MANISHA ARORA vs IREO GURUGRAM HILLS

CORAM: Shri Ashok Sangwan Complaint No.

3431 of 2020 & other Member ffi HARERA #,eunuennnl BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Order Reserve On; IO.O3.ZO23 Order Pronounce On: 08.08.2023 NAME OF THE BUILDER M/S IREO PVT, LTD.

PROJECT NAME Ireo Gurgaon Hills s.

No.

Case No.

Case title Appearance 1 cR/3437/2020 Neetu Bhalla and Ajay Bhalla V/S M/S Ireo PYt.

Ltd.

Shri Dinesh Kr.

Dakoria Shri M.K DanB 2 cR/3433 /2020 Manisha Arora and Rajiv Arora V/S M/S Ireo Pvt.

Dakoria Shri M.K Dang ORDER 1.

This order shall dispose ofall the two complaints titled above filed beforc this authority under section 31 of the Real Estate (Regulation and Development) Act,2076 (hereinafter referred as "the Act") read with rulc 28 ofthe Haryana Real Estate (Regulation and Development) Rules, 2017 (hereinafter referred as "the rules"l for violation of section 1 1(4) (aJ of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, rcsponsib ilities and functions to the allottees as per the agreement for sale executed inter se between parties.

Page I ,,i 37 .l- <U * HARERH ffi eunuennvr 3.

Complaint No.

3431 of 2020 & other 2.

The core issues emanating from them are similar in nature and the complainant[s) in the above referred matters are allottees of the project, namely, lreo Gurgaon Hills situated at Gwal Phari, Sector-2 Gurugram being developed by the same respondent/promoter i.e., M/s Ireo Pvt.

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 refund of the amount paid along with interest.

The details of the complaints, reply status, unit no. , unit no., date of agreement, possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given in the table below: Proiect Name and Location Project area DTCP License No.

Name of Licensee "lreo Gurugram Hills" at cwal Phari, Sector-2 Gurugram, Haryana.

11.06875 acres 36 of 2011 dated 26.04.2011 valid upto 25.04.2026 M/s Nucleus Conbuild Pvt.

Rera Registered Not Registered Possession Clause: - 14.3.

Possession and Holding Charges Subject to force majeure, as defined herein and further subject to the Allottee having complied with all its obligations under the terms and conditions ofthis Agreement and not having default under any provisions ofthis Agreement but not limited to the timely payment of all dues and charges including the total sale consideration, registration chares, stamp duty and other charges and also subject to the allottee having complied with all the formalities or documentation as prescribed by the company, the company proposes to offer the possession ofthe said apartment to the allottee within a period of 42 months from the date of approval of building plans and/or fulfillment of the preconditions imposed thereunder[Commitment Period).

The Allottee further agrees and understands that the company shall additionally be entitled to a period of lB0 days (Grace Period), after the expiry of the said commitment period to allow for unforeseen delays beyond the reasonable control ofthe Company.

Date ofapproval ofbuilding plans: 17.05.2012 Date of environment clearance: 26.06.2073 I Date offire approval: 25.12.2013 PaEe 2 ot 37 * tr * ru HARERA GURUGRAI/ Due date ofpossession: 17.11.2015 (Calculated from the date ofapproval ofbuilding plans) Note: Grace Period is not allowed.

3431 of 2020 & other s. no.

Complain t No., Case Title, and Date of filing of complain t Unit No. t Unit No.

Unit admea suring Date of apartme nt buyer agreeme nt Due date of possess ion Total Sale Considera tion / Total Amount paid by the complaina nt Relief Sought 1. cR/3437/ 2020 Neetu Bhalla and Ajay Bhalla v/s M/S Ireo Pvt.

DOF: 16.70.202 0 Reply: 22.03.202 1 D-23_32 on 22nd Floor, Tower D (page no.

34 of complai nt) 4746.8 3 sq. ft 01.11.2 01 2 77.77.20 15 TSC: - Rs.

4,55,43,91 0/- AP: - Rs.

4,53,25,28 0/- Refu nd 2. cR/3433/ 2020 Manisha Arora and Rajiv Arora V/S M/S Ireo PvL Ltd.

D-27_32 on 20th Floor, Tower D (page no.34 of complai nQ 4786.8 3 sq. ft.

01.11.201 2 77.71.20 15 TSC: - Rs.4,55,43, 970/- AP: Rs.

4,53,25,2A 0/- Refund Yage I or y )f DOFr 76.70.202 0 Reply: 22.03.202 1 *fr HARERA ffi, eunuennvr 4.

5.

3431 of2020 & other Note: ln the table referred above certain abbreviations have been used.

Ttrey are elaborated as follows: Abbreviation Full form TSC Total Sale consideration 6.

AP Amount paid by the allottee 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 the possession by the due date, seeking the refund of the amount paid for the unit along with interest at prescribed rate.

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(0 of the Act which mandates the authority to ensure compliance ofthe obligations cast upon the promoters, the allottee(s) and the real estate agents under the Act, the rules and the regulations made thereunder.

The facts of all the complaints filed by the complainant(sJ/allottee(s)are similar.

Out of the above-mentioned case, the particulars of lead case CR/3431/2020 Neetu Bhalla and Ajay Bhalta V/S Lt/S lreo pvL Ltd. are being taken into consideration for determining the rights of the allottee(sJ. lottee(sJ.

Proiect and unit related details ,a A.

Page 4 of 37 HARERA W, GURUGRAM 7. 'l'he particulars ofthe project, the details ofsale consideration, the amount paid by the complainant(s), date ofproposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: CR/3437/2020 Neetu Bhallo and Ajay Bhalla V/S M/S treo pvL Ltd. s.

N.

Particulars Details 1.

Name ofthe project "lreo Gurgaon Hills" at Gwal Phari, sector 2, Gurugram 2.

Nature of the project Group Housing Scheme 3.

Project area 11.06875 acres 4.

DTCP license no. and validity status 36 of 2011 dated 26.04.201-1- valid upto 25.04.2026 5.

Name oflicensee M/s Nucleus Conbuild Pvt.

6.

RERA Registered/ not registered Not Registered 7.

Date ofapplication 04.04.20),2 (annexure P/1 on page no.

34 of complaintl B.

Allotment Letter 03.07.2072 (annexure R-2 on page no.

49 of complaint) Date of apartment buyers' agreement 01.77.201,2 (annexure P/1 on page no.

31 of complaint) 10.

Unit no.

D-23 -32 on 22na Floor, Tower D (annexure P/1 on page no.

34 of complaint) )+ Complaint No.

3431 of 2020 & other Page 5 of 37 &.& HARERA GURI]GRA[/ Complaint No.

3431 of 2020 & other 1,1,.

Unit area admeasuring 4786.83 sq. ft. (annexure P/1 on page no.

34 o complaintJ 12.

Date of approval of building plan t7.05.2072 (annexure R-6 on page no.

55 of replyl 13.

Date of environment clearance 26.06.201,3 gTr1Y:Tqr1"j"?',) 26.72.20t3 (annexure R- 8 on page no.69 ofreplyJ 74.

Date of fire scheme approval 15.

Due date ofpossession 1,7.77.2015 [calculated from the date of approval o building plansl Note: Grace period is not allowed.

