DURGA WATI vs PIVOTAL INFRASTRUCTURE PVT. LTD.

MHARERA ffi eunuennu Complaint No.

7091 of 2022 and 7093 of2022 Member BEFORE THE HARYANA REAI ESTATE REGUTATORYAUTHORITY, GURUGRAM Date of decision: 01.03.2024 CORAM: Sanjeev Kumar Arora 1.

This order shall dispose of the 2 complaints titled above filed before this authority under Section 3L of the Real Estate (Regulation and Development) Act, 2016{hereinafter referred as "the Act") read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules,2017 (hereinafter referred as "the rules"] for violation of section 1 1(4J (a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

Page 1 of 18 Pivotal Infrastructure Private Limited Gaurav Rawat (Complainantl Sidharth Sejwal IRespondentJ cR/7093/2022 Gaurav Rawat (Complainant) Sidharth Sejwal (Respondentl NAME OF THE BUILDER PROJECT NAME Riddhi siddhi S.

No.

Case No.

Case title Appearance 1. cR/7091./2022 Durga wati V/s Pivotal lnfrastructure Private Limited ,) Sukhbir Singh V/s Pivotal Infrastructure Private Limited Complaint No.

7091 of 2022 and 7093 of2022 2 3. ffiIAREBA ffi ounueRnvr The core issues emanating from them are similar in nature and the complainant(sJ in the above referred matters are allottees of the project, namely, Riddhi Siddhi situated at Sector-99, Gurugram being developed by the respondent/promoter i.e., Pivotal Infrastructure private Limited.

The terms and conditions of the buyer's agreements fulcrum of the issue involved in all these cases pertains to failure on the part of the promoter to deliver timely possession of the units in question, seeking possession possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given in the table below: ' "Riddhi Siddhi" at Sector 99, Gurgaon, Haryana.

6.19375 acres 86 of2014 dated 09.08.2014 valid upto 08.08. pto 08.08.2019 Pivotal Infrastructu re Pvt.

Ltd.

Registered vide no.

236 of 201.7 dated 19.09.2017 valid upto 31.08.2020 Possession Clause: 8.7 EXPECTED TIME FOR HANDING OVER POSSESSTON " Except where any delay ig caused on account of reasons expressly provided for uncler this Agreement and other situations beyond the reasonable control of the Company and subject to the Company having obtained the occupation/comptetion certifcate from the competent authority(ies), the Company shall endeavor to complete the construction and handover the possession ofthe said Apartmentwithin a period of 4 years fram the date of grant of sanction ofbuilding plans for the project or the date ofreceipt of all the environmental clearances necessary for the completion of the construction and development oI the Project, whichever is later, subject to timely payment by the Allottee of all the amounts payable under this Agreement and performance by the Allottee of all other obligations hereunder." Occupation Certifi cate: Not obtained Page 2 of 18 Proiect area DTCP License No.

Name of Licensee Proiect Name and Location REM Registration HARERA Complaint No.

7091 of 2022 and 7093 of 2022 ffi GURUGRAM 4.

The aforesaid complaints were filed by the complainants against the promoter on account of violation of the builder buyer's agreement executed between the parties in respect of said units for not handing over Page 3 of 18 Sr.

No Complaint No., Case Title, and Date of filing of complaint Date of apartment buyer agreement Unit No, Unit adm easu ring Due date of Possessio n Total Sale Consideration Total Amount paid by the complainant Relief Sought 1. cR/709L/2 022 Durga wati Y/s Pivotal lnfrastruct ure Private Limited DOF: t7.t1.2022 Reply filed on: 05.09.2023 7L.07.20t6 (Page 78 of complaint) t, T7- 40t,4n floor, (page 48 of compla int) 487 sq. ft. (Carp et area) (page 48 of compl aint) 22.01..2020 IDue date of pos s ess io n is calculated . from the date of environme ntal clearance dated 22.0t. ted 22.0t.2016 being laterl Total Sale Consideration: Rs.20,26,000/- (page 28 of complaintJ Amount Paid: - Rs.20,94,487 /- (including taxesJ (as admitted by . respondent on page 10 of l+plv) DPC, Posses sion and not to raise any fresh deman d 2. cR/70e312 022 Sukhbir Singh V/s Pivotal Infrastruct ure Private Limited DOF: 17.'J,L.2022 Reply filed on: 05.09.2023 26.0e.20rilltt: (Page 67 o[ complaint) !

