GAURAV DUA vs BPTP LTD

ffiHARERA *ro- ounuonnrrrr BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no. : First date of hearins: Date ofdecision ; 32 of 2022 24.03.2022 25.Oa.2023 Gaurav Dua R/^O: - CRISIL Ltd, CRISTL House, plor No 46, Sector 44 Gurugram Haryana BPTP Ltd., M- ll Middle Circle, Connaughr Circus Delhi 110001 Versus comptainant I _-_-__l -__1 Respondent Shri Sanieev Kumiil E Member.

APPEAMNCE; Advocate for the com Advocate for the res ORDER 1.

The present complaint dated 03.02.2022 has been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and Development) Act,2016 fin shor! the Act) read with rule 2g oI the Haryana Real Estate (Regulation and Development) Rules,2017 (in short, the Rules) for violation of section 11(41(a) of the act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibiiities and functions under the provision of the act or the rules and regulations made there under or to the allottee as per the agreement for sale executed inter se.

Mr.

Gaurav Rawat Mr.

Harshit Batra Page 1 ot 15 COMM: HARERA ffiGURUGRAM A.

Unit and proiect related details 2.

The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Particulars Name ofthe proiect "Pedestal", Sector- 70A, Gurugram Nature ofproiect Residential DTPC License no.

15 of 207L dated 07.03.2011 Validity status 04.04.2025 RERA registered/not registered Unit no.

Not Registered B-94-TF [As per page no.

79 of reply] Unit measuring 2878 sq. ft. [As per page no.

79 of reply] Allotment Letter 11.11 ,2013 (Page no.

68 of reply) Date of execution of Floor buyer's agreement 29.71.2073 (Page no.

74 of reply) Possession clause of 180 davs after the expiry of the said 5.

Possession 5. session 5.1 The Seller/Confirming party proposes to offer possession of thL Unit to the purchaser(s) wirhin a Commitment period.

The Seller/Confirming parry shall be additionally entitled to a Grace period Page 2 of 15 HARERA ffiGURUGRAM Complaint No.

32 of 2022 Commitment Period for making offer of possession to purchaser(s).

1.4 "Commitment period,, shall mean, subject to, Force Majeure circumstances; intervention of statutory authorities and purchaser(s) having timely complied with all its obligations, documentation, fo rma li ties or as prescribed/requested by Seller/Confirming party, under this Agreement and not being in default under any part of this Agreement, includlng but not limited to the timely payment of instalments of the sale consideration as per the payment plan opted, Development Charges IDCJ.

Stamp duty and other charges, the Seller/Confirming Party shall offer the possession of the Unit to the Purchaser(s) within a period of 36 months from the date execution of Floor Buyer's Agreement.

10.

Due date of possession 29 .-t ). .201.6 ICalculated from the execution of BBA) 11.

Basic sale Price Rs. | ,62 ,r7 ,7 0Z / - (Page 17 of complaintJ 12.

Total amount paid by the complainant Rs.61,19,318/- [As alleged by the complainant) 13.

Occupation certificate dated Not obtained 74.

Offer of possession Not offered Page 3 of 15 HARERA GURUGI?AM B 3. .

Facts ofthe complaint That respondent launched a group housing township/ proiect named as "Pedestal" situated in Sectol purchased/bookea on" ."riau.

0A' Gurugram and complainant has Ltial flat/apartment/unit bearing B-94_TF admeasuring around 2878 sq. ft. vide letter dated O4.Og.ZO13.

4.

That it is pertinent to state that here that timely payments of the consideration amount was made essence of the contract which apparently is unilateral whereas opposed to the represontation made, through agreement as in the commitment period was of36 months excluding grace period from the date of buyer agreement but the possession possession has not been handed over till now.

5.

That it is further pertinent to mention here that complainant was very diligent in making the timely payment of the each and every demand being raised by the respondent and to ensure the smooth payment to the respondent, it has also taken loan from HDFC Bank.

So that he can conceive the basic necessity ofhaving a house.

6.