16.

Possession clause 14.3 Possession and Holding Charges Subiect to Force Majeure, as defined herein and further subject to the Allottee having complied with all its obligations under the terms and conditions of this Agreement and not having defaulted under any provision(s) of this Agreement including but not limited to the timely payment ofall dues and charges inclu rges including the total Sale Consideration, registration charges, stamp duty and other charges and also subject to the Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to offer the possession of the said Rental Pool Serviced Apartment to the Allottee within a period of 42 months from the date of Page 6 of 37 ed ee ns ris ed rnt :ly ng s r e r ,v * HARERA ffi eunuenAvr approval of the Building Plans and/or fulfilment of the preconditions imposed there under ("Commitment Period").

The Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 days ("Grace Period"), after the expiry of the said Commitment Period to allow for unforeseen delays beyond the reasonable control ofthe Company.

1,7.

Offer for start of interior work 20.07.2017 (page no.

72 of reply) 18.

Total sale consideration Rs.4,55,43,910/- [as per payment plan on page no.79 of complaintl 19.

Amount paid by the complainants Rs.

4,53,25,2a0 /- [as per payment details on page no.

104 of complaintl 20.

Occupation certificate 29.06.2022 (as per additional document on record) 27.

Offer ofpossession 7t.07.2022 (as per additional document on recordJ B.

Facts ofthe complaint The complainants have made the following submissions in the complaint: 8.

That the complainants booked the said unit on Z\.O3.ZOIZ and paid a sunt of Rs.

3 5,00,000/- as initial sale consideration of the said flat.

At the time of booking, the respondents categorically assured the complainants that the buyer's agreement would be executed within a period of 1S days from the date of booking, however the respondent delayed the execution of Page 7 of 37 + Complaint No.3431 of 2020 & other HARERA Complaint No.3431 of 2020 & other P"GURUGRANI agreement about 7 months and after repeated request the respondent executed buyer's agreement on 01.11.2012 with the complainants.

9. inants.

9.

That at the time of booking, the respondents promised the complainants that the project would be completed within period of 3 years in all respect, however the respondent inserted a very unreasonable and ambiguous clause in the buyer's agreement pertaining to handing over the possession and holding charges.

As per clause no.

14.3 of the buyer,s agreement, thc possession of the apartment was to be handed over within a period of 42 month plus grace period of 180 days from the date of approval building plan and/or fulfilment of the preconditions imposed their under "Committed Period".

10.

That the complainants have performed their obligation under the buyer,s agreement and has paid a sum of Rs.

4,S3,2S,ZSO/- to the respondent till date out of total sale consideration of Rs.

4,55,43,910/-.

11.

That the aforesaid payment has been received by the respondent on thc basis of misrepresentation and non-discloser of true and correct status of the project.

In fact, the building construction process was not as per the schedule given in the apartment buyer agreement dated 01.11.201 2.

The constriction of the building is not in progress since last about 3 years and the building is lying abandoned/unattended and there is no possibility for completion of the project in near future, however the respondents raiscd the demand of money illegally to get wrongful gain and wrongful loss to thc complainants.

12.

That the complainants have become frustrated with the act and conduct and non-performance of the respondent.

The said apartment was purchased by the complainants for their residence purpose, and they were Page 8 oF 37 !A RAM HARE GURUG Complaint No.

3431 of 2020 & other in hope to shift in this apartment, however their dream has been ruined by the builder.

The complainants waited for long time to receive the possession of their apartment, but the respondent completely failed to complete the project on time and now the complainants have been waiting to get their money refu money refund with interest from the builder since last one and half years, but the builder has been avoiding the genuine request of the complainants and it has been holding the hard-earned money of thc complainants illegally.

C.

Reliefsought bythe complainants: - 13.

The complainants have sought following relief(s): i.

Direct the respondent builder to refund the amount of Rs.4,53,25,280/- paid by the complainant.

14.

0n the date of hearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11(4) [aJ of the act to plead guilry or nor to plead guilry.

D.

Reply by the respondent The respondent has contested the complaint on the following grounds.

15.

That the complaint is neither maintainable nor tenable and is liable to be out-rightly dismissed.

The apartment buyer's agreement was executed between the parties prior to the enactment of the Real Estate IRegulation and Development) Act,2016 and the provisions laid down in the said Act cannot be applied retrospectively.

That there is no cause ofaction to file the present complaint.

17, That the complainants are estopped from filing the present complaint by Page 9 of 37 their own acts, delays and laches.

HARERA ffi, GURUGRAM 18.

That the complainants have no locus standi to file the present complaint.

19.

That the respondents have filed the present reply within the period of limitation as per the provisions of Real Estate (Regulation and Development) Act, 2016.

20.

That the complaint is not maintainable for the reason that the agreement contains an arbitration clause which refers to the dispute resolution mechanism to be adopted by the parties in the event of any dispute i.e., clause 36 of the buyer's agreement.

21.

That the complainants have not approached this authority with clean hands and have intentionally suppressed and concealed the material facts. ial facts.

The present complaint has been filed maliciously with an ulterior motive and it is nothing but a sheer abuse of the process of law.

The true and correct facts are as follows: 22.

That the complainants, after checking the veracity of the pro,ect namely, 'lreo Gurgaon Hills' had applied for allotment ofan apartment vide booking application form and agreed to be bound by the terms and conditions stipulated therein.

23.

That based on the application for booking, the respondent vide its allotment letter dated 03.07.2012 allotted to the complainants apartment D23_32 in Tower D in a Bare-shell condition having tentative super area of 4786.83 square feet for a sale consideration of Rs.

4,55 05,328 /^.

Vide lettcr dated 18.09.2012, respondent sent three copies of the agreement to the complainants which was signed and executed on 01.11.2012.

The RERA Act, 2016 was not in force when the complainants had booked the unit with the respondents and the provisions of the same cannot be enforced retrospectively.

Furthermore, the apartment was in the bare-shell Page 10 of37 + Complaint No.

3431 of 2020 & other trHARERA S*eunuennHl Complaint No.3431 of 2020 & other condition as provided in Recital's 'E' and 'H' of the agreement and the complainants were to carry out interior work as per specifications stated in Annexure I and Annexure V of the agreement.

24.

That respondent kept on raising payment demands from the complainants in accordance with the agreed terms and conditions ofthe allotment as well as the payment plan.

However, the respondent had raised the third installment demand on 06.09.2073 for the net payable amount of Rs.48,36,941/-.

However, the complete amount was credited only after reminder dated 0?.),0.201,3 was sent by respondent.

25.

That the possession of the unit was supposed to be offered to the complainants in accordance with the agreed terms and conditions of the buyer's agreement.

As that clause 14. clause 14.4 of the buyer's agreement and clausc 54 of the schedule - I of the booking application form states that subject to force majeure, as defined herein and further subject to the allottee having complied with all formalities or documentation as prescribed by thc company, the company proposes to offer the possession of the said apartment to the allottee within a period of 42 months from the date of approval of the building plans and/or fulfilment of the preconditions imposed thereunder (Commitment Period).

The allottee further agrees and understands that the company shall be additionally be entitled to a period of 180 days (Grace Period)...'.

