DINESH CHANDRA ARORA vs OASIS LANDMARKS LLP

GURUGRA[4 o.de. reseryed onl Date otpronouDcement oforder: Dinesh Chandra Arora Addressr.I,{ 207 (Second Ftoor).

Sourh Ciry _ ., uursaon - 122001 Oasrs Landmarks LLp Addr€ssr Codrej One,56 Eastern Express Highway, It4umba,- 400079 CORAM: ShriVijay Kumarcoyal Sh.iAshok Sangwan APPEARANCE: Dinesh ChandraA.o.a (in person) Shri Saurabh cauha Floor, Pirojshanagar, VikroliIEasq Respond€nt Memb€r Member ORDER 1.

The present comptaint dared 10.11.2021 has bee. tjted by rhe complainanr under section 31 of the Reat Esrare (Regulaoon and Developmenr] Act, 2Ot6 (j. shorr, rhe Act) read wrth Rute 28 of rhe Haryana Real Esrare [ResulatioD and Dcvetopmenr) Rutes,2017 (in short, the Rulesl ior violahon or sectjon I1(4)(al of rhe A,:r wherein rt is inter alia presc.jbed that the promoter sha be responsible for alt obligations, responsibitities and funcrions under rhe provision ot rhe Act or the rules and regutatjons madc ihere unde. or ro the a orree as per the agreement for sate executed inter se A.

Proiect and unit retated deraits HARER BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complainanr in pe.son Advocate iorthe.espondent 05.01.2023 23.02,2023 & 34SO ol2OZ1 lrHARERA S eunuennvr 2.

S., l codrej lcon (lconic To 884 and 89A, Curusrem 2 Toral area otthe protect 3 Croup Housine Project 85 ot 2013 d ed 101r upto 09 10.2024 151 0I 2014 datcd 05 0 upto 04 09.2024 oasis B!rldhome Pvt.

Ltd HRERA reBiste.edl Registe.ed vlde 54 ol 1?.O8.2071 HRERA regBration vald up to valid upro 30,04.2020 Occupation certifi@te granted 18.09.2020 for towe EWS B|-OCK P.ovisional allothent letter 05.11.2015 (Page 26otcomplaint) lcoNlc 2101,21n noor, tc (Page 76oicomplain0 1455sq. ft. (carpetareal IPase T6otcomplaintl The parhculars of rh€ project, the deta,ls of sate consideration, rhe amount pard by the complainanr, date of proposed handing over rh€ possession, delay period, il any, havc been derajled in rhe folowing Conrpla)nr no.4346 & 3-1,50 ot 2021 1.20t3 ).

1.20t3 ).2014 Date ol execuoon of ot 2021 18.01.2016 lPare 32 orconplaind 1.2 The Developer sholl ,adavout to complete the cansruclion ol the Aportment wttun 48 ,nodrhs Oot Iconi. tower's (apartments) 46 oPartnents) lrom th? dote of lssuon.e of Allotment Letter, atong ) t! '6 tg h qrI tb A :44 Due dare ofposseseon Rs 1.4s.88.90098/.

05.05.2020 Gra.e pc.iod is allow.d ls Total consideration as per BBA on page 83 otcoDplainr l1 15 Total amount paid by the 30.10.2020 (Pase 130 ofreplyl .omplarnantas per srarement of account dated 05.11.2020 at 3t.t0.2Q20, t4_04.202t tc,05 2027 Pre te.mination ler.r 25.05.202L [Page 166 ofreply] Vrde cmaildared 3r 0s 2o,rl l 10 ll 16 3.

B (Pase I72 ot.eplyl 26.0A2021 (Page 176 ofreply) Facls ofthe complaint The complajnanr made the lollowing submisstons in the complaint i.

That the respondent has been grossly deficient anC negtigent in providrng its servrces and d,scharging rts duries as pe. the provisions of the Real Esrare (Regulanon and Developmen0 Acr, 2016, its rules and regularions t amed thereunder.

The approa.h of the respondenr was nor only dishonest and malaltde while intending to forfeir a substantially unfatr and an unreasonabt€ amount out ot the consideration bur also was b decerve ihe complainant after cancelling rhc unrr/aparrmenr by the complainant due ro his personal rcason.

That the respondent is a Imited liability parrne.ship, engaged in the business of real estare.

The respondenr made lvide pubtrcrry in the prinr and electronic mcdia for its projcci nimed 'codrcl lcon', and represented its projecr as premrum prolect wirh super luxury specificarions & ameniries and security & enrertainment.

1r was also represented that the prolect will be craiied by the wortd renowned designers Ior the people who love luxurious tifestyle.

That the complainant, believing the representation, booked a flar admeasuring 2059 sq. tt. approx. wrth the respondenr, stuated at Sector 89A/88A, Gurgaon, Haryana at a salc conrirderation i. eration i.c basrc sale p.ice of Rs.1,33,81,441l' and further the respondent co n! irnt ro.4346 & 34.50 ot 2021 i has also charg€d prefe.red locarron charge, staruto:y charges, car parking allocation charges, club membershrp Iee, assocjaiion formation charges, inreresr free maintenance secrnry, externat electrification charges, power backup faciljry charges and tegat and admrnisranve cha.ges for toraltrng amount ot Rs.

31,75,165/ jn additioi to rhe basi.sale pnce In view ofthis. the total amounr payabte by the comptainant was Rs.

1,65,56,506/- to the respondent.

The comptarnanr paid Rs.