It is relevant to submit here that complainant has time and again tried to contact to the respondent r however none ortn" 0"..""";t.":,'ni"lo: "rffiT,ilJ*:: :1;" complainant.

It is specifically submitted that he is regularly paying Rs, 1,,3g887 /- as the EMI of against the loan taken without even consideration ofholding charges to be paid by the it.

Page 4 of 15 HARERA GUllUGRAI/ C.

Relief Sought 7.

This Authority may direct the respondent as follows: Direct the respondent to hand over the physical possession in a complete and habitable form with interest at the rate of 1B%per annum on the amount paid from the committed date of possession till date of actual date of physical possession.

Direct the respondent to not to raise any demand which is beyond the express terms and conditions of agreement.

Direct the respondent to not to carry, out any illegitimate delay compensation payable to him against pre -EMI being paid by respondent.

Direct the respondent to execute conveyance deed in favour of complainant after ensuring/making payment ofthe delay interest.

Complaint No.

32 of202Z 1.

2.

3.

D.

Reply by the respondent 8.

That on 04.09.2013, the.complainant applied for the provisional allotment of a floor in the proiect being developed by the respondent namely "PEDESTAL" locared Sector 70 & 70A, Gurugram, Haryana, and opted for the subvention payment plan.

Subsequent to which the respondent yide allotment letter dated 11.11.2013 allotted a Unit bearing no.B_94_TF to him.

Thereafter, on 29.1,7.2073, a floor buyer,s agreement was executed berween the parties. e parties. [t is imperative to mention herein that in view of the clause 1.4 r/w clause 5.1 of the agreement the respondent proposed to handover the possession of the floor within a period of 36 months from the execution of the FBA in addition to further grace period of 1g0 days subject to force maieure circumstances and timely payment of instalments.

Therefore, the Page 5 of15 HARERA GURUGl?AM due date ofpossession subiect to force majeure arrives out to be 2 9.05.2017 i.e.

36 months from the date of execution of the FBA in addition to further grace period of 190 days.

However, the possession timeline, ifany, has been diluted is due to the reasons beyond the control of the respondent i.e. the force ma.jeure circumstances.

9.

Further, the respondent has raised each specific demand as per the agreed payment schedule, however, it is the complainant who on several occasion had failed to remit the timely payments guo such demands due to which the respondent was constrained to issue numerous reminder letters on various occasions such as on 22.77.2013, 70.03.201-6, 08.05.201g, 04.07.2O.t B, 2L.08.201,8, 06.

1 0.20 18, 79.71.2018 and 03.12.ZO21.

Despite aforesaid rhe respondent paid the monthry subvention amount of Rs.

50,64,164l_ tiri November 2021, to the HDFC Bank.

It is pertinent to mention herein that till date out of the total demand raised by the respondent out of which the complainant has only paid Rs.

26,99,g5g/- and the rest amount of Rs.

7,1.3,27,495/- has been paid by the bank on behalfof complainant.

All other averments made in the complaint were denied in toto.

Copies ofall the relevant documents have been duly filed and placed on the record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis ofthese undisputed documents and submissions made by the parties.

11.

Page 6 of 15 E.

6 of 15 E.

HARERA MGURUGRAM Jurisdiction of the authority The authority observes that it has territorial as well as jurisdiction to adiudicate the present complalnt for the below.

E.I Territorial iurisdiction 12.

As per notification no.

1/92/ZOIZ_7TCp dated 74.12.201,2 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the pranning area of Gurugram District.

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

E.II Subiect matter iurisdiction The section 11[4](aJ ofthe Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 1 1 (4) (a] is reproduced as hereunder; Section 11(4)(a) Be responsible for all obligations, responsibitities and functions under the prcvisions of this Act or the rules and regulations made thereunder or to the allottees os per the ogreement for sale, or to the assoclation of allottees, as the case,moy be, till the conveyance ofoll the opartments, plots or buildings, os the case may be, to the oltottees, or the c,ommon areos to the associotion of allottees or the competent authori'a os the cqse moy be; Section 34-Functions of the Authority: 34(f) of the Act provides to ensure comptionce of the obligations cost upon the promoter, the allottees and the real subiect matter reasons given Page 7 of 15 ffiHARER, SH eunue-nnH,r estate ogents under this Act ond the rules and regulotions mode thereunder_ 13.

