SOMVEER vs APEX BUILDWELL PVT LTD

HARERA MGURUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ORDER 1.

The present complaint has been filed by the complainant/allottee under section 31 of the Real Estate [Regulation and Development) Act, 2016 (in short, the Actl read with rule 2g of the Haryana Real Estate (Regulat,on and DevelopmentJ Rules,2017 (in short, the Rules) for violation of section 1 1(a)(aJ of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions sale executed inter-se them. to the allottee as per the agreement for Complaint no.

571 of 2O2t Date offilin 01.02.202L First date ofhearGE 10.o3.2021 Date ofdecision 21.o4.2023 Sh.

Somveer S/o Sh.

Mani Ram Il::-1t_9:rn*" Durga pG, secror 48, south city _ lr Lurugram Apex Buildwell Regd. office; Delhi- 110053 Private Limited 14A/36, WEA Karot Bagh, New Respondent Shri ashok Sanew; Member Shri Sanieev KumarA ra Member Complainant AltE4g4qcE-r,vHqN-REuED.

Shri Viiender parmaiGdioiiiE Shri Anmol SaxeniGd-Giate Complainant Respondent Page 1 of 15 GURUGRAM HARERA A.

Unit and proiect related details: 2.

The particulars of the project, the details of sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Particulars Details Name ofthe project Our Bazaar Project location Sector 37C, Gurugram, Haryana Project t)pe Commercial component of Low_cost group housing project Shop no.

45 on ground floor (As alleged by the complainant on page no.02 ofthe complaint) Area admeasuring 198 sq. ft. (As alleged by the complainant on page no.

05 ofthe complaint) Allotment letter dated Not provided on record Date of apartment buyer agreement Not executed Date of commencement of construction of the project Possession clause Due date ofpossession Cannot be ascertained Total sale consideration Rs.

16,73,100/- Page 2 of 15 S.n.

1.

2.

3.

4. == 5.

6.

7.

B.

9.

10.

11. _-l ffiHARERA S,eunuennr,r B.

Facts ofthe co 3.

That in year 2017, marketing executjves advertisement done through vari the complainant with an offer to invest and buy a shop in its propos project namely "Our Bazaar,, in Sector_37C, Gurugram (hereina referred to as "said project,,).

It represented itself as a very eth business house in the field of construction of residential commercial proiect and ln case the complainant would invest in project of respondent then they would deliver the possession Complaint no.

571 of20 (As alleges Uy ttre cornptainam page no.05 ofthe complaint) Amount paid by the complainant Rs.

14,33,548/- (As alleges by the complainant page no.

05 ofthe complaint) Occupation certificate i.29.tL.2019 Type-1 (5 nos, towers), Type-1 [3 nos. towers), Type-2 {2 nos. towersl ti.24.02.2020 Type.1 (16 Commercial (As per details DTCP) Legal notice dated no.

14 of complaint) Page 3 of 1 L2.

13.

14. * HARERA SH euntlcRnv proposed shop on the assured delivery date as per the best quality assured by the respondent.

4.

That the respondent was very well aware of the fact that in today,s scenario looking at the status of the construction of housing projects in India, especially in NCR, the key factor to sell any dwelling unit is the delivery of completed house within the agreed and promised timelines and that is the prime factor which a consumer would consider while purchasing his/her dream home.

The respondent used this tool, which is directry connected to emotions ofgulribre consumers, in its marketing plan and always represented and warranted to the consumers that their dream home would be delivered within the agreed timelines and he will not go through the hardship of paying rent arong_with the instalments ofhome Ioan like in the case ofother builders in market. in market.

That the respondent further assured to him that it has already secured all the necessary sanctions and approvals from the appropriate and concerned authorities for the development and completion of said project on time with the promised quality and specifications.

Relying on the representations and warranties of the respondent and believing them to be true, the complainant agreed to the its proposal to book the residential shop in the project of respondent.

That relying upon those assurances and believing them to be true, the complainant booked a shop bearing 45 on ground floor having super 6.

Page 4 of 15 HARENA GURUGRAM area of 190 Sq. ft. for total sale consideration of Rs.16,73,099.99/_.It has also executed and issued the application form, and payment receipts etc. to the complainant in the capacity ofpromoter.

That the respondent assured him that it would execute the shop buyer agreement at the earliest and maximum within one week.

Howeyer, it has failed to fulfil its promise and have not executed the agreement as agreed by it till now.

8.

That thereafter, the respondent started raising the demand of instalrments from the comprainant as per the agreed timerines and as on roday he has paid total amount of Rs.14,3 3,54a/_ rcthe respondent towards the sale consideration of the aforesaid shop.

