NARESH ARORA vs EXPERION DEVELOPERS PVT. LTD.

HARERA ffiGURUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGMM Complaint no.

6254/3A31 /2Ot9 Date of filins complaint; 11.12.2019 First date ofhearins: 20.o2.2020 Date of decision 21.o4.2023 ORDER , " il.l.'.,':'r" ' 1.

The present complaint has been filed by the complainant/allottees under section 31 of the Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read with rule 29 of the Haryana Real Estate (Regulation and Development] Rules, 2017 (in short, the Rules) for violation of section 11. (4)(al of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provisions of Complaint No.

6254 /3837 of 2019 Sh.

Naresh Arora R/O: 537, Sector-7, Gurgaon '_'1:'1 &i% Complainant { S Experion Develop..Jii . ria.h R/O: F-9, First Floor, Manish Plaza-1, Plot No.

7, Mlu Sector 10, Dwark4 Newdelhi 110075 /g/ ,r. tu \?\ Respondent \ coRAM: lfi ,a f.'rS Shri Ashok Sangr@ \ t.gt Member Shri Sanleev Kum"\&$, .r€/ Member APPEARANCE: Yreffisttlz Sh.

Naresh Arora _ * Complainant Sh.

Nishant lain ocate) it Respondent Page 1 of35 the Act or the rules and regulations made there under or to the allottee as per the agreement for sale executed inter se.

2.

ADD CONVEYANCE DEED IN TABLE BEFORE GIVING ORDER FOR SIGNING A.

Unit and proiect related details 3.

The particulars of the project, the details of sale consideration, the amount paid by the complainants, date of proposed handing over *HARERA #-GrJRuGnAM the possession and delay following tabular form: Complaint No.

6254 /3837 of 2079 have been detailed in the Name ofthe p Nature of 4.05.2010 Name of Licensee opers Pvt.

Ltd.

Registered / registered 28.08.2077 Unit no.

1758 sq. ft.

Date ofbuilder buyer agreement 28.05.20t3 Possession clause 70. clause 70.7 Subject to terms ofthis clause Subject to the Allottee(s) having complied with all the terms and conditions of this Buyer's ment, and not being in Page 2 of35 Super Area ltar SHARERA Heunuennr'r 6A default under provisions ofthis Buyer's Agreement and compliance with all provisions, formalities, documentation etc, as prescribed by the Company, the Company proposes to hand over the possession of the Unit within 35 months from the date of signing of this agreement, subject to timely compliance of the provisions of the Buyer's iAgreement by the Allottee.

The :Allottee(s) agrees and , understands that the Company lshall be entitled to a grace period lof 180 days, for unforeseen and r unplanned oroiect realities qh(A 10. nue date ofjosse fsion '' "fi I 1,6 ring grace period) IL, Total sale consideration 12.

Total amount paid\if,S \ Bs.

71,,L4,38,47 7 /- .fiffied by the complainanr) 73.

0ccupation cttilcad f- ' rlr*f ,''\ i ,r ", 02.03.201.7 IPage 23 of reply] 74.

Offer ofpossession i#blr tv: (Page 50 ofcomplaintl B.

Facts ofthe complaint: 4.

That the project of the respondent ,, Heartsong ,, in Sector 10g, Gurugram, was being advertised by the respondent - builder.

The complainant being interested in the proiect the complainants decided to explore if an original allottee was willing to transfer the provisional allotment.

Shri Vivek Kumar R/o C-ll/gS, Sector _ 3, complaint No.

6254 /3831of 2079 Page 3 of 35 * HARERA #, eunuerw Complaint No.

6254 /3837 of 20t9 Rohini, New Delhi- 110085 who was provisionally allotted apartment No.

B3/0304 having approximate Sale Area of 175g Sq.

Ft. who was desirous of transferring his unit was contacted and a deal of finalised for transfer.

The Respondent having charged an amount of Rs.

1,48,147 / - as administrative charges, transferred the provisional allotment in the name of the complainant on 18.02.2013.

5.

That there after the complaina aid all the instalments as per demand from the respo Buyer Agreement . greement .

The bu the parties on 28.05 r,07,72,770/- whl IDC, Community for community Agreement.

Tha possession ofthe date of this 28.05.20L6. tering into an Apartment ent was executed between consideration of Rs. ng Charges, EDC, security deposit edule - I ofthe agreement, the 6 months from the comes out to be 6.

The letter of offer of possession was given to the complainants on not in line with the interest payment provision for delayed possession as per RERA since the registration of Apartment took place after RERA was implemented in the state ofHaryana.

That the complainants were asked to make the payment upfront before inspecting t}le apartment.

The complainants in good faith and believing that all items and amenities promised in the agreement have been provided in the apartment/ common spaces etc. made Page 4 of35 ffiHARERA ffi eunuennr,,r the final payment and cleared all the dues with reservation to confirmation of Area, compensation for delayed period and accounting of payments made on Iump sum basis.

7.

