OM PRAKASH SINGH vs VATIKA LTD.

HARERA GURUGRAN/ BIFORETIIE HARYANA Complarnt No.

7143 or 1022 REAL ESTATE REGUI,ATORY AUTHORITY, GURUGRAM Rcgistered officei Vatika Triangle, 4th Floot Sushant Lok, Phase 1, Block A, Mehrauli - curugram Road, Curugram 122002 Om Prakash si.gh R/o: B- 1/B- 1, Meera Colony, BHU varansai, Uttar Pradesh- 221005 CORAM: ShriVijay Kumrr Goyal 24.71.2022 25,o4,2024 Shn V'nit l(umar Srivastava, Advocate Shfl Dhruv Dutr Sharma, Advocate t ORDER 1.

The presentcomplainthasbeen filed bythecomplainant/allotteeundersection 31 ofthe Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read w,th rule 28 of the Haryana Real Estate [Regulation and Developme.t] Rules, 2017 [in short, ihe Rules] for violation ot sedion 11(4)[a) ot the Act wherein it is inter a/io prescribed thatthe promoter shallbe responsible lor all obligatjons, responsibilities and lunct,ons underthe provisionsofthe Actorthe Date ofcomplaint : Order pronoun.rd on: A e thereunder or to the allottees as per the agreement derails.

ARERA {tH $-e Rule A.Proi Comolai.t No.

7144 o12022 2.

The particulars ofthe unil project, the details ofsal€ consideratioI! theamount paid by the complainant, date ofproposed handing over the possession, delay period,,fany, have been detailed in the following tabular forml URUGRAN4 s and regulatioDs mad ale executed lrterre. ect and unit related 1 Name and location of the ''Xpression" by Vaiika, Sector 888 2 38640.48 Sq. nrtr:i.

Residenrial Plotted colony 94 o12013 dated J1 10.2013 Valid uDto 30.10.2019 RERA re8inered/ not regi\t€red and validity vide no.

271 o12017 dar€d 09.10.2017 Valid uDto08.10.2022 HSC 028, pockct-H-2, lcvcl-1 [p,ge 19 ofcomp]aintJ 1.

Unitareaadmeasurjng 1350 sq. ft. (as per 88A page 19 olcomplaintl I huld.rbuycr aerccnrcnt 29.03.20',t6 {pase 17 of.omplaint) 13. "fhe Developer based on its pte*ht plont ond estinotzs ond subject ta oll JLst dceptions, contnplates to comptete @n Naion ol the soi.l Resi. oi.l Resi.lentiol Floor |'khlh d period oI4A (Fotty Eiqht) nonths hon the dote ol de.ution of this Agreemdt unle* there shall be dela! or there sholl beloillre due to reosons nentioned in othet Clausd herein o. due to loiture of Attotteeg to par in tine the prke al the soid Residentiol floot olong with all athe. chorges ond dues in occordonce with the khedule ol Powmts given in Ann^ure.l ot os pet the denands roised by the Developer lron tine ta tine ar onv foilu.e on the ourt ot the A.

I}HARERA S-aJRUGRAM CofrplaintNo ?l18of 2022 Allottee(s) to obide by ony ol the terns ar cohditions of this Agrenent..

10 Due dare ofpossesson 29 09.2020 (Calculated lrom the date of execution ol 8BA includinggrace period in lieu ofCovid- 19.) 11 Rs.45,77 ,OLZ / - las per BBA pase 20 ofcomplaint) 1) AmoDnt peid by 1104 2021at page l4 of 09.04.2018 (page 58 olcomplaintl 75.06.202t, 77 04.2021, L4.04 2022 (as per cancellation letier pag. s7 oi 15.

Notice lor Termination r4.44.2022 (pase 2a orreply) 26.04.?42? (pag.57 olcompla'ntl 17 ?4.05.?0?2 (page 61 ofcomplaintl Iu occupation Certificate B.

Facts ofthe complalnt 3.

The complainanthas madethe lollowing submissions in the complainl' a.

The complainant has booked a unitbearing no.

