RAKESH RAYOO vs ANSAL HOUSING & CONSTRUCTION LTD.

Conplaint No.

4333 ot2021 and HARERA GURUGRAI\iI BEFORE THE HARYANA GUI,ATORY AUTHORITY, STATE RE UGRAM I REAL E GUR D,te of de.ision: 22,02,2024 d similar in nature and the are allottees of the project, d for all its obligations, s perthe agre€ment for sale that the promoter shall be responsible responsibilities and tunctions to the allott€es a executed inter se between parties 2.

The core ,ssues emanating lrom them are complainant(sl in the above referred matters NAMEOFTHE BUILDER ANSALHOUSINGT NDCONSTRUTION LIMITED, PROIECT NAME cR/4333/2421 Shri f, Krishan Dass Advocate Shri.Ama.deep Kadyan cR/4335/202\ Shr' E l<nshan Dass Advo!dtr \ CORAM: ShriVijay Kufrar coya I This order shall d ORDER in(, titled as above file ?1 ^f rhp Ra,l F ,i tf (Regulation and Act"l read w,th Development) I 16 (hereinafter refe..ed as th na Real Estate lRegulat'on an, )r referred as "the rules") fo ,herein it js inter alia prescnbe rule: on 11( 2017 (l altal of I Lim lr *HARERA S- ernuennu 3 Complaint No.

4333 of 2021 and namely, "Ansal Hub 83 Boulevard" (commercial complex part of reside.tial colony) being developed by the same respondent/promoter i.e., M/s Ansal Housing and Construchon Limited.

Th€ terms and conditions olth€ buyer's agreements, fulcrum ofthe issue involved in all these cases pertains to failure on the part ot the promoter to deliver timely possession of the units ir question, seeking award of refund the entire amount along with interesL The details of the complatntsdoruintus, ,nit no., dale of a8reement. ::ffi #::'i.# :m:;il;::**" "' 30 sses\ion ofthe Lnit ony tine, withia o period oI42 td opprowl n*6sary lot ttect to tine ly poyhen t of a I I es os devnbed in clouse 3l ve.l to the dev.loper ovet the postes ion ol the uni t tEmDhasis suDDlied) Lanm.zzalu'.qxa9 dus br buvet ond subie& Fufthet, thete thatt be o 0rA dnd ab@e fie perio.t ol42 t IT due date ofpossessA I lnl Note: cra.

Note: cra.e period is allowed being unqualified & included ivhile conrputing occupation certilicate: - Not obtained I cR/4333 /2021, Construction Limited, cR/433512027 Construction Limited 26.07.2022 2607 2022 F-039 tPaee no.

15 olconDlaintl F-033 IPaseno.

16of .omDlaintl I Papeno.

15of corDlaintl I Paee no.16 orcomDlaintl sftbr 43, Curus.am. f4 flHARERA S- eLrnuennu 5.

Complaint No.

4333 of 2021 and 4335 ol2o2l the possession by the due date, seeking award ofpossession and delayed possession charges along with interest.

It has been decided to treat the said complaints as an applicarion for non compliance ol statutory obligations on the part ot the promoter/ respondent in terms ot section 34(0 of the Act which mandates the authority to ensure compliance of the obligations cast upon the promoters, 12 0t 2016 Paee no.

12 of.omoldnt Pase no.11 oicomDlaint [Noter 42 months from date 28.01.2016 as thedate of construction is not known 6 months grac€ p€riod allowedbeins onoualifi.d 12.01.2020 (Not.:42 months from date olexecution of ag.eem€nt i.e.,12.01.2016asthedate olconstructionis not known + 6 monthss.ace period allowed beinB !nd(rcdwnh tsBA rt DrE.

TSC| ni,51,71,72a.64/- annexed wiu BBAat page tof tu16,11,964/. bejng'he .a. from th. dar. of maklng tlleally pressuriziq the i.ow. commnmehts in the Not€: ln the tJbl€ r€ter.ctl abovc, (crtii n( h:v. hecn nsPd Thcv are elaboraled as followsl Abhreviaron Full form TSCTotrl Salc.onsiderrnon AP Am.r'nr.:,d hv the rlldr..f sl The aforesaid comDl plainants against the A HARERA GURUGRAItl the allottee[s] and the real estate agents regulations made thereunder.

