JAIPAL MANAV AND OTHERS vs BPTP

S HARERA #- aJRUGRAI/ Complaint No.

7309 of 2022 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGMM Complaint no.: 7309 of2o22 Dateofdecision: 22.02,2024 1.

Mr.

Jaipal Manav 2.

Amit Manav 3.

Mrs.

Kavi Manav All R/O: RZ-L01./59 Mohan Nagar, Pankha Road, New Delhi- 110046 Complainants Versus 1.

M/s M/s BPTP Ltd. (through its managing directorsJ 2.

C.M, Sharma Office at: M-11, Middle Circle, Cannaught Circus, New Delhi-110001 Also at: 28, ECE House, First Floor, Kasturba Gandhi Marg, New Delhi-110001 CORAM: Shri Vijay Kumar Goyal APPEARANCE: Shri Rajat Tanwar (AdvocateJ Shri Harshit Batra (AdvocateJ Respondents ORDER 1.

The present complaint has been.filed by the complainant/allottees under Section 31 ofthe Real Estate (Regulation and Development) Acg 2016 (in short, the Act) read with rule 29 of the Haryana Real Estate (Regulation and Development) Rules,2017 (in short, the Rules) for violation of section 11[aJ[a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations responsibilities and functions under the provision of the Act or the rules and regulations made there under or to the allottees as per the Member Complainants Respondent agreement for sale executed inter se.

Page I of 24 IL A, 2. ffi HARERA S- aJRTIGRAM Complaint No.

7309 of 2022 Unit and proiect related details The particulars of the project, the details of sale consideration, the amount paid by the complainants, date of proposed handing over the possession and delay period, ifany, have been detailed in the following tabular form: S.

No.

Particulars Details 1.

Name of the project "BPTP Terra", Sector-37D, Gurugram, Haryana 2.

Proiect area 43 acres 3.

Nature ofproiect Group Housing Tower 4.

DTPC License no.

83 of 2008 dated 05.04.2008 94 of 2011 dated 24.t0.2011 Validity Up to 04.04.2025 23.1,0.2079 Name of licensee Super Belts Pvt.

Ltd. & 4 others Countrywide Promoters P!t.

Ltd. & 6 others 5. others 5.

RERA registered /not resistered Registered vide registration no.299 of 2017 dated 1-3.10.20 .17 Validity status valid up to 12.10.2020 6.

Unit no.

T21-1802, 18th floor, in tower- T21 fPaee no.44 of the comDlaintl 7.

Unit area admeasuring 1691 sq. ft. (super arr:a) IPage no.

44 of the complaint] Date of flat buyer agreemeIrt 28.05.20t3 [Page no.

35 ofthe complaint] 9.

Date of tripartite agreement 28.05.2073 IPage no.

70 ofthe complaint] 10.

Possession clause Clause 1.6 Commitment Period shall meon subject to Force majeure circumstulnces: interuention of stqtutory outhorities and purchoser(s) having timely complied with all its obligations formalities or documentation as prescribed/ requested by seller/ confirming party, under this agreement, including but not limited to the timely payment of instalments of the sale consideration qs per the payment plan oDted.

DeveloDment Chqroes (DC), stamp Page 2 of24 n- HARERA GUl?UGRAIV Complaint No.

7309 of 2022 & jati duty and other charges, the seller/ confirming parry .shall olfer the possesslo[ of the unit to the not purchoser(s) within period of 42 months from the date of sqnction of the building plan or execution of Flat Buyer's Agreement whichever is later. (Page no.

42 ofthe complaint) 5.

Possession and Holding Charges: 5.1 The Seller/confirming party proposes to offer possession of the unit to the Purchaser(s) within the Committed Period.

The seller lconfirming party shall be additionally entitled to q groce period oI 180 dqys after expiry of the said committed period for making offer of possession oI the sqid uniL (Paoe no.49 of the co,nplaint) 11.

2A.Lr.2076 (Calculated from date of execution of buyer's agreement i.e., 28.05.2013 being Iater) Note: - 6 months grace Period is not allowed.

L2.

Total consideration , t Sale Rs.1,35,56,378l- [As per statement oa account on page no.

78 of complaintl 13. th Rs.7,07,91,234/- plus tax amount i e,, k.8L,414 /- and total amount of Rs. unt of Rs.L,og,72,644 /- [As per statement of account on page no.78 of complaintl 14.

Occupation certificate 09.t2.2027 [As per page no.

96 ofthe rePlY] 15.

Offer ofpossession L1.t2.2027 lAs Der pase no.

77 of complaintl L6.

Termination Letter 17.LL.2022 fAs Der pase no 114 ofthe complaintJ 17.

