MR SUNIL KUMAR BANSAL vs MS SANA REALTORS PVT LTD

frI]ARERA Seunuennu 8 BEFORE THE HARYANA REAL ESTATE REGUI-IITORY AUTHORITY, GURUGRAM Complarnr no.1277 and T othert Orderpronounc€d on' 28.01 2021 cR/6529/20t9 Ravind$V/s5ana Realtors CORAMr shri vijay Kumar Coyal shri sanjeev (umarArora ORDER NAME OF THE BUILDER M/s Sana Re.ltors Pvt.

PROJECT NAME: Prerislon Soho Tower I cR/31t/2Or9 SureshChandra andAlka TiwariM/s Sana Reakors Pvr 2 cR/384/2019 d[micautim u/ss., Tsh]rya!, RMat Realto.s Pvt.

Lid.

3 cR/a2a/2019 (R/t147/2019 Pa.deep Mathur M/sSana Sldeep Sl.,8h & t(o.al Sl;Ch and M/s sana Reahors Pv.t. cF/1277/2019 cR/ 27 63/ 2079 sunil KmrVTs s E sh cd;i RM;a 1 cR/5774/2019 PaBc I ot2A 1.

This order shall dispose of all the I complaints titled as above filed before this authority in Form CRA under section 31 of the Real Estate [Regulation and Development] Act, 2016 (hereinaiter.efe..ed as "the Act") read with rule 28 oi the Haryana Real Estate (Regulation and Developmentl Rules, 2017 lhereinafter referred as the rules ) for violation oisection 11(4J[a) ofthe Actwherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for saleexecuted inter se berween parties.

2.

The core issues emanating from them are simila. in nature and the complainant(sl in the above referred matters are allottees of the projects, namely,'Precision Soho Tower'being developed by the same respondent promoter i.e., I4/s Sana Realtors Pvt.

Ltd.

The terms and conditions oi the builder buyer's agreements that had been executed between the parties inter se are also almost similar.l he fulcrum ofthe issues involved in all thes€ cases pertains to iailure on the part of the respondent/promoter to delive. the tjmely possession of the units in question, seeking award for delayed possession charges.

In several complaints, the complainants have retuted various charges like *HARERA S-GriRrrGtlAM Compla nt no l2?7 and 7 othe6 3.

7 othe6 3. increase in super area, decrease in superareaand EDc/lDc.

The details ofthe complaints, replyto status, unlt no., date ofagreement, date ofenvironment clearance, date ofsanction of building plans, due date ofpossession, offerofpossession and reliefsoughiare given in the PRolEcI NAME 'Precision Soho Tower" Possession Clause 15r That the possession of the said premis€s is p.oposed to be dellvered by the DEVELOPER to the aLLoTTEE(s) within Threeyears fron the date of this Asreement.

I fthe completion oithe said Buildrngls delayed by reason oinon ava labrLrty ofsteel and/or cement orother buildins materiah, or wate.supply or elecric poweror slow rl 4i) HARERA GURUGRAI\4 down,strikeordue ro a dispurewrrh thr ro.k out or .ivit comhonon or bv m, eaniquake or any acr orcod or o;n. d. urder, Rute or Nonfi..tion or the c.r Autnonry ordue rodetay in actron ofburl cenrn.at€ by any competent Authonto UtYEL0PER. rh.

DEVELOpER rhatr h. ;n orthe said premhes.

The DEVELOPERds ight ro atrer or vary rhe rerhs and ..r beyond rheconrrot otrhe DEVELOpER ro rorsu(h peflod as rr mrsht.on,de.exn.r qclqation c€rtinjcar", 1 n n, ?n," n agency employed by rhe t ot enemy acrion or ter.ori se$ion rs as a resuir ofarv d/or any other pubttr o; plans/8rant of completon / ther reason beyond the c; ns on otnhe fordetiverv ot urh a conLngency arrsr,rR r ris Agreenenr o. rfth€.,fl DEVEL0PER maysuspend IEVELOPER, r lrTrl?0ro [reawi _l du,o1o l rsoa,or, Tna;r;r tAs rer I l orph , l* ,,",."r, laP rTiaa^ , *{/rore TR;A;; udtno I Lr.od.rrro [, o-nn &m I I I ,c i lBzsl2ore I R*i; ) ,4os,oro I r4rs,or tuoGE,sd 1.,,..,,".11 tr.".