Y IF f,\* 3 487 sq. ft. (Carp Ipage 69 of compl aint) et area) 22.01.2020 IDue date of possession is calculated from the date of environme nta I clearance dated 22.01.20t6 being laterl Total Sale Consideration: Rs.19,98,000/- fexclusive of taxes) (page 32 of complaintJ Amount Paid: - Rs.21,,94,465/- ( as admitted by respondent on page 9 of reply and as per page 17 of complaint I DPC, Posses sion and not to raise any fresh deman d T7- 405, 4th floor, (page 69 of compla int) the possession by the due date, seeking possession and delay possession charges at prescribed rate of interest.

5.

It has been decided to treat the said complaints as an application for non- compliance of statutory obligations on the part of the promoter /respondent in terms of section 34(fl of the Act which mandates the authority to ensure compliance of the obligations cast upon the promoters, the allottee(s) and the real estate agents under the Act, the rules and the regulations made thereunder 6.

The facts of all the complain complainant(s)/allottee(sJ are similar.

Out of the the particulars of lead case cR/7097/2022 Private Limited are being taken allottee(s), the rights of the ffiHARERA ffi aJRucRAM Proiect and unit The particulars of paid by the co delay period, if any, have CR/7091/2022 Durga WatiV/s Pivotal Infrastructure private Limited Complaint No.

7091 of 2022 and 7093 of2022 deration, the amount ding over the possession, e following tabular form: A.

7. s.N.

A.

Particulars Details 7 Name and location of the proiect "Riddhi Siddhi" at sector 99, Gurgaon, Haryana 2 Nature of the proiect Affordable Group housing J Project area 6.19375 acres 4 DTCP license no.

86 of 2074 dated 09.08.2014 valid upto 08.08.2019 5 REM Registered/ not registered Registered vide no.

236 of 2017 dared 19.09.2017 valid upto 08.08.2019 Page 4 of 18 ffiHARERA ffi aTRUGRAM Complaint No.

7091 of 2022 and 7093 of2022 Page 5 of 18 Registration extension vide no. valid upto 37.08.2020 Harera/GGM/REP/RC/2 36 / 201.7 / EXT /177 /2019 dated 30.12.2079 407,4th floor, Tower-T7 48 of complaint Unit area admeasuring 487 sq. ft. (Carpet areaJ 48 of complaint Date of allotment 05.09.2015 Date ofbuilder buyer agreement Date of building plan 8.7 EXPECTED TINIE FOR HANDING OVER POSSESSION Except where any delay is cqused on account ofreasons expressly provided for under this Agreement and other situations beyond the reasonable control of the Company and subject to the Company having obtained the occupation/completion certificate from the competent authoriy(ies), the Company shall endeavor to complete the construction qnd handover the possession of the said Apartment within a period of 4yearsfromthe date of grant of sanction of building plans for the Project or the dqte of receipt of all the environmentql clearances necessary for the completion of the 6 7 Unit no. o 9 10 71..07.201.6 IPage 78 of complaintJ 11 17.70.2074 fPaee 25 ofreplvl 72 Environmental c$ql!'#e dated # e f 22.01.20L6 fPage 31 of replyl 13 Possession Clause construction and the ffi HARERA ffi aJRTJGRAM Complaint No.

7091 of 2022 and 7093 of2022 B.

8.

I.

Facts ofthe The complainant ns in the complaint: - That the comp no.T7-407 in Tower No.

T-7, having carpet area ject of the respondent named "Riddhi siddhi" 05.09.2015 for allotment letter dated 0,26,000/- under the Affordable Housing Policy, 2013. icy, 2013.

Thereafter, an apartment buyer's agreement was executed between the parties regarding the said allotment on dared 77.07.2016.

II.

That as per clause 8.1 of the agreement, the possession of the apartment was to be delivered within a period of 4 years from the date of grant of sanction of buildings plans for the project or the date of receipt of the Page 6 of 18 Project, whichever is lqter, subject to timely payment by the Allottee of all the amounts payable under this Agreement and performance by the Allottee of alt o th e r oblig ation s h e re u n d er.

Due date of possession 22.07.2020 [Due date of possession calculated from the date of environmental clearance dated 22.0L.201.61 Total sale consideration Amount paid by the complainant respondent on page 10 L4 15 Rs.20,26,000 /- (page 2B of complaintl t6 77 0ccupation certificate Notyet obtained ; 18 0ffer of possession Not offered HARERA ffi GUI?UGRAM Complaint No.