HSG-028, Pocket-H-2, Level' 1 in the project namely "XpressioN by vatika" situated at Sector-88B, Village' Harsaru, Tehsil& District- Gurugram, Haryana, under thesurmises ofseveral false and fake promises by the promoter. la d t e.

HARERA complaint No.

7143 of 2022 GURUGRAII 'lhat by builder buye. agreement dated 29.03.2016 was executed between the parties as per the terms and conditions as mentioned therein.

The said builde. buyer agreement is one sided and against the provisions ol applicable laws as on thedate of its execution.

That as per the terms ofbuilder buyer agreement the payment plan whlch was provided to complainant ,s construction linked payment plan and complainant madc paynent as perdemand lefte.s issued bythe pronrot.r. pronrot.r. 'Ihat complainant was never informed about the progress of constru.tion and date oiproviding complere and legal possession of the said flat along with all amenities.

In the meantime, he came to know that project was delayed and there was no clarity about when const.uction to be resumed and the possession ofhis dream unit willb€ provided to complainant.

On 09.04.2018, the complainant jntimated to the respondent that due to unavoidable personal circumstances he is unable to continue with the said flat in the aforesaid project.

Thatcomplaioant neither got proper respons. from promoter nor got hishard-earned money paid to the promoter due to iake and false commitment made bythecomplainant.

That to the utter shock to the complainant, complainant re.eived a leuer from the office of the complai.ant titled as "Notice fo. termination...... xpression by Vat,ka' dated 11.07-2017 and in the same respondent/promoter have demanded to pay the so-called dues as per th e ir whim and fancy.

The said demand was not as per construction stage and thus the said demand has no legaland valid in the eyes oflaw He has pa'd a sunr of Rs.16,41,742l', till date as aga'nst rhe said unit. 'l'hat after knowing the actual construction position of the proleci complainant came to know and was told by the official of respondent that A HARERA Complaint No.714a of 2022 GURUGRAN/ the said project is delayed and there is no clarity of construdion and possession ofthe unit and they suggested complainant to stop payment as the project is a stand-still project and th€ respondent /promoter intended to scrap the same or to transl€rthesame to other developer. h.

The complainant is in receipt of letter dated 27.04.2022, from rhe respondent in which they have mentioned that the agreement of the unit has been cancelled and the amount deposited by complainant has been iorfeited and respondent hava:deln4nded from the complainant a sum of R\.10.52 2'17l-ds per responddat /promoter calcuiahon. alcuiahon. the sard demano which has been asked as p€r. the calculation made as per one sided calculation made by the respondent /promoter. ,.

That the respondent/promotdrhava ignored or befter to say avoided that the Real Estate (Regulation and D€velopment) Acl 2016 has been notified from 01.05.2016 and StateofHaryanahave notified the Rules underth€ Act.

After the said implementatioD ra5pondent is bound to follow the Act and Rules as notified and tle dictatorshipsnd monopolistic pracnces, one sided agreement have been suitable subatituted trom the effective date of said act and rules mad€ there und€r. j.

The relevant provlsion of Haryana Real Estate (Regulat,on and Development) Rules,2017 Rule9.3 [iil, provides as lollows: "ln cdse oI Delauh by Allo$ee under the cotuition listed obove continues lot o penod beyond ninery dots after notice lron the Pronoter in this resdtd, the Prcnotet noy cancel the a otnent ol the Plot/ Unit/ Aportnent lor Residential/ Connerciol/ lndusfial/ lT/ ort other usoge olong with parkins (ifopptkobte) in favour al the Attottee ahd reltnd the norcy poid tohi b! the aUotee by Iodeinng the booking o ount paid lor the allotnent and interest conponent on delayed paynent (poroble by the .ustoher lot breach of ogreement ond nonpdrnent ol ony due payoble to the pronoter).

The rcte ol interest palable by the ollottee to the ptonotet shall be the SraG Bank ol lndio highqt noryinol cost ol lending rote plus two perc@t.

