subsequently, vide allotment letter dated 29.72.2015 the respondent informed the complainant thatvide draw oflots conducted on 04.09.2015 he was allotted unit bearing no.

707, 7th floor, tower - 3, in the said proiect.

The payment plan for the remaining sale consideration was also detailed in the said letter. id letter.

That consequentially, after fully understanding the various contractual stipulations and payment plans for the said apartment, the complainant executed the flat buyer's agreement dated 22.03.2016.lt is pertinent to mention that the parties are bound by the agreement executed by them and its terms and conditions.

The said agreement is in consonance with the Affordable Group Housing Policy, 20L3 notified by the Government of Haryana. iii.

Page 16 of38 HARERA Complaint No.

556 of 2022 and 6 others #"GURUGRAII That the said policy and the terms of the agreement to sell the possession is to be handed over within 4 from the date of approval of building plans or grant of environmental clearance (ECJ.

However, the same were subiect to force majeure conditions which would hamper the development of the project.

Further, in terms of clause 3.5 of the agreement the timely possession was subject to timely payments of sale consideration and the other charges.

Further, it was mutually agreed that the time framir for possession was tentative and would depend upon force majeure conditions, timely payments, and completion of all required formalities.

Clause "15" of the agreement details out the conditions which were agreed between the parties would constitute as "Force Majeure".

That the environmental clearance for the said project was obtained on 22.01..2076.

Thus, the possession strictly as per the agreement was to be handed ov er by 27.07.2020.

That in interregnum, the pandemic of covid-19 has gripped the entire nation since March 2020.

The Government of India has itself categorized the said event as a 'Force Majeure' condition, which automatically extends the timeline of handing over possession of the apartment to the complainant.

Thereafter, it would be apposite to note that the construction of the project is in full swing, and the delay if at vll.

Page 17 of38 HARTRA GURUGRAN/ Complaint No. plaint No.

556 of 2022 and,6 others all, has been due to the government-imposed lockdowns which stalled any sort of construction activity.

Till date, there are several embargos qua construction at full operational level. viii.

That the period of lockdown owing to the covid-19 first and second wave may be waived for the calculation of the DPC, if applicable to be paid by the respondent as no construction despite numerous efforts could be continued during the lockdown period. ix.

That the delay if at all, has been beyond the control of the respondent and as such extraneous circumstances would be categorized as'Force Majeure', and would extend the timeline of handing over the possession of the unit, and completion the pro.iect. x.

The delay in construction was on account of reasons that cannot be attributed to the respondent.

That the flat buyer agreement provides that in case of delays in delivery of unit for reasons not attributed to the developer/respondent, then it shall be entitled to proportionate extension of time for completion of said project.

The relevant clauses which relate to the time for completion offering possession extension to the said project are "Clause 3" under the heading "possession" ofthe "agreement". xi.

The force majeure clause, it is clear that the occurrence ofdelay in case of delay beyond the control ofthe respondent, including but not limited Page 18 of 38 ffi HARER. # eunuennrr,r completion ofthe project and not a delay on account ofthe respondent for completion ofthe project. xii.

That the timeline stipulated under the buyer's agreement was only tentative, subject to force majeure reasons which are beyond the control of the respondent.

The respondent in an endeavour to finish the construction within t-he stipulated time, had from time to time obtained various licenses, approvals, sanctions, permits including extensions, as and when required. required.

Evidently, the respondent had availed all the licenses and permits in time before starting the construction. xiii, That apart from the defaults on the part of the allottee, like the complainant herein, the delay in completion of project was on account of the following reasons/circumstances that were above and beyond the control of the respondents: - .

Shortage of labour/workforce in the real estate market as the available labour had to return to their respective states due to guaranteed employment by the Central/State Government under NREGA and jNNURM Schemes; . that such acute shortage of labour, water and other raw materials or the additional permits, licenses, sanctions by different Complaint No.

556 of 2022 and,6 others to the dispute with the construction agencies employed by it for Page 19 of38 ffi HARERA *&, eunuennl Complaint No.

556 of 2022 a\d,6 others departments were not in control ofthe respondent and were not at all foreseeable at the time of launching of the project and commencement of construction of the complex.

The respondent cannot be held solely responsible for things that are not in control of the respondent. xiv.

The respondent has further submitted that the intention of the force majeure clause is to save the performing party from the consequences of anything over which he has no control.