Complaint No, 4333 of 2021 and under the Act, the rules and the 6.

The tacts of all the complaints nled by the compla,nantG)/allotteeG)are also similar.

Out ofthe above'mentioned case, the particulars oflead case CR/4333/2021, cose tttled ds Rakesh Rayoo V/s Ansal Housing and Construction Llmlted. n Llmlted. ate being taken into consideration for determining the rights of the alloftee(s) qua possession and delayed possession charges long with rnt€rest and con roi€(t and unit rel: he parliculars ofthe aid by the complaiy elay period, ifanyfi unuar\ pr d details consideration, theamount hi ndingoverth€ possession llowing tabular form: /s Ansal Houslng and t. rii ol d ir Limi D 'Anra1 Hub 83 Boulcvard', Sc.tor-u:1, 'lotal area of theproje.t 26t R merciJL cofrpler part of rcsid.Dt rl 1y 113 0f2008 dated 01.06.2000 vaLid up to 710f 2010 dated 15.09.20210 valid up ReBrsrered/nor reBrstered 03.c ste.ed vide no.

09 of 2018 dated d upro31.12.2o2o 3 452sq. ft.

7.7 p d A il HARERA GURUGRAI,I Complaint No, 4333 of 2021 and Date of execution of 24.0 Ipc. t.2016 10.

30 shott oller po$ssion al the e, within o pqiod ol 42 the .totc oJ uecution ol the '\|ithin 42 months hom the 'dinlnq all th. required d approvdl ne$sdry lor nt ol constuction, t tater subiect to tinely dues bt buyer and subjqt to circrmstonces os dev.ibed in @ths o owe.l to the ft ;r,,l 6U t I, r obove in oterino the !iG R 28.( INo I 0 onths grace period allow€d fred) R.l 12 Basic sale considemtion as per payment plan annexed with BBA at page 31 of t,65,447.64 / Total amount paid by the comPlainant as per sum of 6,3t,964/ t1.

Delay in handins ove. possession till the date o, lllling ol this .omplainr i,e., 29.r0.2021 p B.

8. {THARERA Sarnuennrtr Facts of the complalnt The complainanthas made the following submissions in the complaint: a.

That the complainant is a law-abiding citizen and previously in the year 2013 on the basis of representations and inducements made by and on behalf of respondent company regarding timely possession of the up- coming project by their marketing officials and channel partners in respect of their the. com Boulevard" being develope 2. evelope 2.60 acres at Villase Sihi, Complaint No, 4333 of 2021 and 1335 612021 ect namely, "Ansal HUB 83 were carried out at the ercial piece of land measuring strict curugram at Sector-83, Gurug.am, Haryana.

That all the negoti of rhe u nit, the complai iift\the rurketing st tr ot f ('[m o"t the company SIlt wid'in a period ora2 ot ut the timely possession ne commercial unit to meet ents.

That the said booking was .4.2013 by plac,ngthe cheque ror a sum orRs.3,00,00o/- snCdqF4%.a.&l?drawn on HDFc Bank Lrmited ana a'z.oo.ooo/-l\r?eslitr+r$zr[#,* nt, Eank Limired which amount lvas duly acknowledged by respondent company. c.

That subsequently vide agreement dated 28.01.2016, respondent company had executed lhe builder buyer's agre€ment with the complainant and respondent company allotted unit bearing number F- 039, shop measuring 452 sq. ft. for a total basic sale price of Rs.46,75,940/- to the complainant and respondent company also claimed V ffHARERA $E eunuenml and charged Rs.2,33,797/- towards PLC from complainant and the total amount ofthe said unit fixed was Rs.49,09,737l-. d.

