SURINDER KUMAR AGARWAL vs BPTP LIMITED

I}HARERA S- eunuenavr BEFORE THE I c*ph.,,., "-4?r 3 .r rol HARYANA REAL ESTATE REGULATORY AUTHORITY.

GURUGRAM Date offilirg complaint 4?23 ol2021 o7.72,2021 17,O1.2023 Surinder KumarAgarwal R/O:.

MIG-50, Sector-1, Parwano M/s BPTP Limited lUls Countrlvide P.omoters Pvr Lt.l.

Regd.

Omce at: - I\4-11, I\4iddle circte, Connaught Circus, New Delhi 110001 CORAM: ShriVUay RumarGoyal ShriAshok Sanswan APPEARAN(llil li Advocate h Sh, K,K, K Sh.

Harshit Batra Advocare 1.

ORDER The piesent complaint has been fil€d by the complainant/alloftee under section 31 of the Real Estate (Regulation and Developmentl Acl 2016 (in sho(, the Act) read with rule 28 of the Haryana Reat Esiate (Regulation and Development) Rules, 2017 (in short, the Rules) for violation ofsection 11(4)[a) oftheAct wherein it is inter alia prescribed that the promoter shall be responsible lor all obligations, responsibilfties and functions under the provision of Solan, ffHARERA !|- cunrcnru the Act or the rules and regulahons allottee as per the agreement for sale e 1 ).

202t Park Gene.ations, Sector 37 D, Gurugram, Haryana. no.94 ofcomplaintl 2.

A.

Unltand proiect related detatls The particulars ofunit details, sale consideration, the amount paid by the complainant, date ofproposed handing over the possession, delay period, if any, have been detailed in the followibg tabular Derails 203,2 (Pase Unit admeasuring 94 ofcomplaintl 1813 sq- ft. [Vide statement of accounts annexed as annexureAat pase no.149 of reply complaint) t76A (Pace sq.

4 Date ofexecution offlat buyer 6. (Pas€ no.86 3.1: Subject to force majeure, as denned in clause 10 and iurther subiect to the Purchaser(sl havins complied with all its obliSations under the terms and conditions ol I timelypavment of each and everv Purchaser(s) not beins in delault under any part of this Agreement includinq but not limited to the t----+-- I HARERA GURUGRA[/ Due date of delivery of possessroll Cofrpla'nrNo 47Zl ot 2021 installment of the rotal sale €onsideratio nsideration including DC, Stamp Duty and other charges and also subiect to rhe Purchase(s) hav,ns conplied with all the formalities or documentation as presrribed by the seller/confirming Parry, the proposes to hand over the physical possession of the said urit to the purchaser(s) wthin as period of 36 months from the date of execution of Flat Buyers Agreement('Committed further agrees and understands that the seller/confirming pany shall add,t,onally be entitled to a penod of 180 days [cra.e Period) after the expiry of the said commitment period to allow fo. nnishing work and f,lins and Period ) The pursuing Rs.80,11.485/- ?.

8.

Totalsale.onsideration Totalamount paid by the Cert,flcate etc. irom DTCP under the Act in respect of th€ proiect (Emphasis supplled).

05.11.2015 Not€: Crace period is notallowed Rs.93,44,145/- [Page no.

149 otreply) 20.o9.2019 (Pase no.

1{4 ofreplyl IPase olreplyl Oc(upation certificate *HARER.T !!- eunuener,r Complzrnt No.

4721 oi2021 76.70-2019 (page no.

146 ofreply) tl 12.

B.

Facts otthe complaint In the present case, the promoter is seeking a grace per,od ol 180 days for finishins work and filins and certiffcate etc.lrom DTCP.

As a matter of fact, from the perusal of occupation certifjcate dated 20.09.2019 it is implied that the promoter applied ior 28.06.2019 which is later than 180 days from the due date of possession i.e-, 05.11.2015.

The clause clearly implies that the grace period is asked lor filing and pursuing occupation certificate, therefore as the promoter appl,ed for the occupatjon certiflcate much later than the statutory period of 180 days, he does not fLtlfil the criteria for grant of the grac€ period.

Therefore, the grace period is not allowed, and the due date ofpossession .omes out to be 05.11.2015.

The respondents issued a provisional 17.12.2012 auotting flat bearing unit 2llotment letter dated no.

T6-203 therernatter referr€d to as'unit') measuring super buih'up area of 1760. a of 1760.00 sq' ft which was finally revised to 1813.00 sq. ft. in th€ aforesaid 3.

1rHARERA $-cLnLcnnl,l project ior a basic sale consideration at dre rate of Rs.

3,660.00 per sqft 4.

That a flat buyer's agreement was also executed with the complainant on 05.11.2012 and as per the same, thev agreed to deliver the flat within 36 months ofsinging the FBA i e. in the vear 2015 as per clause 3.1 oi the FBA.