Legal notice sent by the complainant for Dossession 29.03.2022 (As per page 43 ofthe complaint) Page 3 of 24 ll B.

3.

HARERA M" GURUGRAI\4 Complaint No, 7309 of 2022 Facts ofthe complaint: The complainants made the following submissions in the complaint.

I.

That in the year 2012-2013 respondent/promoter launched it's one of the proiects namely "TERRA- A Eco-Friendly Green Building /Society" at Sector-37D, Gurugram (Haryanal.

Respondent /promoter by way of various means of advertisements published a lucrative advertisement in newspaper/other media for the public at Iarge thereby inviting the general public to buy the residential flats in the said project.

That by way of the aforesaid lucrative marketing strategy and various false and frivolous promises/proposals, respondent/promoter was able to get huge inve;tments from the general public in your aforesaid project.

IL That attracted with the lucrative marketing strategy and false and frivolous promises/proposals made by the representatives of the respondents, the complainants had also booked a flat/unit on the top floor bearing flat/unit no.T-27/7802, 18th floor, T-21 Tower, admeasuring super built up area 1691 sq. ft. (157.098 sq mtrs.) on the basic sale price of Rs.5,250/- per sq. ft. which comes to Rs,88,77,7501-.

At the time of booking the aforesaid flat/unit, the respondent offered/gave 1% discount to the cornplainants on the above total sale prices which comes to Rs.88,778,t- and as such the complainant had to pay Rs.87,88,972/- for the said flat/unit Accordingly, the complainants had paid bocking amount of Rs.6,00,000/- vide receipt no.25?47 on 07.09.2072 issued by the respondent/promoter. /promoter.

That a flat buyer agreement was executed between the parties fcomplainants and the respondent/promoterJ on 28.05.2013.

It may not be out of place to mention here that the said flat buyer Page 4 of 24 III, h Complaint No.

7309 of 2022 agreement was also signed by Shri C.

M.

Sharma S/o Shri Dev Raj Sharma, being the authorized signatory of the confirming party of the respondent/promoter company.

That it may not be out ofplace to mention here that the respondents granted permission to "lndiabulls Housing Finance Ltd." to mortgage the flat/unitno.T -21/L802 and also executed tripartite agreement on 28.05,2013.

V.

That at the time of execution and signing the aforesaid flat buyer agreement, the respondents along with its representative, assured the complainants that the construction will be started very soon and the possession of the said flat/unit shall be handed over within 42 months from the date offlat buyer agreement dated 28.05.2013.

VI.

That based on the assurances of the respJndents and its representatives, the complainants have made the required payment on time to time without any delay as per the schedule plan prepared/given by the respondent/promoter bull the respondents delayed the project with malafide intentions to clleat the investors including the complainants.

Vll.

That the complainants being a law-abiding citizen, has already paid Rs.L,08,72,648/- which includes Rs.81,414/- as tax (Rs.\,07,9L,235/- as payment plan + Rs.81,414/- as tax deposited on 19.01.2018J.

It is important to note here that the amount paid by the complainant till date is more than the settled/booking amount They have fulfilled their obligation to pay the sale consideration for the said flat/unit within time but it is the respondents who have failed to Fulfill their obligation i.e. delivery of possession of the said flat /unit within time to the complainants, as per buyer agreement. ffi HAREIA S-eunueRnvt IV.

Page 5 of 24 IL ffi HARERA S-aJRuGRAM Complaint No. plaint No.

7309 of 2022 VIII.

That on 11.12.2021, the complainants received a letter regarding offer of possession for the said flat/unit which is based upon some wrong & concocted figures.

The complainants had already paid Rs.1,07 ,9L,235 /- + Rs.81,414/- as tax. [n the said letter dated 71.12.2027 only an amount of Rs.1,07,91,2 3 S/-was reflected and not Rs.81,414/- which was paid/deposited by the complainants as tax.

It is important to note here that besides the aioresaid payment, the respondents with malafide intention and oblique motive further raised illegal & unlawful demand of Rs'35,34,1'14/- towards the complainants in the said false & concocted Ietter dated L1.12 2021.

IX.

That after the receipt of the said false & concc,cted letter dated 11.1,2.2021,, one of the complainant namely Mr. laipal Manav visited the site office of the respondents and disr:ussed with the representative of the respondents with regard to the said illegal & unlawful demand of Rs.35,34,744/-. lt is statel that instead of answering the queries made by the said complainants, the respondent's representative started threatening him for cancellation of their booking and forfeiting the anlount already paid by them.