22,)7'o|s1 ] ]iP, R\ *{i HARERA GURUGRAIV l /t\ ii a t ) ) \ B\ I TC Complaint no.

1277 and 7 others * di, 4.

The aioresaid complaints were fited by the comptainants agajnst the promoter on account of violation ot the bujlder buyer,s agreement executed berween the partjes inter se in respect of said units ior not handing over the possession by the due dare. due dare.

In some ofthe comptajnts, issues orher than delay possession charges in addirion or independenr issues have been raised and consequentiatretiefs have been sought.

5.

The delay possession charges to be paid by the promoter is posjtive obligation under provjso to sectjon 18(1J otthe Acr in case oafailure of the promoter to hand over possessjon by the due date as per buitder buyer's agreemenr.

6.

It has been decided to rrear the said comptaints as an apptication for non-compliance of staturory obligahons on rhe part of the promorer/respondent in rerms of section 34[0 oi rhe Acr whjch mandates the aurhoriry to ensure comptiance ot the obligations casr upon the p.omoters, the atlonees and the real estate agents under the Act, the rules and theregulations made thereunder.

7.

The facts of all the complaints filed by the complainant/ alottees a.e also similar.

Out olthe above-mentioned cases, the pa.ticutar,s o ead casecR/7277 /2079 titled as Sudeep Singh & KomalSingh Vs. r,t/s Sana Realtors Pvt.

Lrd. are beingtaken into consideration tordetermjning rhe rights of the allottees qua delay possession charges, increase in super area, decrease in super areaand EDC/rDC.

Unit and proiect relared detaits HARERA GI]RUGRA[/ 8.

The particulars ofunit details, sate the complainants, date ofproposed period, ifany, havebeen detailed in cR/7277/2019 consideration, the amount paid by hand,ngover the possession, delay the following tabular lormi fi HARERA GURUGRA[/ Complaint no.

1277 and 7 orhers Name and locanon ofrhe protect Registered/not reEiltered t 72 o12009 dated 26.tt.2009 M/s Sana Realto6 Pvt.

Ltd Oc(upahon cerrifi .are Branred on t441.2011 Date ofcxe.urion ol nar buyer 37.O3.zOtO p9.27 of ofl].e space/rnii !o. as per rhe srjd 10.

Adneasuringarea oi the alloned office 5255q. ft.

334, Thi.d floor 12 AdmeasurinAarea of the new allott.d 546sq. ft. as intinated vide lener dated 24.a?.20t7 ll Total consideration amounr Rs20,74,300/-as per lotal. per lotal.mountpaid by the Rs 15,48,836/- as per Letter of payment demand "arthe 01.08.201s Due date ofdelivery oipossessjon as per clause 15 offlat buyer agreemenr 3 years Lomthe dateolexecution of buyer asreement i.e., 31.03,2010 31.03.2013 l8 Letter ofpayment demand 'at the 24.07.2077 NoterNo formalofer of Possession has been made.

Howevet vide this lette., *HARERA SeunuomH.l possession was raised.

Thereafter, on 04.12.2018, reminderwasahosent tacts ofthe comptainr The complainants submjrred as under: 9.

The complaina nts boo ked a unitadmeasunng525 sq ft, unjtN0,343 in project ,,preciston SOHO Tower,, at Sector 67, Curugram.

The inirjal booking amount of Rs 25000/. was paid through cheque dated 04/02/2010.

10.

That a flat buye. agreemenr was executed signed berween the parties on 31.03.2010, with a betieirhafthe projectshatlbe completed in a time bound man.er.

In the garb of that agreemenr the .espondent persistenrty rajsed demands due to which it was able to exrract huge amount of money from the comptainanr and tett the cotumn blank wherein mentioned dare ot building plan rts approval unilateral &arbitrary.