It is no more res integra that force majeure is intended to include risks beyond the reasonable control of a party, incurred not as a product or result of the negligence or malfeasance of a party, which have a materially adverse effect on the ability of such party to perform its obligations, as where non- performance is caused by the usual and natural consequences of external forces or where tlle intervening circumstances are specifically contemplated.

Thus, in light of the aforementioned, it is submitted that the delay in construction, if any, is attributable to reasons beyond the control of the respondent and as such the respondent may be granted be granted reasonable extension in terms of the allotment letter. xv. lt is public knowledge, and several courts and quasi-judicial forums have taken cognisance ofthe devastating impact ofthe demonetisation of the Indian economy, on the real estate sector.

The real estate sector Page 20 of 38 HARERA ffi.GURUGRANI is highly dependent on cash flow, especially with respect to payments made to labourers and contractors.

The advent of demonetisation led to systemic operational hindrances in the real estate sector and whereby the respondent could not effectively undertake construction ofthe project for a period of4-6 months.

Unfortunately, the real estate sector is still reeling from the aftereffects of demonetisation, which caused a delay in the completion of the project.

The said delay would be well within the definition of'Force Maieure', thereby extending the time period for completion ofthe project. xvi.

That the complainant has not come with clean hands before this authority and has suppressed the true and material facts from this authority.

It would be apposite to note that the complainant is a mere speculative investor who has no interest in taking possession of the apartment. xvii.

That the project was registered under with the authority vide registration no.

108 of 2017 dated 24.08.201,7 under the provisions of the Act of 2016. xviii.

That the possession ofthe said premises was proposed to be delivered by the respondent to the allottee by 2'1,.01.2020.

The completion of the building is delayed by reason of non-availability ofsteel and/or cement or other building materials and/or water supply or electric power and/ Complaint No.

556 of 2022 and 6 others Page 21 of38 HARERA ffi.

GURUGRAM or slow down strike as well as insufficiency of labor force which is beyond the control of respondent and if non-delivery of possession is as a result of any act and in the aforesaid events, the respondent shall be liable for a reasonable extension of time for delivery of possessi f possession of the said premises as per terms of the agreement executed by the complainant and the respondent.

The respondent and its officials are trying to complete the said project as soon as possible and there is no malafide intention of the lespondent to get the delivery of proiect, delayed, to the allottees.

It is also pertinent to mention here that due to orders also passed by t}Ie Environment Pollution (Prevention & Control] Authority, the construction was/has been stopped for a considerable period day due to high rise in Pollution in Delhi NCR. xix.

That the enactment of Real Estate (Regulation and Development] Act, 2016 is to provide housing facilities with modern development infrastructure and amenities to the allottees and to protect the interest of allottees in the real estate market sector.

The main intention of the respondent is just to complect the proiect within stipulated time submitted before this authority.

According to the terms of the builder buyer agreement also it is mentioned that all the amount of delay possession will be completely paid/adjusted to the complainant at the Complaint No, 556 of 2022 and 6 others Page 22 of 38 HARERA W-GURUGRAII time final settlement on slab of offer of possession.

The proiect is ongoing project and construction is going on. xx.

That the respondent further submitted that the Central Government has also decided to help bonafide builders to complete the stalled proiects which are not constructed due to scarcity offunds.

The Central Government announced Rs.25,000 Crore to help the bonafide builders for completing the stalled/ unconstructed projects and deliver the homes to the homebuyers.

It is submitted that the respondent/ promoter, being a bonafide builder, has also applied for realty stress funds for its Gurgaon based projects. xxi.

That compounding all these extraneous considerations, the Hon'ble Supreme Court vlde orderdated 04. rdated 04.77,2079, imposed a blanket stay on all construction activity in the Delhi- NCR region.

It would be apposite to note that the 'Basera' project of the respondent was under the ambit of the stay order, and accordingly, there was next to no construction activity for a considerable period.

It is pertinent to note that similar stay orders have been passed during winter period in the preceding years as well, i.e.,2077-2018 and 2018-2019.

Further, a complete ban on construction activity at site invariably results in a Iong-term halt in construction activities.

As with a complete ban the concerned labor was let off and they travelled to their native villages Complaint No.

556 of 2022 and 6 others PaEe 23 of 38 HARERA ffiGURUGRAI/ or look for work in other states, the resumption ofwork at site became a slow process and a steady pace of construction as realized after long period of time. xxii.