Despite repeated requests and demand c f the complainant, the said false & concocted demand letter has not been withdrawn neither by the representatives nor by the respondents X.

That the complainants had no other option but to serve a legal notice dated 29.03.2022, to the respondent through speed post and courier.

Legal notice dated 29.03.202? was sent to the respondents through speed post, was served upon the respondents on 30.03.2022.

That thereafter Mr.

Jaipal Manav several times talked to the representative ofthe respondents telephonically and also visited the PaEe 6 of 24 xt. lL MHARERA S^ GURUGRAM Complaint No.

7309 of 2022 site office of the respondents and discussed with their representative with regard to the said illegal and unlawful demand of Rs.35,34,144 /-.

34,144 /-.

It is stated that instead of answering the queries made by the complainant, the said representative of the respondents started threatening the complainant for cancellation of their booking and forfeiting the amount already paid by the complainants.

XII.

That the respondent again sent demand notice dated 30 08 2022 and the respondents again wjth malafide intention and oblique motive further raised illegal.and iinlawful demand of Rs.27 '65,144/- towards the complainant! without any basis instead of handing over the possession of the said flat/unit to the complainant.

Again Mr' faipal Manav talkeq to the representative on telephone and the said representative assured Mr.

Iaipal Manav that the respondent would make necessary corrections in the statement ofaccount Further, the complainants talkef, to the representative on telephone and the said representative asspred Mr' laipal Manave that the respondent would make necessary corrections in the statement of account but to no avail.

XIIL That the respondent with malafide intention and oblique motive now sent termination/cancellation notice dated 11112022 to the complainants instead of handing over the possession of the said flat/unit to the complainant.

It may not be out of place to mention here that the said termination/cancellation notice was duly replied by the complainant vide their reply daled, L5.1,1.2022' XIV.

That as per buyer agreement the respondent rendered themselves liable to pay interest at the rate of 1Bolo p.a. to the complainant w e f' lnne 2077 till the actual date of handing over the possession of the PaBe 7 of 24 C.

4.

MHARERA *E* eunueRRvr Complaint No.

7309 of 2022 said flat/unit to the complainant. it is stated that as per law as well as various iudgments of the Hon'ble Apex Court & Regulatory Authorities, the respondent are liable to pay interest at the same rate which the respondent have charged from their clients /customers for all the delayed payments. payments.

Relief sought by the complainants: The complainants have filed the present compliant for seeking following reliefs: i.

Direct the respondent to han4ovsr the physical possession of the allotted unit as per flat buyer agri!ement dated 28.05.20L3. ii.

Direct the respondent to withdraw the lener/notices dated 17.L2.202L, 23.06t2022, SO.Ci{ZOZZ, 11.L0.2022 and 11.17.202L, respectively thereby illegally and unlawlully demanding Rs.35,34,144/- and Rs.27,65,144/- as the complainants have paid already paid the total sale consideration to the respondent or in alternative the Authority may be pleaded to decl;rre the above said letters/notices as null and void. iii.

Direct the respondent to pay interest at the rate of 180/o p.a. to the complainant's w.e.f. fune 2017 till the actual date of handing over the possession of the said flat/unit to the complajnants. iv.

Direct the respondent to pay a sum of Rs.1i,00,000/- to the complainant towards the cost of litigation. v.

Direct the respondent to pay the compensation to the complainants for the loss of rent because of non-delivery of the flat to the complainants in time as per rate of renli prevailing in the Iocality.

5.

On the date of hearing, the authority explained lo the respondent /promoter about the contravention as alleged to have been committed Page I of 24 lL ffiHARERA #- aJRTJoRAN/ Complaint No.

7309 of 2022 in relation to section 11(4)(al ofthe Act to plead guilry or not to plead guilty.

D.

Reply by respondent: 6.

The respondent has contested the present complaint on the following grounds: I.

That at the very outset it is submitted that lihe name of the respondent no.

2 should be deleted from the array of parties.

It is submitted that the respondent no.2 was onllr' the authorised signatory of the respondent no.

1 acting for and on behalf of the respondent no.1.

That the respondent no.

2 has personal relationship with the complainant.

Moreover, no specific relief has been sought from respondent no. ondent no.

2' Therefore, the name of respondent no.2 should be deleted from the array r:f parties' ll.

That the complainants have not come before this Authority with clean hands and have suppressed vital and material facts from this Authority.

That the complainant being interested in the real estate development of the respondent, known under the name and style of "Park Terra" located at Sector 37'D, Gurugram, IJaryana booked a unit in the said project.

At the very outset, it is pertinent to mention that the proiect has all the necessary approvals and permissions lt was granted license no.