The bolonce onount of nohey poid by Lhe ollot ee sholl be retutned bt the pranotet ta the A 1rHARERA dt GuRuGRA[/ complarnt No 7148 of 1022 ollottee wjthin ninet! dols oI stch concellotion 0n such defoula the Asreement ond onJ liobilitt af the pramater arising aut ofthe sone shdll thereupon,stohd temihoted Pmvided thot, the pranoter sholl intinote the o l l ottee o boLt such tetm i no tian dt leo st thi.tt doys pto. ta su c h ter ni nation. k.

Ihat in the light ofthis provision, the letter dated 26.04. ted 26.04.2022 is completely against the sacrosanct purpose of the Act of 2016 and Rules madc therc l.

Thus, the complainant is entitled ior relund ofhis paid amount along with interest at the rate ofMCLR+2% per annum from the date olpayment to tbe respondent /promoter tillthe date ofreiund by respondent /promoter as the default was on the part of the respondent /promoter.

Thus, in thc interest oi justice is humbly prayed that the respondent be ordered to return the paid amount along with interest at the rate of MCLR+2010 pcr C.

Reliefsought by Lh€ complainants: - 4.1he complainant has sought lollowing relief[s): a.

Direct the respondent to relund ofhis paid amount along with jnterest at the rate oi MCLR+2% per annum from the date oi payment to the respondent /promoter tillthe dateofrefund by respondent/ promoter.

5.

0nthedateof hearing,theauthorityexplaidedtotherespondent/promoter about the contraventrons as alleged to have been conmitted in relation to section 11[a] (al oathe Act to plead guilty or not tD plead guilty.

D.Reply by the respondent.

6.

The respo ndent contested the complainton the following grounds:_ a.

That at the outse! .espondent humbly submits that each and ever)' averment and contention, as made/ra,sed in the complaint, unless specifically admitted, be taken to have been categor,cally denied by respondent and may be read as travesty oifacts.

A, *db b.

HARERA ComplaintNo.

7143of 2022 GURUGRAI/ That the complaint filed by the complainant before this Authority, besldes being misconceived and erroneous, is untenable in the eyes ollaw.

That iurther, without prejudice to the alorementioned, even ifit was to be assumed though not admitting that the filing olthe complaint is not wrthout iu.isdiction, even then the claim as raised cannot be said to be maintainable Ind i\ lirble to be retFctFd tor rhF r cd(ons as Fn\Ling. s Fn\Ling. 'Ihat at this stage, it would bejust and proper to refer to certain provisiont of the Rules of 2017, which may be relevaDt for the adjudication ol th. present lis and which, for ease ofreference, are reproduced hereunder - 2017 Haryana Rules Rule 8: Agreenent lor sole: - Rule 15: Interest poydble by the promoter ond the o llattee - F.onr the conjoint readios olthe afo.ementioned sections/ Rules, Form and Annexu.e A, it is evident tbat the'Agreement for Sale, for the purpose\ o, 2016A.ras w€llas 2017 Haryana Rules, isthe one as laid down inAnnexure A, which is required to be executediDterse the Promoter and the Allort€e.

Ii is a matter of record and rather 3 conceded position that no such agreement, as reterred to under the provisions ot 2016 Act and 2017 Rulcs, has bee. executed between respondent and the complainant.

Rather, the agreement that has been referred to, ior lhe purpose oi getting the ad!udication of the complaint, thoush without iurisdiction, is the builde' buye. agreement, executed much prior to coming into rorce of 2017 The adjudication ofthe complaint lor refund and interest, as providcd unde. sections 12, 14, 18 and 19 of 2016 Act, if any, has to be in reterence to the agreement for sale executed in terms o12016 Act and 2017 Haryana Rules and no otheragreement.This submission otthe respondentrnte, .li i.

A, *HARERA -c$- cunrrcnnu ComplaintNo.

7143of 2022 finds support fiom reading ofthe provisions of2016 Act as well as 2017 Haryana Rules, including th€ aforementioned submissions.

Thus, in view of the submissions mad€ above, no reliefmuch less as claimed can b€ granted to the complainant. e.

That the reliefs sought by th€ complainant appear to be on misconceived and erroneous basis.