The respondent has further submitted that graded response action plan targeting key sources of pollution has been implemented during the winters of 20L7 -1,8 and 201.8-19, These short-term measures during smog episodes include shutting down power plant, industrial units, ban on construction, ban on brick kilns, action on waste burning and construction, mechanized cleaning of road dust, etc.

This also includes limited application of odd and even scheme. xxiii.

That the pandemic ofcovid-19 has had devastating effect on the world- wide economy.

However, unlike the agricultural and tertiary sector, the industrial sector has been severally hit by the pandemic.

The real estate sector is primarlly dependent on its labour force and consequentially the speel of construction.

Due to government- imposed lockdowns, there has been a complete stoppage on all construction activities in the NCR Area till July 2020.

In fact, the entire Iabour force employed by the respondent were forced to return to their hometowns, Ieaving a severe paucity of labour. of labour.

Till date, there is shortage of labour, and as such, the respondent has not been able to employ the requisite labour necessary for completion of its projects.

556 of 2022 and,6 others Page 24 of 38 HARERA ffiGURUGRAII Complaint No.

556 of 2022 and 6 others The Hon'ble Supreme Court in the seminal case of Gajendra Sharma v.

UOI & Ors, as well Credai MCHI & Anr, V.

UOI & Ors has taken cognizance of the devastating conditions of the real estate sector and has directed the UOI to come up with a comprehensive sector specific policy for the real estate sector.

According to notification no.9 /3-2020 HARERA/GGM (Admn) dated 26.05.2020, passed by rhis authoriry, registration certificate upto 6 months has been extended by invoking clause of force majeure due to spread of corona virus pandemic in Nation, which beyond the control of respondent.

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 the complainants.

E.

Jurisdiction ofthe authorlty 13.

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

I Teritorial iurisdiction 14.

As per notification no.7 /92 /2017- 1TCP dated 1.4.12.2017 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 proiect in question is situated within the planning area of Gurugram District.

Page 25 of38 ffi HARERA S* eunuenal Complaint No.

556 of 2022 arLd 6 others Therefore, this authority has complete territorial ju risdiction to deal with the present complaint.

Il Subiect matter iurisdiction 15. iction 15.

Section 11(aJ(aJ of the Act, 20L6 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: t6. t7.

F, Section 11(4)(a) .:: . ' Be responsible for all obligations, responsibilities and functions under the provisions ofthis Act or the rules ond regulotions made thereunder or to the allottees as per the agreementfor sole, ot to the ossociotion of allottees, os the cose moy be, till the conveyonce of oll the aportmentg plots or buildings, as the csse moy be, to the ollotues, or the common areas to the associotion of allottees or the competent authoriq), os the case moy be; Section 34-Functions of the AuthoriA: 344 ofthe Act provides to ensure compliance ofthe obligotions cast upon the promoters, the ollottees and the real estate qgents under this Act and the rules and regulqtions made thereunder.

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 Ieaving 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.l.

Obiections regarding the complainant being investor.

The respondent has taken a stand that the complainant is the investor and not consumers, therefore, he is not entitled to the protection ofthe Act and thereby not entitled to file the complaint under section 31 of the Act.

The Page 26 of38 HARERA M-GURUGRANI Compla,nt No.

556 of 2022 and,6 others respondent also submitted that the preamble ofthe Act states that the Act is enacted to protect the interest ofconsumers ofthe real estate sector.

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

It is settled principle of interpretation that preamble is an introduction of a statute and states main aims & ob,iects ofenacting a statute but at the same time, preamble cannot be used tO defeat the enacting provisions of the Act.

Furthermore, it is pertinent to irOte that any aggrieved person can file a complaint against the promot6iif ihe promoter contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions of the apartment buyer's agreement, it is revealed that the complainant is buyer, and he has paid total price of Rs.21,12,810/- to the promoter towards purchase of an apartment in its project.

At this stage, it is important to stress upon the definition ofterm allottee under.the Act, the same is reproduced below for ready reference: "2[d) "ollottee" in relotion to o reol estate project means the person to whom a plot, apartment or building, qs the case may be, hos been ollotted, sold (whether os freehold or leasehold) or otherwise tronskrred by the promoter, and includes the person who subsequently ocquires the soid ollotment through sole, transfer or otherwise but does not include o person to whom such plot, opartment or building, os the case may be, is given on renti' 18. ln view of above-mentioned definition of "allottee" as well as all the terms and conditions of the apartment buyer's agreement executed between PaBe 27 of 38 HARERA GURUGRA[/ Complaint No.

