RAJIV SETHI vs ORRIS INFRASTRUCTURE PVT LTD

PHARERA S-ainLrcnnM Complarnr No.

678 of 2021 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM (7A ot ZO2l l2 02.2021 ,0.05.2021 13.o7.202t Rajiv Sethi Rlot 77 /1O4, 2nd LajpatNagar-lV, New Delhi'110024 5h. l4ayank Sethi (Advocate) Chairman [4/s orris lnfrastructure Private Limjted R/or C-3l260, Janakpuri, New Delhi- 110058 Dr.

KK Khrndelwal ShriVijay KumarGoyal Nls.

Charu Rastosi (Advocate) 1 ORDER 'Ihe present compla,nt has been filed by the compla nant/allottee under section 31 oithe Real Estate [Regulation and l)evelopmen0 Act, 2016 (in short, the Act) read with rule 29 of the Haryana Real tistate (Regulat,on and DevelopmentJ Rules,2017 [in short, the Rules) ior violation oi section 11(4)[a) of the Act wherein it is inter alia prescribed that the promoter shall be respDnsible for al1 Complaint no.

Date oI tiling complaint: Firstdatcofhearing: Date oldecision : ITHARERA *dN5- eLnLnnrv ComDlar.tN.673of202l obligations, responsibilitjes and lunctions under th€ provision of the Act or the rules and regulations made there under or to the allottee as pe. the agreement for sale executed inter se. unit and proiecr related details 2.

The particulars ol the projecr, the details oi sale consLderarion, rhe amount pajd by thc complainant, date of proposed randing over the possession and delay period, ifany, have been derailed in the following tabular form: 'Aster Court Prcmre. :;ec85, -t RERA Registered/ not 39 ot 2009 dared 2+.o7 valid up to23.07.2024 99 of 201.1 dared 17 .ll valid up to 16.11.2024 ,2011and 6 BeOffl.eA tomation Products Pvt M/s Radh.

Estate Pvt t.td and 2 ccM/2t)7 /2ora/19 nard l:l I0.2018 rnd ralid u) n) Tower 3D -l 302,3rd floor, lPage 2Solthe 1450sq. ft. [Page 2Eoithe compla nt] Revlsedarea 1595 sq. ft.

A]!q!IqC at pase no.53 ofthe 3. i.

I 1l * s- 10 1l 12 HARERA GURUGRAl\/ Further R€vised area.1587 sq. ft. lPaBe no.54 ofthe conplaintl 26.03.20rr April2012 lAs per emaildated 1902.2018at 02 0l 2011 IAs per Intimation cum letrer dated 09.08. ted 09.08.201:l Clause 10.1.

The company based on its present plans and estimates a.d subject to all just exceptions, cortemplates to complete the const.udion ol the said building/said unit wlthln the perlod of 36 month$ plus grace period of6 months from the date ot execution of th€ apartment buyer's a8reemenl. by the company or sanctions of the constructlon whlchover is later unless there shall be delay or failure due to reasons mentioned in clauses 11.2.

11.3 and clause 38 or due to hllure of allottee to p.y in time the price of thq said unh.... plans or commerLcement ot ociobe.2015 lcalculated lrom the dite of sanctions ofthe plans r.e.

APril 20121 Crace period ol6 nonfts is auowed iNotc lhc due datc ('f possessioD iorhaDdl ug ove. or 1a t& HARERA GURUGRAIV Totai saLc conside.ation Possession has been advertently recorded wrong in the Proc€eding of the day dated 13.O7.2022 11 Rs.52,90,900/ IPage 28 otthe complaintl Revisedsale considemtion- Rs.58,7,1,090/.

IAnnexure C at pagc n(. s3 ofthe Further Rcvised s.le conslderation- Rs 58,:14,954/ lPage no.54 olthe corplaiDtl R,.57,t2 002/ lAs per statement otaccount dated 17.08.2021 at pape no.34 olthe Occupahon Cerrifrcate Construction Ijnk€d pa{ment plan lPase 50 ol the €onplalnd 06.04.2077 B at page n0.23 ofthe a. rr.Q4.207? replyl between the parties.

The base price agre feet which works out to Rs.

42,90 Facts of the complaltrti That the complainant had booked flat no.

302, i Tower 3D, measuring 1450 sq. ft. in the said project. ln furth$ance oi the same, a buyer's agreement dated 26.03.2011 was also executed ed ,55 was Rs.

2,959 per sq.

0/-.

Tho total sale \2,90,90A /- consrderalon ol the said unit lvas Rs.

15 L 17 18.

9 HARERi 1$- cunrcnnvr 4 utility charges, PLC, EDW, lllC and club memberchip, in the Thatthe complainant availed housing loan to pay th€ insrallmenrs as and when they became due from HDFC.