That the respondent company after taking substantial amount from the €omplainant by e€y of advance registration got the bu,lder buyer agreement wherein respondent company's omcials have wrongly state that respondent/promoterwould handed over the physical possessio. or project was totally at s nt and his brother were forced to nd asked aboLrt the tentative date oi ofier of possession as the period of 42 months from the date of execution of build€r buyer agreement dated 28.1.2016 also stands expired i. the July2020. g.

That in the month of lune & luly 2020 th€ omcials posted at the administration branch assured and represented that since tbere was a recession in the markelthe respondent company has slowed the project.

Subsequently in the month of November 2020, the complainant again complaint No.

4333 of 2021 and I sum of Rs.16,31.964l-ds p€r )ny. s p€r )ny.

That subsequent to the said mbers on their regular has neglected to carry were sho.ked to find utand no development elopment of the enbre the unit booked within a period of 42 months lrom the date oiexecution olthe agreement. e.

That the complainanr denrands raised by th /\ flHARERA S-ernuemu visited the site and was shocked that respondent compa[y had totally neglected to execute the project.

That the site supervisor had no clu€ when the construction would resume and he was Siving evasrvean(wpr. h.

That finding no reply from the office of respondent company, the complainant visited the office of respondent company again but it was told that the omce has been closed due to some proceed,ngs pend,ng which was duly served upon the through the said legalnotice has can€elled the booking due inordinat€ delay in compl€ by lhe respondent.ompany and rn ofter ol possessron by complaiDant a.d further sough the r€fund of the e 180/o interest p.a. from the date of respective deposit Thatthe respondent company has send a false and frivolous reply dated 04.03.2021 thereby refusing his liability to offer timely possess,on.

The Complaint No,,1333 of 2021 and with its staff have cheated the nant by previoudy giving ialse promises and misteading a to get the booking regarding the timely possession of th which the complarnant has iry of about 8 years from any is intentionally not inofferingthephysical i.

That ffndins no o s forced to get the legal noticc dated 06.02.20 ndent company through his completingthepr hon of the project A Complaint No.

4333 oi2021and 4335 ot 202r C.

9. companY to refund the entire principal book,ng amount with D, 11.

The respondent has contested That the present complaini is The complainant has sought iollowing .eliefG) Direct the respondent Rs16,31,964l- being the interest @ 18olo p.a.

18olo p.a. from actual rcalization of thea Direct the pressurizing fulfilling therr ow 10 On the date of heariln promoter about th\? relation to section 11 Reply by the respondent REG law and facts.

Th C-prSqt'f?n0}'iir ",tr'o'rw. "' tr'" .o\,'d"H"hi:\,luVa t maintainable beior€ this thatthey have not paid the *HARERA #eunrcnnl,r complainant therefore has no other efiicacious remedy available under thelaw ex.epr ro file rhe pres€ n r compbint.

Reliefsought by the complalnant: full amount.

The complainants have filed the present complaint seeking interest.

The present complaint is liabls to be dismilsed on this ground b.

That the complainant approached the rEspondents somehme in theyear 2013 for the purchase ofan independelt unit in its upcoming residential project "ANSAL HUBS" siruated in Sector-83, DistrictGursaon [Haryana).

Rs.Z,00,000/- for illesally more monev and for not nd circumstan.es of the io the respondenr/ ave heen.ommitted ih Ity or not to plead guilty. le nor tenable bv both lA The complainant prior to approaching the respondent had conducted extensiveand independent enquiries regarding the project and it was only after the complainant was being fully satisfied with regard to all aspects ofthe project, including but not limitedto the capacity ofthe respondent to undertake development of the same and they took an independentand ,nformed decision to purchase the unit, un-innuenced in any manner. c.

That even otherwise, the complainants have no locus-standi and cause oi ffHARERA $-eunuennu action to file the presentco erroneous rnterpretaron of in.orre.t xnderstendin oll ions of the Act as well as an ComplaintNo.

4333 of 2021 and 4335 ol2O2l resent complaint is based on an d .onditions the ellotment ich is evidentian irom the d of 2016, because of the ever signed between the iod would regulate the i.+]'ft of2016.