That the possession of the apartment was given to the complainants on 17.06.2077 with acknowledgement of confirmation of fittings. and lightings in the apartment and car parking space with specific mention that the construction of work in the pro.iect is going on and common facilities /amenities will be in place shortly. took the possession on 11.06.2017, it is now more th but a number of common facilities/ amenities en completed as per terms and conditi unt is provided for items/facili complainants continue to con ciencies and are always assured and everything cient is going on respondents will so far. amenities incomplete appears that the 8.

That the prominent deficiencies in the unit / common facilities at :l:.:::"::j:mffilluef?AM,i, and n., ve, A.

That on repeated requests of the complainants the respondent had not provided the certificate of proiect architect to confirm that the final sale area is exactly the same as tentative sale area for which the c hich the complainants have been made to make final payment.

The ,sale area, in Page 5 of35 Complaint No.62S4l3831 of 2019 I *HARERA $-eunuennvr the agreement was tentative and it was to be determined based upon final measurement of the apartment and calculation of areas under Common Areas after obtaining the Occupation Certificate and in this regard, subject otherwise to the terms in respect of any change in the Sale Area as contained in the agreement the Certificate of the 3.1 of the pondent have also not mention i) built u the: Apartment, iiJ limited common al building block and illl Co tire proiect in the Apartm f The Haryana: after referred as Apartmen D As per the calculation done by the complainants, the the "Sale Area" total Sale Area ofall residential apartments in the said Project is 12,36,732 Sq. ft. however, basis the unit-wise chargeable Sale Area of all residential apartments against which the total Sale Price is being charged and recovered from the apartment buyers including the complainants is 14,85.218 Sq: ft. which is Complaint No.

6254 /3837 of 2079 respond av idv inflatedrtthe sale area and t. t( ll InlntfA$ perthe approved site overcharft d'tllb dSffblftn?iitsf{f ferthe approved site plan Memo No.

71 753 /ID(BS) /2072 dated 18.09.2012, Page 6 of 35 Complaint No.

6254 /3837 of 2019 20.09% of the actual physical Sale Area being delivered to the buyers including the complainants.

Since the maintenance is charged on the sale area basis, the complainants are payingZ0.go/o extra amount every month from the date oftaking over possession on 11.06.2017 and the complainants continue to pay the maintenance on regular basis.

9.

That the following external ities which are included in the 'Sale Area' of the not been provided till date and it can be concl will not provide the same at a future d ffi HARERA ffiGIIRUGRAT'/ [.

UGRAT'/ [.

Terr 'sale were assured that it will come up shortly but it appears that the same had been cancelled as neither lift shaft, is extended to the roof top nor the roof construction is of included in the e rooftop ofthe ap material.

While taking po nt, the complainants the kind required for roof lop garden.

The area of the roof top of the apartment.

Building of the complainant is about 1275 Sq.

Ft. and when divided by 14 [14 storey building) the share of the area of the complaint comes to 91.07 Sq Fl.

Additionally, the expenditure which the respondents could have made to extend the lift to Page 7 of35 * HARERA S arnuennH,r Mail comp Complaint No.

6254 /3831of 2079 terrace garden and the special roofing which is a requirement for creating terrace garden had further been curtailed resulting in disproportionate gain to the respondent and loss to the complainants.

Thus, the respondent has unfairly gained and the complainants Iost on this account' not providing the Terrace Garden and special roofing etc. in violation of the terms and conditions of II. t building block of the sion of Mail Room 'sale area' which uming that the about 100 Sq.

Ft., nts comes 1.79 Sq hpartmentsl.

Thus, the the complainants e Mail Room in the agreement. as pe had area the Ft. (buildi violation ofthe term I II.

Air Handling Unit:- Air Handling Unit, a provision in the modern housing complexes for enhancing the quality of life was required to be provisioned as part of sale area in the apartment.

Building block of the complainants but the same had not been provided.

Assuming that the dedicated space of a size of about 144 Sq.

Ft. for the Page I of 35 ffi lARElA #eunueRnu Complaint No.

6254 /3837 of 20L9 equipment installation was to be provisioned, tIe share of the area of the complaints comes to 2.57 Sq Ft fbuilding. block having 56 apartmentsJ. artmentsJ.

Thus, the respondent has unfairly gained and the complainants lost on this account by not providing the AHU area in violation ofthe terms and conditions ofthe agreement.

IV.

Refuse Area: R was to be provided in the building block nt as per calculation in the sale area d.

Taking the area of the Refuse share ofthe area of the (building block respondent has ts lost on this Pantries: to be provided in the "*H'lkREf;kA' provided in the sare zree P1|$f f2le Ffh"?{ F* provisioned. r"nt,\Ei;laLf, ,Fd,Hi,trf,tLY"labout120Sq.Ft., the share of the area of the complaints comes to 2:14 Sq.

Ft. (building block having 56 apartments).

Thus, the respondent has unfairly gained and the complainants lost on this account apartments.

Thus, s Page 9 of35 ffilaRERA # eunuennu C.

The Solar Water Heating System: That as per the provisions ofthe Approval of revised Building plans ofthe Group House Colony vide Memo No.

Zp-753lfDI BS) /ZO7Z dated 18.09.2012 Para 17(xiil the respondent is required to make provision of solar water heating system, as per norms specified by HREDA order No.