11.

That the comptainants submir rhat the rotat vatue ot unit is Rs 20,743,00/- as per flat buyer agreement out ofwhich the respondent extracted total amount of Rs 16,48,S36/, i.e. more than 80 o/o oirotal sales considerauon before ltth Ma.ch,20rJ and at thar time, the project was 70 % jncomplete.

12.

That the complainanrs have repeatedty been seeking an update on the progress in thedevelopment oi rhe project.

However, there were never replied to, and rhe respondent was atways vague and evasive ro such Comptainr no, 1277 and 7 others 13.

14.

15.

That the respondent sithin a period of 37 months A4/02/2Arc b 04/03/2013 raised the demand Rs 16,48,836/-. to meet those huge demands, but did not carry any work on site, rhus being iltegal, arbitrary and unilateral.

That the complainants were offered possession ol rhe unit on 01.08. on 01.08.2015 without obtaining occupancy cerriiicare.

Even rhey .aised objections qua illegal possession, non payment oi delay penalty and increase in super a.ea 525 to 546 sq it on 06/08/2015 through letter butthe builder did nor replyto rhesame.

That the respondenr senr a lene. .dared 24107/2017 i^ which it changed the unjt oicomplainants from 343 to 334 in the project.

The complainants visited the omce ofrespondenr and requested for change oI rhe unrt !o the earlier on" bur ro rep y lo the s rmp wd. given.

That the complainants have paid all the demands raised by respondent from timetotimei.e.

80 %of thecostoltheunit.

However, respondent failed to meet its obligations and commitments.'lhe undue delay in handing over the possession oi the unit for more than 5 years fronr committed date as per agreement is not only a breach oftrust but is also indicative of ill intentions of the respondent.

This act on the part of .espondent has caused undue financial loss and mental agony to the complainants and hence this complaint seeking possession ol the allotted unit besides delay possession charges and compensations.

R€liefsought by the complainantsl I7 The complarndnts have sought Iollowrng relief(r: HARERA GURUGRA[/ Complarnt no.

1277 and 7 others Direct the respondent to give the possession otallotted unit 343 and pay interest on paid-up amount of Rs 1648836/- qua delayed *HARERA S-eunuennu Compla,nrno 1277rnd 7othe6 period 31st April 2013 to tilt acrual possession along wirh prescribed rate of inrerest. ii.

Direct the respondent to quash the cost ofincrease in super area of 18.

0n the date of hearing, the authoriry expla,ned to the respondent/promoter about rhe contraventions as aleged to have been committed in relation to section 11(4) (al ofthe Act to ptead suilty or not to plead guilry.

Reply by the respondent The respondent by way of written following submissions: reply dared 18.04.2019 made the '19 That the present complainr filed is not maintainable as the oc. as the oc.upancf certificate has already been issued and the complainants being offered possession ofthe subject unit.

Theywere also jnumared about the sale deed of the p.operty in question is ready for execurion, but they deljbe.ately didn't come forward to take the possession and ro get rhe That as per the clauses 41 & 42 of the buyer agreement the complainants were liable to pay as and when demanded by the respondenti.e. the stamp duty, registrarion charges and otherlegalaod incidentalcharges ior execution and registration ofconveyance deed.

It is also submitted thatthe complainants are also liable to pay any loss or damages suffered by res pondent for non payment or delay in payment, non periormance ofthe terms and conditions ofthe agreement.

That as per clause 8 oithe buyer's agreement "the time of payment of instalments as stated in schedule ofpaymentand applcable stamp duty, 21 2A trs HARERA GI]RUGRAIi/ registration, iee, maintenan.e and other char8es payable under this agreement as and when demanded is essence of that docu men r".

22.

That as per clause 15 relied upon by the complainanrs, it provides for exemption if the delay, if any caused is beyond the control ol the respondenl and the same shall be excluded f,rom the time period so calculated.

It is not out ofplace to menrion here rhar rhe respondent has been diligent in constructing the project and the delay, ifany, is due to the authorities orgovernmentactions and the same is welldocumenred.