Hence, the complainant is estopped from raisinS the pleas, as raised in respect thereof. 'I hat !pparently, the complaintfiled bythe complainant is abuseand misusc of process of law and the reliefs claimed as sought for, a.e liable to bc dismissed. dismissed.

No reliefmuch less any interim relief, as sought for, is liable to be granted to the complainant. g.

That the complainant has miserably and willfully failed to make payrnents in time or iD accordance with the terms ofthe builder buyer asreem.nt It is submitted that the complainant has lrustrated the terms and conditio.s olthe builder buyeragreement, which were the essence ofthe arrangement between the pades and therefore, the complainant now cannot invoke a pa.ticular clause, and ther€fore, the complaint is nol nraintainable and should be rejected at the threshold.

That the complainant has also misdirected in cla'ming refund and on:ccount ofalleged delayed offer fo.

It has been categorically agreed belween the parties that subiect to the conrplainant having complied with allthe terms and condrtrons ofdrc buyer's agreement and notbeingin default underany olthe provisions of the said agreement and having compl,ed with all provisions, tb.malities. documentation etc., the developer contemplates to complete construction olthe said unit within a period of4 years from the date olexecution olthc {V {THARERA 1$- cLrnrcnlur Cohpla'nr No 7148 of 2022 agreemenl unless there shall be delay due to force majeure ev€nts and failure ofallottee(s) to pay,n timethe priceotthesaid Unit.

Reference may be made to clause 13 ofthe builder buyeragreement. ''13, Schedule lof Poseslon oJ the soi.l R5identidl Floor fhot the Developet based on its preseht plans ond estinates ohd subject ta all iun e,ceptiont contenplotes ta ca plete constuction of the said Residentiol Floarwithtna period al4a(Fotty EishA nonthston the dote oJ execution af thk Agreenent unless there shal be delo! or there sholl be failurc due to rcasans nentianed in other claues herein at due to loilure olAtlouee(s) to poy in time the pnce oI the tuid Residential Flaot olong \|hh olt other charses and dues in oc.atdahce wth the khedule oI parnen ts givea n Annexure t at os per the denands rckeA by the D. by the D.velopet lton tine ta tme or onr t'oilure on the panoftheAltottee(, to pude bydny olthe tems orcandiions oIths ogreeneht" ln the present case, rt rs h.

That the complainant has fajled to make payments in time rn accordance with thc terms and conditions as well as payment plan annexed with the buyer s agreement and as such the complaint is l,able io be rejected It is submitted that out ofthe sale consideration ofRs.92,38,415/-, the amount actually paid by the complainart is Ri.16,41,742l-i.e., around 17% ol the totalsale consideration oftheUnjt.ltis fu rther subm itted that there was an outstanding amount ot Rs.45,48,222l' (includine inte.estl payable by rhe complainant as on lO-A2-2022 as per the payment plan opted by thc complainant.

That the last payment was made by the complainant on 02.02.2016 that js much belore the p.oposcd date old€livery olposscssion That dre complainant has trlldate not made the payment ofdemdnd rarsed on conrpletion olsuper structure and start offlooring work inside the unit.

That on 14.04.2022, the rcspondent again called upon the complainantwrth fulfilled his oblisation and had fallen due Accord,nsly, no that the complainant has not paid the rnstallmenrs on hme rhar less as claimed can begranted to /a iTHARERA $-crrnrcnru an opportunityto make the paymentwithin 7 days failingwhich the unitot the complainant shall stand cancelled.

It is furrher submtted that despite the number ofopportunities the complainant failed to mak€ the paymenrs.

However, the complainant did not bother to make the payment and therefore the respondent was constrained to cancel the bullder buyer agreement vide letter dated 26.04.2022 and the complainant is now left with no right, title, interest etc. in the present unit.It is pertinentto mention here rhat earher also the comr ote an e-mail dated 09.04.2018 ro the respondent that due to e unavoidable circumstances he cannot continue in the pro)ect his unit. his unit.