Tne complainant was also handed over one deta,led payment plan which was construction 5.

That the respondents sent a letter cum invoice no' BPTP/ll44cll150'l dared 16.10.201c l"rmeo a' urrer of possession lor unit no.

T6_203 with demand of Rs 13,36,66000' EDC/lDC charses ofRs 6,82,880.00, club m€mbership charges ofRs 100,000.00, cost escalation charges oi lts 6,50,377 00, VAT of Rs 73.133.00 and GsT olRs 1,44,714.00 respectively' 6.

That as ihe complainant was also issued demand towards annual ma'ntenance charges and was of Rs-93,540.00 payment on 10 11.2019 7.

That the complainant received a call from the respondents oflice ot thei. representative Mr' Harman and was directed bv the said representative to pay an outstandrng Rs 10,07,950 00 after deducting a timely payment discount ol Rs'28,540'00 and a rebate of Rs.

2,90,000/- the delav as discLrssed on the phone lhe complainant after making the complainl as discussed, sent a mailto the company on 14.11.2019.

Thal as per th€ demands based or the Payment plan, the complainant paid a sum of Rs 90,83,268 85 towa'ds the said unit against total denands of Rs.

90,83,268'85 raised by the respondents till 2019. {}HARERA S-cLnucmv eomplrLnl No 47Zl ol 20Zl payment oiRs.

9,24,713.08/-.

10.

Reliefsought by th€ complainant: after paying a huge rt demanding the plair t p( )st in the utter shock of the complai of Rs.

90,83,268.85/- the r deted 11.01.2021 to the r The complainant has sought lollowtrrg relief(sl: .

To direct the respondents to pay the delay possession charges aloDg with prescribed mte ofinterest. . nterest. .

D,rect the respondents to refund the club m€mbership Direct the respo.dents to reiund the cost escalation charges.

Direct the r€spondents to take the opiDion of GST experts dboLl rhe qudnrJm oI lhF CS'l p.rydble ,1 r\.

Prveri circumstances by the complainant up to the deemed ddte oloffering the possession oithe apartment.

Direct the respondents to relund the amount collected towards STP charges of Rs.

16,045.00 when lhe BBA did not carry any such condition.

Reply by th€ respondents 11.

It is submitted that the respondents had diligently applied for registration of the proiect in question i.e., "Park Generations" located at Sector-37D, Gurugram before this Hon'ble Authority and accordingly, registration certificate dated 03.01.2018 was,ssued by it, 12.

The complainant is a possession in terms of filed the complaint with defaulter as he has tailed to take the ofter of possession dated 16.10.2019 and a view to wri8gle out lrom the contractual {*HARERA S-olnuenqv [' '',""'' t' " .,"' " ' I obligations.

In this regard, it is submitted that the complainant is duty bound to take the possession ofthe unit withrn two months ol the receipt of the occupation certificate.

3.

Thatthe ag.eeme.ts thatwere executed pnor to implementation of RERA Act and Rules shall be binding on the parties and cannot be reopened.

Thus, both the parties being signatory to a duly documented flat buyer agreement dated 29'11'2012 (hereinafter referred to as ihe "FBA"I executed out ol free wiu and without anv undue influence or coercion is binding and they are bound bv the terms and conditio.s so aSreed between them' It is submitted that as per clause'2 of the agreement ritled rs Sale Consideration and other conditions" specifically provided that in addition to basic sales price (BSP), various other cost components such as development charges [including EDC, IDC and EEDC)' preferential location charges [PLC], club membership charges (CMCl car parki. car parki.g charges, power back-up installation charges [PBIC]' VAT service tax and any fresh incidence of ta (i'e' GSTI' electrilication charges (EC), charses lor installing lewerage treatment plnnt (STPI, administrat,ve charges, interest free maintenance securitv 0FMSl, etc. shall also bepayablebvthe 'omplainant' 14.

It is submitted that the construction of project has been completed and the oc.upation certificate for the same has also been received where after, the respondents have already offered possession to the complainant.

However' the complainani' being an investor does not wish to take possession as the real estate market is down and there are no sales in secondary market and thus has initrated the present frivolous litigation' 15.

All oiherave.ments made in the complaint we'e denied in toto 1 16.

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

Their authenticity is not in dispute.

Hence, the complainl can be decided on the basis of these undisputed documents and submissions made by the parties.

Observations of the committee 17.

Since, common issues wjth .egard to super area, cost escalation, STP charges, electrification charges, taxes viz CS'l &vAT, advance maintenance charges, car parking chrrges, holding charges, club membership charges, PLC, development k,cation charges and utjlity connection charges, EDC/lDC charges, firefighting/power backup charges were involved in the cases and pending against the respondents in this projeci as well as in other projects beinc developed by rhem so, vide orders dated 06.07.2021 and 17.08.2021 a committee headed by S..