83 of 2008 and 94 of 2C 11 from Director, Town and Country Planning, Haryana IDTCP] ancL is also registered with the Authority vide registration no.

29!) of 2017 dated 13.10.2017 .

Ill.

That the complainant booked a flat vide an appljcation form dated 07.Og.2Ol2, subsequent to which, the complainants were allotted a flat bearing number T21-1802 on l8th floor in Tower T21, tentatively admeasuring super build up area 1,691 sq. ft lt is - Page 9 of 24 HARERA P*GURUGRAM submitted that the complainants prior to approaching the respondent/promoter, had conducted extensive and independent enquiries regarding the project and it was only after the complainants were fully satisfied with regards to all aspects of the project, that the complainant took an independent and informed decision to purchase the unit, un-influenced in any manner by the respondents.

The complainants consciously and wilfully opted for construction linked payment plan as per their choice for remittance of the sale consideration for the unit in question and further represented to the respondent no.

1 that they shall remit every instalment on time as per the payment schedule.

IV.

That, consequently, a flat buyer's agreement daterl 28.05.2013 was executed between the complainant and respolrdent no.1. dent no.1.

It is pertinent to mention here that the flat buyer'r; agreement was consciously and voluntarily executed between the parties and the terms and conditions ofthe same are binding on the parties.

That both the parties were obligated to fulfil their respective obligations as set out under the flat buyer's agreenlent.

That the due date of offer of possession, as per clause 5.1 read with 1.6 of the agreement, is 42 months from the date of sanction of the building plan or execution of flat buyer's agreement, whichever is later with a grace period of 180 days, subject however, to the force maieure circumstances, intervention of statutory authorities and the purchaser(s) making all payments within the stipulated period and complying with the terms and conditions of this aEreement.

That the due date is calculated from the execution of flat buyer's agreement [28.05.2013J being Iater as the buildings plan c,f the project was Complaint No.

7309 of 2022 Page lO of 24 td ffi HARERA S-eunuennrv Complaint No.

7309 of 2022 sanctioned on 2!.09.2072.

Thus, the proposed due date for offer of possession comes out to be 28.11.2016.

That the construction of the unit was hampered and was subjected to the happening of the force majeure circumstances and other circumstances beyond the control of the company, the benefit of which is bound to be given to the respondent no.

1 in accordance with clause 10 read with 1.17 ofthe agreement.

VII.

That this stage, it is categorical to note that the respondent no.1 was faced with certain force majeure events including but not limited to non-availability of raw material due to various orders of Hon'ble Punjab & Haryana High Court and National Green Tribunal thereby regulatlng the mining activities, brick kilns, regulation of the construction and development activities by the judicial authorities in NCR on account of the environmental conditiolls, restrictions on usage of water, etc. ater, etc. tt is pertinent to state that the National Green Tribunal in several cases related to Punjab and Haryana had stayed mining operations including in O.A No.

17112013, wherein vide Order dated 2.1,1.2015 mining activities by th e newly allotted mining contracts by the state of Haryana was stayed on the Yamuna River bed.

These orders in fact inter-alia contillued till the year 2018.

Similar orders staying the mining operations were also passed by the Hon'ble High Court and the National (lreen Tribunal in Punlab and Uttar Pradesh as well.

The stopping of mining activity not only made procurement of material difficult but also raised the prices of sand/gravel exponentially.

It was almo:;t 2 years that the scarcity as detailed aforesaid continued, despit€ which all efforts were made and materials were procured at 3-4 1:imes the rate and the construction continued without shifting any extra burden to the PaEe 17 of24 A, HARERA Complaint No.

7309 of 2022 MGURUGRAM customer.

The time taken by the respondent no 1 to develop the project is the usual time taken to develop a project of such a large scale and despite all the force majeure circumstances, the respondent no.1 completed the construction ofthe project diligently and timely, without imposing any cost implications of the aforementioned circumstances on the complainant and demanding the prices only as and when the construction was treing done. lt is to be noted that the development and implementation of the said Project have been hindered on account of several orders/directions passed by various authorities/forums/courts, before passing of the subjective due date ofoffer ofpossession.

VIII.

That the aforementioned circumstances are in addition to the partial ban on construction.

In the recent past the Environmental Pollution (Prevention and ControlJ Authority, NCR (EPCA) vide its notification bearing no.

EPCA-R/201.9 /L-49 dated 25.10. ted 25.10.201'9 banned construction activity in NCR during night hours (6 pm to 6 aml from 26.L0.2019 to 30.10.2019 which was later converted to complete ban from 1.77.2019 to 05.11.2019 by EPCA vide its notification bearing no.