Thus, the complainant aft€r detaulting in comply agreementi now wants whereas the resDond (omplarnt No.7l43 of 2022 tr the part oi the respondent rncially due to such delaulters were denied in toto. been filed and placed on the 7.

Copics olallthe relevant docun record.

Their authenticity is .

Hence. the complaint can be E.

Jurisdictioo of the authority 9.

The authority obserues that it has territorial as well as subject matter jur,sdrction to adjudicate the present complaint for the reasons given E.l Territorial I uelsdictioo 10.

As per notification ao- 7/92/2017-ITCP dated 14.12.2017 jssued by 'lown and Country Planning Department, the jurisdiction of Real Estate A *HARERA s- crnLrcnlv 12.

Compla'nr No 7I48 oI2022 RegulatoryAuthority, Gurugmm shall be entire Gurugram District for all purpose with omces situated in Gurugram.

In rh€ present case, the project in question is situated wi$in the planning area of Curugram District.

Therefore, this authoriryhas complete territorial iurisdichon ro dealwith the present complaint E.ll subiectmatterludsdlctlon 11.

Section 11(4)(al ofthe Acl 2016 provides that the promoter shall be responsible to the allottee as per.fl: er's rgreemenr.

Secnon I I(al[a] is reproduced as hereunder: tk .esponstble fat oll obligotions, resl prarxions althk Act ot the t\les ond n oltattees a5 per the apreenent fot sole, t .o\e no! be, tiltthe eanretonce olall nsibilities ond luhctiohs undet the ulotlans node theteunder ot to the So, in view of the provis oblisations cosr upon rhe d?r rht\ A.t and thc rulP\ above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obhgations by the promoterleaving asidecompensation which is to b. later stage.

F.

Findings on th€ obiecttons mlsed by the respohdent F.I obiection rega.din8 iurisdiction ot ihe complaint w.it the flat buyei's agre€meot€x€cuted prlor to comlng lnao force ofthe AcL 13. he AcL 13.

The respondent submitted thatthe complaint is neither maintainable nor tenableand,s liable to be out rightly dismissed as the buyer's agreement decided by the adjudicating oficer if pursued by the complainants at a ,4 HARERA Com.laintNo 714anr2022 GURUGRAN4 lvas executed beBveen rhe parties prior to the enacrment ofthe Act and the provision olthe said Act cannot be applied rerrospectively.

14. 'lhe authority is oi the view that the provisions oi the Act are quasr retroactive to some extent in operation and will be applicable to the agreements ior sale entered jnto even prior to coming into operation of the Act where the transaction a.e stillin ihe process olcompletion.

The Act nowhere provides, nor can be so construed, that all previous agreements would be re-written after coming into force of the Acr. 'I'herefore, the provisions oithe Act, rules and agreement have to be read nnd interpreted harmoniously. flowever, il the Act has provrded lor dealingwith certain specific provisions/situation in a specinc/particulnr manner. then that situation wduld be dealt with in accordance with the Act and the rules after the date of coming into force ol the Act and the rules.

The numerous prov,sions of the Act save the provisions ol the agreements made between the buyers and sellers.

The said conrention has been upheld in the landmark |ndg-r.ent ol Neelkamol Realtots Suburbon PvL Ltd. ys.

UOlandothers. (W.P 2737 olZ017) decided on 06.l2.zOI7which provides as irnder: ''119.

Under the provisions of kction 10, the delay in honding ove/ the posesrcn would be counted lrc the date nentioned in the agreenent lat \ole en.e.ed tnto bt r\e p,aroter ond the ollotke ptit to tB tegauatta4 unde.

REM.

Underthe provinonsoJREMthe pronoterk giv a focilit!ta reie the dote olconpletioh olprcject ond declare the sne under Section 4.

The RE8.4 does not cohtehplate rewnting of conidct bet*een the llot purchoer ond the pronoter .....

122. .....

122. we hove olreodt dkcLssed thot obove stoted prainons ofthe REpJ. are not .etrcspective in noturc.