Manik Sonawane 1AS (retired), Sh.

Laxmi Kant saini CA and sh.

R.K.

Singh CTP [reti.ed) was constituted by the authority in bunch cases of l4rs.

Rashmi Budhraja V/s BPTP Limited and anr. bearing complaint no.

2221l2018 and decided on 12.04.2022 and asked the committee to submit its report on the above-mentioned issues. ed issues. l he representatives of the allottees were also associated with the committee.

A repo( was submitted and the same along with annexures was uploaded on the website of the authority Both the parties were directed to file objectrons lo drat repo( iiany.

The allottees did not Uleany obiections.

Though the.espondents sought time to file the obiectlons but did not opt for the same despite tim. #HARERA (S-Grrnrnmv given in this regard.

E. lurlsdlctlon of the authority ComDlaintN..4723 of 2021 14.

E, I Territorial lurisdiction 19.

As per notificatjon no.7/92/2017-L"tCp dated 14.12.2017 issued by Town and Country Planning Deparhent, Haryana, the jurisdiction oiHaryana Real Estate Regula:ory Aurhority, Curugram shall be entire Curugram district for all purposes.

1n rhe presenr case, the project in question is situated wrthin the planninB arca of Curugram district.

Therefore, rhis aurhority has complere territorial ju risd iction to deal wlth the presen t compla int.

U Subiect-matter iurisdlction 20.

Section 11(4)(al of the Act, 2016 prolides that the promorer shall be responsible to the allottee as per agreement for sale section 11[4](a) is reproduced as hereunderl lrHARERA $- eunuennur The respondents have r authority to entertain observes that it has terr to adjudicate the presen aised an objection regarding jurisdiction of the present compla,nt.

The authoriry itorialas well as subject matter jur,sdiction t complaint for the reasons given below.

So, section 11(4)(o) Be rcspontble fot all obligations, tespan\ibitities ond Junctions undet the pravisionsoJttsAct ot the tute: ond regulotians node thereunder or ta the ollattees os per the ogrcenent lot sk, or at the o$octoaon of ollouees, os the cose nay be, ttll the convelonce olult the apotunerts, plots at buildihss, os the cose na! be, to the allottees, o. the .omnan orcos to the o sn. i o tian ol o t 1 ottees a r th e co m petent o u th otitr, a t thecosenaybe. cosenaybe.

Section 34-Fu nctions ot the Autho rityl 34(rl of (he Act provides to ensuft comp|an.e olthe obljgatjons crst !pon th. proh.ters, the allottees and the .eal estate agents under thrs A.t and lhe rules and rcguLations made thereL nder. in v,ew ofthe provisions olthe Act quoted above, the authority complete jurisdiction to decide the .omplaint regarding non- Cohplarnt No 4723 oi2021 21. *HARERA S-e,,Q11enlV f*"*".";o,f compliance of obligations by tb" -p.otnot", leaving aside compensation which is to be decided by th€ adiudicating officer if pursued by the complainant at a laterstage.

Flndlngs on the reli€tsought by the respondents.

F.I Oblection regarding iurlsdictlon ofauthorlty w.r.t buyer's agreement ex€cuted prlor to coming into for.. ofthe Act E.

Th€ contention oithe respondents is that authorty is deprived of the jurisdiction to go into the interpretation of, or rights of the parties inter_se ,n accordance with the apartment buyer's agreement executed between the parties and no agreenrent lor sale as referred to under the provisions ofthe Act or ihe said rules has been executed inter se parties.

The authoriry is olthe vrew that the act nowhere provides, nor can be so ccnstrued, that all previous agreements will be re-w.itten after coming inro force ol the AcL Therefore, the provisions of the Act, rules and agreement have to be read and interpreted harmoniously However, if the Act has provided for dealing with certain specilic provisioDs/situntion in a specific/particular man.er, then that sir-Lation willbe dealt with in accordance with th€ Act and the rules alter the date olconring into iorce oi the Act and the rules.

The numDrous provisions of the Act save the provisions of the agreements made betlveen the buyers and sellers.

The sard contention has be3n upheld in the landnlark judgment of,weefr(amot Iieottors Sub rbot PlL Lt'l' Vs UOI dnd others. (W.P 2737 oJ 2017) decided on 06 12'2017 which prov'des '119. 'des '119.

Under the provisians ol'ectin ls,thedelovin handhs ote. (he Potses\ion wnutd be .ounted l.rn he doe tuen onetl h rhe aorctnent lor sole enrered into by the prcnofi ona the ollottee priar to its registrotion under RERA- Under the Ptovisions oJ HARERA nDA[,l .6m.ri,niNn,r72] L' REP!r',, the pro o9r n given o lacility to rev@ the dore ol conptetion ol project ond declore the ne undet Section 4.

The REPJ, does not contenplate rewriting ol contrcct ben^reeh tne loot purchoet 122.