5,00,000/. as a booking amounr ro the respondenr jn Apnt 20tS and thc respondent rssued rhe allotment letrer signed and i,,sued oF 05rh November 2015 to the Complainanr by rhe Responcent. lv.

The sale considerarion otrhe said unrt is Rs r,33,8r,441 / page n0.52 and Cort ls INR addinon ro same The of property rncluding starutory and o r,65,56,606/- which is menrioned on agreement.

The S€rvice raxltater GST is in complainant also signed the apa.tmenr buyer,s agreemenr (hereinafter relerred to as,agreement,,) on t8rh lanuary 2016 with the respondent.

That at rhe time oi signing the agreement, .espondent represented rhat rhe possession of th. unit wilt be given w,thin 48 monrhs from the date oi allormenr i.e.

5rh Novembe., 2015 and rhis period coutd have gone to maxrmum 54 rnonths aiter stretching the 6 monrhs grace period.

Acco.dingty, the complerion dare as informed ro RERA was 3ort Ap.il,20Z0.

That the complainanr was ctosety observing rhe progress keenty waiting for rhe completion and ro pay the batarce 20% on possession, however, even after making B0% payrnent i.e.

INR 1.44 Cro.e as perthe demand ofthe respondenr, the projecrwas.

3450 nl202T RERA though, disappointedty completion even when I,larch,2020.

UGRAIV PHA P-crn Conplarnr no. plarnr no.4346 & 34,50 ofZ021 imposed on 23rd Tbough rhe reskictions were Iiited in a coupte ofmonths, and soon thereafter rhe work was srarted even then rhere wa$ a six monrhs extension granred Boing beyond the 6 month grace pe.iod and extended titt 31st Octobe, 2020.

Wh,te keeprng rack on rhe progress oi the projecr, rhe comptainanr caled up rhe relationship manger to find out the starus otrhe project and every time this was,nformed rhat rhe time,tioe got affected due ro sudden lock down and related issues.

When atter r-.sumprion ot consbudion adiv,ties, the comptainant again ca ed up and enquired inAugust, 20 about protectcomplehon, thecomplai.ant was inaormed thar ir,s likely ro go on rjll lanuary-trettuary,ZOZI.

That the compia,nant received an e-mail dared 15th October.

2020 froln rhe respond€nt regarding the payment )t rema)ning 200lo of the amount.

The relevant exrracts are reproduced 'We wish ro infom lou thot the nexr nilestone,.on oller oJ posseson ''wtll rentuttvely be ochtevcd sthtn he nex 7 doJsond the hv;ice wlj be ro recerve such emait as while checking with rhe.etationship manager p.ior to receiving rhis email, it was info.med ro the complar.ant rhat the prcject is likety to be completed around lanuary - February, 2021.

The complainanr immedrately, ca ed up rhe retarionship manager and expressed his surprjse ot receipt of this mait i. rhe wake of the above updates.

She srated rhat rhe same is meanr hr the other running delayed and the ]ockdown wrs towers and not retevanr for Iconrc tower [where rh? un,t altotted to me GICONIC2I0t pertain, and fo. lconj: Tower rhe completion wjll take ar teast anorhe.2 3 months and the linat demand will be raised accordingly. vii.

Thar however, ro th€ complarnant,s utter liurprise, rhe complainant recerved an email dated 5th November, Z02l demanding the balance 200lo dematrd amountjnS to Rs.

33.97 takhs (due dare 17rb November, 20201 in the name ot ,Nohce of possession'which was back dated 31st ocrober.

2021.

Th.

Th. complarnant got 7 such majls at drfferenr nmtngs rn a span of one and hall hour lrom 5.53 p.m. to 6.14 p m.

That jt wi be rmpo.rant to mention here that during thrs phase of p ndenlc, the complajnant lost his employment and coutd nor find another iob in the wake of rhe worsening emptoyment scenario Accord)ngly, having lost the abiliry ro pay EMI againsr rhe Honnr Loan taken. coupled with the financial obtigations oi comptainanrt sons advanced stage of €ducarion and orher ianrity and heatth relaied challenges, rhe only oprion left with the comptainanr was to go for rhe cancellation of the altotment and ro quickly get :he refund in line with the provistons of RERA in order to have a control on the worsening h nancial circu ms rances. viir.

The complalnant expressed to visir and sec rhe unir to ftnd our rhe real status in the wake of ihe above devetopnrents and also ro have a ralk on the matte. ofunavoidabte situarron ofcance arion.

The complainanr called up a number ot nmes, sent several messages and mails, in fad counrtess times, and there was hardty any response and evcn after gerting some revert, rtere were aI aomplarnt no.4346 & 3450 ot202, Complirnt no 4346 & 3450 ot2021 atremprs to avoid rhe visrr to the unrt and desprte making hard follow ups, visihng and waiting tor long hours ar their sire oifice no one was availabte, rhat roo afier fixing up rhe apt)ointment not just once bur ior mo.e than thflce.

After many efforts, the complainant got an opportuniry to visir the site wirh a hope !o meet up some responsibte oificial on 10rh lanuary afrer recerving an inv,tarion for a get-rogether organizcd.

Jowever, ro complainant s disappointment, no responsrbte person was accessible ior a tatk.

White visrnng rhe sire and unii, to ihe complainants urrer surprise, as eartrer mentioned, tu.ned as an ntter shock when the comptajnanr saw rhe staius .,t rhe protect and rhe unir.