It is worth to note here that initiall, there were high tension w,res passing through the project lad and the work got delayed as the agencies did not remove the sam€ within time promised as the work was involving risk oflife.

Even the respondent could not take any risk and waited lor the cabl.s to be removed by the electr,clty departmenr and the project was delayed for almost iwo years at the start. the start.

Initially, there was a 66 t(V Electricity Line which was located in the land and wherein the projectwas to be raised.

Subsequ€ntly, an application was moved w,th the HVPNL for shifting of the said elertri€iry line and it demanded a sum of Rs.,16,21,000/- for shifting the said electricity 1ine.

Lastlyeven after the depositof$e said amount, the HVPNL tookabout one and halfyears for shifting the sa,d electriciry line.

It is pert,nent to mention here thatuntil ihe electricityline was shiited, theconstruction on the plots was not possible and hence, the construction was delayed ior about two years.

It is pertinent to note here that the diligence ofthe respondent to timely complete the project and live upto jts.€putation can be seen Lom the fact that it had applied ior the removal of high- tension w,res in the year 2008 i.e. a year even belore the license was Complaintno 1277 and 7 others ffHARERA 9t eunGnnltr granted to it so thafthe time can be saved and p.ojectcan besrarred on 23. lt is iurther submjtted rhat the contracror M/s Acme Techcon privare Limired was appointed on 08.07.2011 ior development of the project and it started development on war scale rooting.

In rhe year 2012, pu.suanr to rhe punjab and Haryana High courr order, the DC ha.l ordered a the devetopers tn the area for nor usrng ground water and the ongoing p.ojects in the e.rj.e area seized to progress as warerwas an essential requirement for rhe consrrucuon activitjes.

Th,s probtem was also beyond rhe controlofthe respondenr, which was dulv nored by vJ,ous medjd agencje\ and documenled rl ,r" r"r";r;_;; department.

Fufther the devetopment process was raking lot of time and the contractor had to spend more money and time ior rhe same anountofwo.k,which in normat course wo uld have been completed in almo* a year.

Due to rhe said probtems and det:y in the work. the contractor workingafthe sire otthe respondent atso . ent atso .efused to work in December,2012 and the dispute was sertted by the respondent by paying more to the earlier cont.actor and rhereaiter appointing a new contractor M/s Sensys lnfra projects pvt.

Ltd. jn january,20t3 ro immeoiatelyloresume rhpworkdtlhesrrekrrhoutdejay Fu her rhe pro,pctr\.omptele since20l5 and the respondent hd5 atsodppled tor the occupancy certificate in May 2015.

Lastty rn luly 2Ot7 occupancy certilicate was issued and the delay ofrwo years was on account ofthe delay in comptiances by the authorirjes and as such, the respondenr is not responsible for any delay The developmenrand construction have been diligenttydone by the respondenrand the obligations which jt was to discharge have been onerousty discharged without fart and rh. ffHARERA 4[eunu nnr,l reasons for detay are sEted herein for rhe kind considerauon of rhis Hon'ble Authority.

Ir is submitred rhat th with its pa.. of the obrisat." "* *".*0,",,1"r'r',il::::f ;T:l:1 the respondent.

The respondent couid diligentty do his part, which has been done and requisite documents to prove its dijigence are annexed herewith.

Therefore, no illegaliB, as beinS afleged can be attributed to the respondenrin any mann er whatsoeve..

24.

The respondenr submirted rhar the complainanrs deliberarely are nor taking the possession of the property in question and have fit€d the present complajnt with the sote purpose to harass the respondent and to creare undue pressure and to extort illegal money from it.

Hence the complain s nor mainta,nable and is l;ble ro be dismissed wirh heary 25.

A1l other averments made in the comptainr were denied in roto.

26.

Copies ofa rhe retevart documents have been t,led and placed on the record.

Their au rhenticity is not in dispute.

Hence, the compjaint can be decided on the basjs ofthese undtsputed documenrs and submissions made by the partjes lurisdiction of rhe authority 27 The authoriry obserues that it has terrtorial as welt jurisdicrion ro adjudicate the presenr compta enr comptaints aor [.I Terrttoriatiurtsdiction 28.