The parliament tute retrospective in effect. rween the pa(ies the that came into being parties. g parties.

The regula project and not a sub would not make rhe op e.

That despite there being a number of defaulters in the project, the respondent itself infused funds into the project and has dil,gently developed the project ,n question.

The construction work of the project is swingon tullnode and theworkwill be completed withinthe prescribed time period as given by the respondentto theauthority.

A tr (s HARERA GURUGRA]\I Qualrty lnde\ bein admitting any liab Complaint No.

4333 ot2021 and 4335 oi2021 the public at large without monet,zation is also one of q<$ tn" r'o." uuy"." "" That without prejudice to the aforesaid and the rights ofthe respondent the respondent would have handed over the possession to the complainants within time had there been no force majeure circumstances beyond the control of the respondent, there had been several circumstances which w€re absolutely beyond and out of control of the respondent such as orders dared 16.07.2072,37.07.2012 and 21.08.2012 ol the Hon'ble Puniab & Haryana High Court duly passed 'n Civil writ Petition No.

20032 or zooe,g&SfuSrictr the shuckins/extraction or water was banned which is I kbone of construchon process, simultaneouslv orders at ssed bv the Hon'ble National Creen Tribuna) ther atron work causrng Air sudden restriction on the labor pressure.

Howe rn mrny projects The ndentubabletocooewith ent ,s carrying its business in s well as in complrance g.

That the respondent is carrying his b in letter and spirit of the builderbuyeragreement but due to COVID-19 the lo€kdown was imposed throughout the counrry in Mar€h, 2020 which badly atfected the construction and consequertly respondent was not able to handover the possession on time as the same was belond the control of the respondent.

That similarly lockdown was imposed in the year 2021which extendedto the year 2022 which badly affected the construction and consequently ryAr A h 12 E, 13.

12 E, 13. respondentwas not able to handover the possession on time as the same was beyond thecontrol ofthe respondent.

That the ban on construclion was imposed by the Hon'ble supreme court of India in the year 2021 due to the alarm,ng levels of pouution in Delhi NCR which severely atrected the ongoing construction of$e project.

Thatthe Central Government levied such Exes, which are still beyond the control ofthe respondenl it is specificallv mentioned in clause 7 &8 ofthe HARERA Conplaint No.

4333 oI2021 and GURUGRAN/ builder buyer's agreement, vi mplainants were agreed to pay in add,tion to basic sale price unit he/she/they is/are liable to payEDC,lDCtogetherwi interest, incidental and other bank guarante€s for EDC, IDC or any other s er agreed ro pay hrs t/additional demand ch additional demand Copres of all the rele n frled and placed on rhe record.

Their authenticity i .

Hence. the complarnt can be de.ided on the basis olthese undisp R.tt" "na *urni..ion'"a" lurisdiction of the authority IAM The respondent has raised a preliminary submission/objection the authority has no jurisdiction to entertain the present complaint.

The objection ofthe respondent regarding rejection ofcomplaint on ground ot jurisdiction stands rejected.

The authority obseri/es that it has territorial as wellas subject maner jurisdichon to ad,udicate the present complaint lor ihe reasons given below.

A *HARERA # eunuennl- Complaint No. a333 of2021and 4335 of2021 E.l Te.ntoriallurlsdlctlon 14- As per norification no.7/92/2077-tTCp dated14.12.2017 issued by Town and Country Planning Departmenr the jurisdiction of Real Estate Regulatory Authority, Curugram shall be entire curugram District for all purpose with offices situated in Gurugram.ln the presentcase, the project in question is siruated within the planning area of Curugram D,strict.

Therefore, this authority has complete territorial jurisdicrion to deatwith the present co mplaint.

E.ll Subjectmatteriurisdi 1s. urisdi 1s.