The complainants vide clause 14.6 of the buyer's agreement and clause 55 of the schedule - I of the booking application form had further agreed to the 'extended delay period' of 12 months from the end of grace period.

From the aforesaid terms of the buyer's agreement, it is evident that the time was to be computed from the date of receipt of all requisite approvals.

Even otherwise construction can't be raised in the absence of the necessary approvals. tt has been specified Page 11 of 37 * HARERA #,eunuenntr,r 77 .05.2072 of the said project that the clearance issued by the Ministry of Environment and Forest, Government of India has to be obtained beforc starting the construction of the project.

The environment clearance for construction of the said project was granted on 26.06.2073.

Furthermore, in clause 22 of Part-A ofthe environment clearance dated 26.06.2013 it was stated that fire safety plan was to be duly approved by the fire department before the start of any construction work at site.

26.

That the last of the statutory approvals which forms a part of the pre- conditions was the fire scheme approval which was obtained on 26.1.2.201,3 and that the time period for offering the possession, according to the agreed terms of the buyer's agreement, would have expired only on 26.72.2018.

6.72.2018.

However, the said period is subject to the occurrence of any force majeure condition which is beyond the reasonable control of the respondents and the complainants complying with their contractual obligations.

27.

That respondent had intimated the construction status to the complainants and as per clause 13 of the apartment buyer,s agreement invited the complainants, vide its letter dated ZO.O1.ZO17 to start thc interior works ofthe unit allotted to them by taking physical measurements along with the architects and by doing design management.

However, the complainants failed to adhere to their obligations.

28.

That the complainants failed to adhere to their contractual obligations of completing the interior design management and the respondents could not have waited endlessly and accordingly it applied for the grant of thc occupation certificate on 24.09.2018.

3431 of 2020 & other in sub- clause [v) of clause 17 of the approval of building plan dated Pffe 12 ar 37 ffiHARERA #. eunuennt't Complaint No.

3431 of 2020 & other 29.

That the DTCP, Haryana vide its letter dated, 74.02.2019 intimated to rhe respondents that the building was not completed as per the approved building plans and that it shall not have any objection to getting the fitments and fixtures/remaining interior works of the flat completed either by the colonizer or through the allottees. the obligation of completing the interior works and design management was of the complainants and not of the respondents.

However, the respondent being a customer-oriented developer, completed the construction of the unit as per Section 7.15 of the Haryana Building Code, 2017 which deals with the minimum provisions with regard to the dwelling unit, although the same was the liability of thc complainants as per the terms of the buyer's agreement and the respondents again applied for the grant of the occupation certificate vidc letter dated 13.08.2019.

30. .2019.

30.

That the implementation of the said project was hampered due to non- payment ofinstalments by allottees on time and also due to the events and conditions which were beyond the control of the respondent, and which have affected the materially affected the construction and progress of the project.

Some of the force majeure events/conditions which were beyond the control of the respondent and affected the implementation of the project and are as under: The respondent had awarded the construction of the project to one of the leading construction companies of India.

The said contractor/ company could not implement the entire proiect for approx.

7-8 months w.e.f from 9-10 November 2016 the day when the Central Government issued Page 13 of 37 ffiHARERA *&- eunuennll Complaint No.

3431 of 2020 & other notification with regard to demonetization.

During this period, the contractor could not make payment to the labour in cash and as majority of casual labour force engaged in construction activities in India do not have bank accounts and are paid in cash on a daily basis.

During demonetization the cash withdrawal limit for companies was capped at Rs.

24,000 per week initially whereas cash payments to labour on a site of the magnitude of the project in question are Rs.

3-4 lakhs per day and the work at site got almost halted for 7-8 months as bulk of the labour being unpaid went to their hometowns, which resulted into shortage of labour.

Hence the implementation of the project in question got delayed due on account ofissues faced by contractor due to the said notification ofcentral government.

32.

There are also studies of Reserve Bank of India and independent studies undertaken by scholars of different institutes/universities and also newspaper reports of Reuters of the relevant period of 2016-17 on the said issue of impact of demonetization on real estate industry and construction labour.

33. abour.

33.

Thus, in view of the above studies and reports, the said event of demonetization was beyond the control of the respondent, hence the time period for offer of possession should deemed to be extended for 6 months on account of the above.

34.

Orders Passed by National Green Tribunal: In last four successive years i.e.

201-5-2016-2077 -201,8, Hon'ble National Green Tribunal has been passing orders to protect the environment of the country and especially the NCR region.

The Hon'ble NGT had passed orders governing the entry and exit ofvehicles in NCR region.

Also the Hon'ble NGT has passed orders with regard to phasing out the 10 year old diesel vehicles from NCR.

The 7 * Page 14 of3 * HARERA ffi eunuennvr pollution levels of NCR region have been quite high for couple ofyears at the time of change in weather in November every year.

The Contractor of the respondent could not undertake construction for 3-4 months in compliance of the orders of Hon'ble National Green Tribunal.

Due to following, there was a delay of 3-4 months as labour went back to their hometowns, which resulted in shortage of labour in April -May 2015, November- December 2016 and November- December 2017.

The district administration issued the requisite directions in this regard.

35.

In view ofthe above, construction work remained very badly affected for 6-12 months due to the above stated major events and conditions which were beyond the control of respondent and the said period is also required to be added for calculating the delivery date of possession. complaint No.

3431 of 2020 & other 36.

Non-Payment of Instalments by Allottees: Several other allottees were in default of the agreed payment plan, and the payment Iinked instalments was delayed or not made resulting in and delaying the implementation of the entire project.

37.

Inclement Weather Conditions viz. tions viz.

Gurusram: Due to heavy rainfall in Gurugram in the year 2016 and unfavorable weather conditions, all the construction activities were badly affected as the whole town was waterlogged and gridlocked as a result of which the implementation of the project in question was delayed for many weeks.

Even various institutions were ordered to be shut down/closed for many days during that year due to adverse/severe weather conditions.

38.

Copies of all the relevant documents have been filed and placed on the record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission made bY the Parties page \s (,f 37 of construction badly impacting ffiH #"e ARERA URUGRAN/ E. furisdiction ofthe authority 39.

The authority observes that it has territorlal as well as subject mattcr jurisdiction to adjudicate the present complaint for the reasons given below.

E.l Territorialiurisdiction 40.

As per notification no.

7/92/2017-7TCp dated 74.12,2017 issued by Town and Country Planning Department, the iurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram 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.

E.II Subiect matter iurisdiction 41.

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

Section 11(4)(a) is reproduced as hereunder: Section 77 (4) The promoter shall- (o) be responsible for oll obligotions, responsibilities and functions under the provisions of this Act or the rules and regulations mode thereunder or to the ollottees qs per the agreement for sole, or to the ossociqtion ofallottees, os the case may be, till the conveyance ofo the apartments, plots or buildings, os the cose may be, to th be, to the ollottees, or the common oreos to the ossociation ofollotteesor the competent authority, os the cose may be; Section 34-Functions of the Authority: 34[n of the Act provides to ensure compliqnce of the obligotions cast upon the promoters, the allottees and the real estote ogents under this Act and the rules and regulotions mode thereunder.

Complaint No.3431 of 2020 & other Page 16 of37 * HARERA #, ounuennu 42.

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.

43.