Thet ndy ta sone extent be hoving o retroocrive or quasi retroactive ellect but then on thot qrouhd the validit ol the pravisions ol REM cannat be challenged, The Parlionent is conpeteht enough to legklate low having rcnospective or rctrooctive ellect.

A low con be even fiomed to dllect subskting / existing contoctual righE between the ponies in the lorger public interest We da not have onydoubt in on nind t\ {r& HARERA GURUGRAI\I Conpla,n!No 714ao12022 thot the REM hos beeh fromed in the to.se. public intetest oltet d thoroLsh nudr and dkcu$ion hode ot the highen level b! the stonding Conaittee ontl Se I e ct Can n tttee w h i ch su b n i ued t ts d e tu n ed.e ports 15 Also, in appealno.173 of 2019 titled os Magic Eye Developer PvL Lt.!.

Vs. lshwer Singh Dahilo, in order dared 17.12.2019 rhe Haryana Real Estate Appellate Tribu nal has obseNed- ''34.

Thus keeptns in riew out ofotesoid dkclsi.n, we orc oI the canidercd opintan thatthe pravkions ofthe Act ore qLosi retoo.tive ta sone extent nt operction and wilt be opptico ble ta the asreenents fot sale entered into even prior to cnhtng tnto ope.ation olthe Act where the tohso.tian orc stitl n the P tocess of ca m pletton.

Il en.e in co se oldelat in the olle4det ive ry aI po$6ton os per the te.ns ond canditiant olthe dgteetuent lor sole the ollotEe shollbe entitted to the interest/tlelof.d pos*sion charyes an the teasonobte rote.,l tntercst as prcviaed in Rule 15 ol the rules ond ane sided unlai ond tnreaehoble roE al conpensotion nentioned in the ogreehent lor sole ^ hoble ta he ignored 16 The agreements are sacrosanctsave and exceptfor the provisions whrch have been ab.ogated by the Act itseli Further, ,t is noted that the agreements have been executed inthe manner that the.e is no scope left to the allottee to negotiate any of the clauses contained therein. d therein.

Therefore, the authority is of the view that the charges payable under various heads shallbe payableas per theagreed terms and conditjons of the agreement subject to the condltion that the same are in accordance rvith th. plans/pemissions approved by rhc r.spect !e departments/compet€nt authorit,es and are not in contravent,on of any other Act, rules, statutes, Instructions, directlons issued thereunder and rrp nor unreasondble or e\orbrtdn( rn ndlure G. tindings on the rellefsought by the complainants.

G,l Direct the respondent to .etuDd olhis paid amountalongwlth lnterest at the rate of MCLR+zvo per annum froh the date of payment to the respoDdent /promoter till the date of refund by respondent/ promoter. fv U HARERA GURUGRAI/ ComDl.,ntNo.7144of 2022 17.

In the present complaint, the complainant intends to withdraw [rom the project and is seeking refund as provided under the proviso to section 18(1) ofthe Act.

SectlonlS[1) provlso reads as under. "se.tiot 13: - Rettrn oI omount on.l eonpensation 134) [the prontoter fotls ta conplete at k unoble b giee possesion aJ an aPottnent plot ot building, (o) tn ouardance wth the terns of the asrcenent fat sote a. as the cae mot be, dulyconpleted by the date specilea thetein;ot (b) due ta dis.ontinuonce al ,is blri,ers os d develope. on accaunt al suspension ot rcvacotion al the regktdtion undet this Act at lot ony athet he shol be liable oh denond to tle ollottees, ih coe the oltottee wishes t.) withdtow fiom the projeca without ptciudice to ony other renedt ovallable, to rcLurh the ohaunt teceived bt hin ln respect ol thot oponnent, pkn, blilding, as the cose noy be, with int*est ot such rate os moy be prescnbetl t thk beha lf tncluding .on pehetlon th the hdhnet as pravlded undet thit 18. 'lhe complainant claiming refund ot amount paid to the respondent- promot.r under the provision 18(1) of the Act, 2016, lhough, afier the request aor refund from the complaiDant-allottee through email dated 09.04. ted 09.04.2018, the respondent-promoterfailed to reiund the amount paid by the compla,nant, failing which the complaina.t-allottee filed the present complaint and seeklngrefuDd with interesL 19.