Section 11[4][al of the A resDonsihle to th.,ll tannon areas to th. associa section 11[a)(a) is oy be, ta the ollotteet ot the s or the conpetent authoriry, Section 34 Functions olthe Aathorit!: 340 ol the Act providd to ensu.e conplionce aI the abhgonons can 340 oJ rhe Acr provtdes to ensu.e conpnonce at tne abhgonons can upan the prodore\, rhe ollott@s ond the eol e\tote agents under thit Act ond the rulq ond resulodons hode thqeun.Jq.

1 6.

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 compensahon which ,s to be decided by the adjudicating omcer if pursued by the complainants at a later stage- Page l3 oi 22 HARERA GURUGRAN/ Complaint No.

4333 of 2021 and 4333 ol202L the anbit and eope al the Lnder Section 71 ond thot 17.

Further, th€ authority has no hitch in proceeding with the complaint and to grant a reliefofretund in the present matter in view ofthe judgement passed by the Hon ble Apex Court in lvewtecrr Promoters and Developen mvate Limlted vs State oJ U.P. and Ors, (Supro) ond rciteruted in case al M/s Sana Reoltors Prtuate Llmlted & other Vs Unlon ol Indla & others SLP (Civil) No.13005 o[2020 declded on 12,05,2022wherein it has been laid down as u.der: "36 Frad rhe {hene ofrhe d detoiled relerence hos been mode ond tokin! nore ol pNt on delineoted wrh rh. .egulato.! outhonrr and adjudkoting o lno y culh our k that ohhough the Act indi.otes the aktihc 'refund, inErest, penolry and ohd 19.leorly nanilesrs that n on the rcfund onouna o. asesion, or pehotE ond ettlans 12,14,ldand le to rhe adtudro ns ollicer t and interest on the F.

Findings on the obiectiors ralsed by the respondent F.l ObiectioD re8ardirg delay ln completior ofcoDstru.doD ofprolect due to force haieure corditions.

19.

The respondent'promoter alleged that grace per,od on account of force majeure conditions be allowed to it. wed to it.

It raised the contention that tbe entertnin a complaint seeking refund of construction ofthe proiect was delayed due to such as demonetization, and the orders of the force majeure conditions Hon'ble NGT prohibiting PaE 11ol22 A *HARERA &,eunrennH,t Conplaint No.

4333 of 2021 and ,1335 of2021 construction in and around Delhi and the Covid-19, pandemic among others, but aU the pleas adva.ced in lhis regard are devoid of merit.

The flat buyer's agreement was executed between the parties on 28.01.2016, and as per terms and conditions ol the said agreement the due date ofhanding over ofpossession comes outto be 28.01.2020.

The events such as and various o.ders by NGT in view ofweather condition of Delhi NCR region, were fora shorter duration of time and were not continuous as there is a delay ofmore than fouryears and even some happening after due date ofhanding over olpossession.There is nothingon record thatthe respondent has even mad€ an application for grant of occupation certificate.

Hence, in view of aforesaid circumstances, no period grace period can be allowed to the respondent/builder.

Though some allottees may not be regula. in paying the amount due but whetherthe interest of all th€ stakeholders concerned with the said projectbe put on hold due to fault of some of the allottees.

Thus, the promoter respondent cannot be given anyleniency on basedofaforesaid reasons.lt is well seftled principle that a person cannot take benefit ofhis own wrongs.

20.

The respondent also took d plea lhat the construction at the proiect site wds delrycd due ro covid.lc outbreak ln rhe instant complarnt. the du" date othanding over of possession comes out to be 28.07 2019 and grace perjod of 6 months on accountoiforce majeure has already been g.anted ,n this regard and thus, noperiod over and above grace period of6 months can begiven to the respondent-builder. c.

Findingson the relief sought by the complainaDr G,l Dlre.

G,l Dlre.t the respondeDt company to refund the entlre amount of Rs16,31,964l- beinS the principal booklng amountwith up'to'dat€ interest @ 18olo p.a. from the dateofmakitrgthe paymenttill the date of actual .ealization of the amoullt hom the respondeDL A fiHARERA SGuRtTGRA[,r ComplaintNo.

4333 of 2021 and 4335 of2O2l 21.