Further, the authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the Hon'ble Apex Covrt in Newtech promoters and Developers Privdte Limited Vs State of U.p. and Ors.

2021-2022(1) RCR(C)357 and reiterated in case of M/s Sana Reoltors private Limited & other Vs Union ol India & others SLP (Civil) No.

75005 of 2020 decided on 72.05.2022wherein it has been laid down as under: "86.

From the scheme ofthe Act ofwhich a detailed reference hos been made ond taking note of power of qdiudication delineoted with the regulatory outhority and odjudicating officer, what finatty culls out is thot olthough the Act indicotes the distinct expressions like ,refund, 'interest','penalty' and 'compensation', a conjoint reoding ofsections 1B and 19 clearly mqnifests that when it comes to refund of the omount, ond interest on the refund omount or directing poyment ofinterestfor delqyed detivery of possession, or penolty ond interest thereon, it is the regulotory authority which hos the power to exqmine and determine the outcome of o comploint. comploint.

At the some time, when it comes to q question of seeking the relief of adjudging compensqtion ond interest thereon under Sections 12, 14, 18 and 19, the odjudicoting offcer exclusively has the power to determine, keeping in view the collective reoding ofSection 71 read with Section 72 ofthe Act. ifthe odjudication under Sections 12, 14, 18 and 19 other than compensation as envisaged, ifextended to the adjudicating officer os prayed that, in our view, moy intend to expond the ambit ond scope of the powers ond functions of the odjudicating ofJicer under Section 71 ond thatwould be against the mondate ofthe Act 2016." 44.

Hence, in view of the authoritative pronouncement of the Hon,ble Supreme Court in the cases mentioned above, the authority has the .L Page 17 of 37 Complaint No.3431 of2020 & other HARERA Complaint No.

3431 of 2020 & other ffi.

GURUGRAM jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

F.

Obiections raised by respondent F.

I Obiection regarding iurisdiction of the complaint w.r.t the apartment buyer's agreement executed prior to coming into force of the Act.

45.

The respondent submitted that the complaint is neither maintainable nor tenable and is liable to be outrightly dismissed as the buyers agreement was executed between the complainants and the respondent prior to the enactment of the Act and the provision of the said Act cannot be applied retrospectively.

46.

The authority is of the view that the provisions of the Act are quasi retroactive to some extent in operation and will be applicable to the agreements for sale entered into even prior to coming into operation of the Act where the transaction are still in the process of completion.

The Act nowhere provides, nor can be so construed, that all previous agreements would be re-written after coming into force of the Act.

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

However, if the Act has provided for dealing with certain specific provisions/situation in a specific/particular manner, then that situation would be dealt with in accordance with the Act and the rules after the date of coming into force of the Act and the rules, The numerous provisions of the Act save the provisions of the agreements made bet\^.een the buyers and sellers.

The said contention has been upheld in the landmark judgment of Neelkamal Realtors Suburbon pvt.

Vs.

UOI ond others. (W.P 2737 ol2077) decided on 06.72,2017 which provides as under; Page 18 of 37 *HARERA #eunuennl,r "119.

Under the provisions of Section 18, the delay in handing over the possession would be counted from the dote mentioned in the agreement for sqle entered into by the promoter and the allottee prior to its registration under REM.

Under the provisions of REP#., the promoter is given o fqcility to revise the dote ofcompletion of project and declare the same under Section 4.

The REp./. does not contemplote rewriting of controct between the flat purchoser ond the promoter...

122.

We hove olreody discussed thot above stoted provisions of the RERA qre not retrospective in nature.

They mdy to some extent be having o retroactive or quasi retrooctive elfect but then on thatground the volidity of the provisions of REP#. cannot be challenged.

The parlioment B competent enough to legislote low having retrospective or retroactive effect.

A law con be even framed to ollect subsisting / existing contractuol rights between the parties in the larger public interest We do not have any doubt in our mind thot the REP!y', has been framed in the lorger public interest qfter a thorough study ond discussion made ot the highest level by the Stonding Committee and Select Committee, which submitted its detoiled reports," Complaint No.3431 of 2020 & other 47.

Further, in appeal no.

173 of 2019 titled as Mag ic Eye Developer pvL Ltd, Vs.

Ishwer Singh Dahiya, in order dated 17.12. ted 17.12.201,9 the Haryana Real Estate Appellate Tribunal has observed- "34.

Thus, keeping in view our aforesaid discussion, we ore of the considered opinion that the provisions of the Act ore quasi retrooctive to some extent in operotion and will be applicable to the agreements for sale entered into even prior to coming into operation of the Act where the transaction are still in the process of completion.

Hence in cose of deloy in the offer/delivery oJ possession os per the terms ond conditions of the ogreement for sole the allottee shall be entitled to the interest/deloyed possession charges on the reasonqble rote of lnterest as provided in Rule 15 of the rules and one sided, unfair and unreasonoble rate of compensation mentioned in the agreement for sale is tioble to be ignorecl." 48, The agreements are sacrosanct save and except for the provisions which have been abrogated by the Act itsell 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 of the clauses contained therein.

Therefore, the authority is of the 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 Page te or Y t+ ff HARERT S"eunuenntrl the plans/permissions approved by the respective departments/competent authorities and are not in contravention of any otherAct, rules and regulations made thereunderand are not unreasonable or exorbitant in nature.

Hence, in the light of above-mentioned reasons, the contention ofthe respondent w.r.t. jurisdiction stands rejected.

F.ll Obiection regarding complainants are in breach ofagreement for non- invocation of arbitration 49.

The respondent submitted that the complaint is not maintainable for the reason that the agreement contains an arbitration clause which refers to the dispute resolution mechanism to be adopted by the parties in t rties in the event of any dispute and the same is reproduced below for the ready reference: "35, Dispute Resolution by Arbitration "All or ony disputes orising out or touching upon in relation to the terms ofthis Agreement or its terminotion including the interpretotion ond validiql of the terms thereof and the respective rights and obligations of the porties sholl be settled omicobly by mutual discussions failing which the same shall be settled through reference to a sole Arbitrator to be appointed by a resolution of the Boord of Directors of the Compony, whose decision sholl be Jinal ond binding upon the porties.

The ollottee hereby conj)rms that it sholl hove no objection to the appointment ofsuch sole Arbitrator even ifthe person so appointed, is an employee or Advocate ol the Company or s otherwise connected to the Company and the Allottee hereby occepts qnd agrees thot this olone shall not constitute a ground for chollenge to the independence or inpartioliqr of the said sole Arbitrotor to conduct the arbitrotion.

The qrbitrqtion proceedings shall be governed by the Arbitration and Conciliation Act, 1996 or ony stotutory amendments/ modifcations thereto and sholl be held ot the Compony's oflices or at o location designoted by the soid sole Arbitrotor in Gurgoon.

The longuage of the orbitrotion proceedings ancl the Aword shall be in English.

The compony and the allottee will shore the fees ofthe Arbitrotor in equal proportion,,.

50.

The authority is ofthe opinion that the jurisdiction of the authority cannot be fettered by the existence of an arbitration clause in the buyer,s Complaint No.3431 of 2020 & other Page 20 of 37 .k ffi HARERA *iH eunuennvr agreement as it may be noted that section 79 of the Act bars the iurisdiction of civil courts about any matter which falls within the purview of this authority, or the Real Estate Appellate Tribunal.