ZZ/SZ/}S_Sp dated 29.07.2005 in force on the date of approval of the project and the same was made operational in each building block befo for an occupation certificate but the sam the respondent and occupatio by the DTCP.

The complai with fin 8,087 /- along , the respondent had failed approval plan and DTCP had fil tory duty by granting he respondent had L,"tn.r.

Complaint No.

6254 /3837 of 2019 D.

The Fire Safety: That as per the provisions of the Approval of revised Building Plans of the Group House Colony vide MemoNo.

ZP -7 53 /!D(BS) /2012 dated LB.09.Z0IZ para 3, the provision of fire safety and firefighting measures is mandatory as per fire safety bye laws but the same had not been completed by the respondent in the housing complex.

Only symbolic firefighting equipment's are placed at Page 10 of35 *HARERA *e- aJRULRAM 'declara designated hydrant points. nt points.

The main fire water line is deficient of necessary provisions such as pressure gages, hawse pipes and other related fittings etc.

Thus, endangering the life and property of the apartment occupiers including the complainants.

E.

Community Centre - Operation and Utilisation: That as per the provisions of the A I of revised Building plans of the Group House Memo No.

ZP-753 /!D(BS) /20t2 dated 7 17 (ix), the community centre shall reas and facilities of the grou e Apartment Act the ondent as per and Apartmeni is for the exclusive use of the housing colony only enjoyment and also interfering in the privary of the apartment buyers.

The infringement of the right of actual users inot be quantified in direct money terms but the Association of Apartment Buyers already in place should be compensated for deprivation ofthis facility which is the Page 11 of35 I Complaint No.

625 + /3831 of 20191 - *HARERA ffieunirennHrr property ofthe association and under forcible utilisation of the respondent for business purpose.

F.

Over charging of EDC: As per statement for EDC issued byDTCP, the total amount of EDC payable by the respondent for License No.

38 of 2010. of the project aggregates to Rs.26,55,35,000/-.

The said amount is recoverable from the t buyers including the complainant prop as per sale area of the project aggrega 8 Sq.

Ft., resulting in a chargeable sq. ft.

As against this the res @ Rs:3 buyers m complainants forced to - to Rs.

236 / - per Sq.

Ft. in June e excess of Rs.

64/- per Sq.

Ft. any in Complaint No.

6254 /3837 of2019 ressure from the respondent was demand without made the said reductio EDC rates, whereas in reality there was no such downward revision by DCP.

The complainants have been charged Rs.

57 / - per sq.ft. on this account and the excess amount needs to be returned with. interest.

10.

That at the time of registration of the unit /taking over of the possession, the complainant learnt from the 'declaration' bearing. ' bearing. false pretext of downward revision in Page 12 of 35 HARERA MGURUGRAM Complaint No.

6254 /383I of ZOIg Vasika No.

14099 dated L9.08.20L6 that the respondent had fraudulently overcharged the complainants on a number of items against the provisions of the relevant laws.

The illegal gain to the respondent and loss to the complainants are as follows: a) Car Parking Usage Charges: The respondent had illegally charged an amount of Rs.

3.S0,000/- from the complainants for basement car parkin, Car parking spaces was excluded from the 'sale area' ' definition (Clause No.

1-xiviiil in the agre mislead and defraud the apartment b ainants.

Basement is to be used for sed Building Plans of the 7s3/ID( parking is ns of Section 3(l of The H ip Act, 1983.

Accordingly, it has as common area in the emo No.

ZP- 13.

Basement 'declaration' bearing Vasika No.

14099 dated 19.08.2016.

Thus, only opti,ol Mth the.builder is.to charge such parking spaces undei common areas as decided by 'The Hon'ble Supreme Court in the Civil Appeal No.

2544 of 2010, between Nahalchand Laloochand pvt Lid Vs panchali Co_operative Housing.

Society Ltd: Charging the apartment buyers under anv other name such as'Car parking Use Charge, for area Page 13 of35 *HARERA S- eunuennrvr Complaint No.

6254 /3837 of 2OI9 which is already declared as'common area,is illegal and a fraud on the apartment. buyers including the complainants. b) Community Building: The respondent has charged an amount of Rs.

1,50,000/-. from each apartment buyer including the complainants under the head ,Community Building Furnishing Charges' (CBFC).

As per para 1(xiv) of definitions in the agreement, CBFC includes ,one-time fixed cost'and expenses for furnishing the Community Building.

As per para 6(iv] of the declaration ng Visaka No.

14099 dated 19.08.2016 the valu building has been fixed at Rs.

8,28.00,000/- the total amount of Rs.

12.16.50,000/-ch t buyers of 811 units in the pro.iect. pro.iect.T 28,00,000/- towards 'one-time the building of the community rovisions of para ing Plans of the 17(xxii) of Group Ho s3/ID(BS)/2012 ul The Har ana dated 18.0 Develop as Act, 1975 and Section 11 Development and Regulation ofU 11.

That the followi on lum sum basis' from the compla$a provided for aJ ADHOC Charges-FTTH, MDTH, WI-FI, Rs.29,685 Router Charges b) ADHOC Charges-Solar Power Charges - Rs.9,134 c) ADH0C Charges-ECC/ PHE Connection Charges -Rs.L,ZS,8Z4 d) ADHOC Charges-Duel Meter Charges 1700 Rs el Community Building Furnishing charges- 47,904 Page 14 of3S HARERA GURUGI?AM Complaint No.