In the present complaint, the complainant intends to withdraw from the project and is seeking return of the amount paid by him in respect of subject unit along with interest at the prcscribed rate as provided under section 18[1] oftheAd.Sec.lS[1] ofth€ Act is reproduced below lor ready "section 7A: .

Retun ol onount onr! compqtutlo 18(1) Il the pronoter foib to cohpl.te or is unoble to sive pogsion ol on reenent for sote or,osthe coenay be, duly cohplere.l br rhe th) due to dsconttnuan.e aJ hi a developq oh adount ofsuspqsion or.evocati oh ol th e r egistr thts A.t or lar ont o.het rcosan, he \holl be liohle on demand to the ollbttees. in cose the ollattee wtshe\ n, y othet rchedt ovotloble 10 returh the dtuount re@ived by hid tn respect ol that apartment, plot, buildhtg, as rhe .ose nay be, with interest or su.h rate as mo! be opa.tnent ploa or building.- (o) in accordonce with rhe b prescribe.l n thk beho[ in.]uding conpensotion tn the monner os prov etl Ptovided that wheft an allottee does hot intend b rnthdraw f.on the ptu\ec. he shollbe poid, by the pranoteL interest ld every hanth afdelor, titl thehonding owr al the pas6non, ot such rote as hat be presctibed. (Enphaessupplicd) \i9 clause 30 of the aDan 22.

As per clause 30 of the apartment buyer Agre€ment (in short, agreement) provides for handing over ofposs Th. tl.rcl.per shall aller pose$ionolthe tine\ poynentoIott dues b! buretond bject to lorce najeure .irclnstances as dscribed in clouse 31- Futrhet, theru sio be o gtuce P.rlo.l of 6 molths ollowe.l to the [email protected] ove. ond obo|e the perlo.l ol42 months ot obove in ollerins the posesion ol the unit" 23. unit" 23.

At the outse! it is relevant to comment on the preset possession clause oithe agreement wherein the possession has been subjected to all kinds of terms and conditions otthis agreement and application, and the complainanis not being in default under any provisions of these agre€ments and compliance with all on, whiche eer it toter \u b) eLt to nonths lron the .tate ol fon the .tate ol obtoi ne.essorr for cohnence {\ *HARERA #-eunuenml agreement and the allo 24.

Due dale of handing ComplaintNo.

4333 of 2021 and 4335 ot 202r provisions, formalihes and documentation as prescribed bythe promoter.

The draftingolthis clause and incorporation ofsuch conditions are not onlyvague and uncertain but so heavily loaded in favour ofthe promoter and against the allottee that even a sinele default by the allottee in fulnling formalihes and docum€ntations etc. as prescribed by the promoter may make the possess,on clause ,rrelevant for the purpose of allottees and the commitment date lor handingover possession loses its meaning.The inco rporation of such clause,n the buyer's agreement by the pr t to evade the liability towards timely delivery ofsubject unit and the allottee ofhis right accruing after delay in possession.

Thit i nt as to how the builder has misused his dominant po ischievous clause in the ign on the dotted lines. ility of grace period: The promoter has pro ron of the apaflment within a per,od of42 mo tagreementorthe date of .onnencement of con er is later.

The aulhority crlculated due date ofpossessio oiagreement i.e., 28.01.2016 as ftfoCion clause. eccoraingry, the author,ty allows this grace period of 6 months to the promoter at this stage.

25.

Admissibility of refund along wlth prescribed rate of inter€s!

The complainantis seeking refund the amount paid by him along with interest 180/o rate ofinterest.

Howevet the allott€e intend to withdraw from the project and are seekins refund ofthe amount paid by them in respect of the subiect u. subiect u.it A *HARERA #,eLnrennl,t with interest at prescribed rate as provided has been reproduced as under: ond (7) ol section 19, the interest ot Ran k aI I n d io h is hest norsi na I cosr rate (MCLR) isnotin ue, itshall be rates which the stote Ronk of tndia Complaint No.