709L of 2022 and 7093 of2022 environmental clearance, whichever is later.

Accordingly, the due date of possession of the apartment was ZZ.0l.Z0Z0.

III.

That pursuant to the terms and conditions of the agreement, the complainant has been continuously and regularly paying the amount pursuant to the demand letters issued by the respondent and as per the schedule of payment. till date of filing the complaint, the complainant has paid an amount of Rs.20,94,487/- plus taxes to the respondent. ry.

That the complainant, in December 2018, visited the project site and was ,,}{.^-1., ^L^^t,^l !^ -^^ rl^-! -t- ---..'-] ,. utterly shocked to see that thq1g,,'1vas no construction work at the proiect since a long without any hlnt oi semblance of construction activity.

V. since a long without any hint or construction activity.

Thereafter, the complainant approached the office of the respondent and enquired the staff ng construction and completion of the project, but there was respondent. espondent. omplainant subsequently kept following up, but ctory reply from any of the officials of the respondent did not provide any information to the complainant.

It is submitted that till the date of filing the present complaint only bare structure of the few of the towers is standing there at project site.

That the respondent failed to live up of its commitment and failed to deliver the possession of the apartment to the complainant by due date, the complainant asked the respondent for delay penalty on the amount paid by him along with compensation, but the grievance of the complainant has not been redressed by the respondent.

That the complainant does want to withdraw from the project.

The respondent has not fulfilled its obligations provided under the RERA Act, 2016 and therefore the respondent is obligated to pay interest at the Page 7 of 18 VI.

Complaint No.

7091 of 2022 and 7093 of2022 VII.

C.

9. relation to section 11(aJ (a) of the act to plead guilty or nor to plead guilty.

D.

Replybythe respondent: - 11.

The respondent vide reply dated 23.08.2023 contested the complaint on the following grounds: - i.

That the construction of the project had been stopped/obstructed due to the stoppage of construction activities several times during this period with effect from 2016 as a result of the various orders and directions passed by Hon'ble National Green Tribunal, New Delhi; Environment Pollution (Control and Prevention) Authority, National Capital Region, ffiHARERA ffi aJRUGRAM prescribed rate for every month of delay till the handing over of the possession.

That the present complaint has not been filed by the complainant for seeking compensation, without prejudice, complainant reserve the right to file a complaint for grant of compensation with the Adjudicating officer.

Relief sought by the complainant: - The complainant has sought following relief(s): I. ief(s): I.

Direct the respondent obtaining occupation n of the apartment after and to pay delayed possession charges at p annum from the due date till actual date III.

Direct the demand for payment under any h Direct the lainant to sign any indemnity 10.

On the date of h to the respondent/ promoter about the con to have been committed in Page 8 of 18 ffiHARERA ffi aJRUGRAM Delhi; Haryana State Pollution control Board, panchkula and various other authorities from time to time.

The stoppage of construction activities abruptly had led to slowing down of the construction activities for months which also contributed to the delay in completing the project within the specified time period. ii.

That the complainant had failed to make timely payments and there were substantial delays in making the payments of the due instalments.

Therefore, the comp den to demand the timely performance of the'co n'by the respondent wherein the complainant himself his part of the 'contractual obligations'on iii.

That the present housing project being developed in e Affordable Housing Policy, 2013.

The of Haryana and ed by the Government ndent was paid the allotment price in the Government of till date.

709L of 2022 and 7093 of2022 tment price was fixed by 3, but the same was not revised Government of iv.

That the grant n cost for increased manifold, but the to increase the allotment prlce. as per Rule 15 of the Haryana Real Estate [Regulation and Development) Rules, 201,7 as applicable to other normal group housing real estate projects is wholly unreasonable and unjust, will impose unnecessary financial burden on the respondent and it shall have a cascading effect on the development and construction works of the project and in obtaining all other relevant approvals.

Page 9 of 18 12. copies of all the relevant documents have been filed and placed on the record.

Their authenticity is not in dispute. n dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission made by the parties. ffi HARERA ffi arnuennHr E. furisdiction of the authority 13.

The respondent has ralsed authority has no jurisdiction Complaint No.709L of 2022 and 7093 of2022 a preliminary submission/objection the to entertain the present complaint.

The objection of the respondent jurisdiction stands rejected. n of complaint on ground of observes that it has territorial as well as subject matter cate the present complaint for the reasons given E.I Territorial t4.