The €ntire projecr was in a raw shape fie real serious wo. erious wo.k in club house had started just a rew d3ys back, the work ar rhe sites oi most oi rhe ameniries were only halfway through.

The scene at rhe corridors, lobbies, and in the unrt was even more shocking lhere was no flooring in any Drthe rooms other than rhe living room, the ftrtings [including sanjtary, electrical, wooden) were not ar.r in ptace rn any of the tou. bathrooms and rhe rooms inctudjng krrchen and rhe overa state was quite shabby.

In nurshell, rhrs was a clear, apparent and evident prematu.e call ro ctaim it as ,ready ior possersion,a.d to ra'se the final demand. ix.

After thjs, rhere was hardty any response to the ca s made, messages senr, mails exchanged and cven after mak.ing aI hard efforts.

However, there was no dearth oi sending the .emrnder mails aor makjng rhe payment otfinat demand and unsc.upulously levying the penal interesr for rhe so-ca ed detay.

The :omplainant *HARE (lb c or RA RAIV though, summarized lhe above iads and broughr to their notice rhough mail dared 25rh lanuary,202t.

DDring rhis period there were frequent chang€s of rhe .etationship manageft one airer thc other, and fi.alty a mait came rnforming thar a new relationship Manger Ms Sonam Sharma has Joined who was rhen approached and the matte. of discussion on canceltatjon and ,ievetopments have been brought royour norice. x.

That during this period due to intensried covrd cas6 and ce.rain other relared iacto.s, including f,requent changes iI rhe ream ot developer, no one from rhe respondenr was aptroachabte to djscuss the concerns.

After many follow ups and protonged efforts, the complarnant could conract rhe new relationship mange.

Ms.

Sonam Sharma and visjred to rhe site office on 31st lanuary 2021 and discussed abour rhe current compelling financial srruation leadrng ro inevirable cancellarion consequenr ro the loss ot employment The relationship manager exp ressed rhnt she rs quire new and thus could nor comment on lhe same. xi. same. xi.

That rhe complainanr vide its email dated 31,, nay,2021 exp.essed irs dissarisfaction wirh the iltegat and exorbitant amount demanded by the .espondcnr and hightighred rhe HAREM norificat,on whrch clearly states rhat ,... :he fo*iturc omounL ofthe eornest none! sho not exceed mare then 17ok oJ the considerotion anaunt of the reot ostote opottment/plat/building os the case nay be in o ca!;es where the cdncellotion al the llat/unit/plot E made by the buirder in a unilaterol manner or the buyer ntends to $)ithdrov,, fron the prole.C'and requested rhe respondenr ro honour ihe l;ame. xii.

That there was no response lrom rhe respondent and thus, rhe complainant had to follow up with the respondent rn rhe marter The complainant sent an emarl daied 9,h lune 2021 following up on the matter The responden! vide its emajl dared 9,, tune,2021 stated that wirhdrawal from the protect could not re atlowed on the grounds that the occupancy cerriticaie was issued to the xiir That it is pertinent to state that fic respondenr's ac:ions have nor only been unprolessional and arbitrary but also rlleEial and malce The respondents on one hand arbitranly decided ro cancel thc allotment of the complainanr and charged a h€fty forfefiure amount in utter violation oithe laws olthe land vlce email dared 22,d May,2021 and on the other hand refused the ,ithdrawal oi the complainant fron rhe apartment on baseless {rounds.

Thar the complarnant yet again lollowed up and humbly requesred vide mail dated 25rh lune, 2021 ro not deviate as the cancellation had already been effected vide maildt.

22nd May,2021 and requested accordingly to ce.tre upon the subject matter ol revlsiting the exorbitant lorfertur€ amount in the ljght of the RERA provisions which clearly state thal rhe deductible amount not to exceed 100/0 oi the sale considerarioD.

However, the .espondent failed to reply to the complainant The complarnant started the process of following up but all in vain as the.espondent was. ndent was.elucrant ro reply to the concerns of the complarnant.

34 50 of2021 xrv.

That rt rs srgnrhcant to state thai the conrplarnanr i:iwithdrarvrng lrom this prole.t due to h6 nDancral d'stress and lhe respondent vjde therr marl dated 22nd May 2t)21 confirnred the cancellanon PaEe 10 oa2a while illegally rmposinB an exorbitant amount on the complainant with the sole intention ro harass and exrort the complainant.

That it is trite to mention rhat rhe complainant has alwa./s fulfilled !he payment terms oirhe respondenras and when demanded or due In the y€a.

2017, the respondent demanded 2Oolo amounring of INR 37.33 lakhs v,de lnvoice dated 2nd Seprember 2017 due on 20th September, for a m,lesrone of completion ofsupersrructu.e, and rhereafter, an another sudden and an abrupt 400/o demand vide invoice dated 4th December, 2017 (vide mail dt.05.12.2017) amount,ng ro INR 74 59 lakhs was raised, claiminS a yer another major milestone 'Completion of Finishrng Bric< Work and internal plastering''due on 22 December, 2017. lt will not be out of place to rnention that the complainant pard all rhe dues in good faith, t.usting that the respondent has genuinely reached the xv.

That jt rs also to br,ng into the kind norice rharwith offect from 1sr July, 2017 GST was introduced with the benefit ot input tax credrt.