4333 of2021and Ptovi.led that in cdv the State n k al ln.lia moqino I cost of lend tne pldced by stch bqchnork lendihs or It,lram ttne to un. lor kndtne e mte prescnbed" sholl be the staE Ite legislation under the provision escribed rate ofinterest.

The rate nder rDle 15.fthe rules Rule 15 onableand ifthe said rule is ractice in allthe cases. i-e.,22.02.2024 \s ill be marginal cost of section 2(zal oi the Act om the allottee by th€ promoter, Rute 15- Prescribed rate oJinter$t- I viso to section 12,sation 1a and sub se.tion () and subrectlon (7) oJ se 0) Fo. the purpose alproviso to ectio 12; vction 18; ond sub sections (1) to the general public.

26.

The legislature in ,ts wisdom in th olrule 15 ofthe rules, has determ, ofinterert so determined bv 27 28 Consequently, as perwe margrnal (ost of lendi "(i 8.85olo.

Accordingly, th followed to award the interest, i lendinsrate +2% i.e., 10.

The definition oi term provides that the rate ofinterest in.ase oldefault, shnll be equalto the rate olinterest whrch the promotcr shall be liable to pay the allottee, in case of "(za) "intetest" aeans the rotes ol inteBt poyable b! the pronoter or the a I lottee, o s the coe noy be Explonotion.

Fot th. purpos olrhis clouse- the tute oI interest chotgeoble lron the ollottee bt the pronoter, in cde oI deloula shall be equol ro the rate of intercst which the ptunoter shol be liable to por the attoftee, in cae ol defoutr; the ihtercst potable bt the prcnotet to the allottee sholl be lton the ddte the pronoter reteived the ahouht or ant port thereof till the date the anount or patt the/eoI and interest thereon is rcfunded, ohd the interest poyoble b! the faul A 29 Conplaint No. plaint No.

4333 of 2021 and a)lottee to the pmnote/ sholl be ton the dote the allottee defuults in patrnent to the pronozr till tte date h h paid: execution ol builder buyer's agreen 28.01.2016.

The peflod of 42 months expired on 28.07.2019.

As eperiod isconcerned, the same is aUowed for the reasons quot€ the due date of handrng over eossession h 28.01.2020./6) passage ofmore than 8.1ye s (,.e. r construction iscomplettP ver here that even after a A tiu datel neirher the ellotted unithas been mide to the.llottees b that tbe alloftee cannot the unit which is allotted amount of money towards the s complainant has paid almost 31% oftotal consider authoriry observes that there is no document plac can be ascertained that whether the respondent cert,ficate/part occupation certificate or wh.t is the status otconstruction of the project.

In view of th€ above'mentioned facts, the allottee intends to withdrawfromt}leproiectandarewellwithintherighttodothesame,nvi€w oisection 18(1) otthe Act,2016.

30 Moreover, the occupaiion certificate/completion certificate of the project where the unit is situated has still not been obtained by the respondents *HARERA S-cLrnLcnnl,r On consideration ofthe documents available on record and submissions made by both the parties regarding contravention ot provisions of the Act, the authority is satisfied that the respondent is in contravention of the section 11(4)(al of the Act by not handing over possession by the due date as per the agreement.

By virtue of clause 30 of the agreement executed betlveen the authority is ofthe view for taking possession of e has pard a consrderable .tion.

It is also to mention that A PHARERA $- eLnLcnnvr Complaint No.

4333 of 2021 and :l1. /promoter.

The authority is ofthe view that the allottees cannot be expected to wait endlessly for taking possession ofthe allotted unit and for which he has paid a considerable amounttowards the sale consideration and as observed by Hon'ble Supreme Court of l^dia in lreo Gmcc Re eo Gmcc Realtech Pt t Ltd.

Vs, Abhlshek Khanna & Ors., civil appeal no, 5785 ol 2019, declded on 11,01.2021 "....