R/2019/L-53 dated 0L.11.2019.

That additionally, even before the normalcy could resume, the world was hit by the covid-].g pandemic.

That the covid-19 pandemic resulted in serious challenges to the project with no available labourers, contractors etc. for the construction of the Proiect.

The Ministry of Home Affairs, GOI vide notification dated March 24, 2020, bearing rc.

40-3/2020'DM-I[A) recognized that lndia was threatened with the spread of Covid-19 pandemic and ordered a completed lockdown in the entire country for an initial period of 21 days which started on March 25, 2020.

By virtue of various Page 12 of 24 /+ ffi HARERA #-eunuennvt Complaint No.

7309 of 2022 subsequent notifications, the Ministry of Home Affairs, GOI further extended the lockdown from time to time and till date the same continues in some or the other form to curb the pandemic.

Various State Governments, including the Government of Haryana have also enforced various strict measures to prevent the pandemic including imposing curfew, lockdown, stopping all commercial activities, stopping all construction activities.

Despite, after above stated obstructions, the nation was yet again hit by the second wave of Covid-19 pandemic and again all the activities in the real estate sector were forced to stop.

It is pertinent to mention, that considering the wide spread of Covid-19, firstly night curfew was imposed followed by weekend curfew and then complete curfew That during the period from 72.04.2021 to 24.07.2021, each and every activity including the construction activity \vas banned in the State.

This has been followed by the recent rvar, e brought by the new Covid variant in the country. e country.

Therefore, it isr safely concluded that the said delay in the seamless execution of the project was due to genuine force maieure circumstances and the said period shall not be added while computing the delay.

X.

That from the facts indicated above and documellts appended, it is comprehensively established that a period of 252 days was consumed on account of circumstances beyond the power and control of the respondent/promoter, owing to the passing of orders by the statutory authorities.

All the circumstances stated hereinabove come within the meaning of force maieure, as stated above.

Thus, the respondent no.1 has been prevented by circumstances beyond its power and control from undertaking the implementation of the prorect during the time period indicated Page 13 of24 t\, HARERA Complaint No.

7309 of 2022 *& GURUGRAM above and therefore the same is not to be taken into reckoning while computing the period of 42 months as has been provided in the agreement.

XI.

That it needs to be seen that the development of the unit and the project as a whole is largely dependent on the fulfilment of the allottees in timely clearing their dues.

That the due date of offer of possession was also dependent on the timely payment by the complainants, which, the complainant failed to do.

The demands were raised as per the agreed payment plan however, despite the same, the complainants havii del{!'ed the payment against the unit' That the total sales consideration of the unit was Rs' 1,35,56,378/- out of which the comphinants had/have only tnade payment of Rs.l,07,91,235/-.

Xll.

That it was the obligation of the complainant to nake the payments as per the agreed terms and conditions of the agreement That the timely payment of the sales consideration of the unit was the essence of the agreement executed betlveen the parties as per clause 7.1 of the agreement.

That in case cf default by the complainants, the complainants bound to makr: the payment of interest.

XIII. est.

XIII.

That the demand letters were raised as per the agreed payment plan however, the complainants had continuously delayed in making the due payments, upon which, various payment rrlquest letters and reminder notices were also served to the complainant from time to time.

That the bonafide of the respondent no 1 is also essential to be highlighted at this instance, who had served request letters at every stage and reminder notices in case of non-payment' Page 14 of 24 A.

Complaint No.

7309 of 2022 XIV.

That the respondent no.1 has complied with all of its obligations, not only with respect to the buyer's agreement with the complainants but also as per the concerned laws, rules and regulations thereunder and the local authorities.

Despite innumerable hardships being faced by the respondent/promoter, the respondent/promoter completed the construction of the project and applied for the occupation certificate before the competent authority and successfully attained the occupation certificate dated 09.L2.2021.

XV.

That only after obtaining the requisite permissions, the respondent no.

1 legally offered the possess.ion of the unit to the complainants on L1.L2.2021.

It is pertinent. to mention that vide letter dated 1,1.72.2027 regarding the offer of possession, l:he complainants were also asked to make the requisite payment based on the statement of final dues and complete the documenlation required to enable the respondent/promoter to initiate the process of handover of unit and registration of sale deed, however, the complainant never turned up to take the possession of the unit or remit the outstanding sales consideration of the unit.

XVl.

That upon the non-payment by the complainant, the complainants were considered uhddr default under clause 7.4, and upon the failure of the complainants to rectify their default, the respondent no. t had the complete right to terminate the unit of the complainant in accordance with clause 7.1 of the agreement. xVIt. ent. xVIt.