The real purpose ofintroducing GST was to ensure that the beneir of input tax credit can be set-off and the ner liabiliry should not have a cascading effect uniai.ly The rnitial 200lo paymenr was subject to Service tax Accordingly, the balance 8096 amount due and payable was atkacted towards GST and rhe total GST Lrability of 2021 on such dmounr comF<.lole ro I\R l5 ldkhs dn,l rhe amounr which has been passed on as set-off for rnput tax lredit is even below INR 5 lakhs (lNR 4,83,766lJ which is not even 1/3rd otthe output liabihty, resulting in more than 2/3rd burden Bettin8 Complaint no.4346 & 34.

4346 & 34.50 of2O21 shifted on allottees which is entirety against the spir)t and scheme oithe GsT Law. xvi.

Thar rt,s furrher pertinent ro menrion thar rhough rhe project is yet to be.eady for possession, the bilt for common a.eas mainrenance charges amounting to lNR 1.45,194/ has beensent to the Complainanr, makinS ir cha.geabte and €ffecrive trom February, 2021 which rs a yer anorhe. insrnnce of a premature and an untimely atrempr to coltect/extorr the money not linked ro rhe approp.iate bming which can be consjdered as tustified, fair and xvn That it is also kite to menrion rhat the comptainanr has never defaulted ln any paymeDr rerm for the apa(ment howeve., the complainant received statement otaccounts from rhe.€spondenr demanding rhe payment rowards the apartment atong wfih ar interest levied on the amounr .egarding delays in prevrous payments which is unaathomabte as the complainanr has never deiaulted any earlier paynent. xviii.

That the respondenr informed to the complairant rhrough email dated 26'rr August,2021 for the cance arion/r,xminarion ot allotnent oirhe allorted u.rr cir,n8 rhe reason of non,payment of rhe final 20% allotmenr amounr.

The respondent acred rn thc draconian manner and cancelled rhe unir cven atter {nowinB we that the complainr filed by rhe complainant was sub-tudice betore ld. adludjcating oftice..

Thar once rhe comptainant has fited the complaint against ihe respondent betorc rhe adjudisating otfi.er and informed rhe respondent in advance ior the same, the respondent cannot te.minare/cancel rhe unit in any manner *s HARERA GURUGRAIV aomplaint no.4346 & 3450 of2021 whatsoever till the iurther orders of the adjudicatrng ofiicer. the said act to.ancel/terminate the allotred unit by the respondent clea.ly deprcts its dictatorshrp approach towards the xix.

The complainant is an rnnocent nran, who has li)njred income wrth numbe.ofliabilitiesand is a regula. raxpayer. raxpayer.

Ihe malicious acts of the respondenr have bo re suspicion in the mrnd ot rhe complainant.

That the .omplainant submirs thar rhe drffrculties, mental and financial drstress iaced, and rhe:gony of rhe complarnant is incomparable.

The complainant has faced jrrepa.able losses as their lifetime savinBs and hard earned money which they invested in the prolect rn good faith has resulted in perpetual anguish.

The complainant ls seeklng the following reli€t The .omplarnant has sousht the relief,(sl a 4 5 t) (i) Drrect the respondent to .eiund the enrire amounr pard by the complainant to the respondent amountrng to Rs 1,43,64332/- along with interest Reply nled by th€ respondent The respondent had contested the complaint on the lollovong grounds: The preseDt complaint rs a gross abuse oi the proc€ss of law and has been filed wrth the sole ,ntent of arm twisting, harassinS and coercing the respond€nt into accepting rhe illegal, unlair and unethicaldemands ofthecomplainant herein As such, the instant complaint is a Slaring example oI a party to a conrract, .esorting IT 1[.

J 150 to t ivolous and vexarrous lirigation, in orde. ro avoil forieirure ot the amount paid by the complainant towards the aparrment / unit bearing no.

ICONIC - C2101, 21st floor in rhe g-oup housing residential projecr "Godre) ICON,, and other chargE due to thc larlure on the parr of the comptainant ro honour h s cont.a.ruat obligabon of making timely payment and comptete the executron and.egistration ofconveyance deed and orher docuInents.

It ls submitted that the complainant has farled ro brjng our any deficiency / deiect, on the parroirhe.espondent and has filed the instant compla,nr wirh rhe mata tide inren!on ro vrig8le out ot the contractual obiigations by raising a kind of aatse, irivotous issues and has concocred a baseless story withour any basis whatsoever. hatsoever.

It,s iurrher submirred thar rhe instanr comptaint rs tound to be frivolous and vexat,ous and as such d$erves to be dismissed along wirh exemplary costs.

It is submitred that the complainant has fited another comptaint before adludicating offcer bearing no.

34S0/2021 for seekrng refund of the amounr paid by the complarnant ro rh,, respondent towards the bookrng ofthe apartment rr is tu.rher submirred that the complainant cannot approbare or reprobate ar the same poinr of rime.

It js submjtted rhat on one hand rhe comptainanr rn the complajnt beanng no.

3450/2021 is seekinq retund of rhe amounr paid towards booking ol rhe apartmenr / unit and on rhe orher hand the complajnanr in the presenr compta)nl is seekjng revocat,on oa the cancellation / rermination of the apartmenr / unit and seeking.esrrarnr orde.s againsr the respcndent fronr creating aby third party interest.

1r rs submrrted that the {}HARERA S- cunrcnnur tv. complajnant cannot blow hot and cold at the same poinr of time Thus, the instant complarnt is liable to be drsmissel on rhis sote ground alone.

It is submitted that the complainant rnequivocally agreed to make t,mely payments as per the opted rayment plan prov,ded in the apphcanon iorm and rhe apartment buyer agreement.