6254 /3831. of 21tg 12.

Non- Encumbrance: That at para Vi (dJ of the ,,declaration, bearing Visaka No.

14099 dated lg.Og.ZOTG it is declared that the independent units and their percentage of undivided interests in the common areas and facilities and the restricted/limited common areas and facilities appertaining to each independent units are not encumbered in any manner whatsoever on the date of declaration but the respondent has failed to provide documentary evidence for the same.

That on the date of ation ofdeclaration the project has to be free of all en er Apartment Act.

By no providing a certificate to thi complainant is deprived of his right of enioyment ll encumbrances.

13.

That the only resaid illegal and fraudulent acts is fraudulently and illegally charged ich cannot be charged legally, ms ofagreement and over charging 14.

That the Iaw is that at of a contract, meeting facilities/amenities .is pel agreement and return of amount charged illegally ari-d iraudulenily along with return of amounr overcharged and compensation for services which cannot be directly valued in money terms.

It is well settled law that a party to a contract who suffers the loss must be compensated to the stage as if the contract was completely implemented.

15. ented.

15.That the complainants have diligently discharged all their obligations as per the agreement where,s the respondent had failed ffi @ XLIJ*9 Page 15 of35 * HARERA S- arnuennnr as built area. and Complaint No.

6254 /3831of 2019 to perform its application stipulated in the agreement and it is in breach of the same .The cause of action to file the complaint ls continuing as the respondent had illegally charged for facilities which cannot be charged and failed to develop certain facilities in prolect as per the terms ofagreement.

C.

Relief sought by the complainants: 16.

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

Direct the respondent - for delay in possession. ii.

Direct the respondent to e exact sale area in place of tentative sale area ent as per the final ect architect giving details of built u ervlces, iii.

Direct the apartment ii) I up area of the dual residential building block ities. before the entire project in the :'.",jT;:.;ffi t#tffi HBKI,:;T::'"':: charged from the complaints. v.

Declare other respondent is deficient by not providing terrace garden as per sale area and visual depiction in the brochure on the rooftop ofthe apartment building ofthe complainants an order to return of an amount of rupees 5, 20,465/- vi.Declare that the respondent is deficient by not providing male room as per sale area in the apartment building of the complainants and order to return of an amount of Rs10,230/- and area under co ndent to de iii) common a declaration Page 16 of35 HARERA M GURUGRAM Complaint No.

625413831 of 2019 vii.

Declare that the Respondent is deficient why not providing space for air handling unit as per sale area in the apartment building of the complainants and order to return of an amount of rupees14,588/- viii.

Declare that the respondent is deficient by not providing the refuse area 'sale area, In the apartment building of the complainants and order to return of an amount of Rs 365g ix. s 365g ix.Declare that the respo eficient by not providing pantries as per sale ent building of the complainants and order n amount of rupees one to,230 x.

Declare that t providing solar building plans of water heating the group ho t of RsB,087 charged from the comp terest amount of rupees 2,077 from to compensate the complainants for not xii.

Declare that the respondent is illegally using the community centre as sales office thus depriving the apartment buyers including the complainants of its exclusive enioyment and direct the respondent to vacate the Community Centre immediately. xiii.

Direct the respondent to provide complete details of payment made to the authorities on account ofEDC collected from Page 17 of35 * HARERA SeunrLennvr Complaint No.

6254 /3831. of 2019 the apartment buyers including the complainants unpaid an interest on the excess amount. xiv.

Direct the respondent to return the illegalty charged amount of 13,50,000/- from the complainants for car parking which is the common area with interest. xv.

Direct the respondent to return illegally charged amount off rupees1,02,096 from the complainants for construction of community building with i xvi.

Direct the respondent details ofactual spending of the following charges the apartment buyers including the com is Adhoc charges FTTH,MDTH WI adhoc cha adhoc char adhoc charges 7,700 community build rupees 47, 904 :;:, :t::::T,-ryffiR*m* J':x;' :; ;l: services not profufr.!y' fr+hd&g \AiV l xviii.Direct the respondent to make lump sum payment to the registered association as compensation and shown against each of the services for not providing in the project with the terms and condition of the agreement. xix.

Direct the responding to pay compensation of 15,00,000 for harassment mental agony and litigation expense of i75,000.

Page 18 of 35 ffi& HARERA GURUGRAM nor is the said Hon'ble Regulato xx. gulato xx.

Direct the respondent to produce non encumbrance certificate by the concerned Revenue Authority for the land on which the project has come up and other assets ofthe community.

D, Reply by respondent no.

1: The answering respondent by way of written reply made the following submissions: 17.

That the complainants are allottee ofthe above_mentioned unit for a total sale consideration allotment of an apartment.

00/- and had applied for 18.

The That the present tainable in law or on facts.

The provisi (Regulation and Development) as the 'Actl and ent) Rules,2017 the Haryana (hereinafter ules") are not applicable to the proiect, i.e. "The H t phase of the rugram, Haryana, in which the apartment in que ted (hereinafter referred Complaint No.