The complainant was allotted a residential floor bearing no.

HSG'028, SectorSSB, Plot No.-14, sT, H-21, Level 1, having tentative super area 1350 sq.lt., under construction linked payment plan and a builder buycr s asreement was execut€d between the parties on 29.03.2016, on the above mentioned unrt.

He had paid an amount of Rs.16,41,742l agarnstthetotal sale consideration of Rs.86,17,012/'.

As per clause 13 of the agreement, thc respondent was required to complete the construction of the residential floor within a period ol48 months from the date of execution (v *HARERA l$-ernLrcnnu of thisagreement.

Further,asperHARERAnotification no.9/3-2020 dated 26.05.2020, an extension of 6 months is granted for the projecrs having completion date on or after 25.03.2020.

The completion date ol the aforesaid project in which the subject unit is being allotted to the complainant is 29.03.2020 i.e., after 25.03.2020.

As far as grace period of 6 months as is concern€d, the same is allowed.

Therefore, the due date of possession comes out to be 29.09.2020. (including grace periodl.

However the compla,nant h no.

58 oa the comDlaint ,nd ssion which is rep.oduced as under ComplaintNo.

7148of 2022 I had requestedyou that due bleto(onnnue n rhr\protc(r ontinue in this protect, pleasc email dat€d 09.04.2018 on page nd ol the paid'up amount with t-l <T )r 7< to ccrta n unavoidable p I didnl receive your reply.

20 The respondeDt has raised a plea in its reply that the complainant has sought the relief of refund.

The respondent submitted that the complainant is a defaulter and has failed to make payment as per the agreed payment plan.

Therefore, various demands, remi.ders and final opportunities were given to the conplainant. nplainant.

Accordingly, the cornplainant failed to abide by the terms ofthe bu,lder buy€r's agreement executed inter'se parties by defaulting in making payments jn a time bound nanner as per payment schedule. ls HARERA (:om.laintNn 7144.r2027 GURUGRA[I 21.

As per clause 2 of the builder buye/s agreemen! the respondent /promoter have right to cancel the unit and forfeit the eamest money in case the allottee breached the terms and conditions of rhe flat buyer's agreement executed between both the parties.

Clause 2 of the buitder buyer's agreementis reproducedas under for ready reference. fhe ollotee hos entqed into thb Ageanert on the .ondition that 10% ol the bosic sole pri.eond p.eferentiol I on chorg$ aa%aI[DsP+ PLCI) ofrhe soid rctidentiolfoo. shall berelated at Eo.nen Ma ey ta ensurc JutJitthent, bt thc allanee olthe terhs ond conditions os cantained ih the upplt.atbn nnd this Aa@nent Th. nitt epd@WfrWtnllbe hrleited b! the deeetopq on the erentoftt)c foilrreolthe oltottee ta petfotm hs abtisatioh. ar tt)lulftl an!.lthe reths ond conditions set oLtin thit ogte.nent and on a.crncncc ol such loiltr. the detelopet sholl t4and residuol ohaunt renoinn! ofter tleductan of earnett no ey ond oll han refuhdabk onatnts (\t.h o: btokera!epoitl,setuicetox,vAT,otherapplicobletoN,cess,duties,et.harlles f.t .lishohnt ol cheque, intctest on deloled paldent etc) tt) the ollattee wxhout anf inter*t ot .anlpensation of whatsoevet hatlte The ulbtk.. agrecs thot the candinohs Ia.

Iorfeiture althc const n.ne! shott rehatr vah.l on.l elJe..ve ti the etecutioaand registrotion althe.anvelan.e.leed j.r the sai.1 retdennol lloot and the ollottee hosagreed ta thit con.lnion ta tndrate h6/het cannitneht to laithfully abide bt oll the temt and condttions .ontoined in hk/her opplicotlan ond thBogteenent 22.

The issue with regard to deduction ofearnest money on cancellation ola contract arose in cases olMo ula Bux VS, Unionollndia, (1970) 1ScR9Z8 ond Sirdar K.B.