It was made clear to the complainanr rhar nmely paymenr will be the essence ot the r.ansacrion.

1r rs Iurther n'bmitted that the complainant made thc booking .rfter caretully gorng through the terms and conditions as nrenl.roned in the Pursuant to the aforesaid, the parties hereto had executed an apartment buyer agreem€nt dated 18.01.2016. lt is submitred that the total cost of the unjt/apa.tment was Rs.1,65,56,606/. inclusive of taxes.

It is pe.tinent to menrion here that rhe complainant had opied the payment plan mentjon<d in Schedule y// of the said apartment buyer ag.eement at the time ol executjon ol the said apartment buyer agreement. agreement.l: rs submltted that the complainant opted ior F/exi-Possession Linked Plon wherein they unequivocally agreed to make timely payments as prov,ded rn the apartment buyer agreemenr II is fu.ther submitted that in terms ofclause l6 ofthe appbcaron form and clause 4.2 ofthe apartment buyer agreement lhe tertative dateof completion of the apa.tment / unit was 48 + 6 nronths f.om rhe date of issuance of allotment i.e. (05.11.2015) and theretore rn te.ms of the applicanon and apartmcnt buye. agreement the date oi completion of the unit would be 05.05 2020. lt is submitted that clause 15 ol the application from and .lau!e 25 of the VI, v VIII apartment buyer agreement clearly stipulated that 20% of the sale consideration / cost oi the properry was to be considered / treated as earnest money which was mean: to ensu.e periormancei compUance, and fulfilmenr ot obligations and responsibiUties of the buyer.

It is submrtied that rhe clause 2.10 ot the aparmenr buye. agreement dated 18 01.2016 clearly stipulated that in rhe event of non-payment of any instalment by ihe complainaDr as per rhe opted schedule of payments set our in s.hedule vii of rhe agreement/ the respondenr is wuhin its righr ro reje(t / cancet the bookrng and to forfeit the earnest money and othe. amounrs rn vjew ofthe defaults committed by the complainanr.

It rs submitted that clause 8 of the aparrmenr buyrr a8reemenr clearly stipulated that i. case the complajnanr tarh to compty with the terms and conditions of rhe apphcarion form and aparrment buyer agreement, the respondent shalllave rhe nght to terminate / cancelthe allotmentletter and / or uur.

It is submitted that the respondent has raised the invoice as per the opted flexi possession linked payment plan and only on completion olmilestones as menrioned in the paym(nt plans It is pert'nent to mention here tha he respondent has time and agarn sent a1l the consr.uction updates to the complainanr. mplainanr.

1t is submitted that the respondcnt had duly complered rhc construction ol the iconic tower and has duly obtained the occupation ceftificate on 18.09 2020.

It may not be cur of place ro ment,on here that thc construction nctjvity of rhe lCONIC rower was disruptcd due to the outbreak ol COVID-19 pandemic rhar aomp i,nt no.4346 & 34s0 of202t X resulted in the minor delay rn the comptetjon ot rhe consrrucnon and as such HARERA vide notification dared 26.05.2020 extended the completion dared by 5 months.

Ir is iurrher subnritted rhat as per the agreed rerms and conditions ot rhe apartmenr buyer agreement the respondent was enrirled to an extension of time it the performance oi the respondenr was detayed lue ro forcc mateure evenr.

Ir is submirred thar afrer complerion ot rhe const.uction, the respondenr rssued a possession tntimarion lerrer dated 30 10.2020 and requesred ihe comptainant ro clear rhe balance amounr payable towards thc costs ofthe properry.

Pursuanr to the issuance of the aforemenrione. possession intimation letter dated 30.10.2020, the respondent \rde irs letrer dated 31.10.2020 issued an invoice tbr an amount oi ts-32,51,702/- upon completion ol the milestone namely o, tntim(1tion of possession and called upon thc cornplainant io clear the said amount on or before 17.11.2A20. lt is perrinenr ro mention that the sard amount of rs.3251,702l along wirh rnterest on delayed payments rs still due and payable by the It is subm)tted that at the time oi execution of the apa.rmenr buyer agreement the complarnant agreed and unde.took ro pay all amounts due and payable to the respondent as per the payment plan opted by the complainanr menrioned rn Schedule y// olthe apa.tmenr buyer agreenrent. lt rs furthers!bmirted that the respondent had raised the invoices upon rhe complarnanr rn accordance with the opted payment plan and upon completion ot construction milestoncs menhoned therein 1! is impo. ! is impo.tanr to \ Complarntno 4346 & 34:i0 of2021 XI XII note here rhar rhe jnvoices were raised /rssued by the .€sponde.r only upon complerion of the mrlestone and no premaure demand was.aised by the respondent Pursuant ro the issuance of the demand lerrer/trrvorce dated 31.10.2020, rhe respondenr vrde its emait dared 11.01.2021 11.05.2021 and lerrer dated 1404.2021 callec upon rhe complainanr to clear the oursrandin8 amount immediatety, ro avoid ac..ualoffurrher inre.esr as provided under rhe applicaoon form as wellas rhe apartmehr buyeragreement.

1t is not out ot place to mention here that the respondenr rs a customer centric orSanizarion and has lrom rime to t,me updated the complainant about rhe starus of the consrruction.

The factum ofthesame is ev,denrfrom rhe Enraitdated 30.09.2020 issued by the respondent to the complainant herein informing / inrjmarjnB the complainant abour obraining the principat occuparion certiflcate.