Thus, the intention to render such disputes as non-arbitrable seems to be clear. be clear.

Also, section Bg of the Act says that the provisions of th is Act shall be in addition to and no t in derogation of the provisions of any other law for the time being in force.

Further, the authority puts reliance on catena of judgments of the Hon,ble Supreme Court, particularly in Nationol Seeds Corporation Limited v.

M.

Madhusudhan Reddy & Anr. (2012) 2 SCC 506, wherein it has been held that the remedies provided under the Consumer Protection Act are in addition to and not in derogation of the other laws in force, consequently the authority would not be bound to refer parties to arbitration even if the agreement between the parties had an arbitration clause.

51.

Further, in Altob Singh and ors, v.

Emaar MGF Land Ltd and ors,, Consumer case no.

701 of 2075 decided on 73.07,2077, the Narional Consumer Disputes Redressal Commission, New Delhi (NCDRC) has held that the arbitration clause in agreements between the complainant and builder could not circumscribe the jurisdiction of a consumer.

The relevant paras are reproduced below: "49.

Support to the obove view is olso lent by Section 79 of the recently enocted Reql Estate (Regulation and Development) Act, 2016 (Jor short "the Real Estote Act").

Section 79 ofthe soid Act reods asfollows:- "79.

Bor of jurisdiction - No civil court sholl have jurisdiction to entertoin any suit or proceeding in respect of ony matter which the Authoriqt or the adjudicating olncer or the Appellote Tribunal is empowered by or under this Act to determine and no injunction shall be gronted by any court or other authoriq) in respect of ony oction taken or to be token in pursuance ofany power conferred by or under this Act." It can thus, be seen thqt the said provision expressly ousts the jurisdiction ofthe CivilCourt in respect of ony matterwhich the Reol Estote Regulotory Authority, estoblished under Sub-section (1) of Section 20 or the Adjudicoting Offcer, Complaint No. plaint No.

3431 of 2020 & other Page 27 or 3z 4( * HARERA ffiounuennnr appointed under Sub-section (1) of Section 71 or the Reql Estote Appellant Tribunal estoblished under Section 43 of the Real Estate Act, is empowered to determine.

Hence, in view of the binding dictum of the Hon,bte Supreme Court in A.

Ayyoswamy (supra), the motters/disputes, which the Authorities under the Reol Estate Act are empowered to decide, ore non-arbitoble, notwithstonding an Arbitrqtion Agreement between the porties to such mqtters, which, to q lorge extent, ore similar to the disputes falling for resolution under the Consumer Aat 56.

Consequently, we unhesitotingly reject the orguments on beholf of the Builder and hold thot an Arbitrotion Clause in the ofore_stated kind of Agreements between the Comploinonts ond the Builder connot circumscribe the jurisdiction ofo Consumer Foro, notwithstanding the qmendments mode to Section I ofthe Arbitration Act." 52.

While considering the issue of maintainability of a complaint before a consumer forum/commission in the fact of an existing arbitration clause in the builder buyer agreement, the Hon'ble Supreme Court in case titled as M/s Emaar MGF Land Ltd.

V, Aftab Singh in revision petition no.2629_ 3O/?OLA in civil appeal no.

Z3SLZ-235L3 of ZOIT decided on 10.12.2018 has upheld the aforesaid judgement ofNCDRC and as provided in Article 141 ofthe Constitution of India, the law declared by the Supreme Court shall be binding on all courts within the territory of India and accordingly, the authority is bound by the aforesaid view.

The relevant para of the judgement passed by the Supreme Court is reproduced below: "25.

This Court in the series of judgments as noticed above considered the provisions of Consumer Protection Act, 1986 as well os Arbitration Act, 1996 ond laid down that complaint under Consumer protection Act being o speciol remedy, despite there being qn orbitrotion ogreement the proceedings before Consumer Forum hqve to go on ond no error d no error committed by Consumer Forum on rejecting the opplication, There is reoson for not interjecting proceedings under Consumer Protection Act on the strength on arbitration ogreement by Act, 1996.

The remedy under Consumer protection Act is o remedy provided to o consumer when there is o defect in any goods or services.

The comptaint means any allegotion in writing mode by a complainont hos olso been explained in Section 2(c) of the Act.

The remedy under the Consumer protection Act is confined to comploint by consumer os def;ned under the Act for defect or deliciencies coused by o service provider, the cheop and a quick remedy hos been provided to the consumer which is the object and purpose of the Act os noticed obove-' l Page 22,t i7 V Complaint No.3431 of2020 & other tr HARERA S"eunuennnr Complaint No.3431 of2020 & other 53.

Therefore, in view ofthe above judgements and considering the provisions of the Act, the authority is of the view that complainants are well within right to seek a special remedy available in a beneficial Act such as the Consumer Protection Act and RE[{A Act,20-16 instead of going in for an arbitration.

Hence, we have no hesitation in holding that this authority has the requisite jurisdiction to entertain the complaint and that the dispute does not require to be referred to arbitration necessarily.

In the light of the above-mentioned reasons, the authority is of the view that the objection of the respondent stands rejected.

F.lll Obiections regarding force maieure 54.

The respondents-promoter has raised the contention that the construction ofthe tower in which the unit ofthe complainants are situated, has been delayed due to force majeure circumstances such as orders passed by National Green Tribunal to stop construction during 20L5-2076-2017 - 2018, dispute with contractor, non-payment of instalment by allottees and demonetization. etization.

The plea of the respondent regarding various orders of the NGT and demonetisation and all the pleas advanced in this regard arc devoid of merit.

The orders passed by NGT 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.

The plea regarding demonetisation is also devoid of merit.

Further, any contract and dispute between contractor and the builder cannot be considered as a ground for delayed completion of proiect as the allottee was not a party to any such contract.

Also, there may be cases where allottees has not paid instalments regularly but all the allottees cannot be expected to suffer because of few allottees.

Thus, the promoter respondent cannot be given Page 23 of 3Ca tr HARERA ffi,eunuennt',r any leniency on based of aforesaid reasons and it is well settled principle that a person cannot take benefit of his own wrong.

55.

Further in the judgement of the Hon'ble Supreme Court of India in the cases ofNewtech Promoters and Developers Private Limited Vs State of U.p. and Ors.2027-2022 (1) RCR (c ), 357 reiterated in case ofM/s Sana Realtors Private Limited & other Vs Union of India & others SLp (Civil) No.

13005 of 2020 decided on 72.05.2022. it was observed 25.

The unquolified right oI the qllottee to seek refund referred lJnder Section 18[1)(a) and Section 19(4) of the Act is not dependent on ony contingencies or stipulotions thereof, lt oppears that the legisloture has consciously provided this right of refund on demond as an unconditionol obsolute right to the ollottee, if the promoter foils to give possession of the oportment, plot or building withinthetime stipulated under the terms ofthe ogreement regordless of unforeseen events or stay orders of the Court/Tribunol, which is in either woy notottributable to the allottee/home buyer, the promoter is under qn obligotion to refi)nd the amounton demond with interest ot the rat ot the rate prescribed by the Stote Government including compensation in the monner provided under the Actwith the proviso thot if the allottee does notwish to withdraw from the project, he shall be entitled for interest for the period of delay till handing over possession at the rote prescribed 56.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunder or to the allottee as per agreement for sale under section 11(a)(a).