That the complainants stood in the event of default for not making payment, not taking possession of the unit, non-execution of sale deed, and non-payment of statutory dues.

Accordingly, the respondent no.L had a right to terminate the unit as per the agreed terms and conditions under the agreement.

That multiple A Page lS of 24 lL" ffi HARERA #- aJRTJGRAI/ Complaint No.

7309 of 2022 xv l.

HARERA ffiOURUGRAM opportunity was given to the complainant to rectify their default through the reminder notices dated,23.06.2022 and 30.08.2022 and final demand notice for payment of outstanding amount dated 1.L.10.2022, however, the complainants willingly and voluntarily chose to not rectifu the same, and consequently, the respondent no.1 was constrained to terminate the allotment of the unit of the complainant by issuing the termination letter on lL1-1-.2022.

That accordingly, after termination ofthe allotment ofthe unit ofthe complainant, the complainants were left with no right, titled, interest, charge or Iien over the unit.

That after the termination oF the allotment ofthe unit ofthe complainant, solely due to the default of the complainant, the respondent no.

L is well within their right to forfeit the earnest amount along with non-reftrndable amounts including delayed payment interest, brokerage, prccessing fees, any monetary benefit given to the purchaser and the statutory dues paid against the unit.

XIX.

That the right ofthe respondent no.1 to validly can cel/terminate the unit arises not only from the agreement but also from the model RERA agreement which also recognizes the default of the allottee and the forfeiture of the interest on the delayerl payments upon cancellation ofthe unit in case ofdefault ofthe allottee.

E.

Jurisdiction ofthe authority: 7.

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

I Territorial iurisdiction As per notification no. cation no. l/92/2077-1TCP dated 14j.22077 issued by Town and Country Planning Department, the jurisdiction of Real PaEe 16 of 24 lL 8. ffi HARERA ffi aJRuGRAM Complaint No.

7309 of 2022 Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram district.

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

II Subiect matter iurisdiction Section 11(4J(a) of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section 11(4)(q) Be responsible for all obligottbis, responsibilities and functions under the provisions of this Act or the ruies and reguTations mode thereunder or to the allottee as per ,the ogreemenl.fgr iale, or to the association of ollottee, as the co5e:may be, tilt the ionveyance of all the apartments, plots or buitdings, at the case mqy be, to the allottee, or the common areas to the association of allofiee or the competent authoriu, as the case may be; Section 34-Functions of theAuthorityl 34A of the Act proyides to ensure compliance of the t)bligations cqst upon the promoter, tle allottee and the real estate ogents under this Act ond the rules and rejulotions made thereunder, So, in view of the provisions of the Act quoted above, the authority has complete iurisdiction to decide the complaint regarding non- compliance of obligations by the promoter as per provisions of section 11(4)(aJ of the Act leaving 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.I Obiection with regard to mis-ioinder/deletion of respondent no.

2 in the present complaint. complaint.

While filing the complaint the complainant sought relief against M/s BPTP Limited, and Sh.

CM Sharma being the authorized signatory of the respondent/promoter.

On failure to fulfil their obligation to F.

9.

PaEe 17 of 24 w HARERA Complaint No.

7309 of 2022 ffi.GURUGRAM complete the proiect, the complainants approached the authority seeking relief of physical possession and the delayed possession charges against the allotted unit.

A perusal of various documents placed on the record shows that respondent no.

2 is an Authorized signatory of respondent no.

1 i.e., "BPTP Limited".

The respondent no.

2 is neither necessary nor a proper party in the present complaint. lt is not disputed that all the demands raised by the respondent no.

1 and all the receipt was issued of the unit in favour of the complainant was made by the respondent no.

1.

Thus, it shows that there is no privity of contract between respondent no...2- and the complainant and as such the plea of the respondent no. i with regard to deletion of name of respondent no.2 is hereby allowed. , F.II Oblection regarding delay due to force maieure circumstances.

10.

The respondent-promoter raised a contention that the construction of the pro,ect was delayed due to force majeure conditions such as various orders p"tt"d by the Haryana State Pollution Control Board from 01.11.2018 to 10.11.2018, Iockdown due to outbreak of Covid-19 pandemic which further led to shortage of labour and various orders passed by National Green Tribunal (hereinafter, referred as NGTJ and Hon'ble Apex Court.

Further, the authority has gone through the possession clause ofthe agreement and observed that as per clause 1.6 of the builder buyer agreement dated 28.05.2013, the respondent- developer proposes to handover the possession of the allotted unit within a period of 42 months from the date of sanction of the building plans and execution of the flat buyer's agreement whichever is later. is later.