6254 /393t of ZOL7 with this 19.

That the relevant phase of the proiect in which the apartment in question is situated is not an ongoing project as per definition provided under the Rules as the Respondent has applied for Occupation Certificate for the relevant phase ofthe project in which the apartment in question is situated on 16.0g.2016 and received occupation certificate on 02.03.2077 i.e. prior to applicability of said Act/Rules in the state of Haryana.

This Hon'ble Authority does Page 19 of 35 * HARERA SD- eunllGRnr/ Complaint No.

6254 /3837 of 2079 not have the iurisdiction to entertain and decide the present complaint.

The present complaint is liable to be dismissed on this ground alone.

20.

That the respondent has offered possession ofthe apartment to the complainants vide Notice of possession dated 03.03.2017 and as per agreed terms ofAgreement respondent has paid an amount of Rs.25,497/- on account of delay possession compensation to the complainants, The complain have accepted the delay possession compensation respondent, executed the conveyance deed bearing r no.

691 dated 08.06.20t7 and have taken pos 21.

That after more possession the in the complaint. complaint. complainants ca The present com this ground alon e entertained on e to be dismissed on limitation grou 22.

That the present comp nable as the respondent has obtained occtpatonllprUlhta fi(fdferdl possession of the apartment '" qEl'ff,tf E"ft#.I vide Notice or possession *,&U{&xi{.}i*&fu*iablty or said Act/Rules.

The RERA Act/Rules are not applicable retrospectively.

The agreed terms of the Agreement executed between the parties or allotment of the apartment in question cannot be modified by any law/rules which came into effect after completion of the transaction of allotment of the apartment.

23.

That prior to purchase of the apartment from its original allottee the complainants had carried out elaborate and detailed enquiries Page 20 of 35 HARERA GURUGRAM Complaint No.6254 /3831. of ZOI1 with regard to the nature ofsanctions/permissions obtained by the respondent for the purpose of undertaking the development/implementation of the residential project referred to above.

The complainants were very well aware about the terms of completion of proiect, definition of Sale Area, the amenities/facilities to be provided in the proiect and the delay possession compensation amount as the same were described in the Booking Application Form endorsed in favour of the complainants and signed a the apartment in question. by the original allottee of nants took an independent and informed decisio any manner by the Respondent to pu 24. rhat the resnonfipfas .dfifr6iqfilonr\&bn of the proiect even after facing several difficulties.

There were significant defaults in the payments by several allottees who investors were and stopped payments of due instalments due to sluggish real estate market.

Several allottees who wi:re investors defaulted in timely && payments and demanded their money back without having any reason for the same.

25.rhe respond"nt .lf"r{}, F@Fsqqhcdntract to M/s Kazsrroyservice rhn i.iii,tt).U1,M pr},il. # ap. ,il. # ap.ir 20 13 and in terms of agreement it was agreed to complete t}Ie construction of the project within 24 months i.e. till April 2015.The contractor delayed the construction due to its internal financial hardships, the respondent provided additional financial help to the contractor, only with an intention to deliver the Apartment/proiect within time However, during the construction phase of the project the contractor of the project i.e.

Kazstroyservice Infrastructure India Page 21 of35 1tr HARERA HeunuennH,r Complaint No.

6254 /3831of 20t9 Pvt Ltd. became bankrup! due to which the respondent suffered huge losses, i.e.

Rs.

16 Crore approx., and for a long-time construction of the project was stopped.

It took lots of time to appoint new contractor and complete the construction of the proiect.

In spite of losses in the contract the respondent has put additional equity from its own pocket to get the pro,ect completed on time for the benefit of allottees of the project.

Further it is in the price of the apartm 26.

That the DCP Chandigarh ces no.

38 of 2010 for the development of the q -5, Memo approving the building pl respectfully sub re R-6.

It is Respondent are further evident construction of has completed .iect in question.

27.

That it is evident of events, that no illegality can be attri dent.

The allegations 28.

That the present q.omplaint is barred on account of the arbitration clause (clause 26) in the Apartment Buyer,s Agreement.

Hence, this Hon'ble Authority does not have the jurisdiction to hear and decide the present complaint.

29.That a local commission was appointed vide order dated 22.02.2022 and as per the report of LC the LC does not go into detail regarding the break up ofthe sale area ofthe unit. levelled by the cory$n11t OyiSryeS{ryf eqpare totalty baseless and do not merit $fl0/rt"t6.S'-, d{,1f,fiIe Authority.

PaCe 22 of 35 Itowers HARERA MGURUGRAM Complaint No.

6254 /3837 ot 2O1g 30. t 2O1g 30.

The respondent has not charged for the facilities as claimed by the complainants.

After obtaining the occupation certificate sale deed of the unit got registered and possession was also delivered to the complainants and they were fully satisfied regarding area and facilities provided by the respondent .

31.That the respondent has provide al the amenities / facilities / services in the project as per the sanction plans .

32.

All other averments made in aint were denied in toto.

33.

Copies ofall the relevant d ve been filed and placed on record.

Their authentici te.