The respcndenr issued a letter to HDFC dated 29.07.2011, stating that ,We confr thot *e hove abtoined ne.e$u. ed ne.e$u.r permissian/apptorotfsun.tans lot ..nnru.Lan af the soid britding lton oll the can.en)ed conpetent uuthande: ond the canntL. onolthe buttdtns oswetlosolthefot in onardunc wth the opp.avc.l pldns, we hate nat hotle onr subdivisons tn rhe ltot oltet tha plans hote been upptored by the concemed authotity ' That the respondent vide letter dated 11.07.2013 without any justificatjon increased the area ofthe said unit from 1450 sq. feet to 1595 sq. ieet as the complain:nt had al.eady paid Rs.

50,5+,224/ belore this date, this was nefari(,us plan of respondent to extort Rs.

4.99,090/ from compla,rant furthe.

Thereafrer, vide letter dated 09.08.2013, the area ol rh. unir was revised to 1587 sq. ieet.

The excess amount being extorted reduced to Rs.

4,71,554/-.

That as per clause 1.4 ofag.eement, the respondent had sold the apartment on the basis ofsuper area and the super;rea stated in the apartment buyer's agreement was tentative ard subject to change till the constructjon oithe sa,d project was c]mplete.

The said clause lurther stated that the respondent could claim lor change in super area only after completion of the p.oject and getting occupancy certificate from competent authority whereas the respondent claimed the increase in super area in luly 2013.

It o12021 *HARERA S- cilnrcnnttr ComDLaint No.678oI2021 is pertinent to mention here that the accused received the occupancycertificatefrom competentauthorityon06.04.2017.

10 That the complainant received an email dated 09 08.2016 trom Reena Gulatifrom the side ofrespondent informing that: 8.

That the respondent in order to avoid payment of delay construction penalty, offered possession of the unit to complainant wiihout occupntion certlficate.

Fraudulently terming such illegal offer ofpossession as possession ior fit outs" 'lhat the said statement ofaccount dated 22.07.2016 showed that complajnant had paid all instalments to the respondent as and when demanded by them amounting to Rs. ing to Rs.

54,51,12rl- in case of delay, I had paid interest a demanded by them amounting to Rs. s0,000/'asainst a demand of Rs.85,011/'.

That the respondent had demanded and collected Rs.48,65,749/- towards payment oi sales consideration out ol total sales considerat,on of Rs.

52,90,090/- already tillAugust 2013.

That is 91.96% was demanded and paid before mid or 2013.The Possess,on letter was accompanied with final siatement ol conrplainant's account as on 22.O7.2016. a.

Handing over of units have already starte.l in the said project and fam,lies have shifted. b.

Forcing me to take possession olthe unit. c.

Denied inspection ofsaid unit until I pay balance amount.

Then by email dared t9 08.2016, inrormed th:t ,nterim *HA S-eun ComDlaintNo.673 ol202l RERA UGRA[/ 0C process has been completed, vide email dated 31.08.2016 enquired the meaning ol interim 0C, this was vaguely answered byemaildated 02.09 2016.

11 That as per clause 10.1 of the complainant's agreenrent with the respondent the possession ol the unit ought to have been offered and handed over within 42 months which includes 6 months grace period, that is hy 27.07-2A14- Therefore, by €mail dated 17.05.2017 complainant demanded the delay construction penal interest which was Rs.

26,18,329l .

This email lead ol varjous email exchanges with the respondent.

12.

It is pertinent to mention rhat vide enail dated 19.02.2018, the respondent inlormed that sanction was received in April 2012 and OC process was ongoing in luly 2015.

Whereas the respondent had claimed vide lefter dated 29.07.2011 to HDFC ltd. that it has recerved all sanctions.

The respondent had demanded and took first installment at the time oi registration on January 2011.

The accused had cla,med second instalment for comnencement of construction on 02.03.2011 and within 2011 itself the respondeni had demanded 6,nstallments amounting to Rs.

33,63,377l- lor the work up to cast,ng ot2nd floor roofslab, this comes to 63. mes to 63.50/o 13 It is pertinent to mention here that the email datel 23.05.2018 from the respondent, the respondent stated that the increase in super ar€a is due to service/common area that is the increase in t onrr dvFntion oi.lause c.l olthe aEreemenr. *HARERA S- eunuenav ComDlarni N.

673 of202l 14.

The as per clause 14.3 the respondent can decide to apply to receive and distribure bulk supply of electricity and get the permission from competent authority, rhen the allottee undertakes to pay on demand to the company, proportionate shares as determined by the company of all deposirs and charees pa,d/payable by the company or the ma,ntenance agency/company to DHBVNL/Haryana vidut Prasaran Nigam Ltd./any other body commission/regulatory/licensrng authority constituted by the Government of Haryana.