In the present case, the due date comes out to 28.ll.20L6 The events such as Hon'ble Supreme Court of India to curb pollution in NCR various orders passed by NGT, EPCA etc., were for a shorter duration Page 1B of24 11.

L2. ffi HARERA #- aTRuGRAI/ Complaint No.

7309 of 2022 of time and were not continuous being annual feature.

Further, all the orders referred to by the respondent are after the lapse of the due date of possession as per the buyer's agreement and one cannot be allowed to take advantage of his own wrong.

Thus, the promoter/respondent cannot be given any leniency on based of aforesaid reasons and plea taken by respondent is devoid of merits.

As far as delay in construction due to outbreak of Covid-lg is concerned, Hon'ble Delhi High Court in case titled as M/s Halliburton Offshore Services Inc.,v/S vedanta Ltd. & Anr. bearing no.

O.M.P @ (Comm.) no.

88/.2020 and I'As 3696'3697/2020 dared 29.05.2020 has observed that: .l "69.

The post. non-performaice iS the Contractor cannot be condoned due to the,COVID-1q lockdown in Morch 2020 in lndia.

The Contrqctorwas in breoch since September 2019 Opportunities were given to the Controctor to cure the same repeatedly.

Despite the same, the Contractor could not complete the Project.

The outbreok oJ a pandemic cqnnot be used qs on excuse for non' performance of o controct for which the deodlines were much before the outbleak itself." The respondent was libble to handover the possession of the said unit by 2B.lL.2Ol6 and is'claiming benefit of Iockdown which came into effect on 24.03.2020 whereas the due date of handing over of possession was much prior to the event of outbreak of Covid-19 pandemic.

Therefore, the authority is of the view that outbreak of a pandemic cannot be used as an excuse for non- performance of a contract for which the deadlines were much before the outbreak itself and for the said reason, the said time period is not excluded while calculating the delay in handing over possession. ossession.

Findings on the reliefsought by the complainant.

G.l.

Direct the respondent to handover the physical possession of the allotted unit complete in all respects.

G,II Direct the respondent to withdraw the letter/notices dated 7!.12.2021, 23.06.2022, 3O,OA.2022, lL,lO.2O22 aIJ^d L1.11.2021' Page 19 of 24 G, 13. ffiHARERA s*aTRTJGRAM Complaint No.

7309 of 202 2 respectively thereby illegally and unlawfully demanding Rs.35,34,L44/- vnd Rs.27,65,L44/- as the complainants have paid already paid the total sale consideration to the respondent or in alternative the Authority may pleaded to declare the above said letters/notices as null and void.

G.tlI Direct the respondent to pay interest @180/o per annum on the amount deposited by the complainant with the respondent with effect the date from the June 2018, till the date if actual possession is handed over by the respondent.

The complainants submit that they were allotted a unit bearing no.

T- 21-1802 vide builder buyer agreement dated 28.05.2013, under possession linked payment plan.

Thereafter, a tripartite agreement was executed betlveen the parties on 28.05.2013, for the subiect unit allotted to them.

Complainants. p:iid an amount of Rs-1,07,91,234 /' plus Rs.81,414/- as tax against the'total sale consideration of Rs.1,35,56,378/-.

As per clause 1.6 of the agreement, the respondent was required to hand over possession of the unit within a period of 42 months from the date of sanction if the building plan or execution of flat buyer agreement,rwhichever is later.

The due date of possession comes out to be 28.03.2016.

Further, as per clause 5.1 of the buyer's agreement, the respohdent/builder is entitled a grace period of 180 days.

As far as grace period is concerned, the same is dis-allowed for the reasons quoted above.

Therefore, the due date of handing over possession was 28.1.1..2016.

The respondent submitted that the complainants are defaulters and have failed to make payment as per the agreed payment plan. ment plan.

The respondent has issued various reminder cum demand letters to the complainants and requested to pay the outstanding dues, but the complainants have failed to pay the same.

Due to non-payment of the outstanding dues, the respondent has cancelled the unit vide letter dated 11.11.2022 vide which the entire amount paid by the L4. p.

Page 20 of 24 15. ffi HAREBA #-eunuenRnl Complaint No.

7309 of 2022 complainants was forfeited.

Accordingly, the complainant failed to abide by the terms of the agreement to sell executed inter-se parties by defaulting in making payments in a time bound manner as per payment schedule.

The respondent has obtained the occupation certificate in respect of the allotted unit of the complainant on 09.|Z.ZOZL and thereafter, has offered the possession on 11.L2.2021.

Further, during proceeding dated 23.03.2023, the counsel for respondent moved an application for mediation and requested for settling the matter amicably.