As per norification no .1 /92 /ZOU tTCpdated14.l2.Z0lTissuedbvrhe Town dnd Counrry ptdnnrng Department ttre ,uri.drcrron ot Uarvan, Real Esrdre Regularory ALtl,rnq Curugrdm :hJI be enrirp CuruSrdm t& HARERA GURUGRAI\,4 Complajnt no.1277 and 7 others district for all purposes with office situared in curugram. tn the present case, the project in question is situated within the planning area ol Curugram district.

Thereaore, this authority has complete territorial jurisdiction to dealwith the present complaints. f.Il Subject matter lurlsdlcrlon 29.

Section 11(4)(a) ofthe Act,2016 provides thar the promoter sha be responsible to the allottees as peragreement for sale.

Section 1r(41(a) is reproduced as hereunder: sectior ll(4)(a) Be respohsible fat ollobligotjons, responsibni es antllunctjons uhderthe p.ovisians olthis Act or the tules ond regulotions nade thereundet ot to the olIottees os pef the agreehent fat so|e, ot to the a$ociotion of o one6, os the cose no! be, nll the .ont.ydnre aloll the aportnent\, plaLs ar buildings, as the cov nto! be, to the allottees, ot the connon oreos to the o$aciatioh of olottees ar the conpetqt authotirr, ds the case nat be: Sectiotr 34-Functions of the Authorhy: 34 A ol the Act provid $ to e n su re ca n p I i o ne of t he ob t igotiois c a n u pan the pranote6, the ollottees ond the rcol estate osents undet thkA.r and the rules ond rcgulationshade thereunder.

30.

So, in view of the provisions of the Act oi 2016 quoted above, rhe authority has complete lurisdiction to decide the complaints regarding non-compliance of obligations by the promoter leaving aside compensation which is to be decjded by the adjudicaring officer it pursued by the complarndnr\ rr r larer rrrge Findings qua force mai€ure conditions as pleaded by the 31. by the 31.

While filing written reply, a specific plea was taken by the respondent that there was delay ofabout 2 years jn completion ofthe project due to non removal of cables oi 66kry of the powerlines lrom the prolect *HARERA S- eunLnnq,,,r Complainrno l277and 7 orhe.s land.

Besides that there were stay w.r.t. use ot ground water tor construction activities Ieading to escatatjon ofcost and the conkactor engaged earljer refusing to work at the previous rares and engaging a new one for further construction.

Thirdty, afterallirs effo.ts, itwas able to complete the construction ot the project and applied aor its occupation certificate in tvtay 201S but the same was issued onty in the month ofluly 2017.

Thus, allthese iacro.s were beyond the controtot the .espondent who complied with his obtjgations wjth due diligence.

Thus, the time spent and detailed above be exctuded while catcutating the due date for completion ofthe project and offer ofpossession ofrhe allotted unit.

But all the pleas advanced in this regard are devoid of merit.

No doubt, rhe respondent spents considerable period in gerting removed electric cables from rhe project tand, a dispute wirh the contractor leading to escalation oi project cosr and non-issuance ot occupancy certificate by the competent authority but no tault for rhe same can be found u4th rhe complainantwho paid a subsranrialpart of the sale consideration towards the alloited unit.

N{oreover. it was ior the respondent to address allthese issues and the complarnants were not a party to either ol the same transact,on.

Though there was a dispute oithe respondenr wjth the contractor, but jt was for rhe former to settle the same and proceed with the construction of the project.

The.e may be delay in issuances oloccuparion certificare otthe projecr and the period obtained in this regard has been conrended ro be excluded and be treated as zero period.

But again, rhe ptea advanced in this regard is not tenable. t tenable.

1t is ior the competent authority to d.ctare the period spent in obraining occupatibn ce.tificate as zero period and theauthority cannot delibe.ate on rhat point *& HARERA GURl]GRAI\I Flndings on the reli€f sought by the complainants Possession ofthe allotted unitalong with delay possession charges 32.