Pursuant to the aaoresa,d, the respondent vide irs email dared 10.05 2021 once again called upon the comptainanr to pay an amounr (s) aggregating ro Rs 35,40,636l along wrth applicable interest and CST@18% on rhe interesr amo!ir immediately, to avord further accrLral of rnrerest/penal consequences as provided under the applicahon forn/altotment letter and apartmeni buyer agreemcnr.

1r is submitted that the complainanr has miserably failed io periorm his part oi the obligatron jn as much as rhe romplarnanr has failed to make t,mely payments and thus commirted marenat breach ol the terms and condirions as srated in the applicahon form/allotment letter/apartment buyer agreement. rt is x 34!i0 PaCelaul2S l4l;0 xtv GURUGRAIV submitted that as on 25.08.2021, rhere is a toral ourstanding amounr of Rs.36,44,106/, as per rhe statemenr of interest and Rs32,51,703/ aspersrarementof accounr.

It rs submitred that the respondent vide irs emait 25052021 once again called upon rhe complainalt ro pay an amount of Rs.

35,55,141l within 10 days. n 10 days. tr was further clarified by the respondent that in case rhe complainant fails to pay the said amount within rhe srrpulared time period in lhat case the .espondent will be constrained to terminare rhe allotment lerter / apartment buyer agreem€nr and forfeit the amount paid by the complainanr.

Ir is perrinenr ro mentjon here rhar pursuant ro the issuance oa the email dated 10.05.2021 by the respondent, the complainant soughr details of the amount to be lo.leired by rhe respondent in case the complainant opts to cancel tle booking. lt is furthe. submitted that the respondent duly inrimared the complainant that the cancellarion shall attract forfejture charges as agreed berween th€ part,es hereto and inrimared rhe fo.feiture amount vide email dated 22.05.2021.

XV.

It is further submitted that the complainant unequivocally adm,tted h,s financial incapabiliiy to make the timely payments xvt vide an email dated 31.05.2021 and acco.drngly sought cancellarion of the apartment / unit in the prolect.

Since, the compla'nant mrserably lailed to pertorm his oblj8ation insofar as the complainant failed to make timely payments as per the agreed terms ol the apartment buyer agreerent and rhe payment plan opted by the complainanr Acccrdingly, the respondenl was constrained to ternrnate / cancel the allotment xv]L comptarnr no.4346 & 34ti0 of2o2.r of the comp ainant and vide its emait dated 2608.2021 rhe respondent rerminared rhe apartmenr buycr aSreemenr executed between rhe parties he.ero.

1t is submrtted that rh: apptrcarion form as well as rhe apartmenr buyer agreement clea y stiputated anddefined rheamounrofearnestmoneyto be 20% ofrhe cost oa the properry was to be considered / treared as earnesr money which was meanr ro ensure performance, compliance, and fulhllmenr oiobligations and responsibrtiries of the buyer.

It is fu(he. submirred thar rhe rerm rcqurrinE brieirure of earnest money in rhe event of detaulr w. detaulr w.rs meart ro ensurc compliance on the part of rhe comptarnant of his contracQat obhgations.

It is furrher submitred that the 20% earnesr money amount was a genuine pre estimate ot damages and was not in the nature ofpenalry.

It js submrtted rhat in rhe pres3nt case, the parties clearly agr€ed and undersrood that earnesr money shatl amount to 20% ofthe cost ofthe property and jt was jn the narure ofa securiry rn order ro ensure due performance ofohligarions by It rs submrtted thar in view of applicatron form as we as rhe apa(ment buyer agreement executed berween rhe parries herero, in the event of detault by the comptainanr herein, rhe agreed amounr ot earnest money i.e.

20% oi the oa the sate consideration/cost of the properry rs liable to be fo.teited along with other cha.ges as detaited in the aparrnrent buyer agreemenr Since the .omplainant has been unable to mecr hrs conr.actual obligabons, the sard amount is liabte to bc torteired as per the xvtlt PaBe 20of28 *s l:.t HARERA GURUGRAIU Complarnt no 4346 & 341i0 of2O21 te.ms of the apartment buyer agreement as ihere was no delautt on part otrhe respondent.

XIX. lt is relevant to state here thar the respondent has not onty lost the opportunjty to sell the said flat to some othe. pcrson, (ar rhe timewhen co mplainant booked the flarlwhowoutd have adhered with the terms ot rhe conrracr and paid the enore salc consideration in bme.

Thus, rn view oi the afbremelrioned facrs and crrcumsrances the respondenr is in comptiance with rhe direct,ons passed by th€ appropnare authonnes aDd is aho in compl,ance with the rerms and conditions as envisaged under the applicabon iorm. wirhout prejudice to rhe aioresaid,.espondenr denies each and every allegation rajsed in the insrant complainr unless speofi cally admitted hereinafrer lurisdiction of the aurhority The authority observed that it has ternrorialas wett as subject matte. ect matte. jurjsdiction to adjudicate the present complarnt ior rhe n:asons given Territorial iurisdlcdon E 7.

As per norificanon no.1/92/2017 lTCp dared 14.12 Z0-17 issued by Town and Country Plannrng Deparrmetrr.