That from the date of booking and till date, the respondent has raised various demands for the payment of installments towards the sale consideration of the said shop and the complainant has duly paid and satisfied all those demands without any default or delay on their part.

That in March 2O-J.9, the complainant made last payment for the aforesaid shop and inquired about the status of shop but to his utter dismay and shock, he came to know that the respondent has issued the aforesaid shop on some other person,s name knowingly the fact that the complainant has made the payments for the aforesaid shop, 11 That in statement of account/passbook it is evident is evident that the complainant has made the payments in favour of the respondent Page 5 of 1S ffitnnrnn SH eunuennM through cheque bearing no 14 amounting Rs 4,56,030/- drawn on I Bank and 000014 amountin gRs 9,77,578/_ drawn on HDFC Bank the respondent duly acknowledged the same in its statement ofa 12.

That the complainant through its advocate sent a notice d 02.06.2020 regarding the status of shop and the wrong allotme shop on someone,s else name and in reply the respondent totally den the allotment and booking of nt.

That the conduct on the pa fact that all the promi on the basis of its false and frivolous promises, which the responde 14.

The complainant had fa from its Iimited income resources, only because of respondent,s fail +^ r,,r.:r:! to fulfil its promises and commitments and has forced him to su grave, severe and immense mental and financial harassment with fault on their part.

15.

That the respondent has fraudulently and deliberately misappro the money of complainant and allotted the shop to some other buve knowingly the fact that it was the complainant who has made all th payments for the aforesaid sho[ cial ,\} Complaint no.

S71 of20 of ed t has cleared the dust on e ndent at the time of sale of burdens and hard Page 6 of 1 UBESA MGURUGRAM C.

Relief sought by the complainant: 16.

The complainant has sought following relief: i.

Direct the responde complainant towards to refund Rs' 14'33'548/- paid by the with the interesta,,r";l::il:'::::::"' "' the said shop aiong ii.

Direct the respondent physicar harassmunr. to o" *t 7o'oo'ooo/- towards mental and breach of ,.ur,, o,'ut"o o'e to delay in delivery of possession' misrepresen tatio", rilH; tl":"il:". t ,"j":l*l:, Ti::: practices.

17.

On the date of heari respondent/promo,". "oo*n* the authority explained to the committed in reration ,o ,",t tnr *ntru'entions as alleged to have been nor to plead guilry. ltion 11(41(a) of the Act to plead guilty or D.

Reply by the respondent: 18. ndent: 18.

That the answering respondent most respectfully submits that the above noted case is a mere abuse of process of law wherein the complainant does not have any cause or concern with any shop of the answering_respondent and the documents qua the shop being used has already been taken over by the allottee of the same namely Sh.

Sukhvir S/o Ram Karan, R/o Dhani Mauji, Churu, Raiasthan.

In fac! the complainant deserves to be prosecuted and punished for initiating a false, frivolous and wrongful complaint of the sort.

It is at the very outset it is submitted that the comprainant has no cause of action Page 7 of 15 ffiRilN ffi GURUGRAIV against the answering respondent and the alreged cause of action is nothing but false, frivolous and wrongful one and the respondent has neither caused any violation of the provisions of the Act and does not have any privity ofcontract with the complainant.

19.

That the complaint under reply is neither tenable nor maintainable and has been filed with an oblique motive when the shop has already been taken over by the actual allottee ofthe shop.

That the complainant does not have any cause of action nor any right, title or interest to seek any refund from the respondent under the jurisdiction ofthe Authority and at best it could be dispute between the actual allottee and the person paying money on behalf.

Hence, the complaint is Iiable to be dismissed.

20.

That the contents of para Z of the facts of the case as stated are correcr to the extent of the project named ,,Our Bazaar,, being part of the project named "Our Homes,, being developed by the answering respondent.

However, it is denied that the Hon,ble Adjudicating Officer has any iurisdiction to try to decide the present complaint as neither the complainant has any locus standi nor any cause of action to pursue the present complaint.

21 That the respondent is duly engaged in the business ofrear estate and has been diligently pursuing and constructing the pro. g the pro.iect in the name of Our Homes wherein the commercial space is promoted in the name Page 8 of 15 ffiHARERA * ounuonnl,r of 0ur Bazaar and despite all offered possession ortru.rru t,o ds completed the said proiect and r all its bona fide customers.

22.

That the actual allotte sukhvir s/o Ram ^r.r."' 'notu documents are being relied upon' i'e' the possession or ,rr" ,r' / Dhani Mauii' churu has already taken over and the areged ,roo ^lo'No c39 on cround Fioor ofthe said proiect said sukhvir S/o Ram o 45' cround Floor was initialiy aiiotted to the change in area ano,nu,.t""n only which was iater transferred due to titre or interest to ou.rr,o'o'''n'nt' therefore' does not have any right' : or even file the present complaint.