556 of 2022 and 6 others promoter and complainants, it is crystal clear that the complainants are allottee(sJ as the subject unit was allotted to them by the promoter.

The concept of investor is not defined or referred in the Act.

As per the definition given under section 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. appeal no.

0006000000010557 titled as M/s Srushti Sangam Developers Wt, Ltd.

Vs, Saruapriya Leasing (P) Itr. ^And anr. has also held that the concept ofinvestor is not defined or referred in the Act.

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

F.

II Obiection regarding force maieure conditions: 19.

The respondent/promoter has raised the contention that the construction of the tower in which the unit of the complainant is situated, has been delayed due to force majeure circumstances such as delay in shortage of Iabour, implementation ofvarious social schemes by Government of India, demonetisation, lockdown due to covid-19 various orders passed by NGT, weather conditions in Gurugram and non-payment of instalment by different allottees of the project.

But all the pleas advanced in this regard are devoid of merit.

It is observed the plea advanced cannot be taken as the complainant was never a party to said contract and thus, there was no Page 28 of38 ffiHARERA *e, arnuennlrr Complaint No.

556 of 2022 and,6 others prily of contract.

Further, the respondent has taken a plea that there was a delay in construction of the project on account of NGT orders, orders by EPCA, orders by Hon'ble Supreme Court of India, etc but did not particularly specifu for which period such orders has been made operative.

Though some allottees may not be regular in paying the amount due but whether the interest of all the stakeholders concerned with the said project be put on hold due to fault of some of the allottees.

Thus, the promoter/respondent cannot be given any leniency on based of aforesaid reasons. [t is well settled principle that a person cannot take benefit of his own wrong.

III Obiection regarding delay in completion of construction of proiect due to outbreak of Covid.19 20. vid.19 20.

From the bare reading ofthe possession clause ofthe flat buyer agreement, it becomes very clear that the possession of the apartment was to be delivered by 22.01,2020, The respondent in its reply pleaded the force majeure clause on the ground ofCovid- 19.

The High Court of Delhi in case no.

O.M.P (l) (COMM.) No.

88/2020 & I-As.

3696-3697/2020 title as M/S HALLIBURTON OFFSHORE SERVICES INC VS VEDANTA LIMITED & ANR, 29.05,2020 it was held lhat the past non-performance of the Contractor cannot be condoned due to the COVID-19 lockdown in March 2020 in lndia.

The Contractor wos in breach since September 2079.

Opportunities were given to the Contractor Page 29 of 38 HARER,I ffi.GURUGRANI Complaint No.

556 of 2022 and 6 others Contractor could not complete the Project The outbreak of a pandemic cannot be used as an excuse for non-perlormance of a contractfor which the deqdlines were much before the outbreak itself.

Thus, this means that the respondent/promoter has to complete the construction of the apartment/building by 22.01.2020.

The respondent/promoter has not given any reasonable explanation.as to why the construction of the project is being delayed and why the possession has not been offered to the complainant/allottee by the promised/commined time.

The lockdown due to pandemic in the country beg an on 25.03.2020.

So, the contention of the respondent/promoter to invoke the force majeure clause is to be rejected as it is a well settled law that "No one can take benefit of his own wrong".

Moreover, there is nothing on record to show that the project is near completion, or the developer applied for obtaining occupation certificate.

Thus, in such a situation, the plea with regard to force majeure on ground of Covid- 19 is not sustainable.

G.

Findings on the relief sought by the complainants, G,I Direct the respondent to pay delayed penalty due to delay in handing over of the possession @ 18olo per annum, from the due date of possession till the date ofactual p ofactual possession of the unit is not handed over to the complainants, in favour of the complainant and against the respondent.

Direct the respondent for issuing offer of possession letter to the complainant after obtaining OC/CC from the relevant authority.

G, II Page 30 of 38 ffi HARER. # eunuenarr,l Complaint No.

556 of 2022 and,6 others 21.

In the present complaint, the complainant intends to continue with the proiect and is seeking delay possession charges as provided under the proviso to section 1B[1) of the Act.

Sec.

18(1J proviso reads as under. "Section 78: - Return of qmount and compensstion 1B(1). lf the promoter fails to complete or is unoble to give possession of on opartment, plot, or building, - Provided that where an ollottee does not intend to withdraw from the project, he sholl be poid, bJ the promoter, interest for every month of deloy, till the honding over of the possession, qt such rote as moy be prescribed.' 22.