Rs 2,38,050 is being charged by the respondent io. electricity installarion charges.

Respondent vide email dated 23.05.2018 iniormed rhar rhis cosr jncludes electric work, Transiormer installation, HT panels, ET Paneh, Lighting fixtures, meter charges, meter installation charges, power backup charges etc.

This again is therelore, illegal charges beingfor€ed upon the complainant.

C.

Reliefsought by the complainant: 15.

Th€ i. complarnant has sought following Direct the respondent to ref,und an amount oi R,i.54,51,121 alongwith int€rest oadelay at 18% p.a. or at prevailing rate ri.

Direct to pay l,t,gation expenses.

D.

Replyby respondent: The respondent by way of written reply dated 26.03.2021 made the following submissions: 17 ffHARERA (S-cunLnnnu That the builder buyer agreement between the parties took place on 23.06.2011wher€in as per clause 10.1 ofthe buyer agreementi the respondentwas supposed to hand over the possession within a period of36 months from the date ofrhe signing olagreemenr or within 36 months plus 6 month s grace pe.iod i.e. nlrogerher 42 months from the date ol execution of apartments buye. ents buye.s agreement by the company or sancrions of plans or commencement of construction whichever is later.

That further, as per clause 1.4 and 9.2 ofthe buyert agreement, it was agreed berween the parties that the supe. a.ea is mentioned in the buyer's agreement is tentative, subject to change atthe time oi obldrning ocrupauon cerflfi.ate and hdnding ov.. po\,es5,on and any major alteration, wherein there is change rn the super area oi more than 1oqo shall be based upon prior approval lrom the allottee.

Thus, when the area was revised which though was less than 100/0, the sa,d fact was duly communicated to the Orders passed by Hon'ble High Court of Punjab rnd Haryana wherein the Hon'ble Court has restrict€d use oi groundwater in construction act,vity and directed use of only treatel water from ava,lable sewerage treatment plants.

However, ther: was lack of number ofsewage treatment plants which led io scarcity ofwater and lurther delayed the project.

That in addition to this, labour rejected to work using the STP water over their -realth issues because olthe pungent and ioulsmellcomine from the STP water l8 Complarnr No 678of2021 t& HARERA as the water from the S.T.P's of the State/Corporatjons had not undergon€ proper tertiary treatmentasper prescribqd norms, GURUGliAIV 19.

That not only this, one of the Collaborator/ Landowner of land in the project - BE Automation Products [P] Ltd. who was rhe owner oi only 5.8 acres of land in the entire project.

BE indulged in frivolous litigation and put rest.aints in execution of the project and sale olapartments.

BE filed cases against the conrpany in each and every iorum to create nuisance.

The details of whi.h are as n.rrated helow: l hat the land so aggregated ior the above sa project was contributed by a consortium of land holders, who contributed around 19 Acres.

That one BE Office Automat,on Products (P) Ltd ('BE" for short) had also approached the respondent with 5. nt with 5.a acres of land which was contiguous with the land already aggregated by the respondent and BE requested the respondenr to make the said 5.8 acres ot land olvned by BE a parr of the land already aggregated by the respondent, i.:.

19 acres. accordingly, a collaboration agreement dated 22.10.2007 was executed between the respondent and Blj setting out the terms and conditions of the collaborat on. the said collaboration agreement also provided fo. the area eDtitlement ofboth the parties in the area to re developed on the 25.018 acres and the same was to be :alculated on basis oi saleable area attributable to 5.8 acres as trHARERA & c,unrcnu,,,r Compl.rnr No.

678 of 2021 contributed by BE.

However, the land contnburor,.e.

BE indulg€d in ftivolous litigation and put restraints in execution olthe project and sale ofaparrments.

That as per the collaboration agreemenr, it was agreed between BE and the respondent rhat the totalsaleable area relatable to the said land of 5.8 aoes would be shared in the ratio ol r/3:2/3,7/3rd going to BE and 2 /3rd soing to the respondent.

That simultaneous to the collaborarion agreemenl 8E executed an irrevocable General Power oi Attorney ('GPA" for short) dated 22.10.2007 in favour of the respondent lor var,ous purposes development ofthe said project.

That in January 2011, the respondent contractual obligations invited BE to identify the apartments that BE was interested to make part ol its entitlement under the collaboration agreement. accordingly, the representatives oa the respondent and BE met on January 24, 20r I and in pursuance of the same BE ideDtified 82 apartments that would form part oi BE's entitlement under th e €ollaboratio n agreemen t.

That soon after the development olthe said projects beg:n, the part land contributor, BE, started indulging in irivolous litigation against the respondent. espondent.

That after :he aioresaid agreement with BE in 2007, the respondent hrd acquired 4 5 acres additional land by the virtue of which more flats could have been constr cted.