As per 4.72.2017 issued by Town and Co ction of Real Estate Regulatory District for all purpose with offices situated in Gurugram.

In the present case, the proiect in question is situated within the planning area of Gurugram District.

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

Subject matter iurisdiction 15.

Section 11(a)(aJ of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11( )(a) is reproduced as hereunder: Section 77 (4) The promoter shall- (a) be responsible lbr all obligations, responsibilities ond functions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to the Page 10 of 18 ffiIABEBA ffi eunuennHl association of allottees, as the case may be, till the conveyance of all the apartments, plots or buildings, as the case may be, to the allotteis, or the common areas to the associotion ofallottees or the competent authority, as the case may be; Section S4-Functions of the Authority: 34(fl of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agenis under this Act and the rules and regulations made thereunder.

15. under.

15. 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 compensation which is to be decided by the adjudicating officer if pursued by the complainant at a later stage.

F.

Findingsontheofiec# raised by the respondent.

F.I Objection regarding force majeure conditions.

17.

The respondent-promoter has raised the contention that the construction of the tower in which the unit of the complainant is situated, has been delayed due to force majeure circumstances such as outbreak ofthe covid- 19 pandemic, orders/restrictions of the NGT as well as competent authorities, shortage oflabour force in the NCR region etc. but all the pleas advanced in this regard are devoid of merit.

First of all, the possession of the unit in question was to be offered by 22.01.2020.

Hence, events alleged by the respondent do not have any impact on the project being developed by the respondent.

The respondent is claiming benefit of lockdown which came into effect on 23.03.2020 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 cannot be excluded while calculating the delay in handing Page 11 of 18 Complaint No.

7091 of 2022 and 7093 of2022 MHARERA ffi ouRuennu over possession.

Further, the orders passed by NGT as well as other competent authorities banning construction in the NCR region was for a very short period of time and thus, cannot be said to impact the respondent-builder leading to such a delay in the completion. ompletion.

Moreover, some of the events mentioned above are of routine in nature happening annually and the promoter is required to take the same into consideration while launching the project. ,n*11,1n" promoter respondent cannot be given any lenienry on b"r"df,l,tf&l,.,qsaid reasons and it is a well setrled principle that a person cannot take benefit of his own wrong.

G.

Findings on the relief L Direct the on of the apartment after and to pay delayed f interest per annum possession from the 18.

In the present co to continue with the provided under the project and is proviso to section 18 reads as under: "Section 78: - Return 18(L).

If the promoter fails to unable to give possession of an Provided that from the projecl he shall till the handing month of delay, be prescribed." Page 12 of 18 Complaint No.

7091 of 2022 and 7093 of2022 : intend to v 19.

Clause 8.1 of the buyer's agreement provides for handing over of possession and is reproduced below: 8,1 EXPECTED TIME FOR HANDING OVER POSSESSION "Except where any delay is caused on account of reasons expressly provided for under this Agreement and other situations beyond the reasonable control oJ the Company and subject to the Company having obtained the occupation/completion certifcate from the competent authoriA\es), the Company shall endeavor to complete the construction and handover the possession of the said Apartment ffi HARERA ffi aTRUGRAM within a period of 4 years from the date of grant of sonction of building plans for the Project or the date of receipt of all the environmental clearances necessaty for the completion of the construction and development of the project, whichever is later, subject to timely payment by the Allottee of alt the amounts payable under this Agreement and performance by the Allottee of a other ob li g ation s he r eunder.." 20. der.." 20.

Admissibility of delay possession charges at prescribed rate of interest: Proviso to section 18 provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of such rate as may be p the rules.

Rule 15 has Rule 75. sub-section (4) @ Forthe and (7) State Provided lending rate benchmark fiom time to 21.

The legislature in its provision of rule 15 of the Complaint No.

7091 of 2022 and 7093 of2022 handing over of possession, at been prescribed under rule 15 of 72, section 18 and B; and sub-sections (4) shall be the rate +2(%.: cost of laced by such India may fix legislation under the the prescribed rate of is reasonable it will ensure uniform 22.

23. practice in all the cases.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLR) as on date i.e., 07.03.2024 is 8.85%o.

Accordingly, the prescribed rate of interest will be marginal cost of lendingrate +2o/o i.e., 10.85%o.