23.

That the copy ofstatement ofaccount as relied by the complainant does not pertain to the comprainant and seems to be forged document illegally created for wrongful gains and it has not rri.ul any demund upon the complainant to shop. wards the sale consideration of the alreged 24.

That it is specifically denied that the complainant made any payments qua any specific shop.

At max it seems that the payment have been made on account of some other customer and the complainant is trying to take wrongful advantage ofthe same by seeking refund ofthe said amount.

25.

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

26.

Copies ofall the relevant do record.

Their authenticity is s have been filed and placed on the decided based ", ,n"r" *o,lr",l,:r';'"r.|.j":||.", the compraint can be Page 9 of 1S HARERA ffi GURUGRAM E, furisdiction ofthe authority 27.

The authority observes that jurisdiction to aayuarcate tr,eij::"::.jffi:;: weil as subie* matter E.

I Territorial iurisdiction As per notificatio n no.7/92/2077_1TCp dated 14.1_2.2017 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 situa proj ect in q uesti on, uesti on,. .,,,","1'l"linlJll! r[;l jJ "iJ:1TilH district.

Therefore, this author dear with rhe presenr comp,";: n"t "o'o'ute territorial iurisdiction to E.

II Subiect matter iurisdiction Section 11(4J(a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11[4J (a] is reproduced as hereunder: Section 11(4)(a) Be responsibre for o, obrigations, responsibirities and functions under the provisions ofthis Actor the rules ond regr,r;;.;;;;;;;;;i;"i:;i:, or,,to the qllottee os per the agreement forcot", o, ,o *" orrorioi,ori of ot.toLtee, as the cose moy be, till the conveyarr, "ii,l,,r.o, ,ilirlrZ!! ptots or buildings. os the case may be, * *, ,,,rrr"",' i i["|)_"r)", areas to the associotion oJ.qllottee or the cr.o*"* "r,ri"i,i,'rr,,i," cose may be; Se_c-ti on 34- Fun ctio ns of th e Authoriq): 34A of the Act provides to ensL upon the promoters, ,h" ,ltorr"J'" to'Pl'once of the obligotions cast onr,ri",r,",r,ii,-"n,,"r"r,"1r!l'"il";::::t:;"':*"ntsunderthis Page 10 of 15 ffiHARERA S- eTuennnr The Authority has complete lurisdiction to decide the complaint regarding non-compliance ofobligations by the promoter as per Section 11(4) (a) of the A ct of 20L6leaving aside compensation which is to be decided by the Adjudicating officer. so, in yiew of the provisions of the Act of 2016 quoted above, the Authoriry has complete iurisdiction to decide the complaint regarding non_compliance of obligations by the promoter leaving aside compensation which is to be decided by the adiudicating officer if pursued by the complainant at a later stage.

F.

Findings regarding reliefsought by the complainant.

Reliefsought by the complainant: ."*iffi:":T#:ff1,',u"1t to.rerund Rs' t4'33's4a/' paid bv the interest at the pre"."ib"d iuotl]id""ution ofthe said shop aiong with the 28.

Before proceeding further, it is important to highlight the fact that initially the instant complaint was clubbed with complaint bearing no. earing no.

3503 of 2021 titled os Sukhvir Vs Apex Buildwell private Limtted on the request of the respondent.

However, in view of proceedings dated 09.09.2022 recorded in Complaint no,3503/2021, the same were decided to be taken up separately due to different issues involved.

29.

The complainant filed the present complaint seeking reliefofrefund of the paid-up amount.

It was submitted that he booked a shop bearing no.

45 in the project of the respondent for a consideration of Rs.

1,6,73,1,00/- and rill date, paid an amount of Rs.

14,33,548/_ towards consideration of allotted unit_ It was also submitted the respondent failed to get the buyer,s agreement executed.

It was in March 2019 when Page 11 of 15 ffiHARERA *db" eunuennl,r he made the last payment and came forward to enquire about the unit, he was shocked to know that the said unit was now allotted to some other person.

He also sent a legal notice dated 12.05.2020 in this regard.

30.

On the other hand, the respondent submitted that rhe subject unir bearing no.39 was allotted to one Sh.

Sukhvir S/o Ram Karam R/o Dhani Mauii, Churu, Raiasthan and later on, that unit was renumbered as G-45.

But this unit was neither allotted to the complainant ar any time nor the respondent received any amount from him against this unit.

31.

The Authority observes that as per the facts and finding ofthe complaint bearing no.

3SO3 of 2021, it was concluded that the said unit G_39 was allotted to Sh.