G.

Entitlement of the complainants for refund: i.

Direct the respondent builder to refund the amount of Rs.4,53,25,280/ - paid by the complainant.

57.

In the present complaint, the complainants intend to withdraw from the project and is seeking return of the amount paid by them in respect of * PaEe 24 of 37 Complaint No.3431 of2020 & other HARERA ffi.

GURUGRAM subject unit along with interest as per section 18(1) of the Act and the same is reproduced below for ready reference: "Section 7B: - Return of qmount ond compensation 1B(1). lfthe promoter foils to complete or is unable to give possession ofan aportment, plot, or building." (a)in occordance with the terms of the ogreement for sole or, os the case moy be, duly completed by the dote specified therein; or (b)due to discontinuonce of his business as o developer on occount of suspension or revocation of the registrdtion under this Act or for ony other reason, he sholl be liqble on demond to the ollottees, in cose the ollottee wishes to withdraw from the project, without prejudice to ony other remedy ovailoble, to return the amount received by him in respect of thot qpqrtmenO plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensotion in the manner as provided under this Act: Provided that where an allottee does not intend to r,,,)ithdraw from the project, he sholl be poid, by the promoter, interestfor every month of deloy, til deloy, till the handing over of the possession, at such rote as moy be prescribed.', (Emphasis supplied) 58.

Clause 14 of the buyer's agreement provides the time period of handing over possession and the same is reproduced below: Schedule for possession ofthe soid unit "Subjectto Force Majeure, as delned herein and Iurther subiect to the Allottee having complied with oll its obligotions under the terms and conditions of this Agreement and not hoving defaulted under any provision(s) ofthis Agreement including but not limited to the timely poyment of all dues ond charges including the total Sale Considerotion, registrotion chorges, stamp duq) ond other chorges and also subject to the Allottee having comptied with o formqtities or documentqtion as prescribed by the Company, the Compony proposes to offer the possession of the said Rental pool Serviced Aportment to the Allottee within o period of42 months from the date of approval of the Building plans and/or futlilienr of rhe preconditions imposed there under ("Commitment period,').

The Allottee further agrees ond understands thot the Company shall additionolly be entitled to o period of1B0 doys ("Croce period,'), ofter the expiry of the soid Commitment period to ollow for unforeseen deloys beyond the reosonable control of the Compony.

I Complaint No.

3431 of 2020 & other Page 25 of 37 ffi HARERA ffi eunuGnnT 59.

The complainants have booked the residential apartment in the project named as 'Ireo Gurgaon Hills'situated at Gwal phari, sector 2, Gurugram for a total sale consideration of Rs.

4,55,43,910/- out of which it has made payment of Rs.

4,53,25,280/-.

The complainants were allotted the above- mentioned unit vide allotment letter dated 03.07.201_2.

The apartment buyer agreement was executed between the parties on 01.11.2012.

60. .2012.

60.

The respondent promoter has proposed to handover the possession ofthe subject apartment within a period of 42 months from the date of approval of building plans and/or fulfilment of the preconditions imposed thereunder plus 180 days grace period for unforeseen delays beyond the reasonable control of the company i.e., the respondent/promoter.

61.

Further, in the present case, it is submitted by the respondent promoter that the due date of possession should be calculated from the date of fire scheme approval which was obtained on 26.12.2013, as it is the last ofthe statutory approvals which forms a part of the preconditions.

The authority in the present case obseryes that, the respondent has not kept the reasonable balance betlveen his own rights and the rights of the complainants/allottees.

The respondent has acted in a pre-determined and preordained manner.

The respondent has acted in a highly discriminatory and arbitrary manner.

The unit in question was booked by the complainants on 04.04.2012 and the apartment buyer's agreement was executed between parties on 01,.71,.2012.

The date of approval of building plan was 77 .05.2012.1t will lead to a logical conclusion that the respondent would have certainly started the construction of the proiect.

On a bare reading of the clause 14.3 of the agreement reproduced above, it becomes clear that the possession in the present case is linked to the ,,fulfilment of the preconditions" which is so vague and ambiguous in itself.

Nowhere in.tp page 26 of 37 Complaint No.

3431 of 2020 & other HARERA GURUGRAM complaint No.3431 of2020 & other the agreement it has been defined that fulfilment of which conditions forms a part of the pre-conditions, to which the due date of possession is subjected to in the said possession clause.

If the said possession clause is read in entirety, the time period of handing over possession is only a tentative period for completion of the construction of the flat in question and the promoter is romoter is aiming to extend this time period indefinitely on one eventuality or the other.

Moreover, the said clause is an inclusive clause wherein the "fulfilment of the preconditions" has been mentioned for the timely delivery ofthe subject apartment.

It seems to be just a way to evade the liability towards the timely delivery of the subject apartment.

According to the established principles of law and the natural justice when a certain glaring illegality or irregularity comes to the notice of the adjudicator, the adjudicator can take cognizance of the same and adjudicate upon it.

The inclusion of such vague and ambiguous types of clauses in the agreement which are totally arbitrary, one sided and totally against the interests ofthe allottees must be ignored and discarded in their totality.

In the light of the above-mentioned reasons, the authority is of the view that the date of sanction of building plans ought to be taken as the date for determining the due date of possession ofthe unit in question to the complainants.

62.

Here, the authority is diverging from its earlier view i.e., earlier the authority was calculating/assessing the due date of possession from date approval of firefighting scheme (as it the last of the statutory approval which forms a part of the pre-conditions) i.e.,27.11.2014 and the same was also considered/observed by the Hon'ble Supreme Court in CivilAppeal no.

5785 of 2019 titled as 'IREO Grace Realtech pvt.

Ltd. v/s Abhishek Khanna and Ors.'by observing as under: - a\,- PaEe 27 of 37 ffiHARERA ffi,eunuennlr "With the respect to the some project, on apartment buyer filed o complaint under Section 31 of the Real Estate (Regulotion & Development) Act,2016 (RERA Act) reod with rule 2B ofthe Horyana Reol Estate (Regulqtion & Development) rules, 2017 before the Haryqna Real Estate Regulatory Authority, Gurugram (RERA). ln this case, the authoriqt vide order doted 12.03. ted 12.03.2019 held that since the environment clearance for the project contained o pre-condition for obtaining fire sofeqt plon duly approved by the lre department before the storting construction, the due dote of possession would be required to be computed from the dote offrre opprovol granted on 22.11.2014, which would come to 27.11.2018.

Since the developer had foiled to fulfil the obligqtion under Section 11(4)[a) of this Act, the developer wqs lioble under proviso to Section 18 to pay interest qt the prescribed rate of 10.750/6 per annum on the qmount deposited by the comploinant, upto the dotewhen the possession wos offered.

However, keeping in view the stotus ofthe project, and the interest of other ollottees, the outhority wos ofthe view that refund cannot be qllowed at this stage.

The developer was directed to handover the possession of the apartment by 30.06.2020 os per the registrotion certilicote for the project." 63.

On 23.07.2073, the building plans of the proiect were sanctioned by the Directorate of Town and Country Planning Haryana.