Haryana the luflsdidion of Rcal Estate Regulatory Authoriry, Gurugr.rm shall be ennre Cu.ugram Drstr,ct for aU purpose wirh oifices siruared in Gu.u8ram tn rhe present case, the p.otect in question rs situated wirhrn the planning a.ea of Curugram Drstrict, rhererore this aurhoriry has comptere terrjtorial ju n sdr ction to dealwrth rhe prcsenr comptainl, E.ll subiect-matter ,urisd lction l I Section 11(4)[a) oi rhe Act provides thar rhe promorer shat] bc responsible to the allortee as per agreemenr for sale.

Secrion t1(41lal is reprodLrced as hereunder: '1i1 rn" p,..o,,, 'n,tt (o) be re,pon\bk lat ot obreotnn\, rerpanebn es ohtt Iunctnns undet rhe pravsrcns ol rhis A.t ar the rutes ond resulotions ho.le the.eunder .r ta the ollarces os per the ogreenent fot sole, .r to the o$o.iorion aJ o attccs, ot the cae no! be, tllthe conveyon.e olotl the opo nen\,,plosot bu dtnst os the cote hoy be, ta the altt)uee:, at th1 connon orca\ ta the osnciotioh ol utlatte* d Lhe Lonpetenr outhorn!, ot the cose noy be: section 34-Funetions ol the Authority: 314 althe Act provides ta ensu.e canplnn.e .l rhe abhlatnns.o\ upon the pr.na.ers, theollotteesond the.eol estotc ogen6 untler th6 AcL ond the rulesond regllorant nade thercu tler 9.

So, in view olthe provisions olthe Act quoted above, rhe,ruthority has complete jurisdicnon to decide the cornplarnt rega.ding non compliance of obligarions by the promoter as per provrsrcns otsection 11(4)(a) ot the Act leaving aside compensahon which is to be decided by the adjudicaring offlc€r il pursued by rhe complarnant at a larer srage.

10 Further, the authority has no hitch in proceedrng with t1e complainr and ro g.ant a reliei ol refund in rhe present matter in view of the iudgement passed by the Hon'ble Apex Cou.

Apex Cou.r in /vewtech Ptomoters and Developers Privote Llmited Vs State ol U.P. ond Ors.'2021- 2oZ2(1) RcR(ctvn),357 ond teiteroled in coseolM/sSdno Realtors Pvt.

Ltd. and other ys.

Union ol tndia and other SLP(Civil) No.13oos oJ Zo2o decided on 12-05-2022 wheten jt has been laid down as 34rro.r;;-l *HARERA S- cLrnuennl,r "06.

Fron the yhehe of the Act of whrch o d*oikd releretce hos been nade ond toktng na.e ol powt olodjldicotion delineo dwrh the resularary outhati.t ond adjudicatins ollet, whdt fnott! cutts aut 6 thot othough the Act tn.hcotes the distincr exprcseans like tefund , tercst , 'penotry' ond ionpedsation', o conjaintteodins ol Sectnns 18 and 19.leotly monles4 hor ||hen n con* to tetund ol the anouna dnd tntercst on the.efund onounL ot di.ecung pnlnent ofinte.est lot deloJed delve.r of pasesean, at penaltt ohd inet$t thereon, t L .he rcgulolary outharit] which has the ponet to etonine and deterntne the outcone oJa cnhptoiht At rhe n e tine when n codes to o qlenian ol seekrns the rehef ol o.tutlstns canpensatnn ond nteres.herean under Sertions 12, 14, lA nna 19, the odtutlto.ihg olliar e\dusivel, has the powe. to det'vnine, keeping in vrcw thecalle.ttre rcoding ol Se.Lion 7t rcodwth tecnon 72 of rhe A4. il rhe od)udication under SeLttant 12, 11, ft ona 19 othet thon rcnpensaton os enti ged, ile*ended to the odtuotconng ollcer os ptoyed thot, in out vie\|, ha! ntend ro e^pond th! anbit ona scoDe af the pawers ond functians al the odjudicotins ollcer unde.

Se..ian 71 and thot would be osans the hondare althe Act 11.

Hence, ,n uew ol rhe authoritative pronouncement ol the Hon'ble Supreme Court in the cases mentioned above the authorrry has the jurisdict,on to entertain a complaint seekrng rel'und of thi amount and i.terest on rhe refund amount, F.

Findings on the reliefsought by the complainant/allol.tee.

F.

I Dired rhe respondent to refund the entire amount paid by the complarnant to the respondent amounting to Rs,1,43,64,332l along 12. along 12.

In the presenr complaint, the complainanr intend to withc.aw lrorn the p.oject and are seeking return of the amount paid by it in respect of subte(r unrr dlong wilh interest at the pres(ribed ratL as provrded under iecrion l8( l) of rhe Act.

Sec. l8(11 ot the Act rs reproduced below for ready reference. ''Sectlon 1A: - Retu olddou.ton.l@mpenntion .l,l !i0 fi HARERA GUl?UGRAM by the promoter rat€.

The allotree 70.17.2021 after respect ol the unrt wirh inrerest a! rhe prescribed this case has filed this applicauon/complain! on possession of (he unri was ottFred to h,m dler obtaining occupation certificare by the promoter.

The atlotree never earlier opted/wished ro wirhdraw irom rhe projecr even after rhe due drte or possession dnd only whcn otfer ofpo\\essron wrs made ro h.m and demand for due payment was rarsed before the authority.

The occuparion complainant is situated is received after obraining occuparion cert,flcate.