Hence, the complaint can be denied on ted documents and submissions mad E.

Jurisdiction of 34.

The plea of the ground of jurisdi of complaint on ority observes that it has territorial as diction to ad.iudicate as per notincatififi&le,lG&Ae$4.12.2017 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 iurisdiction to deal with the present complaint.

Page 23 of 35 * HARERA ffi eunuennM Complaint No.

6254 13837 of 2019 E. lI Subiect matter lurisdiction 35.

Section 11[4)(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 17 (4) The promoter shall- (o) be responsible for all obligations, responsibilities and Iunctions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the ogreement for sale, or to the association of allottees, os the cose moy be, till the conveyance of all the aportments, plots or buildings, as the case may be, to theallottees, or the common areos to the association of qllottces or the competent authority, os the case may be; S may be; Section 34- Functions of the AuthoriEt: - iI 344 of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate ogents under this Act ond the rules and regulations made thereunder.

36.

So, in view of,f," ffi above, the authority has complete jurisdicti mplaint regarding non- compliance of leaving aside icating officer if compensation pu.s,"a ry tr," c@fuQfuf & QS, lt/l F.

Findings on the obiections raised by the respondent F.I Ob,ection regarding complainants in breach of agreement for non- invocation of arbitration.

37.

The respondent raised an objection that the complainants have not invoked arbitration proceedings as per application form which contains a provision regarding initiation of arbitration proceedings Page 24 of 35 ffiI]ABESA * eunuonRvr in case of breach of agreement.

The following clause 64 has been incorporated w.r.t arbitration in the application form: 26 Dispute Resolution .

In case of any dispute between the parties relating. to this Agreement and / or matters arising therefrom.including the interpretation and vaLdity of the.terms hereof and respective rights and obligations of the Farties hercto, the same shall be adjudicited by arbitration by a sole arbitrator to he mutualty appointed by the parties.

The parry willing to initial; arbitration will give a request for arbitration {"Request') to the other party for the appointment of the arbitrator wirhin 30 (thirty) days oi the Request. 'Ihe arbitration shall be held at at Delhi and shall be conducted in accordance with the Arbitration and Conciliation Act, 1996 and amendmenrs / mod_itications thereto.

The arbitration proceeding's shall be in the English language and the iarties sha-ll respectively and proportionately bear the costs and expenses of such arbitration unless the arbitrator specifically awards costs.

The arbitral award shall be final and binding upon the parties.

The arbitrator shali give reasonsin writing for the award.. he award.... f (f, 38.

The respondent co application form dul & the conditions ofthe parties, it was specifically agreed that in the eventuality ofany dispute, ifany, with respect to the provisional booked unit by the complainant the same shall be adiudicat(tltlttR $@tfpffh1$m. rhe aurhority is or the opinion ttrat ihe yririididfori d,f ttrij a'uinority cannot be fettered by the existence of an arbitration clause in the buyer,s agreement as it may be noted that section 79 of the Act bars the jurisdiction of civil courts about any matter which falls \,vithin 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.

Also, section gg of the Act says that the provisions of this Act shall be in addition to and not in derogation of the page 25 of35 Complaint No.

6254 /383t of 201,9 executed between *HARERA $*eunuenntr,r Complaint No.

6254 I 3831 ot 2079 provisions ofany 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 National Seeds Corporation Limited v.

M.

Madhusudhan Reddy &Anr. (2072) 2 SCC 506 and followed in case of .A_/tab Singh and ors, v, Emaar MGF Land Ltd and ors., Consumer case no, 707 of 2075 decided on 73,07.2077, 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, Co e authority would not be if the agreement between bound to refer parties to arbi the parties had an arbi ilar view was taken by the Hon'ble apex c as M/s Emaar MGF Land Ltd.

V.

2629-s0/2018 on 10.12.2018 and as provided in civil appeal and has upheld in Article 141 of e law declared by the Hon'ble Supreme all courts within the territory of India and ac authority is bound by the aforesaidview x{ & K$I g3r& 39.

Therefore, in view of. the abOve judgemg4ts. udgemg4ts.and considering the provisions of the Act, the authority is of the view that complainant is well within the right to seek a special remedy available in a beneficial Act such as the Consumer Protection Act and RERA Act, 2016 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.

Page 26 of35 HARERA P*GURUGRAM G.

Findings on the relief sought by the complainants: G.l Direct the respondent - builder to pay detay possession, 40.

The complainant is admittedly the allottees ofrespondent _ builder of a residential unit for a total sum of Rs.

1,07,72,770,/_.

A buyer,s agreement was executed between the parties in this regard on 28.05.2013.

The due date for completion ofthe proiect was fixed as 28.05.2016 So, in this way, the complainant paid a total sum of Rs.

1-t,L4,38,47 L /- against the allotted unit.

The occupation certificate of the project was received o offered ro the comr,,,.,",. "s?#4:i;.*' *" possession was 41.

In the present co ntends to continue with the proiect rssion charges as provided under proviso reads as e Act.

Sec.