BE, by misrepresenting the u HARERA GURUGI?AI/ collaboration agreement raised a claim that it was entitled to proportionate share in the construction on the additional land acquired by the respondent.

That after rhe aloresaid event BE moved court and filed an application under section 9 of the Arbitration and Conciliation Ac!

1995 before the Ld.

Additional District and Sessions ludge, Gurgaon.

The matter was heard, and an order dated 20.11.2014 was passed by the Ld.

ADI l'hal the Ld.

ADI granted a blanket stay in tavour of BE and against the respondent, whereby the r.spondent was restrained from creating third party interest in respect oi any apartments, villas and commercial areas till the matter could be decided iinally by the arbitrator.

The respondent was also restra,ned from receivjng aDy money in respect oi sale of apartments, villas and commercial sit€s etc. or club membership charges or,n any other form from any pe.son.

That the abovementioned stay order caused immense hardship to the respondent as the restraint on alienation ol the respondents share ol flats in the said project led to funds for the conskuction and development ol the above CohpLaint No.678o12021 projects getting held up as the respondent could not alienate its interest in the said flats nor could it collect money for Rats already sold under construction linked plans and the pace ol the construction slowed down considerably.

That the above said order also led to a precarious cash flow position of the respondent.

That PrEe 12 ur28 u HARERA GURUGRA[/ selling oiinterest in the flats, prior to construction, to raise capital for construction and development is standard practice in the realestate sector.

That after the above said stay order was passed, the respondent took furthe. legal steps and filed F.A.O.

No.

F.A.O.

9901 oi 2014 (O&[4] whereby it was brought to the notice of the Hon'ble Punjab and Haryana tligh Court rhar rhe Ld.

ADI had committed an illegality and misdirected irself in not refer.ing to the minut€s of the meeting dated 24.01.2011 whereby the share and number of flats of BE had already be€n identif,ed and at best the injunction should have been limited to BE s share in the said project.

That the Hon ble High Court was pleased to vrcate the stay by its ord€r dated 08.12.2014 order and limir the injunction to BE's agreed share in the project.

That thereafter the respondent made serious eaiorts, and in order to resolve the disputes, Honble Mr. lustice Chandramauli Xumar Prasad (Retd.l, a fo.mer judge ofthe Hon ble Supreme Court ol India was appointed as Sole Arbitrator to adjudicate and decide the disfute between the two parties by the Hon'ble Punjab and llaryana High Court vide order dated 30.01.2015.

That the Honble Arbitrator €ommenced the arbitral proceedings and the process was going on ror the sard arbitration at New Delh,.

The arbitrator passed ,nterim award dated 19.08.2015 whereby the respondent srand ComolainlN.673of202l EHARERA -&- cLnLrcnnv Comnlarnr No.678 ur 20r1 was upheld and the respondent was permirred to dealwirh their own share i.e., 2/3 share in the project as relatable to the land contributed by BE.

That in the meanwhile, 8E filed a conrempt perition, C.O.C.P.

1851 of 2015, alleging contempt of court of the Additional District ludge, Gurgaon by the respondent so as to delay the project and harass the Respondents That the arbitration proceedings concluded wirh Final Awa.d dated 12.12.2016 passed by the Ld.

Single Arbitrator, Mr justice Chandramauli Kumar Prasad (Rerd.l, whereby contentions of the Respondent were upheld and the share of BE was r€stricted to the origlnal 82 flats selected by it.

That the above said awa. said awa.d goes on to show that the respondent was subiected to constant and irivolous Iitigation by BE throueh the entire construction and development period which caused immense hardship to the respondent and resulted in loss ofvaluable time and resources which resulted in delay in completion ofthe said project.

That even after the arbitral award was passed in the respondent favour, BE was not inclined to put an end to the frivolous litigation that it was pursuing against the respondent.

BE challenged the arbitral award under Sect'on 34 of the Arbitration and Conciliation Act, 1996 as also made a stay application before the competent court.

I}IARERA *$-cunLnn,cM Complarnt No 6?8 oI202 L The said stay application ol BE w:s contested by the respondent and was dismissed vide order dated 20.032017 That, BE, upon the dismissal of its stay application on 20.01.201_. approd,hpd the Drv,r;onal Comr,,sroner, Curugram by filing an application.

That the Divisional Commissioner, Gurugram passed an extra-jurisdictional order staying the ali€nation ofproperty in the said project vide order dated 28.03.2017.

Respondenr challenged the sa,d order before the Hon'ble Punjab and Haryana High Court in CwP No- 9075/2017 wh€rein vide order dated 01.05.2017, the said impugned order was stayed.

From the events as mentioned above, the only inierence that can be drawn is that BE tried to create multiple hurdles in the way of the respondent completing its project on dme through frivolous litigation.