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 leaving aside compensation which is to be decided by the adrudicating officer if pursued by the complainant at a later stage. ter stage.

F, Findings on the obiections raised by the respondent F.l Obiection regarding . iurisdiction of authority w.r.t. buyer,s agreement executed Drior to coming into io";iii" i.t 14. rhe contention of the respondent ,: d*r';;;;;iileprived or the .iurisdiction to go into the interpretation or rights of the parties inter-se in accordance with the apartment buyer,s agreement executed between the parties and no agreement for sale as referred to under the provisions of the act or the said rules has been executed inter se parties.

The authority is ol the view that the act nowhere provides, nor can be so construed, that all previous agreements will be re-written after coming into force ofthe act.

Therefore, the provisions of the act, rules and agreement have to be read and interpreted harmoniously.

However, if the act has provided for dealing with certain specific provisions/situation in a specifrc/particular manner, then that situation will be dealt with in accordance with the act and the rules after the date of coming into force of the act and the rules.

Numerous provisions of the act save the provisions of the agreements made between the buyers and sellers.

The said contention has been upheld in the landmark iudgment of Page 8 of 15 HABESA GUl?UGl?AM Neelkamal Realtors Suburban pvt Ltd.

Vs. ltOI and others, (W.P 2737 of 2017) decided on 06.12.2077 whichprovides as under: "119. llnder the provisions of Secti( possesston ,ortd b" ,ount"l' 18' the,deloy tn handing over the ugreement for sale ,rkr"d ,r'.-!':' 'the dorc menuoned in lhe prtor to its registration unan, ! bt Ihe omorcr and thP ollnrt"' :1 ::?';;:;: ; ; ;;: ;; "' ;:: ; ;?Y "i :!";': ; :; :;:";,:[,i :: :, prolect and declare the some t contemplote rewriting or rorrl'.1."1 t",,,on 4.

The REl'/ does not the promoter.---- '" r -t 'wttttoct between the fiat purchoser and 122.

We have alreody discussed that a are not retrospe.tive ,, ,rrrr" li:t:::d,^r:::::,?r.t ot the. .t ot the.REM o reLroactive or quas, n"oo,ri, "'t "'"v tu tome exlent be hovtno vatidity of *" '0,;,;r;;r;"::;iElect but then on thot s.ound tie po,rioment - ; ;;;i;;i;;,', "X!\ *nno, be chottinsed rhp retrospe ive or rerro;;;;;;:"fk!"'n' to tesistak taw hovtno subststing / ex6ting ,on,rorruo', !:jy-,!l.be even framed h olfet r larger public interest *" 0"'r.i'rl'nn" be.tween the parlrcs n thP nta n,s u"n'l*:m";,;;;;;::1:,:ldoubt in ourmtnd thot the '::t-:.:';;",;;;;;";:,';:':,:n:;';:;;:':'::;;,';F,',:'!,:,::;il Lommiftee and Select Committl reports." ?e which submitrcd s detaitei 15.

Further, in appeal no.

773 of 2079 titled as Magic Eye Developer pvL Ltd, Vs.

Ishwer Singh Dahiya, in o Apperate Tribuna, ,*"*", "lrrlated 17 '72'20L9 the Haryana Real Estate "34.

Thus, keeping in view our afo) considered "or,iri,"r'i*i"',,?'i"toid discussion we ore ot thp retrooctive to <^h.--.--.:.- \ovtsions of the Aq ore quosi ,*i"i':;':.::,::,"n-,rooi,oi,o,onai,,,,ii,iii,,lff "liiil entitled tu the inkresr/d;hved ',-'-' '-""''u urteesnoll be reasonobte rqrc or in;;;;;;;;:' ;;;,r:"**ion chqrses on the one.sided, unyair onid;;;;;:;,:;oi:::: ,, Rute ls or the rutes ond in t h e qs reemeft ror,,,"" ;';;;;;:;;;:,il,:,:f;nsqtion mentioned Page 9 of 15 HARERA MGURUGRAM 16.