We hove olreody discussed thdt above stoted ptovisions ol the RED.4 ore hLt .ettospective in nature.

They nay to sof,e extent be having o rctoocive at qu6i rettooctive ellect but then on that grcund the volidiE of the prcvkions of REp.l cahnot be cho .nged.

The Pothoneht is conpetcnt enaugh to legislate law hovinll retrcspecttve ot rctroactive elfect.

A ta|| con be ercn frohed to ollect subsisting / existihq contrcctuol tights between the porties in the lorger plblic interest. we do not hove anv doubt in our nthd dlot the RERA hos been froned h the loryet publh intarest aftel o thorough studv ant) discusion no.le dt the high*t level br the Saandihg Connittee @.1 Select Cohnittee, which subnitted jts detoiled rcpoftt." GURU 22.

Further, in appeal no 173 o12019 t,tlec as Magic PvL Ltt!, vs. lshwet Slngn ,otild, in order dated Eye Developer 77 -72.2079 the Haryana Real Estate Appellate Tribunal has observed as under '34. fhus, keePinp in riew our oloresoid discustnn \9e ore olthe consideted opinian tholthe ptovi\hn\ a] the Act ore quosi retrooctir( opetution ond viu he ohnlicabtP hthe agreenenL\ for \ule entered inro even Dli.t ro .anino thtn .nerotion of th. act where the tansocnan 1re nill ilrLglttctss-aIcwnplEliat' Hence n case ol de|o! in he offe4Aeliverr ol posesioh os per the terns ond conditions oJ Lhe agrernent lar sole the allottee sholl be entitletl to :he interest/delaved possession chorses on rhe reosohoble rute ol interstos ptorided in Rule 1s olthe.

1s olthe.uks ond one sided, unlot antl unredsonabte rcte ol .onpensotton mehtioned in theogreenentlot tuh a lioble to be Ohared 23.

The aqreements are sacrosanct save and except for the provisions which have been abrogat€d 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 €onditions of the agreement subiect lo rhe condition that the same are in accordance with the departments/competent authorities and are not in contravention of any other Act, rules, statutes, instructions, directions issued thereunder and are not unreasonable or exorbitantin nature.

G.

Findings on the relief sought bv the complainant G.

I Delay Possession charges 24.

The conrplainant intends to continue with the project and are seekinq delay possession charges as provided under the Proviso to section 18[1] olth€ Act.

Sec.

18(11 proviso reads as under: - *HARERA !$- crnuennt,,t iomplarnt No 47zl of2021 bv ''secti fi: R.tum ol amount ond conpensation 18(1) tl the pranoter fuih to cohptete or is unoble ta stre possession afanopattnent, plat, ar brtldhq - Prcvided that where on allattee does not intend to '9tthdroq fron the prqect, he shatl be pod b' the prahoteL nE'est lat ever! nohth ol delot, till the honding ote. ol the Passessian, ot such rote os noY be Presctib.d ' 2S.

Clause 3 of the flat buver's agreement provides the time period of handing over possessio.

5nd the same is reProduced below: "Clouse 3'3-1 -..the s.lle/conf.htng part! ptoPases to handaver the Phyecdl posesioh oi the soid unit ta the DLt, ho'ed ) wttttr o pe"od al'b toa' h' t' F t \' dot' ot .,"-'Lon a; 6e nat buPt oo,""ae r oaa-'n'n' pe'od' Ite out'\" e\,t tu'oa ostee ar'\t untl"^tond' t\a"h" .ae,,. "h" .ae,,.ont'nqg potl 'ttatt addr"'4att) tu antttPd ta o petiod of tuA dols aFet the expiv al soid connit ent period ...

26.

The authority has gone through the possession clause of ihe agreement.

At the outset, it is relevant to comment on the pre set *s of the agreement w been subjected to all kinds of terms and cond,tions of this l h, EAREI?A GURUGRA[,4 agreement and the complainant not berng in default under anv provision of this agreement and in comPLiance with all provisions' formalities and documentation as prescribed by the p'omoter lhe drafting of this clause and incorporation of such conditions is not only vague and uncertarn but so heavilv lotded in favour ot the promoter and against the allottee that even a single delault bv the allottee in luliilling formalities and documentations etc' as prescribed by the promoter may make the possession clause irrelevant fbr the purpose of:llottee and the commitment date lor handingover possession Ioses its meaning' 27.

The buyer's agreement is 3 plvotal leg;il document which should e.sure that the rights and liabilities of both builder/promoter and buyers/allottee ar€ protected candidly lhe apatment buver's agreement lays down the terms that govern the sale of difterent kinds of properties like residentials, commercials etc' between the buyer and builder. lt is in the interest olboth the parties to h:rve a well-drafted apartment buyeCs agreenrent which would thereby p.otect the rights ofboth the builder and buyers in the unlortunate event oia dispute that may arise.lt should be drafted in the snnple and unambiguous language which nlav be understood bv a common man with an ordinary educational backgrolrnd' lt should contain a provision with regard to stiPulated time ol delivery oi possession oi the apa.tment, plot or bLrikling as the case mav be and the right of the buyers/sllottees in case oldelav in possess'on *HARERA ($e D.