However, the respondent tr,umphed every time as can be seen irom the fact th:t various judicial forums decided in favour of the respondent.

That the respondent further submits that court proceedings ce(ainly took a substantial amount oi time during which the respondent was restr:jned qua even rece ving the sale consideration/ sellinB the units in the project which resulted in delay.

These kinds ofdelays are covered by and envisioned under Cl:uses 39 and 11.1. and 11.1. hence the respondent is entitled to reasonable extensioD of time ior *HARERA S-eunucnru compldinr No.

678 o12021 That in the meanwhile, the said C.o.C.P.

1851 of 2015 (Contempt Petrtionl as mentioned in paragraph (i) above was eventually d,sm,ssed by the Hon'ble High Court of Punjab and Haryana vide iudgemenr dated 15.03.2017.

However, it is pertinent to note that the respondent was kept underthe constant threat olan adverse legal ruling il the contempt petition were to succeed which iurther put constraints on alienation offlats in the said proiect thereby depriving the .espondent ol valuable capital which was needed to finish the ongoing development and construction olthe said projects.

20.

That from the aacts as narrated above it becomes quite evident that the BE Automation Products Pvt Limited is also responsible for the delay in the construction of the project on account of various frivolous litigation initiat.d by the same.

That it is also pertinent to mention here that BE Automation Products Pvt Limited ialls under the definition of promoter being one of the landowners and is equally responsible for any delay.

That the respondent would also like to point out that this Hon'ole Authoriry has already taken a consistent vi€w that landownerr ialls withrn the definition ofthe promoter and are held to be the persons who causes to construct such project as defined unde. section 2 (zk) oI the Act and the same view has to be followed by the Doctrine of ffTARERA P- GURUGRAM Complajnt No 678 oI2021 21. rhat despite all these litigations and obstructions, the unit in qu.stion was made ready and available for the complainant and ihe complainant was ollered poss€ssion for lit outs of the unit in question on 22.07.2016.

22.

That the respondent had applied for occupation ce.tificate vide application dated 20.11.2014 and rhe OC was duly received by the respondent on 06.04.2017 23.

4.2017 23.

That immediately after the receipt ofthe OC, the complainant was offered possession vide letter dated 11.04.2017 and request€d the complainant to comply wjth all the possession formalities and execution of the conveyance deed and thereaher, several reminders have been sent to the complainant after 11.04.2017, such as on 05.05.2017, 05.06.2017, 23.03.201a, 11.04.201U, 12.12.2018 and 76.72-2019 so that the complainant v.sits and take the possession ofthe un,t in question, 24.

That not only this, the complainant has been in proper communication with the respondent through e'mails also wh€rein the talks ior some resolution/ settlement be initiated vide emails dated 18.10.2018, 14.11-2018, 03.06.2019, 06.06.2019 and 15 06.2019.

25.

Ihat it is submitted that as pe. the statement oi account dated 17.08.2021, the total cost of the unit is Rs.

63,09,583/- and complainant has paid an amount ol Rs.

57,12,002/ .

The offer aor possession f,or flt outs dated 22-07-2076 was sent to the *HARERA S- cunrcnnv ComplaintNo 678 of2021 29.

The plea of the respondent regarding rejection of +mplaint on ground ofjurisdiction stands re,ected.

The authonty dbserves that 26.

It is subm,tted that there is no connection between rhe sancrions obtained for construction oi the project and obtatning the OC of that project and therefore, the respondent had correctly claimed to the HDFC bank when complainant required loan rhar rhe respondent had obtained allsanctions.lt is further submitted that the email dated 19.02.2018 correctly menrions that the offer of possession is made in the towerbased manner and when rurn for tower of the complainant came, the complainant was offered possession.

Also, that the application to obtain OC was given in November 2014 and therefore, the process of obtainjng OC was ongoing.

27.

It is submjtted that the electriciry installation charges, and supply ol electricity are two different things.

When a particular item rs installed, e. talled, e.g-, a wifi router, the company charyes ior its installanon and the buyer pays the installation charges as well as the charges lor the consumption of internet as per the apphcable plans available.

Similarly, the electricity installation rs a different process and supply of bulk electricity is different process.

28.

Copies oiall the relevant documents have been nled and placed on record.

Their authenticity is not in dispute.

Hence, lhe complaint can be dedded on the basis of these undisputed documents and submission made by the partjes.

E. ,urisdiction ofthe authorityr 9HARERA S-crnrcnru aonf a ntNo 678 or20l1 it has territorial as well as subject matter jurisdiction to adjudicate the present complaintfo. the reasons given below.

E.

I Territorial jurisdiction As per notinc:tion no.