Ram Chandra Rol Urs. yS. l Urs. yS.

Saroh C.

Urs., (201s) 4 SCc I36, and wherein itwas held that iorfeiture olthe amount in case ofbreach ofcontract must be reasonable and ifforfeiture is in the nature of penalty, then provisions olsection 74 ofContractAct, 1872 are attached and the party so forleiting must prove actual dama8es.

Alter cancellation of allotment, the flat remains with the builder as such there is hardly any actual damage.

National Consumer Disputes Redressal Commissions rn CC/435/ZOL9 Ram€sh Malhotra VS.

Emaar MGr Land Limited A HARERA Com.laintN.

7144n12022 GURUGRAl\/ (decided on 29,06.2020) and Mr, Saurav Sanyal VS.

M/s IR[o private Llmlt€d (decided on 12.04.2022) and followed in CC/276612017 in cas€ titled as laFnt Singhal and Ahr.VS, M3M Indla Lhlt€d d€cidcd on 26.07.2022, held that 10%o ofbasicsale price is reasonable amount to be iorfeited in th€ name of "earnest money".

Keeping in view the principles laid down in the first two cases, a regulation known as the Haryana Real Estate Regulatory Authority curugram (Forfeiture of earn€st money by the builderl Regulations, 11(5) of2018, was farmed p.oviding as under "s. aMouNr oF EARNEST MO$E| Scena.io p.ior to the Reot Esreiqalulonons ond Developnent) Aca 2a16 wos diJlerenr.

Frouds \|ere @rnen out withaut ary fear as there wos no tow Ior the nne but now in dew ol th. zbova loctt ond toking into cohederotnn the judgenents ol Hon'ble Notio!1ql C@smer Oisput2s Redretsol Conn$ion ond the Hon'ble Suprene Court of lndio, the outhoiA js of the view that the Iorkiturc anount oJthe eornest noney shatt not dcet! nore thon 10% ol ke cantiderotian anount ol the Nal stote i.e. opartnent/plot/building ds the cose no! be in oll caes where the.an.ellation ofthelat/uit/plat it hode by the builder in o uniloteroi ndnner ot the btyel lhtends to wthdrow hon the projecl ond dn! agreenaht cantnining ony clouse controry to the oforesoid regulotions thallbe noid ond not binding on the buyer.

23. buyer.

23.

So, keeping in view ol the law lald down by the Hon'ble Apex court and provisions of regulation 11 of 2018 framed by the Haryana Real Estate Regulatory Autho.ity, Gurugram, and the respondent/builder can't retain more than 10% ofsale consideiatioras earnest moneyon cancellation but that was not done.

So, the respondent/builder is directed to refund the amount received from the complainant after deducting 100,5 of the sale consideration and return the remaining amount along with interest on such balance amount atthe rate of10.8S% (the State Bank oilndia highest marginal cost of lending rate (MCLR) applicable as on date +270) as prescr,bed under rule 15 oi the Haryana Real Estate (Regulation and Developmentl Rules,2017, from the date ofsurrender i.e.,09.04.2018 tiU /a i}HARERA -&- eunuennv Rs.16,41,742l- after ded the actual date of refund ofthe amount wirhin the timelines prcvided in rule 16 ofthe Haryana Rules 2017 ibid.

H.

Directlons of the authorlty 24.

Hence, the authority hereby passes this order and issues rh€ following di.ections under section 37 oftheActto ensure compliance ofobligations cast upon the promoter as per the tunction entrusted to rhe aurhority under section 34[01 The respondent/ promo of10.85o/o p.a. as complainrNo.7148ot2022 to r€fund the paid-up amount oi 0% of the sale .onsideration as h balance amountat the rate the Rules,2017, from the direct,ons giv nt to comply with the ch legal consequences 25.

26.

Complaints stand disp File be consigned to r istry Date 25-04-202 !o regrsrry. \t I -,a?

4 (vi,ay Kumar Goyal, Haryana RealEstate RegulatoryAuthority, Curugram 09.04.2018 till its