ERA ($e D. ,:pa'r ,^-,,,-^",-rr,-,zr The promoter proposed to hand over rhe possession of the said unit within period of 36 monrhs from the dare oi execution of the buyer's agreenrent,.e.

05.11.2012.

Thereiore, the due dare of handing over possession comes out to be 05.11.2015.

It is further provided in agreement that promoter shall be enritted to a grace period o4180 days ior filing and pursuing the occupancy ceriticate etc. kom DlCP.

As a matter of iact, from rhe perusal of occupation certificate dated 20.09.2019, it is implied thar the promoter apptied for occupation cedircate only on 28.06.2019 which is later ihan 180 days from the due date of possession i.e., 05.11.2015.

This clause clea.ly implies that the g.ace period was asked lor ttnrg dnd pursuing occupation certificate.

Therefore, as the promoter applied ior the occupation certifrcate much later than the statuto.y period of 180 days and hence does not fulfll the criteria fbr grant ol the grace period.

As per the settled law, one (annot be allowed to take advantage ofhis own wrongs.

Accordingly, this grace period of 180 dayscannot beallowed to th€ promoter AdInissibility ofdelay possession charges at prescribed rate of interest: The complainant is seeking delay possession charges at the prescribed .ate of inrerest on the amount already paid by him.

However, proviso to section 18 provides that whe.e an allottee does not intend to withdraw rrom the p.oject, he shall be paid, by the promoter, interest lor every month .f delay, till rhe h:nding over oi possession, at such rate as may be prescribed and it has been prescribed under rule 15 of the .ules.

Rule 15 has been reproduced as under: 28.

29 Rute 15.

Pratibed rate of section 12, section IE ond subseetion (7) ol sectioa 191 fi HARERA GURUGRA[/ Compla ntNo 4723 of202r (1) For the purpote ol ptoviso to secton tZ tution 18; and sub-wnons @ ond O) oftection 19, the "inbrest at the rote preyribed" shoU be the Stote Bonk of tndia highen narsinot c6t ol lendins Pt lendins Ptovide.l that in cose the State Eank oJ lndia orsindt cost of lendins mte (M.LR) 6 not in use, it sholl be reploced bt such benchnark lending rates which the Sto|e Bonk oJ tndia noy fx ftoft tine to tine hr tendins to the senent 30.

The legislanrre in its wisdom in the subordinar. tegislation under the provjsion ofrule 15 ofrhe rul€s, has deternined the prescribed rate oi interest.

The rate of interest so determined by the legislature, js .easonable and if the said rule js followed ro award the interest, itwillensure uniform practice in allthe cases.

31.

Consequently, as per lvebsite of the State Bank of India i.e.. , th€ marginal cost oflending rate (in short, lvlCLRl as on date i.e., 17.01.2023 is 8.6%.

Accordingly, the prescribed rate oi,nterest will be marginal cost ollending rate +2% i.e., 10.60%.

32.

Th€ definition oiterm'interesf as deftned under section 2(zal ot the Act provides rhar the rate of interesr chargeable from rhe allottee by the promoter, in case of default, shall be equal to the rate of interest which the promorer shall be liable ro pny the allottee, in case of delault.

The relevant section is reproduced "(zo) "inErest" neans ke rotes ol;nrer.lt payobte b! the prcnotq or the allotte, as the cose no! be Explanotian. -For the purpose ol this clouse- the rute ol ihtercst chorseabte In h the ottotze b! the pronotq, ir co of delaula shall be equal to the rate oI intercst which the pmnoter shall be lioble to pa! the ottottee, in coy oldeiQrlt- the intefest payoble b! the prcnoter to th. ollottee sholl be fton the date rhe pronbtet received the onount ot ony paft rhieol till the dote the onowt HARERA GURUGRAIV tq',","*lggfq ot pon theteoJ ond interest thereoh is 'etunded and the nterest Pavdble bv the allouee ta the prcnotet shatt be lran the date the ollottee deloutts 1n patnentto the p.anoter till the date n is poidi 33. poidi 33.

Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate ie, 10'600/0 bv the respondent/promoters which is th€ same as is being granted to the complainant in case ofdelaved possession charses' G.II Costescalation 34.

Tbe complainant has pleaded that the respondents also imposed escalation cost Rs.

6,50,377l" The respondents in this regard took a plea that cost escalation was dulv agreed upon by the complainant at the time ofbookingand the same was incorporated in the FBA.