Clause 3 of the sanctioned plan stipulated that an NOC/ clearance from the fire authority shall be submitted within 90 days from the of issuance of the sanctioned building plans.

Also, under section 15(2J and (3) of the Haryana Fire Service Act, 2009, it is the duty of the authority to grant a provisional NOC within a period of 60 days from the date submission of the application.

The delay/failure of the authority to grant a provisional NOC cannot be attributed to the developers.

But here the sanction building plans stipulated that the NOC for fire safery (provisional) was required to be obtained within a period of 90 days from the date of approval of the building plans, which expired on 2 3.10.2013.

It is pertinent to mention here that the developers applied for the provisional fire approval on 24.10.2013 (as contented by the respondent herein the matter oICivilAppeal no.

5785 Page 28 ol 37 ).

Complaint No. plaint No.

3431 of 2020 & other trHARERA ffieunuerw of 2019 titled as 'IREO crace Realtech pvt Ltd. v/s Abhishek Khanna and Ors.] after the expiry of the mandatory 90 days period got over.

The application filed was deficient and casualand did not provide the requisite.

The respondent submitted the corrected sets of drawings as per the NBC- 2005 fire scheme only on 13.10.2014 (as contented by the respondent herein the matter of Civii Appeal no.

5785 of 2019 titled as ,IREO Grace Realtech Pvt.

Ltd, v/s Abhishek Khanna and Orsl, which reflected the laxity of the developers in obtaining the fire NOC, The approval of the fire safety scheme took more than 16 months from the date ofthe building plan approval i.e., from 23.07 .2073 to 27.11.2014.

The builders failed to give any explanation for the inordinate delay in obtaining the fire NOC.

So, the complainants/allottees should not bear the burden of mistakes/ laxity or the irresponsible behaviour of the developer/respondent and seeing the fact that the developer/respondent did not even apply for the fire NOC within the mentioned time.

It is a well settled law that no one can take benefit out of his own wrong.

In light of the above-mentioned facts the respondent/ promoter should not be allowed to take benefit out of his own mistake just because of a clause mentioned i.e., fulfilment of the preconditions even when they did not even apply for the same in the mentioned time frame.

64.

Admissibility ofgrace period: The respondent promoter had proposed to hand over the possession of the apartment within 42 months from the date of sanction of building plan and/or fulfilment of the preconditions imposed thereunder which comes out to be 17.11.2015.

The respondent promoter has sought further extension for a period of 1g0 days after the expiry of 42 months for unforeseen delays in respect of the said project.

The respondent raised the contention that the construction of the project I Page29 af 37 .'<) Complaint No. plaint No.

3431 of2020 & other ffiHARERA #- eunuenru,,r Complaint No.3431 of2020 & other was delayed due t o force majeure conditions including demonetization and the order dated 07 .04.2015 passed by the Hon'ble NGT including others. (i) Demonetization: It was observed that due date of possession as per the agreement was 77.1.1.2015 wherein the event of demonetization occurred in November 2016.

By this time, major construction of the respondents, project must have been completed as per timeline mentioned in the agreement executed between the parties.

Therefore, it is apparent that demonetization could not have hampered the construction activities of the respondents'project that could lead to the delay ofmore than 2 years.

Thus, the contentions raised by the respondent in this regard are rejected. (ii) Order dated 07.04.2015 passed by the Hon,ble NGT: The order dated 07.04.2015 relied upon by the respondent promoter states that "ln these circumstonces we hereby direct stote of U.p., Noida and Greater NOIDA Authoriry, HUDA, State oI Horyanq ond NCT, Dethi to immediately direct stoppoge of construction octivities of oll the buildings shown in the report os well as at other sites wherever, construction is being cqrried on in violation to the direction of NGT os wellos the MoEF guideline of2010." A bare perusal ofthe above makes it apparent that the above-said order was for the construction activities which were in violation of the NGT direction and MoEF guideline of 201,0, thereby, making it evident that if the construction of the respondent' project was stopped then it was due to the fault of the respondent themselves and they cannot be allowed to take advantage of their own wrongs/faults/deficiencies.

AIso, the allottees should not be allowed to suffer due to the fault ofthe respondent promoter.

It may be stated that asking for extension of time in completing the construction is not a statutory right nor has it been provided in the rules. the rules.

This is a concept which has been evolved by the promoter themselves and now it has become a very common practice to enter such a clause in the I Page 30 of 37 i * HARERA ffieunuenntr,r agreement executed between the promoter and the allotee.

It needs to be emphasized that for availing further period for completing the construction the promoter must make out or establish some compelling circumstances which were in fact beyond his control while carrying out the construction due to which the completion of the construction of the project or tower or a block could not be completed within the stipulated time.

Now, turning to the facts ofthe present case the respondent promoter has not assigned such compelling reasons as to why and how it is be entitled for further extension of time 180 days in delivering the possession of the unit.

Accordingly, this grace period of 1.80 days cannot be allowed to the promoter at this stage.

65.

Admissibility of refund along with prescribed rate of interest: The section 18 of the Act read with rule 15 of the rules provide that in case the allottee intends to withdraw from the project, the respondent shall refund of the amount paid by the allottee in respect of the subject unit with interest at prescribed rate as provided under rule 15 ofthe rules.

Rule 15 has been reproduced as under: "Rule 75.

Prcsc bed rute ol interest- [Ptoviso to sedton 72, section 78 dnd sub-sectlon (4) ond subsectlon (7) of sectlon ,91 (1) For the purpose of provlsoto section 72; sectlon 78; ond sub-sections (4) ond (7) ol section 79, the "interest ot the rute Nesctibed" sholl be the Stote Bonk of lndio highest moryinol cost of lending rute +2%.: Prcvided thot ln cose the Stote Bonk of lndid moeinol cost oI lending rote (MCLR) is not in use, it sholl be reploced by such benchmork lending rotes which the Stote Bonk ol lndio noy lix from time to time fot tending to the generolpublic." I Page 31 of 37 66. of 37 66.

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

3431 of 2020 & other subordinate legislation under the determined the prescribed rate of the has interest.

The rate ofinterest so determined by the legislature, is reasonable HARERA GURUGI?AN/ Complaint No.

3431 of 2020 & other and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases.

67.

Consequently, as per website of the State Bank of tndia i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLRJ as on date i.e., 08.08.2023 is 8.75o/o.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2o/o i.e.,10.75o/0.

68.

The definition of term 'interest' as defined under section Z(zal 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.

The relevant section is reproduced below; "(zo) "interest" meons the rotes of interest payoble by the promoter or the ollottee, os the cose moy be.

Explanotion. -For the purposeofthis clause- O the rate oI interest chorgeoble from the allottee by the promoter, in case ofdefoult, shsll be equal to the rate of interest which the promoter shall be liable to pdy the allottee, in cose ofdefault; (i0 the interest poyoble by the promoter to the ollottee shall be from the dote the promoter received the qmount or any port thereof till the date the amount or part thereof ond interest thereon is refunded, ond the interest poyoble by the allottee to the promoter sholl be from the date the allottee defaults in payment to the promoter till the date it is poidi' 69.

Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate i.e., 10. i.e., 10.750lo by the respondent/promoter which is the same as is being granted to the complainants in case of delay possession charges.