1/92/2017-ITCP dared 14.12.2017 issued by Town and Country Planning Department, the jurisdict,on of Real Estate Regulatory Autho.ity, Gurugram shall be entire Gurugram District ror a1l purpose with oifices situated in Gurugram. ln the present case, the project in question is situated within the plann,ng area of Curugram district Therefore, thi! authority has completed territorial jurisdiction to deal with the E.ll Sublect matter iurisdiction tion 11(4)(al ofthe a)tal is reproduced Se 11 Act 2016 provides that the promoter shau allottee as per agreement for sale.

Section 11(al(a) 8e rcspon\ible lbt oll obliganons, .espohsibilites ond lunctons untle.

Lhe proeisians ol thts ALt or the tutes ond rcqula[ans tuotle theterndet or to the ollottees os per the a!rcement Iar tu1. or ta the asocntion olallottees,os the.ose na, be,ttlltheconreyance ol oll the opnfinen\, plats ar butldings, os the.ase nat be, to the allaxees, ot the cannan oreos to the asociattoh olottotaees ot the conpetent outhorit!, os the. !, os the.ose noy be: Section 34-Functions of th€ Authorityl 34(0 ofthe Act provides to ensure conpliance ofthe (bligations cast upon the promoters, th€ allottees and the real estat€ agents under this Actand the.ules and resulations made therernder. *HARERA S- eunuonnv Lomp tr nt No r'4o12021 So, in view olthe provisions oitheAct quoted above, the authoriry has complete Jurisdiction to decide the complaint regarding non- compliance of obligations by the promoter leaving askle compensation which is to be decided by the adjudicating ofiicer ii pursued by the complainant at a later stagc.

F.

Entitlement of the complainant for refundl F.1 Direct the respondent to refuod an amount of Rs 54,51,12rl- alongwlth lnterest ofdelay at layo p.a. or at prevalllng rate ot 30.

The complainants were allotted the subjec: unit by the .espondent ior a total sale consideration ol Rs.

5::,90,000/.

A buyer's agreement dated 26.03.2011 was executed l)etlveen I\4/s Orris lnfrastructure Pvt.

Ltd. and the compla nants.

0n consideration oa the documents available on record and submjssjons made by both the parties, the authonly is satisfied that the respondent is in contravention of the section 1ltal(a) oi the Act by not handing ov€r possess,on by the due dnte as per the agreement.

By virtue ofclause 10.1 olthe buyer's atireement, fte developer proposes to hand over the poss€ssion of the apartment within the period of36 months plusgrace period of6 months from the date of execution ot the apartment buyer's agreement by the company or sanctions of the plans oI commencement ofconstruction whichever is late r.

The date oi commencement of construction ofthe p.oject is 02.01.2011 as per Intimation cum demand letter dated 09.08.2013 at pagc 55 ofthe PrCc 20 ul28 HARERA GURUGRAI\I complaint.

Further the sanctions ol the plans ot the proiect \das approved in Aprjl 2012 as per email dated 19.02 2013 at page no. t page no.

71 olthecomplaintand six monthsotgrace period is allowed so the possession ot ihe booked unit was to be delivered on or before October2015.The authority is of the con sidered view that there is delay on the part ofthe respondent to ofler phvsicalpossession of the allotted unit to the complainant as per th. terms and condirions ol the buyels agreement dated 2603.2(r11 executcd be$!een the parties.

Section l8{11 of the Act of 2016 ls aPplicable only in the eventuality where !he pronloler iails to complete or t nable to gjve possessron ol the unit in accordance with terms oiagreement for sale or duly completed by the date specified there:n This is rn eventuality where the Promoter has offered possessitrn of the unit afrer obtaining occupation certificate and on dernand ot due paymen! at the time of offer ot possession' the allottee wishes to withdraw from the project and demand return ol the amounl reccived by the promoter in respect of the unit with lnterest at the 32. lhe due date of possession as per a8reemcnt tor sale as nenrioned in the tablc above is october 2015 and lhlreiglelay rhe respondent has already offered rhe obtaining occupation certificate from the competenr authority olr 06 04.2017.

The allottees in this casc have filed this filins ofth. complaint as onit on 11.04.2017 after Pdge 2l !l2B ffHARERA @-- ctlRltcRAN/ application/complaint on 12.02.2021 alter possessiol of the unit was offered to them after obtaining occupation certiaicate by the promoter. fhe allottees never earlier oPted/wished to withdraw trom the project even after the due date ol possession and only when offer of possession was made to them and denrand for due payment was raised, th.n only filed a complainl before the authority.

The oc.upation certilicat. /part occupation certificate of the building/towers where allotted unit of the complainants is siturted has been received. received.

Section 18[1) sives two options to the allottee ii the promoter fails to complete or is unable to Sive possession oi the un,t in acco.dance with the Erms of the asreement for sal€ or duly completed by the dtrte specified il Allottee $'ishes to withd.aw from the projectior ii) Auottee does not intend to withdrarv from the project 33.