Tbe undertaking to pav the above mentioned charges was comprehensively set out in the FBA In this context' following .lause ofthe FBA is noteworthy: t 2 12" fh6 Purchasa4, @ders/lhds and agrces lhal lhe sate @nsido@t n o, the Lthit candes ol tha cost ol cansl@li@ 6lo. applicoble ol lha dale ol b@hng' ano.(lst athe( conpandits fh.

Purcha*t(9 lunhat @cognles lhat due lo v ialbn n @sl al consltuctbn i e cod ol melI,neb, tabofi and Najecl nanoge@nt cast the aduat 6t ol tho unil eveq i ce escalalbn and nay lhus tary fhe fnal @sl ol @nslruclon shall be dlculated al lh. slegd ol Np|lbn al lhe poiecl shoutd tho vatience bo equst lo ar Lss lhan 5% ol lha @st al construcli a@lohed al ke tne ol baohng h6 *ne sholt be absohatl enlituU bv tha SellqtContimhg Pad! uo@vd sholld lho @sl ol c@struction, upah conol.tioh ol the paiect v6ry note th6n 5%, lhen lha dif,t'@nce in the cosi shall be charyod at @lunded to the Purchssq(s) as lhe case nav b6' as pet scluat t atcula\@ qade bt the Sott'tEontmt1c u HARERA 35.

The authority has gone through the report of that committee and obs€rves that as per the calculation of the estimaied cost ol construction for the years 2010_11 to 2013'14 and the actual expenditure of the years 2010 to 2014, the escalation cost comes down to 374.76 per sq. ft. from the demanded cost of Rr' 588 pe' sq. ft.

No obiections to the report have boen 'aised by either ofthe paties. he paties.

Even the committee, while recommending decrease 1n escalation charse has gone through booking form, builder buyer agreement and the issues raised by the promoter to justjly increase in cost.

The authority concurs lth the findings of the committee and allows the passing of benefit of decrease in escalation cost or the allotted units from Rs.

588 per sq. ft to 374'76 per sq' [t to the allottee ol the pro)ect The relevant recommendations ot the committee are reProduc€d belowl ''concluslon: lh view ofthe obove diruscian, tht cannittee k ofthe vEw thot *calotian cosr of k 374'76 pet sq- leet k ta be ollowed ihnca.t ol Rs ,ao denonded b! the develapet"' 36.

The authority concurs with the recomm'rndations ofthe committee and holds that the escalation cost can be cha'ged only upto Rs' 374.76 per sq. ft. instead of Rs 588 per sq' it as demanded bv the G.lll STP charges, elect fication, flrenghting and power backup charges 37. lt is contended by the complainant that the respondents raised unreasonable demands under various heads i'e' Rs' 1 81'300/ for the above mentioned senices' on the other hand the respo'dents submitted that such charges have been demanded fronr the allottee in terms of the flat buyer's agreement' Complarnt No.472l of20Z L GURUGRA[/ R, RA onpla nr No 4?l I or lull 38.

The said issue was also referred to the conrmittec and it lvas [/ *HARE $-crnrc "Reconmq.lotions: i, The cannittee exonined the .ontents of the FBAi executed with the oll.te6 of SPodo ond Pork cenerottan ond lound thotvonout charges ta be puid bl the allotteesltnd nention ot.lnuse 21 [o to h) Nethet, the electtilicottan chd.ltes ligures anwher. tn this clause, not it hos been delined onwheteetse in the FuAs Rathet, Ecc+FFC+PBIC churge:t hove been tnentnned ot .lo6e 2 1A whth ore to be pdtd at tNR 100 pet sq f. ii, the te.n ele.tic .onnecttan chatget (Lcc) has been delned at cloue 1. t cloue 1.16 (Spodo) ond Clauft 1 19 lPotk C e ne ro tion ), |/hic h is repraduLd betaw ''ECC" or eledncitt conn..tian chotgc sltoll neon the charyes lor th. innottatton ol the electncit, nete., artanging ele.tri.iry cohnection @ ton Dakthin Harvana BiL Vidyut Nigon, Horyono ontl othe. rctated cho.gesont! d?enses " iiL Fran the defunion ofLCC, it B cleot thot electrtliLotioh chargesrre conptised in the electric connectian chorses and the tune hove beeh chbbLd with FCC+PBtC ond ote to be charyed @tNR 10A per sq. lt. fheelo.e the Cahnittee concluded thot the rcspoh.lent hos .anveved the elecfilcatiah chorges to tlle allones al sPocta tn ah urbitrury onnet ond in vialation of te.nL uhd candxions of the ogteenent Aaordrtgl! theCahnittee rP..nncn.l\: A The ren electnfi.otian choryes, clubbed wth st'P chorse', used in the nabnent ol occounts cun' in,oke be deletet) ond onlr STP chorges be denunded fun de altottees ol Spacit) @ tNR 88s sq I tinnat to that olthe allotteesaJP rkcehetutio B The t tn Ecc be clubbed with rFcaPgtc in thc stazhent alkrcunttrtnaNoice ottoched wth the tettet of Pdesion ol the oltattees olsPocto ohd be choryed @ tNR laA p.r tq t in tetns ol the pro sions of 2-1A ot pat wth the attottees afPurk Aeneratian.