As per clause 3.1 ofthe flat buyer agreement provides for handing over of possession and is reproduced below: - 3.1.

POSSESSTON "Subject to force majeure circumstances, intervention of Statutory Authorities, receipt of occupation certificate and Allottee/Buyer having timely complied with oll its obligotions, formalities, or clocumentation, os prescribed by the Developer and not being in defoult under ony port hereof and Flot Buyer's Agreement including but not limited to the timely payment ofinstqllments of the other chorges as per poyment plan, Stamp Dury ond registration chorget the Developers Proposes to offer possession of the said Flot to the Allottee/Buyer within q period of4 (four) yeors from the date of opprovql of building plans or grant of environment clearonce, (hereinqfter referred to as the "Commencement Date"), whichever is later.

The Developer olso agrees to compensote the Allottee/Buyer @ Rs.5.00/- (Five rupees only) per sq. ft. er sq. ft. of the area of the Jlot per monthfor any delay in honding over possession ofthe Folt beyond the given promised period plus the grace period of 6 months ond upto offer letter of possession or actuql physical possession whichever is eqrlier"- 23.

At the outset, it is relevant to comment on the preset possession clause the agreement wherein the possession has been subjected to all kinds of of Page 31 of38 ffi HARERA S-eunuennll Complaint No.

556 of 2022 and 6 others terms and conditions of this agreement and application, and the complainant not being in default under any provisions of this agreement and compliance with all provisions, formalities and documentation as prescribed by the promoter.

The drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promoter and against the allottee that even a single default by the allottees in fulfilling formalities and documentations etc. as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning, The incorporation of such clause in the buyer developer agreement by the promoter is just to evade the liability towards timely delivery of subject unit and to deprive the allottee of his right accruing after delay in possession.

This is iust to comment as to how the builder has misused its dominant position and drafted such mischievous clause in the agreement and the allottee is left with no option but to sign on the dotted lines.

24.

Due date ofhanding over possession and admissibility ofgrace period: The promoter has proposed to hand over the possession of the said flat within a period of 4 years from the date of approval of building plans (19.12.2014) or grant of environment clearance, (22.0L.2076) (hereinafter referred to as the "Commencement Date"), whichever is later and has Page 32 of38 HARERA ffi"GURUGRANI Complaint No. plaint No.

556 of 2022 and 6 others sought further extension of a period of 6 months (after the expiry ofthe said time period of 4 yearJ but there is no provision in relation to grace period in Affordable Group Housing Policy, 2013.

As such in absence of any provision related to grace period, the said grace period of six months as sought by the respondent/promoter is disallowed in the present case.

25.

Admissibility of delay possession charges at prescribed rate of interest: However, proviso to section l-B provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules.

Rule 15 has been reproduced as under: - Rule 75, Prescribedrste of interest- [Proviso to section 72, section 18 (rnd sub-section (4) and subsection (7) ol section 791 (1) For the purpose of proviso to section 12; section 18; ond sub-sections (4) qncl (7) of section 19, the "interest ot the rate prescribed" shall be the State Bqnk of lndio highest mqrginql cost oflending rate +2%.: Provided that in case the State Bank of lndia marginol cost of lending rate (MCLR) is not in use, it sholl be replaced by such benchmark lending rates which the Stste Bank of lndia moy fix from time to time for lending to the general public.

26.

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

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

Page 33 of38 # HARERA ffi euruennv Complaint No.

556 of 2022 and 6 others 27.

Consequently, as per website of the State Bank of India i.e., the marginal cost oflending rate [in short, MCLR) as on date i.e.,25.04.2023 is 8.7070. is 8.7070.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate + 2 o/o i.e., lO.7 Oo/o, 28.

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: "(zd) "interest" means the rotes oI interest payoble by the promoter or the 29.

30, allottee, os the cqse may be.

Explanation. -For the purpose of this clquse- (i) the rote of interest chargeoble from the allottee by the promoter, n case of defoult, sholl be equol to the rate ofinterestwhich the promoter shqll be liable to poy the qllottae, in case ofdefault; (il the interest poyable by the promoter to the allottee shqll be from the date the promoter reeeii,d the omount or any part thereoftill the dote the amount or part thereof ond interest thereon is refunded, qnd the interest poyable by the qllottee to the promoter shall be from the dau the allottee defoults in pqyment to the promoter till the ddte it is poid;" Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate i.e,, 10.70qlo by the respondent/promoter which is the same as is being granted her in case of delayed possession charges.