Section 18(11 gives rwo options ro rhe attonee ia the certilicate ol the buildings/towers where by the date spec,fied therein: (i) Allottee wishes to withdraw from rhe projecr; or (ii) Allottee does nor intend to withdraw Lom rhe prolecr Promoterfails to complete or is unable ro give possession of rhe unir in accordance with the terms oirhe agreement for sale or duly complered 16 The right unde. secoon 18(1)/19[4] accrues ro rhe allottee on failure ot the promoter to complete or unable to give possession of the unit in accordance with the terms olthe agreemenr ior sale or du y complered by the date specified therein.

Ifallorrec has nor exercisec the right ro withd.aw Lom the project aiter rhe due date ot possession is over trtl the offer of possession was made to hrm, rt impliedly m€ans rhar the allottee has tacitly wished to contrnue with the p.ojecr.

The promoter has already invested rn the p.oject ro complete it and olfered ot 2021 possession olrhe altotted unit. tted unit.

Although, for detay in han,jing over rhe unit by due date in accordance with the rerms of rhe agreement ior sa1e, the consequences provided in proviso to secrion 18(1) w,ll come in force as the promorer has ro pay interest at the prescribed rare ot every month ofdelay dU rhe handing over oipossession aod allortee s )nterest for rhe money he has paid ro rhe promoter are protected accordinsly.

Fu.rher in the judsement of rhe Hon,bte Supreme Court of lndia rn the cases of lvewtech promote'll ond Devetopers prleote Ltmited vs Stote oJ U.p. ard Ors. (supra) rcit€rared in cas€ of M/s Sana Realtors Privat€ Ltmired & oth€r Vs Union oflndta & orhe.s SLP (clvil) No.

13oo5 ot 2020 decided on 12.05.2022. ir w,s 2s t he uhtruohfed nsht ol the a o re to eek rclund refemd Unt)* Section 13A)[o) ond Se.tion 19t4)ofthe ActisnnLdeDende on legbloture hos consoouslt ptonded this nshtolrefund on denontl as dn un.ondtionat obsolute right to the ollatt2e, i the pran)ter fotls to give posesion of the opottnenL pto. o. bujlding wthin he ti4." ntputoted Lnde. th. tpns at r\e ogtee4e ,ogo,dle_ ol Lrt^,e\p?4 a\2F6 at 'oyotd?.oltneLuud rna!4t d4_,tl\.; etther 4r not ott.ibutable @ rhe o .rtee/hane buyet, de pramotet is u..ler on obhgoaon to relund the onount on denand |9ith ntercn the nte pr5c.ibed b! thc sto@ cavctnnent tncluding conpensdtioh in the nonner p.avided undetthe Act rvth the pravsa rhot ilthe ollot.ee do6 hat wsh bwnhdrow nah he pt otp- t \e .\oh be end lpd lot qre, p. t tot fie pe4od oJ J?toJ, l hondtng averpossesioh ot the rcte ptescnbcd 17.

Further, the Haryana Reat Estate Regutatory Aurhoriq,curug.am (Forfeiture of earnest money by rhe bu derJ Regulations, 11(S) oi 2018 states that "5, AMOUNT OF EARNEST MONEY scenono ptior to the Reol Estote [Regrlations ond Devetopnent) Acr,2016 wos diJlercnL Frouds were corried out withoutoN Jeot os rhe. ot os rhe.e Ms no taw Jor the rone b"t "ow, ih ,ie* ot the "b;,;e foc!

34ti0 ol2021 #HAREIA S-cltnrrcnltt ond toking into contiderotion the j!.lgemen5 ol Honbht Notionol Contumer Dbrytes Redresol Coohission ond the Hon ble SuPrene coun oJ lndio, the althoriE is oJ the view thdt the foietture onount ol the eornst money thollnot e\ceed no.e thon -10% olthe aportnenr/plot/buildins os the case doy be in oll cases whete rhe concellotion aJ the lot/unit/Plot I nade bt the butldet tn o unilarerol nonner or the buler ihten.ls b wnhdrow from the prctect oh.1 ony ogteenent cohtoining dny clouse contory ta the oJotNid regulotions sholl bevom ond not bindhg on the bule.

18.

Keeping in view. the request of the complainant. the respondent/promotor directed to refund the paid-up amount afte. deducting 10% oi the basic sale consideration and shall return the amount along with interest at the rale of 10 700/0 (the state Bank ol India hishest marginal cost ol lending rate IMCLR) appl,cable as on is d,rected to refund the paid'up amount of Rs after deducting 10% of the sale consideration ol wirh 'nrere5t rr the pren t rbed rale r.e 10.700 r\ date +2%) (Regulatron 1,45,88, Rs 1,65 as prescribed u.der rule 15 of the Haryara Real Estate and Development) Rules, 2017, from the date of request oI wrthdraw/surrender i.e.

31.05.2021 till the actual date oireiund of the amoLrnt within the timelines provided 2017 ibid. rule 16 of the laryana Rules G.

Directions ofthe authoritY 19.

Henc€, the authorrry hereby passes this directions under section 37 ol the obligations cast upon the promoter as the authoriryunder section 34(0: order and issue$ the folloMng Acr to ensu.e,:ompliance ol per the f,unctiox enkusted to 4346 & 34SO ot ZO2 l L 20.

21. allowed on the balance amounr trom rhe date withdravsurrender i.e.,31.05.2021 tijl the dare of A period of90 days is given to the respohdent to co directions given in rhis order and fartint consequehces would foilow Complaint stands disposed of. sposed of.

File be consrgned to re Ashok Sa Haryana Date* 23 02_20 HARERA GURUGRAM wirh the \-t- Vijay Ku ,GU ich legal