18(1J to give possession "Section 18: - 18(1). rfthe ofqn apartment, plot, Clause 10.1 of the buyer,s agreement (in short, agreement] provides for handing over of possession and is reproduced below: Subject to terms ofthis clause Subject to the Allofteefsl havinp complied with aI rhe terms and conditions of iir;;'B;?"...

Agreemenr, and not being in default under any of th" ;;;""i;;; "; this Buyer's Agreement and compliance '*of, ,li p."urirrr, formalities, documentation etc. as prescribed by the Comoanv. the company proposes to hand over rhe poss*ri"" .ir,r," u"iil,iirii"Ji monrhs from the date ofsigning ofthis agr""r"nr, ,uUi".t io ;i;"]i complance ol the provisions of the Buyer,s Agreement by rhe Page 27 of 35 Complaint No. plaint No.

62S4 /3837 ot 2O7g Itr HARERA # eunuennt'l Complaint No.

6254 /3837 of 2079 Allottee.

The Allottee(s) agrees and understands that the Company shall be entitled to a grace period of 180 days, for unforeseen and unplanned project realities.

42.

Admlssibility ofdelay possession charges at prescribed rate of lnterest: The complainants are seeking delay possession charges however, proviso to section 18 provides thatwhere an allottee does not intend to withdraw from the proiec! he shall be paid, by the promoter, interest for every month ofdelay, till the handing over of possession, at such rate prescribed under rule 15 of as under: escribed and it has been ule 15 has been reproduced [Proviso to (4) and ion 1.8; and terest qt the India highest marginal cost Il be replaced by the State Bank of lending to the general Rule 75, section SU 1J for sub- rate margtna Provided oflending such benchma India may fix from '*'" x{Axas: k& 43.

The legislature inTits.yiffi i11 tlrc,srqoiqiletqlegislation under the provision of rtrrZlJrtt[elJrhrr? jr!&tl)Iri.a *," prescribed rate of interest.

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

44.

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.,21.04.2023 is @8.70%.

Accordingly, the prescribed Page 28 of35 ffiIARERA *GURUGRAI/ rate of interest will be marginal cost of lending rate +Zo/o i.e., 10.70o/o.

45.

The definition of term ,interest, as defined under section 2(zal of the Act provides that the rate of interest chargeable from the allottees by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottees, in case of default.

The relevant section is reproduced below: "(za) "interest" of interest payqble by the promoter or the a Explanation. planation. - (ii) o the rqte oI the allottee by the promoter, ual to the rate of interest ble to pay the allo the in be fro allottee shall part th amount or qny rt thereof and payable by the date the is poid;" r till the date it the complainants Iatp j.e., 10.7006 bv the lAilV[,* *,.,n,"a,o,r," complainants in case of delayed possession charges.

47.

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

By virtue of clause 23 of the buyer's agreement the possession of the subject unit was to be interest the allo allottee case may be, this clause- Page 29 of35 * HARERA #-eunuennll Complaint No.

6254 /3837 of 2079 delivered within 36 months from the date of start of construction.

The due date of possession is calculated from the signing of the agreement i.e., 28.05.2013 which comes out to be 28.05.2016.

48.

Section 19(10) ofthe Act obligates the allottees to take possession of the subject unit within 2 months from the date of receipt of occupation certificate. ln the present complaint, the occupation certificate is obtained on 02.03.2017 and the same was obtained possession of the unit i 03.03.20 17.

The complainan 49.

Accordingly, as such interest for complainants fro of possession pl to the complainants on the possession. id, by the promoter, ount paid by the the date of offer amount towards bove amount , at delay possession prescribed rate i.e., to section 18[1] of the Act read with rule G.ll Direct the resp area in place of tentative sale t as per the final as built area aird provide certilicate of the proiect architect giving details of built-up area and area under common seryices. seryices.

G,lll Direct the respondent to declare i) built up area of the apartment ii) limited common area for individual residential building block and iii) common areas and facilities. before the entire proiect in the declaration 50.

The respondent is directed to provide the documents related to the exact sale area and to declare built up area of the apartment, due dare i.e 28,05.20 the rules.

Page 30 of35 HARERA P*GURUGRAI/ limited common area for individual common areas and facilities.

G,lV Direct the responded to return the amount paid for inflated sale area by 20.09o/o which amounts to rupees ZO,lAfi46/_ anit over charged from the complaints.

G.V Declare other respondent is deficient by not providing terrace garden as per sale area and visual depiction in the brochure on the rooftop of the apartment bullding of the complainants an order to return ofan amount ofl-1l$a €ES,20,465/_ G.VI Declare that the respondent is deficient by not providing male room as per sale area in the apartment building of the complainants and order to returx.Ofen amount of Rs10,230/_ G.VII Declare that the Respondent is deficient why not providing space for air handling unit as per sale area in the apaftment building ofthe complainants and order to return of an amount of rupees14,688/- C.VIII Declare that the respondent ls delicient by not providing the refuse area ,sale area, In tiie aparh,nent building of the complainants and order to return ofan amount of Rs 365g G.IX Declare that the respondent is deficient by not providing pantries as per sale area in the apartment building of the complainants and order to return of an amount of rupees one to,23O G.X Declare that the respondent is deficient by not providing solar water heating system as per approval of revised building plans of the group house colony and direct to return of Rsg,og7 charged I Comptatnr No.