The agreements are sacrosanct save and except for the provisions which have been abrogated by the act itserf.

Further, it is noted that the builder- buyer agreements have been executed in the manner that there is no scope left to the allottee to negotiate any ofthe clauses contained therein.

Therefore, the authority is ofthe view that the charges payable under various heads shall be payable as per the agreed terms and conditions of the agreement subject to the condition that the same are in accordance with the plans/permissions approved by the respective departments/competent authorities and are not in contravention of any other Act, rules, statutes, instructions, directions issued thereunder and are not unreasonable o asonable or exorbitant in nature.

F.II Obiection regarding force maieure conditions: 17.

The respondent-promoter has raised the contention that the construction of the project was delayed due to reasons beyond the control of the respondent such as C0VID-19 outbreak, lockdown due to outbreak ofsuch pandenric and shortage of labour on this account.

The authority put reliance judgment of Hon'ble Delhi High Court in case titled as M/s Halliburton Offshore Services Inc.

V/S Vedanra Lrd. & Anr. bearing no.

O.M.p [t) (Comm.) no.

88/ 2020 and 1.4s3696-3697 /2020 dated 29.05.2020 which has observed that_ "69.

The past non-performance of the Controctor connot be condoned due to Lhe COVID-19 lockdown in March 2020 in tndia.

The Contractor wos in breach since September 2019.

Opportunities were given to the Contractor to cure the sone repeatedly.

Despite the same, the Controctor could not complete the project.

7,he outbreok of a pandemic cannot be used as on excuse for non- performonce of a controctfor which the deadlines were much before the outbreak itself.,, Complaint No.

32 of 2022 Page 10 of 15 ffiHAREfuI SD- eLltuennv ;;,pil;"j,",,-0,, , In the present complaint also, the respondent was liable to complete the construction of the proiect .rn question and handover the possession of the said unit by 05.0g.20i5.

The respondent is claiming benefit of lockdown which came into effect on Z3.O3.ZO2O whereas the due date oI handing over ofpossession was much prior to the event ofoutbreak ofCovid-19 pandemic.

Therefore, the authority is ofthe view that outbreak ofa pandemic cannot be used as an excuse for non- performance ofa contract for which the deadlines were much before the outbreak itself and for the said reason the said time period is not excluded while c 1 8 Admissib,ity,,o",", o. ,,o",", o.""lllll]#": il::::*T":H,":,: The comprainant is seeking deray possession charges at the prescribed rate, proviso to section 1g provides that where an allottee does not intend to withdraw from the proiect, he shall be paid, by the promoter, interest for every month ofdelay, till the handing over ofpossession, at such rate as may be prescribed and it has been prescribed under rule 1S of the rules.

Rule 15 has been reproduced as under: i;'::,i,:i,";;x:"f "#:;fl ,:::"t;h!;::,;::#,;tf :f (1) For:he pyrpose of proviso to section 12; section 18; and sub_ section.s. (!) and (7) of section 19, the ,,interest ,;;;;;;" prescribed,, shall be the Stqte Bank of India h,gn"rr r;i,irit,*n oI lending rqte +2ok.: , provided thot in case the Stote Bonk of lndia morginal cost of l,ending rate (MCLR) is not in ,r", ir rnrtt i" ,"itir:;;,;:::l benchmark lending rates which r,o, ,i," a ,ii,"'p,;;r:;;;: i:: ;:::i:i-;:rol .tndia mov rix I'age 11 of 15 ffi ffi HARERA GURUGRAN/ (i0 19.

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

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

20.

Consequently, as per website ofthe State Bank oflndia i.e., the marginal cost of lending rate (in short, MCLRJ as on date i.e., 25.0g.2023 is 10.75%0.

Accordingry, the prescribed rate of interest wiI be marginal cost of lending rate +2yo i.e.,7O.7So/o.

21.

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

The relevant section is reproduced below: "(za) "interest" means the rates ofinterest payable by the promoter or the allottee, as the case may be.