The sturenent al o..aunts cun-lnvai'e sholl be anended ta thate:rentaccardthgt!' 39.

The authority concurs with the reconrmendatron made by the obser"',ed as underby the committeel committee and holds that the allott€e of park generation may be charged in r€spect of STP charges [@lNR 8.85 sq. ft. and ECC+FFC+PBIC (@lNR 100 persq. ft.) {DHARERA S- crnrcnnur H-V GST 40.

The allottee has also challenged the authority of the r€spond€nts builder to raise demand by way of goods and services tax.

It is pleaded by the complainant that while issuing oiter of possessron, the respondents had raised a demand of Rs.1,44,714l- under the head CST which is illegaland is not liable to repeat to be paid by him.

41. y him.

41.

Though the version of respondents is otherwise, but this issue was also referred to the committee and who after due deliberations and hearing the affected parties, submitted a report to the authority wherein it was observed that in case of late d€livery by the promoter, only the difference betlveen post CS'l and pre GST should be borne by the promoter.

The promoter is entided to charge irom the allottee the applicable .ombined rate of VAT and service tax.

The relevant ext.act of the report representing the anountto be refunded is as followsl tBl "*., c) --# I'z.omo |"00,i l'*'1"- t'-"1"* L_ t: looor l_ Complaint No 4723 of2021 ;;*-l -l i u GURUGRAII HARERA aomplarnt No.4723 of 2021 (c) ______t-_____- (E+)(L) 42.

The authority has also perused the judgement dated 04.09.2018 in complaint no.

4912018, titled as Porkash Chond Afthi Vs.

M/s Pivotal InJrastucture PyL ,td. passed by the Haryana Reat Esrate Regulatory AuthoriW, Panchkula wherejn it has been observed that the possession of the flat in term of buyer's agreement was requ,red to be delivered on 1.10.2013 ,nd the incidence of CSf came into operation thereafter on 01.07.2017- So, the complainant cannot be burden€d to discharge a liability which had accrued solely due to respondenfs own fault in delivering timely possession of the flat.

The relevanr portion ol the judgement is reproduced below: "3. fhe conplainont hat theh orqu.tl thot the respondent's dehand lor csr/vAr chorset i, unlustiled lot t\|o rcoen: (i) the csf liability has aTue.l becoue aI rctpon.l t s own failure ta ho4dover rhe poss.ssion an tine ond (ii) the octuol VAT rote k 1.05% insteod af4ak beins clained by the respondent.

The autho.tty on thn point will obeNe that the poye$ion ol the fot n te.n oJ buyer\ osreeneht wos reauired ta bc detivered an 1.10.2a13 ond the incidence al CSf cahe nto operation thereoftet on 41.0?. on 41.0?.2017 5o, tl,e cohplalnont connot be burdened to discharse a liabiliq) which hod occrued tulelr due to rcspondent's own laulr in deltvering tinel! pae$ioh oJ the loL Regoflling vAT, the Authority would odt6" thor .he ,e<po1d.qt \hatl.on\Lt a vfltce tot eNpert and wnl convey ta the conplainonl the HARERA GURUGRA[,4 onou t\|hich he is lioble ta pov os per the actuolnte o[ vAl fixed bt the Cavdnnent lar the petiod extenainll upta the deemed dote al allcr d posss,on te 10.10.2013" 43, In view ol the above, the authority is ol the view that the respondent/promoters are not entitled to charge GST from the complainant/allottee as the liability ofcST had not become due up to the due date of possession as per the flat buver's agreements.

The authorty concurs with the findings of the committee on this issue and holds tha! the difference between post GST and pre_GST shall be borne by the promoter.

The proroter is entitled to charge from the allottee the applicable combined rate ol vAT and service taxas detailed in para41 ofrhis order' G.vlVAT charges 44.

It is contended on behalf of complainant that the respondents raised an illegal and uniustified demand towards VAT to the tune of Rs.73,133/.

It is pleaded that the liabiliry to pay VAT is on the builder and not on the allottee.

But the version of respondents is otherwise and took a plea that while booking the unit as well as entering rnto flat buyer agreement, the allottee agreed to pay any tax/ charges including any fresh incident of tax even if applicable retrospectively.

45.

1he committee took up this issue while prepa.ing rePort and after considering the submissions made on behaliof the allottee as well as the pramoter, observed that the developer is entitled to charge VAT from the allottee fo. the period up to 3103'2014 @ 1'05% (one percent VAT + 5 percent surcharge on VATI.