Sukhvir vide allotment letter da ted 74.09.2017 (annexed on page no.

23 of complaint Cr/3503/2021) and subsequentty, a shop buyer's agreement dated 14.11.2019 for the allotted unit i.e.

G39 was executed between those parties fsame is evident from page no.

2g of complaint cr/3s03/2021).

The said complaint was decided vide order dated 09.09.2022 of the Authority wherein it was concluded and directed that conveyance deed shalr be executed in favour of complainant in that case i.e.

Sh.

Sukhvir S/o Ram Karam.

Ram Karam.

Thus, there is no doubt that the Sh.

Sukhvir S/o Ram Karam was the allottee of the subject unit of the complaint and not the complainant as pleaded by him.

Page 12 of 15 HARERA GURUGRAM 32.

Now coming back to the issues ini/ntu6,l i- ."^ , . -........."..............".....-_- iues involyed in the instant complaint, the complainant submitted that lured by the representations of the && respondent, it booked a unit in and ti, date has arready,r,, tnu "tot"t''o proiect ofthe respondent rurther preaded that bookrng rolrl ffi:::;::#::^:1,.ff: were issued by the respondent to the complainant.

The Authority observes that despite aforesaid contenuons, the complainant has failed to provide on record any apprication form and payment receipt in his favour with regard to the subiect unit.

Though he placed reliance on payment receipts dated 1,7.03.201,7 & L6.03.2020 wherein the respondent acknowledged the receipt of the amount in question as detailed earlier but as per perusal of those receipts at page no.

1 1 & 12 respectively (annexure 1 & 2] shows the same having been issued in favour of one Sukhvir R/o Churu (RajasthanJ.

33.

The complainant during the course of proceedings dated t7.[j..ZOz3 submitted that the respondent in para_wise reply ofpara 10 submitted that "at max it seems that the payment hove been made on account oJ. some other customer,,.

But no inference can be drawn through that.

34.

The complainant during the course of proceedings dated 17.01.2023 placed on record his statement of account and submitted that on 1,5.03.201.9, a payment of Rs. g,77,578/_ was made in favour of M/s Apex Buildwell private Limjted vide cheque bearing no.

00014 and in Page 13 of 15 ffi HARERA SH ounuennitr receipt dated 16.03.2020, same cheque number i.e., 00014 has been shown to be credited towards payment of subject unit.

But no conclusion through that can be derived w.r.t allotment ofsubiect unit to the complainant as receipt w.r.t payment of Rs. ent of Rs.

9,77,51g/-was issued in favour of one Sukhvir R/o Dhani Mauji, Churu (Raiasthan).

Hence, despite providing opportunity to place on record anything reievant wherein allotment in favour of the alleged allottee can be concluded. the de on record any such document. complainant has failed to provi 35.

Thus, in view of aforesaid circumstances, where the complainant has miserly failed to place on record documents to prove payment to respondent_builder towards allotment ofsubiect unit, no case ofrefund ls made out in favour ofalleged allottee and hence, the complaint stands dismissed. c.lI Direct the respondent to pay Rs, 1O,OO,0OO/- towards mental agony and physical harassment caused due to delay in Orr"""r,rr, breach of trust, damages, false and frivolous r"ri,."J"r","*iresentation, deficiencies in services and unfair trad" ;;;;;.:, """'"r, 36.

The complainant is seeking relief w.r.t. compensation in the above_ mentioned relief.

Hon,ble Supreme Court of India in civil appeal nos.

6745-6749 ofZOZT titled as M/s Newtech promoters and Developers Pvt.

Ltd.

V/s Stote of ltp & Ors,, has heid that an allottee is enritled to claim compensation & litigation charges under sections 12,14,1g and section 19 which is to be decided by the adiudicating officer as per section 71 and the quantum of compensation & litigation expense shall Page 14 of 15 ffiI]ARERA S euRuonnivt be adjudged by the adiudicating officer having dr";;;; mentioned in section 72.

Th(r adiudicating officer has exclusive jurisdiction to deal with the complaints in respect of compensation & legal expenses.

Therefore, for claiming compensation undersections 12, 1-4, 18 and section 19 ofthe Act, the an allottee may file a separate complaint before Adjudicating Officer under section 31 read with section 71 of the Act and rule 29 of the rules.

37.

Hence, in view offindings of theAuthority on issue no.

1 and discussion above, no case for refund compraint stands dismissed, paid-up amount is made out and the 38. nd the 38.

Compiaint stands disposed oi 39.

File be consigned to registry. t r -J-11. $"9 I F'l (Asho Haryana Real Estate Regulatory,tuthority, Curugl Date* 21.04.2023 :lI Page 15 of 1S