625 4/3831 ot 2OB 1 residential building block and Page 31 of 35 ffi HARERA db- eunuehnHl Complaint No. plaint No.

6254 /3831of 2019 from the complainants on this account with an interest amount of rupees 2,077 from the date of payment. also, to compensate the complainants for not providing this amenity.

G.XI Declare that the respondent is deficient by not providing complete {ire safety devices/infrastructure and direct the responding to complete the same in specified time frame.

G.XII Declare that the respondent is illegally using the community centre as sales oflice thus dep.$,yrng the apartment buyers inctuding the complainants of igSdclusive enioyment and direct the respondent to vacate the Cominunity Centre immediately.

G.XIII Direct the responde de complete details of paymentmadetour/$6"itffi #ou\Qc.oll".tedf rom the apartment buJehlincludlne !$\pmill&hnts unpald an interestontheex.ffihgl'"ll ii hrr", c .xrv Dtrect "" \6N",1,{ "ff*ffillegally charged amount of 13,5s,oooAiiA&L6ddhllidts for car parking which is the com,,on "."N$offiZ c. xv Direct the .{rf'A&m&l&"h."r"d amount off rupees1,02,096 Fom fhc porDplainanls fior"construction of - ( -l lrJi ii .-- 1At\/: communitybuildinfirfthllttilrt&-' "/ \r v ; G.xvl Directthe respondent to provlde details of actual spending of the following charges collected from the apartment buyers includlng the complainants on lump sum basis Adhoc charges FTTH, MDTH WIFI Rs.

Votce29,685, Adhoc charges solar power charges rupees 9,134 Adhoc charges ecc / phe connection Rs' 1,75,824 Page 32 of 35 HARERA *GURUGRAM Complaint No.

6254 /3831. of 2}tg Adhoc charges dual meter charges rupees 17, 100 community building furnishing charges rupees 47, 904 G.

XVII Direct the respondent to make lump sum payment to the complainant as compensation as shown against each of the services not provided in the proiect.

G.

XVIII Direct the respondent to make lump sum payment to the registered association as compensation and shown against each of the services for not provid iect with the terms and condition of the agreement, G. eement, G.

XIX Direct the respond n oft5,00,000 for harassment mental of 175,000.

51.

The above-men G XIX being he complainant the respondent as terrace garden, mail room , air han heating system interconnected sought relief of which they char fire safety , communiW centr-r ,rr,ar , Orn*"rf{aft vide order Orr"dfl.?rt$l? ? commissioner reJbFrtJ,kfu.ll4,.arPe^t"/etaits of a tocal IrilUef+Wp'lai na n t rega rdi ns the amenities it was concluded that that the respondent has not provided the terrace garden.

Mail room has been provided in the stilt area of tower as per requirement and specification.

Air handling unit, Refuge Area, pantries have not been provided.

Solar Photovoltaic power plant has been installed on the terrace of community building having capacity of 40 KW. .

Solar water heater are not installed.

Fire system has been installed on the project site iing solar water heater . fire ffion.r."ppoint"a Page 33 of 35 IPHARERA S-GriRirGRAN/ Complaint No.

6254 /3837 of 2079 and NOC has been obtained from the department before obtaining occupation certificate For clarification regarding installation process and layout plan the issue may be referred to the fire department.

Hence, the complainant is seeking compensation in the aforesaid reliefs and as decided by Hon'ble Supreme Court of India in civil appeal nos.

57 45-67 49 of 2021 titled as M/s Newtech Promoters and Developers M" Ltd.

V/s State of Up & Ors.

2027- 2022 (1) RCR (c) 352 has held that an allottee is entitled to claim compensation & litigation er sections 12,14,18 and section 19 which is to be de e adjudicating officer as per section 71 and the qu & Iitigation expense shall be adjudged ng due regard to the factors men cating officer has exclusive jurisdi compensation & in respect of omplainants are advised to appro seeking the relief f of I i ti gati o n exp en."r\ffi$i H.

Dlrectlons issued the AuthoriW:- ff A.r. --i ^ 52.Hence, the euthli&.5e&u*$;a&s&*-*&. ;a&s&*-*&. and issue the forrowing direc{S[r{q$@'?Affi Act to ensure compliance of obligations cast upon the promoter as per the functions entrusted to the Authority under section 34(0 ofthe Act of 2015: i.The respondent is directed to pay the interest at the prescribed rate i.e., 10.70o/o per annum for every month of delay on the amount paid by the complainants from the due date i.e 28.05.2015 till the offer ofpossession i.e 03.03.2017 Page 34 of35 ffiIAREBA SH eunuennH,r Complaint No.

6254 /3837 ot 2019 plus two months i.e 03.05.2017 and delayed possession charges paid earlier be adiusted ii.

The rate of interest chargeable from the allottees by the promoter, in case of default shall be charged at the prescribed rate i.e., L0.700/o per annum by the respondent/promoter which is the same rate of interest which the promoter liable to pay the allottees, in case of default i.e., on charges as per section 2 (za) of 53.

Complaint stands 54.

File be consigned Member Haryana GURUGRAM Page 35 of 35