However, for the period w.e.f.01.04.2014 till 30.06.2017, the promoter shall charge any VAT tiom the allottee/prospective buve. tive buve.s at tbe rate of 4 5101i Complaint No.

4723 of 2021 s not opled for comp ble given below: GURUGRA[/ & asth HARERA 46, The authority concurs with the recommendations ofthe committee and holds that promoter is entitled to charge VAT from the allottee for the period up to 3103.2014 @ 101;% [one percent vAT + 5 percent surcharge on VAT] Howev.r, f,or the period we.i.

01.04.2014 ti1l30.06.2017, the promoter shallcharBe any VAT h om the allottee/prospective buyers at the rate of 4.51% 3s the promoter has not opted for composition scheme.

G.VII club membership charges 47.

The said issue was also reaerred to the committee and who after due deliberations and hearing the afi'octed parties, submilted a report to the authority wherein itwas observed as under: "..

Altet.leliberutian, it was agreed uPan thot clLb ehbership Provided ifan ollotee aptt aut to ovotlth$ lo.ilit! ond ldter oDDtoo. hes .ne rctponde Jotd?ntbe,<hryatth" tub the4 hP ';;tt por rhe dub nenb{th p t hr oes at na! be d4topd b, the r*pondent dhd sholl not ineake the Erhs ol FBAS rhar linits CMC to IN R 1,a0,004.04. tn viewolthe consensus orrived, the club nenbership nov be node opttohol.lhe rcspondent ncy be dirccted to.efund the 01.04.2014 30-06.20r7 -TY* HARERA ,rll.

F.

Dlrections otthe AuthorltY: 49.

Hence, the Authority hereby passes this order and issue the fo)lowing directions under section 37 oi the Act to ensure compliance of obliganons cast upon the promoter as per the functions entrusted to the Authority under Section 34[0 olthe Act il The respondents are directed to pay interest at the prescribed rate of 10.600/0 p.a. for every month oldelay from the due date of possession i.e.

05.11.2015 till the offer of possession i.e.

16.10.2019 plus rro months i.e.

16.12 2019 to the complainant as per section 19(101 olthe Act.

The complainant is directed to pay outstanding dues, if any, after adjustment ofinterest for the delayed period. ed period.

A period of 90 days is given to the respondents to comply with the dire.tions given rn this order and failing lvhich legai consequences would lollow. il eUnUeReUl [compraint No a723 or2021 cMc if ony request is recetved fton the attotEe ih this reqord ekh cohdinon that he sholl obide by the obove ptovko.

The authority concurs with the recommendation made by the committeeand holds thattheclub membership charges (CMC) shall be optional.

The respondents would refund the CMC ifany request is r€ceived from the allottee.

Provided that ifan allottee opts out to avail this facility and later approaches the respondents for membership of the club, then he shall pay the club membersh,p charges as may be decided by lhe respondents and shall not invoke the terms offlat buyer's agreement ihat limits CMC to Rs.1,00,000/- ,il iirl Prge 23 of25 3s iv) HARERA GURUGRAM Cost escaladon: The authority cost against the subiect unit 374.76 per sq. ft. instead of R bythedeveloper. v) vAT CharS€s: Tbe promoter is entitled to charge VAT fronr the allottee ibr the period up to 31 03.2014 @ 105% [one percent VAT + 5 percent surcha.ge on VAT).

However, f,or the period w.e.f.

0104.2014 till ?n062017 thc promoter shall charge any VAT from the allottee/prospective buyers at lhe rate ol 451% as the promoter has not opted for compDsition scheme vi) GST Charg6: The authority is of the vi'w that the respondent/promoters are not entitled to charge GSl irom the complainant/allottee as thE liability ol GST had not become due up to the due date otpossession as per the flat buyer's agreement, tbe authoritv concurs with the findings of the committee on this issue and holds that the dilference between post CST and prc'CST shall be bornc bv the promotcr. 'lhe promoter is entitlcd to charge fiom the allottee the applicable combined rate ofVAT:nd service tax as detailed in para 41 ofthis ordcr. his ordcr. viilClub membership chargesr The respondents would reiund the club membership charges if any request were received from the allottee.

Provided that if an allottee opts out to t 5t is complarnt No 47zl or2021 f the view that escalation be charged only upto Rs.

8 per sq. ft. as demanded *HARERA $- r,Lrnircnnul so.

51. limits CMC to Rs.1,00,000/-.

Compla,nt stands disposed of.

ComplaLntNo.4723 of 2021 avail this facility and later approaches the respondents lor membership of the club, then he shall pay the club membership charges as may be decided by the respondents and shallnot invokethe terms offlat buyert agreement that File De consigned to the Registry. (Asho Sa Haryana Dated:17.01,2023 CuruEram { vt- +-) (viiay Kum#Goyal)