The occupotion ceftilcote k not awilable even as on doE, which clearl! onounts ta defrciency of eNc4 The ollottees connot be nade to woit tndeJintely fat pose*ion althe opartnehts ollotted to then, nor con the! be ha""d,n,okp thp opaflap.,tt4 Phosc t olth" p,oJ",, Further, the Hon'b1e Supreme Courto ndia inthe cases ol Newtech Promoters o d Developers Pnvote Lintiterl U.P. and ors. (supra) reiterated in case ol M/s Sana Realto others SLP (civil) No.

7 or *o! onte6 olthe tau the o I lottee /hone buyd, on the pra tect, h e sho I I be enfi t ed 32.

The promot€r is responsible lor all obligations, responsibiUties, and functions under the provisions ot the Act of 2016, or the rules and regulations made thereunder or to the allottees as per agreement for sale under section 11(4)[a] The promoterhas failed to complete or unableto give possession ofthe unit in accordance with the terms otagreement for sale or duly completed by the date specified therei..

Accordingly, the promoter is liable to the allottee, as he wishes to withdraw from the projecl without prejudice to any other remedy o turc has con v i ou sly ptovid ed rhi \ tol absolu@ nght to the allotEe, 1f drttuena plot or buildih9withih the eht rceadtess olunloreseen events isin etherwoy nor ofitbutable ta uader on obhgatton b relund the ribed W the Stote Aavernnent (\ available, to return the amouot received by him in respect of the unit with inte.est at such rate as may be prescribed.

33.

Accordingly, the non-complianc€ ofthe mandate contained in section 11[4)(a] read with section 18[1) ofthe Act on the part ofthe respondent is established.

As such, the complainants are entided to refund ofthe entire amount paid by them at the prescribed rate of interest i.e., @ 10.850/6 p.a.

850/6 p.a. (the State Bank oi lndia hishest marsinal cost oflending rate [MCLR) applicable as on date +2%) ffL]ARERA $-eunuenml as presffibed under rule 15 of the Ha Rules 2017 ibid. s G.ll Direct the respond€ntbe penalaq s Complaint No.

4333 oI2021 and 4333 ol2A2\ a Real Estate fRegulation and llevelotmen0 Rules,20I7 from th ch payment till the actualdate of relund olthe anrouDt within the time ed in rule 16 of ihe HaNana .-dr-*l [l 34.

The complainant rs s .ommitmrhLs in thefactsand ci Hon'ble Supreme Court o M/s Newtech Promoters fsupraJ, has held that an allottee i rcmplainants to pay for mor! illeeally pressurizina the t lulfillins rheir own nrcase in the interestol ref w,r,t, compensation.

5-5749 of2021 titled as .

V/s Stote ol Up & ors. claim compensation & lrflg.flon charges under sections 12,14,18 and section 19 which is to be decided by the adjudicating office. as per section 71 and rhe quantum of compensatron & litisation expense shall be adjudged by th€ adjudicating oificer havins due regard to the factors mentioned i. section 72.

The adiudicating omcer has exclusivejurisdiction to deal with the complaints in respect of compensation & legalexpenses.

H.

Directions of the authorlty 35.

Hence, the authority hereby passes this order and issues the following directionsunder section 37 oftheAct to ensure compliance ofobligations cast /^, Complaint No.

4333 of 2021 and ,!335 o12021 PHARERA #GuRucRA[,4 upon the promoter as perthe funciion entrusted to the authority under section 3a(01 L The respondent/promoter is directed Et refund th€ amount rec€ived by it from each of the complainant(s) along with interest at the rate of 10.85% p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Ruler 2017 from the date of each payment tillthe actualdate ofrefund ofthe deposited amount. ed amount.

A period of 90 days is giv spondents to comply with the directions siven in this order whrch legal consequences would II, il t€ any third-party rights liz f the paid-up amount d even if any t ansfer Ilt along with intere rece,vables shall be first es mentioned in para 3 of 36.

Th,sdecision shall mu 38.

Files be consigned Dated: 22-OZ-2024 \.t- r--2 (vilay xffnar Goyal) Member Haryana Real Estate Regulatory Authority, Gurugram