70.

The complainants booked a unit in the project of respondent known as Ireo Gurgaon hills on 04.04.2012 for a sum of Rs.

4,55,43,910/- under construction linked payment plan.

The allotment of the unit was made inJ '\f Page 32 of 37 ffi HARERA ffieunuennll favour of complainants by the respondent on 03.07.2012.

The buyer,s agreement was executed between the parties on 01,.ll.Zjlz.lt is the case of complainants that on the basis of allotment and buyers' agreement they started depositing various amounts and paid a total sum of Rs.4,53,25,240/-.

But despite paying that amount, the respondent/builder failed to offer possession and delayed the same on the one pretext and other.

But the case of respondent/ builder is that though the complainants are its allottees and paid different amounts, but they were allotted the subject unit in a bare shell condition.

The allottees failed to adhere the schedule of payment and committed default in the same, Ieading to issuance of reminder dated 22.08.2019.

It was also pleaded that as per clause 'E' of the buyer's agreement the allotment of the residential unit was made in a bare shell condition/ unfurnished residential apartment.

71.

It was further provided under clause 13.1 of the agreement that the company would permit the allottee to carry out the interior work in the said apartment prior to handing over its possession and such permission would not be construed as and in no way entitle the allottee to have any right/ interest or title whatsoever in respect ofthe said apartment.

72. ltwas further agreed upon between the parties as per clause 13.3 of the agreement, the allottee would complete the interior work of the said apartment within a period of9 months from the date ofgrant of permission for interior works and that period could be extended up to 12 months failing which the allotment of the a t of the apartment was liable to be cancelled.

A period of42 months with a grace period of 180 days for completion ofthe project and handing over possession of the allotted unit was agreed to be given to the builder as evident from clause 14.3 of the agreement.

The specifications of the works of interiors were also agreed upon betlveen the Page 33 of 37 4r Complaint No.

3431 of 2020 & other ffi HARERA #,eunuennr'r parties as per annexure - I ofthe BBA.

In pursuant to provisions ofbuyer,s agreement, the respondent builder sent an intimation to the complainants for interiors ofallotted unit vide letter dated 2 0.01.2017 [annexure R-9 on page no.72 of reply] besides directing them to clear the dues.

So, in such a situation the allottees have failed to fulfil their obligations as per terms and conditions ofagreement and commitments with regard to getting interiors done of the allotted unit.

73.

As per clause 14.3 of the agreement the due date of possession of the unit comes to 17.11.2015 but while executing buyers' agreement on 07.11.201,2 it was mentioned to the allottees that they would be given the apartment in a bare shell /unfurnished condition (clause E of the agreement).

Similarly, as per clauses 13.1 and 13.3 of the agreement the allottees were to be permitted to carry out interior work prior to handing over of possession and the time agreed upon in this regard was 9-12 months.

No doubt, there was delay in sending an intimation with regard to interiors to the claimants as due date has already expired on 17.11.2015 but can the allottees be given benefit of their own wrong and wriggle out their commitments as per the terms and conditions embodied in the buyer's agreement.

The answer is in negative.

After completion of the construction, the respondent/builder applied for occupation certificate on 24.09.2078 with subsequent reminders dated 03.12.2018, 09.01.2019, 1.0.06.201.9, 74.06.20,19 and 03.10.2019 respectively and vide orders dated 02.08. ted 02.08.2 021 passed by DTCp, the following observations were made; - (v) The cose for grant of occupation certificote be put up without ony further loss of time. (vi) The occupation certijicote shall be releosed on the fulflment of the following conditions: (d) Renewol of Licenses, Complaint No.

3431 of 2020 & other ,| Page 34 of37 M HARERA ffi euRuenRvr Complaint No.

3431 of 2020 & other (e ) Revolidation of building plons.

A Submission ofreportfrom HV?NL within a period of 60 daysfrom the date ofgrant ofoccupotion certificote as no such condition wos imposed while approval of building plons. (vii) The occupotion certificote is being granted in order to give possession to the ollottees to complete internalworksos perthe approved building plans. (viii) No deviation from approved building plons is allowed as the same may eJlect the structural sofeq) aspects, however, the department shall not have any objection ifony internolwall is not construed.

74.

Further the occupation certificate for the allotted unit was granted by the competent authority on 29.06.2022.

Theauthorityis ofthe considered view as per clauses 13.1 and 13.3 of the agreement the allottees were to carry out interior work prior to handing over of possession within the agreed time and the allottee has failed to do so and hereby seeking full refund of the paid-up amount.

The allottees cannot be given benefit of their own wrong and hence refund will be allowed after deduction ofthe amount paid.

75.

The Hon'ble Apex Court of land in cases of Maula Bux Vs, lJnion of tndia, [1970) 1 SCR 928 and Sirdar K.B.

Ram Chandra Raj Urs Vs.

Sarah C.

Itrs, (2016) 4 SCC 136, held that forfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provision ofthe section 74 ofthe Contract Act, 1872 are attracted and the party so forfeiting must prove actual damage.

76. amage.

76.

Even keeping in view, the principle laid down by the Hon'ble Apex Court of the land, the Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builder) Regulations, 2018, framed regulation 11 provided as under- "AMOUNT OF EARNEST MONEY Scenario prior to the Reql Estote (Regulations and Development) Act,2016 wos different.

Fraudswere carried outwithoutany fear os there was no low for the same but now, in view ofthe above focts ond taking into consideration the judgements of I fage :S o'f Iz HARERA GURUGRAIV] Complaint No.

3431 of 2020 & other Hon'ble Nationql Consumer Disputes Redressql Commission and the Hon'ble Supreme Court of lndia, the outhority is ofthe view that the forfeiture omount of the eornest money shall not exceed more thqn 100/o of the considerqtion dmount of the reql estate i.e. opartment/plot/building os the case may be in oll coses where the cqncellation ofthe flat/unit/plot is mode by the builder in o uniloteral mqnner or the buyer intends to withdraw from the project ond any agreement contdining qny clquse controry to the aforesoid regulqtions shall be void ond not binding on the buyer" 77.

Keeping in view the aforesaid legal provisions, the respondent/promoter is directed to refund the deposited amount i.e., Rs.4,53,25,280/- after deducting 10% ofthe basic sale price ofthe unit within a period of90 days from the date of this order along with interest @ 70.75o/o p.a. on the refundable amount from the date of filing of complaint i.e., 06.10.2020 till the date ofits payment.

H.

Directions ofthe authority 78.

Hence, the authority hereby passes this order and issues the following directions under section 3 7 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(0: i.

The respondent /promoter is directed to refund the deposited amount in both cases after deducting 100/o of the basic sale price of the unit along with interest @ 10. rest @ 10.75% p.a. on the refundable amount from the date of filing i.e., 16.10.2020 till the date of its payment. ii.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which Iegal consequences would follow. ii.

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

Af Page 36 of 37 1r HARERA #b- aTRUoRAM 79.

The complaints stand disposed of.

80.

Files be consigned to registry.

3431 of 2020 & other Haryana Real Estate Regulatory Authority, Gurugram Dated: 08.08.2023 HARERA Gu{?L,tGi(AM Page 37 of 37 w-*#,