The counsel for complainants had no objection to the mediatioll: process.

The case was referred to Adiudicating Officer for mediation between the parties, but no settlement could be arrived.

On 25.08.2023, the conlplainant/allottee present in person has'brought notice to the Authority that offer of an incomplete unit was made by the respondent and the complainants are paying heavy interest to india Bulls for the loan raised against the unit.

Further, during'the proceedings dated 22.02.2024, the counsel for the respondent stated that the respondent is willing and ready to set aside the cancellation and placed on record revised account statement after adiusting delayed possession charges and offered handing over of cheques amounting to Rs.39,61,467 /- as full and final settlement and submitted that possession will also be handed over of the allotted unit after furnishing the unit in terms of the specifications in flat buyer's agreement. agreement.

Based on the afore-mentioned facts and circumstances, it is the determination of the Authority that in accordance with the offer presented by the respondent, it is apparent that the unit in question has not been sold as of yet, and furthermore, no third-party rights pertaining to the said unit have been established.

Consequently, based PaEe 2l of24 16.

IL 17.

HARERA GURUGRAI/ Complaint No.

7309 of 2022 on this assessment, the Authority concludes that the legal status of the unit remains unchanged, and no transfer of ownership or rights has been taken place.

Further, the respondent company has also showed its interest to set aside the termination letter and to restore the unit to the complainants.

In view of the above, the respondent shall handover the possession of the unit to the complainants in terms of the flat buyer's agreement.

Moreover, the respondent shall pay delayed possession charges at prescribed rate of interest i.e., 10.85 0/o p.a. w.e.f.

28.11.2016 till the expiry of 2 months from the date of off,er of possession (17.72.2021,) which comes out tobe LL.02-2022.as per provisions ofsection 18(1) of the Act read with rule [5 of the rules and section 19( t 0) of the Act.

G.lV Direct the respondent to pay a sum of Rs.5,00,000/- to the complainant towards the cost oflitigation' G.V Direct the respondent to pay the compensation to the complainants for the loss of rent because of non-delivery of the flat to the complainants in time as per rate of rent prevailing in the locality.

The complainants are,seeking relief w.r.t. compensation in the above- mentioned reliefs.

Ilon?Ie S upreme Court of India in case titled as Iw/s Newtech Promoters and Developers Pvt" Ltd.

V/s State ol UP & Ors. (2021-2022(1) RCR(C) 357),has held that an allottee is entitled to claim compensation & Iitigation 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 sha xpense 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.

18. k PaEe 22 of24 HARERA GURUGRAM Complaint No.

7309 of 2022 H.

Directions ofthe Authority: 19.

Hence, the authority hereby passes this order and issues the following 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[f) ofthe Act. i.

The respondent/promoter is directed to withdraw the termination letter dated 11.7L.2022 and restore the allotted unit of the complainants within a period of 1.5 days from the date of this order and issue a fresh statementtof account after adrustment of delayed possession charges as detailed subsequent direction i.e., @ 10.85% p.a. on the outstanding amount towards complainant/allottee as prescribed under rule 15 ofthe rules. ii.

The respondent/pfomoter is further directed to pay interest at the prescribed rate i.e., 10.85%o p.a. for every month of delay from the due date of possession i.e.,28.7L.20t6 tilllL.02.2022 i.e., expiry of 2 months from the,date ofoffer ofpossession (11.12.2021). l iii.

The arrears of such interest accrued from due date of possession till its admissibility as per direction (b) above shall be paid by the respondent to the complainant within a period of 90 days from the date ofthis order. iv.

The respondent is directed to handover the physical possession of the unit after furnishing and completing the unit in terms of the flat buyer's agreement within a period of 30 days and complainants shall take over the physical possession of the unit in terms of the flat buyer's agreement dated 28.05.20L3. v.

The rate of interest chargeable from the allottees by the promoter, in case of default in making payment shall be charged at the prescribed rate i.e., 10. i.e., 10.85 % by the respondent/promoter which is Page 23 of 24 tA vl. vii.

The 20.

21.. &HARE *e-aiRtlc the rate of t which the promoter shall be lia the allo ln of default i.e., the delayed possess as per n2( ofthe Act.

The res nden romoter is further directed to co deed n payment of requisite stamp duty per no of the od of holding rges being p by Hon Su t4.

Complaint File be cons Dated.: 22 tate government as per section 17 months from the date of this order. ndent not entitled to charge any amo RERA Complaint No.

73 of 2022 to pay charges te the them as the Act t/allottee at any po against t of time ent as per I settled peal nos.

3864-3 /2020 vl- (viiay M Haryana Estate Authority, Page 24 of24