The right under section 18(1)/19(a) accrues to th'' allottee on failure of the promoter to complete or unable to gi\'e possession of the unit in accordance with the terms ofthe agrcement for sale or duly completed by the date specified therein.

If allottee has not exercised the right to withdraw lrom the proiect aiterthe due date of possession is over tillthe ofer ofpossession was made to him, it impliedly means that the allottee has tacitly wished to continue with the proiect.

The promoter has already invested in the project to complete it and offered possession ol the nllotted unit.

Although, for delay in handing over the unit bv due date i{' accordance with the terms of the :greement f(,r sale, the consequences provided in proviso to section 18(11 ,,vi11 come rn force as the promoter has to pay intcr.st at the prescribed rate of every month of delay till the handing over of possession and allottee's interest lor the money he has paid to the promoter are protected accordingly. :14. furtherin thejudgement olthe Hon'ble Supreme Court of India in the cases ol lvewrecn Promoters ond Developers Prh,ote Llmlted vs State of U.P. ond Ors. (rupro, reiterated 'n case ri,,'4/s Sano Realtors Private Limited & other Vs Union o[ lndio & others SLP (Civil) No.

1300s of2020 decided on 12.05.2022. it wrs observed 2s lhe unquolite.l risht aJ the allaxee ro scek rcfuhrl rclrred t)ndet sedtan te(1)(o) ohd secLtun 1e[4).fdte ^.t it notdependentan an! .anttngencict or nipulattons thercal k appears thot the lesislotute hus cansclaust, pto ded this risht olrefund an denond os an un. os an un.anditianal ablotute righr to the ollattee, ilthe pramotet foib to grve paseston oJ the apartnen. plat at bu dih! wthin the tine stiputotel under the tetus.Ithe ogreenent regodtest al unforeseen events or nxy atue^ ol thc coLtt/lribunol, whtch is in etthe. '|oy hat auributrble to the oltattee/hone buler, thc ptonote. is ude. on obhgotlon t! refund the amount on dendnd with thte.est at the rote ptescribetl Ly rhe stote .overtuneht inctuding canpensotion in the nonnet prcvdeC undet the ,,tcr wnh the p.oviso thor tf the allattee daet not wtsh ta wilhtltaw lron rhe prctect, he shdll be entttle.l fa. tntetes. tt the petiod afdeto! tilt h.nd tnll avet pose$ion o. the rctc p, esctib.d ll5 The promoter is responsiblc for all obligations, responsibilities, and lunctions under the provisions of the Act of 2016, or the rules *HARERA 1$- crnrcnnu and regulations made thereunder or to the allottee as per agreenr€nl lor sale undcr section 11[4]{al.

This judg)ment ol the Supreme Court ol lndia recognized unqualifled right of the allottee PJB!

23, i28 *HARERA 4- crnLrcnm,t and liability oi the promoter in case of failure to complete or unable to give possession ofthe unit in accordance with the terms of agr€ement for sale o. duly completed by the date specified therein.

But the allottees have failed to exercise this right although it is unqualified one.

They have to demrnd and make their intentions clea. that the allottee wishes to withdraw kom the project Rather tacidy wished to contjnue with the project and thus made them entitle to receive interes! lor evey month ot delay till handing ove. of possession.

It is obseNed by the authority that the allottee invest in the project for obiaining the allotted unit and on delay in completion of the projecl never wished to withdraw from the project and when unit is ready aor possession, such withdrawal on cons,derations other than delay such as reduction in the market value of the p:operty and investment purely on speculative basi ative basis will not be in the spirit of the section 18 which protects the right of the allott,re in cnse of tailure of promoter to give possession by due date erther by way oi refund if opted by the allottee or by way of delav possession charges at prescribed rate oiintcrest ior every month ofdelay.

36.

1n the case of lreo Crace Realtech PvL Ltd. v/s Abhishek Khanno and Ors.

Civil oppeal no.

5785 ol2019 decided on 77.01.2021, some of the allottees failed to take possession where the developer has been granted occupation certificate and olfer of possession has been made 'lhe llon'ble Apex court took a view that those allottees are obligated to take the poss€ssion of thc apartments since the construction was completed anl possessron ion certificate.

I owever, th. compensation fcr the period te till the date of olfer of *HARERA &eunuenntt,l was offered atter issuance of occupat developerwas obligated to pay delay of delay occurred lrom the due da possession was made to theallottees.

As per proviso to sec 18[1] Comolaint No.

678 of 2021 Ptovidetl thatwhere on oltottee does har intehd to withdtow lton thp p,otr.t he \holl bp po.d b) th" p,aaot?, tntptptr ti,t "\?,) nnnth ol delo!, tillthe handing oret ol pascsian, at suc\ os nte :17.