On consideration of the circumstances, the documents, submissions and based on the findings of the authority regarding contraventions as per provisions of rule 28(1), the authority is satisfied that the respondent is in Page 34 of3B HARERA ffi- GURUGRAM contravention of the provisions of the Act.

By virtue of clause 3.1 of the agreement executed betlveen the parties on 22.03.2016, the possession of the subject apartment was to be delivered within stipulated time within 4 years from the date of approval of building plan i.e. (19.1,2.20t4) or grant of environment clearance i.e. (22.01. e. (22.01.201,6) whichever is later.

Therefore, the due date of handing over possession is calculated by the receipt of environment clearance dafed 22.01,201,6 which comes out to be 22.01,.2020.

As far as grace period is concerned, the same is disallowed for the reasons quoted above.

Therefore, the due date of handing over possession comes out to be 22.01,.2020.

The respondent has failed to handover possession of the subiect unit 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 oftheJespondent to offer of possession ofthe allotted unit to the complainant as per the terms and conditions of the agreement to sell dated 22.03.201.6 executed between the parties.

It is pertinent to mention over here that even after a passage of more than 3.3 years neither the construction is complete nor an offer of possession of the allotted unit has been made to the allottee by the builder.

Further, the authority observes that there is no document on record from which it can be ascertained as to Complaint No.

556 of2022 and 6 others Page 35 of 38 HARERA ffi"GURUGRAI/ Complaint No.

556 of 2022 a\d 6 others whether the respondent has applied for occupation certificate/part occupation certificate or what is the status of construction of the project.

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

31.

Accordingly, the non-compliance of the mandate contained in section 11(4)(aJ read with section 18(1) ofthe Act on the part ofthe respondent is established.

As such, the complainant is entitled to delay possession charges at rate ofthe prescribed interest @ 7O.7Oo/o p.a.w.e.f .22.01. .f .22.01.2020 till actual handing over of possession or offer of possession plus two months, whichever is earlier, as per section 18(1.) of the Act of 2016 read with rule 15 ofthe rules.

G.lll Costoflitigations.

32.

The complainant is seeking above mentioned relief w.r.t. compensation.

Hon'ble Supreme Court of India in civil appeal nos.

6745-6749 of 2021, titled as M/s Newtech Promoters and Developers Pvt.

Ltd, V/s State of Up & Ors, (supra), has held that an allottee is entitled to claim compensation & litigation charges under sections 12,14,18 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation & litigation expense shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.

The adjudicating officer has exclusive jurisdiction to deal with the complaints in respect of compensation & legal expenses.

Page 36 of38 M HARERi, fficriRirGRANr H, 33. directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(0: i.

The respondent is directed to pay interest to the each of the complainant(sl against the paid.up amount at the prescribed rate of 10.700/o p.a. for every month of delay from the due date of possession i.e.,22.0L.2020 till a valid offer of possession plus two months after obtaining occupation certificate from the competent authority, as per section 18(1J of the Act of 2016 read with rule 15 of the rules. ii.

The respondent shall not charge anything from the complainant(s) lv. which is not the part ofthe flat buyer's agreement.

The complainant(s) are directed to pay outstanding dues, if any, after adjustment of interest for the delayed period and after clearing all the outstanding dues, if any, the respondent shall handover the possession of the allotted unit.

The arrears of such interest accrued from due date of possession i.e., 22.01,. ., 22.01,.2020 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 of delay shall be paid by the Complaint No.

556 of 2022 and,6 others Directions of the authority Hence, the authority hereby passes this order and issues the following lll.

Page 37 of38 ffi HARERI fficTJRUGRANI Complaint No.

556 of 2022 a\d,6 others promoter to the allottees before 10th of the subsequent month as per rule 16(2J of the rules. v.

The rate of interest chargeable from the allottees by the promoter, in case of default shall be charged at the prescribed rate i.e., 10.70% by the respondent/promoter which is the same rate of interest which the promoter shall be Iiable to pay the allottees, in case of default i.e., the delayed possession charges as per section 2(zal ofthe Act.

34.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of 35.

36. this order.

Complaints stand disposed ol True certified copy of this order shall be placed in the case file of each matter.

File be consigned to registry.

Member Member Haryana Real Estate Regulatory Authority, Gurugram Dated:25.04.2023 )l- =--) [Viiay ffimar Goyal) ieev Kumar Arora) Member Page 38 of38