Explanation. -For the purpose of this ctause_ Complaint No.

32 of2O22 (, the rate of iiterest chargeoble from the allottee by the promoter, in case of default sholl be equal to the mte of interest which the promoter shall be liable to pay the allottee, in case of defoulq the interest payable by the promotlr to the ollottee shall be from the date the promoter rece[ved the amount or ony port thereoftill the- dote the amount or port thereof and interest thereon is relu,nded, and the interest poyoble by the ollottee to the promoter shall be flom the dak the ollottee defoults ln poymetnt to the promoter tillthe date it is paid;,, 22.

Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., 10.75o/o by the respondent/promoter Page 12 of 15 * HARER/' # eunuEnnrrl Complaint No.

32 of2022 which is the same as is being granted to the complainant in case of delaved possession charges.

23.

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

By virtue of clause 5.1 read with 1.4 of the agreement executed between the parties on 29.1,1,.?01.3, the possession of the subject apartment was to be delivered within stipulated time i.e., by 29.I1.2016.

Asfar as grace period is concerned, the same is not allowed for the reasons quoted above.

The respondent has delayed in offering the possession and the same is not offered till date.

Accordingly, it is the failure of the respondent/promorer to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period. ed period.

Accordingly, the non_compliance of the mandate contained in section 11[4J(aJ read with proviso to section 1g( 1J of the act on the part of the respondent is established.

As such, the allottee shall be paid, by the promoter, interest for every month of delay from due date of possession i.e., 29.71.20L6 till date of valid offer of possession after obtaining OC plus two months or date of handing over of possession whichever is earlier at prescribed rate i.e., 10.75 o/o p.a. as per proviso to section 1.8(1J ofthe act read with rule 15 ofthe rules.

24.

The counsel for the complainant stated at bar that the due date of possession was 29.1,1.201,6 but no offer ofpossession has been made till date Page 13 of 15 MHARERA # eunuennrvr and further stated that pre_EMIs werp r^ h^ -^,, they paid up to November zrr, t t"tu to be paid by the respondent which nrrh- -^_,-- - ., as admifted by the respondent at page No.2 ofthe reply.

Further, the counsel for tho "-.^^_ ---"' qL P.BE rY, z there is a deray in possess,",,',:;:::il;".:J::i:I;T::, ,ll amount already paid as pre_EMi should be deducteo "r, "r*" ,,1,11"0,":rT.:*" comprainanr to rhe bankers 25.

Reliefno.3 and 4 has notbe, can be given in this regard. en pressed during the arguments so' no direction G.

Directions of the authority 26.

Hence, the authority hereb directions under section sz ofy passes this order and issues the following the act to ensure compliance ofobligations cast upon the promoter as per the function entrusted to the authority under section 34(0: i.

The respondent is directed to pay delayed possession charges at the prescribed rate of interest i.e ., 10.750/o p.a.for every month of delay on the amount paid by complainant to it from the due date oI possession i.e., 29.11.2016 till date of valid offer of possession after obtaining 0C prus two months or date of handing over of possession whichever is earlier. ii. rlier. ii.

The amount of pre_Emi,s paid by the respondent on account of complainant to the banker should be deducted out of the amount of DPC.

Page 14 of 15 UABEIA GURUGRAI/ Complaint No.

32 of2022 iii.

The rate ofinterest chargeable from the allottees, in case ofdefault shall be charged at the prescribed rate i.e., L0.7 So/o by the respondent/promoters which is the same rate of interest which the promoters shall be liable to pay the allottees, in case of default i.e., the delayed possession charges as per section 2(zaJ of the Act. iv.

The complainant is also di adjustment of interest for pay outstanding dues, if any, after od. v' The respondent is directed to handover the possession of the allotted 27. unit within two months after obtaining 0C from the concerned authority. vi.

The promoter shall not charge anything which is notpartofthe BBA.

Complaint stands File be consigned to registry.

RERA Haryana Real Estate Regulatory Dated: 25.08.2023 Member Page 15 of 15