The definition ofterm'interest'as defined under section 2[za) ofthe Act provides that the rate of interest chargeable from the allottee by the Page 13 of 18 ffiHARERA ffi aJRUGRAM promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

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

Explanation. -For the purpose of this clause- (i) 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 ofdefault; (ii) the interest payable by the to the allottee shall be from the date the promoter date the amount or or any part thereof till the thereon is refunded, and the interest payable by to the promoter shall be from the date the allottee allottee the promoter till the date it is paid;" 24.

Therefore, interest o the complainant shall be charged at the p respondent/ promoter which is the same charges. of delayed possession 25.

On consideration , submissions made by the parties and the authority regarding contraventions as per the Authority is satisfied that the respondent is ofthe Act.

By virtue of clause 8.1 of the es on 30.09.2015, the possession of the subject apartment was to be delivered within 4 years from the date of sanction of building plans or receipt of environmental clearance whichever is later.

Therefore, the due date of handing over possession was 22.07.2020.

The respondent has failed to handover possession of the subject apartment till date of this order.

Accordingly, it is the failure of the respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within Page 14 of 18 Complaint No.

7097 of 2022 and 7093 of2022 ffiHARERA ffi aJRuGRAM the stipulated period.

The authority is of the considered view that there is delay on the part of the respondent to offer of possession of the allotted unit to the complainant as per the terms and conditions of the buyer,s agreement dated 77.07.2016 executed between the parties.

Further, no OC/part OC has been granted to the project.

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

26.

Section 19(10) of the Act to take possession of the subject unit within 2 mo date of receipt of occupation certificate.

In the presen on certificate is yet not obtained.

The respon on of the unit in question to the complainant and so, it can be said that the co ut the occupation certificate only on.

Therefore, in the be given two months interest of natural time from the date o months of reasonable time is being given to the in mind that even after intimation of a lot of logistics and over at the time of taking possess ng possession is in habitable condition.

It is further clarified that the delay possession charges shall be payable from the due date of possession i.e., 22.07.2020 till the expiry of 2 months from the date of valid offer of possession or actual handing over of possession and whichever is earlier.

Page 15 of 18 Complaint No.709l of 2022 and 7093 of2022 MHARERA ffi euRuennvr Complaint No.

7091 of 2022 and 7093 of2022 27.

Accordingly, it is the failure of the promoter to fulfil its obligations and responsibilities as per the agreement dated 7l.o7.2016 to hand over the possession within the stipulated period.

Accordingly, the non-compliance of the mandate contained in section 11(a)(a] read with proviso to section 18(1) 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., 22.01.2020 till the date of valid offer of possession plus 2 months or over of possession, whichever as per proviso to section 18(1) is earlier; at prescribed rate of the Act read with rule 28.

The proiect namely under section 3 ofthe 17 dated L9.09.2017, completion date was number 177 of 2079 Act of 2016 vide dated 30.12.2019, certificate of the 0.

Since the occupation till now therefore, the promoter is liable to said project.

Accordingly, the which was valid extended of the planning branch is directed to take the necessary action as per provisions ofthe Act of 2076.

H.

Directions of the authority 29.

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[fJ: i.

The respondent is directed to pay interest to the complainant against the paid-up amount at the prescribed rate of 10.g5% p.a.

Page 16 of 18 MHARERA ffi, eunueRnnir for every month of delay from the due date of possession i.e., 22.07. e., 22.07.2020 till actual handing over of possession or valid offer of possession after obtaining occupation certificate plus two months whichever is earlier, as per section 1B(1J of the Act of 20j.6 read with rule 15 of the rules. ii.

The complainant(s) are directed to pay outstanding dues, if any, after adjustment of interest for the delayed period and after Complaint No.

709L of 2022 and 7093 of2022 clearing all the outstandjlg dues, if any, the respondent shall ari.r,.,lnlu*q:,:,r.,t,. handover the possession ofthe allotted unit. iii.

The respondent from the complainant ent or provided under the policy o lv.

The 2.01.2020 till the date of order the promoter to the allottee date of this order and interest for paid by the promoter to the allottee before ent month as per rule 16(21 The rate of interest ottee by the promoter, in case of default prescribed rate i.e., 10.85% by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottee, in case of default i.e., the delayed possession charges as per section 2(za) ofthe Act.

30.

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

Page 17 of 18 which is not of the rules.

HARERA GURUGRAM 31.

The complaints stand disposed of.

32, Files be consigned to the registry.

709L of 2022 and 7093 of2022 Page 18 of 18 Haryana Real Estate Regulatory Authority, Gurugram Dated: 01,03.2024 GURUGRAM /-v-- eev Kumar Arora) m ffi W