1n case allottee wishes to withdraw lrom the project, tne promoter is liable on demand to the allottee return olthe amount received by the promoter with interest at the prescribed rate ii promoter lajls to conrplete or unable to give possession of the unit in accordance with the terms of the agreement lor sale.

The words liable on demand need to be understood in the sense that allortee has to make his intentions clear to withdraw from the project and a positive action on his part to demand return oi the amount with prescribed rate of interest,t he has not made any sLrch demand prior to receiving occupation certilicatt and unit is ready, then impliedly he has agreed to continue with the prolect i. prolect i.e he does not intend to withdraw Irom the proj:ct and this proviso to sec 18(1) automatically comes into operation and allottee shall be paid by the promoter interest at tht prescribed mte for every month ol delay.

This view is supp(rted by the iudgement of Hon'ble Supreme Court ol India in ca:ie ol of lreo Groce Realtech PvL Ltd. v/sAbhishek Khanna and Ors.[ supro) *HAREI]A 9!"- eunLrcnrur,r and also in consonance with the judgement ol Hon'ble Supreme Court of India in case o/M/s Newtech Promoters ond Developers Pvt Ltd Versus State oJU.P. and Ors.,.( Supra) 38 'Ihe authority hereby directs that the allottees shall b: paid by rhc pronroter an interest ior every month oidelay tilla.tu:lhanding over oi possession or offer of possession (.rft{rr obtaining occupation certificate lrom the competent authorily) plus two mon*s whichever is earlier at prescribed .ate i.e the .ate of 9.70% [the Sute Bank of Ind,a highest marginal co;t of lending rate (l\4CLR] applicable as on date +2%) as prescr,bed under rule 15 ol the Haryana Real Estate (Regulation and Developmeno Rules, 2017 within the timelines provided in rule 16(2) of the Ilaryana Rules 2017 ibid Thus, the complainanaillottees are obligated to take the possession of the allotted unit ,fter making outstanding payments along with prescribed rate of interest since its construction js complete and possession has been oifered alter obtaining ol occupation certificate from the competent authority.

However, the developer is obligated to pay delay interest lor the period oi delay occurred from the due date oi October 2015 tillthe date ofoffer ofpossession (1 two months i.e.

11.05.2017.

F.2 Legal expensesl 1-04.2017) *.1 plu!

3.1.

The complainant is claiming compensation undcr the present reliel The Authority is of the view that it is important to understand that the Act has clea.ly provided nterest and ll #IIAREI?A S- cl]Rt]cRA[/ compensation as separate entitlenrent/rights which tle aUottee(sl can claim. can claim.

For claimingcompensation under sections t2,14,18 and Section 19 of the Act, the complainants may file a separate complaint before the adjudicating office. under Sec:ion 31 read with Section 71 oltheActand rule 29 oithe rules.

G.

Direclions ofthe Authorityl 40 Hence, the Authority hereby passes this order and issue the tbllowing directions under section 37 of the Act to ensure compliance ol obligations cast upon the promoter as per the lunctions entrusted to the Authority under section 34[0 oithe Act ol2016: The relieifor the refund of the deposited amount made by the conrplainant with the respondent is decljned. tlowever, the conrplainant allottee are obligated to take possssion of the allotted unit after making outst:nding payments along wlth prescribed rate of interest since its constructior is complete and possession has been off€.ed after obtaining ( foccupatron certificate from the competent authority The developer is also directed to pay delay jnterest for the period of delay occurred lrom the due date of possession i.e., C.ctober 2015 till the date of offer ol possession (11.04.2017) plus two months i.e.

11.06.2017. l i'l The arrears of such interest accrued irom october 2015 till the date of order by the authority shall be paid by the SHARERA S- crrnucnnv promoter to the allottees within a period of 9) days t om The rate olinterest chargeable from the complailrant/allottee by the promoter, in case oldefault shall be at the prescribed rate i.e.,9.700lo which is the same rate of interest which the promoter shall be liable to pay the allottee, in case oldefauk i.e., the delay possession charges as per section 2[za) of the ivl The complainant is direct€d to take possession .fthe subject uni!, within a period oi tlvo monihs after payment of outstanding dues, if any after adjustment of rnterest f,or the delaycd period. cd period. vl 'l'he respoDdent would notcharge anything whl(h is not part of plot buyer's agreement The holding charges shall not be charged by the promote. atany point oitime ev€n aiter being part oi agreement as per law settled by Hon'ble Supreme Court in civil appeal no.

3 8 64'3849 /2020.

41.

Complaint stands disposed ol ,12 Irile be consigned to the Registry. fviiay xu6ar coyaD (Dr.

KK Khandelwal) Chairmrn Itegulatory Au!honty, Gurugranr iiil Haryana RealEstate Dare 13.07.2022 trEwr=- "'< -