It ,s contended on behall of the compla,nants rhat they were allotred unit no.343 third floor measuring 535 sq.ft. by rotal sale consideration ol Rs.

20,74,300/- .

A space buyer agreement in this resard was executed between the parries. )n pursuanrto that agreement, they paid a sum oi Rs.

1648836/' as per the construction linked paymenr plan.

The due date ior completion olthe project and oifer ofpossession ofthe allotted uDitwas agreed upon as 31.03.2013.But the consrrucrion ofthe project could not be complered though rhe respondenrvide letter dared 01.08.2015 raised a demand due at the rime of possession but all ot a sudde. after recejpt of occupatlon certificate on 18.07.2017, the respondent again raised demand vide letter dated 24.07.2017 btr against the changed unit besides increasing its area from 525 sq.ft. to 546 sq.ft.

Thus, neither the respondent rvas competent to change th. number olthe allotted unit no. its area and the same being illegal are not sustainable and liab)e to be setaside.

33.

But, the plea of responient is otherwise and who took a plea that the number of the allotted unit and its ar€a were changed as per space buyer agreement executed between the parties on 31.03.2010 and no prior consent in this regard of the allottees was necessary.

Thus, the complainants are bound to take possession ofthe changed unit and pny for increase in its area besides interest for delayed payments.

34.

The allotment of the subject unit in the project of the respondent, its number, area, price, execution of buyer's agreement and due date ior complet,on lor the project and handing over the unit are not disput€d. disput€d.

It is fact that against total sale consideration of Rs.

2074300/- the Compla nt no 1277and TotheB *HARERA S-euntnnm,r Compla nr no 1277 rnd 7 othe6 complainants paid a sum 0fRs.1648835/- to the respondent-builder ar difterent times under the construction linked payment plan.

Though vide letter dated 01.08.2015 rhe respondent raised a demand for Rs.

677261/- but the same was due at the time of possession. tt is not disputed that the occupation certificat€ otthe projectwas received only on 18.07.2017and in pursuant ro which the respondent raised demand for clearing the dues vide lener dated 24.02.2077 and askjn8 the complainants to take possession and get the conveyance deed of rhe unit register€d,n their favor.ltwas also informed to rhe allottees about changeofno. oftheallotted uritftom 3.43 to 3 34 besides increase in the area ofthe unitfrom 525 sq.fi to 546 sq.ft. as evidentfrom lenerdated 06.08.2015 sent by the allottees to the developer.

Though, it is contended that change of no. otthe allotted unir and its area was made without the consentofthe allottees plea oicomplainant w.r.r. change in the ar€a of the allotted unit cannot b€ accepted in the face of clause 14 ofspare buyer agreement providing as under os per tte ptans desisns and soeetr.d.ons y.n ord o@pt?d b) rh? aLLonEEls) wnh Lrd nad|i.atio^ n the tarolt and buitding ptans h.tudins the nunbet oIr@n 6 th 4ured b! qny canpetunr AuthalE ro be node h then ot ant ol th?n "hr? sondian)ra .he 6,itd'hs plon\ ar at !n! tine therctftr rh. a LLo't't E EI s) asre: that ao tutuc ea n! nt at th.

ALLaTTEE ts ) shat be requ rca tot thk pqos6 Ah*tnns not htuntn hhtw at] r ar! al the thna06 a tte \!,t p.ena^ :ueh o' .honse in N'tion althe eid pren56.chorye tB fuhbet ot chohse tn the t utht al the btrdtns h arte. to @pteneat ou ar lnt al h ded deds.nreesd.!,it bewteE ad and rtsitkdd by the DEvEL9PER a u:e o yle det hus ,tut!! baa et.ubd dh,t rtst\tutuj h hwr ol tht ALonE4, u os o Butt q.he ob.w n.ntuned 4ion inw .

4ion inw . in th.

3up4 dt.a oI th. 'otd * d5 HARERA GURUGRAIV Complarnr no.1277 and 7 others o9|lkahtz lor th. chnqed at@ i.e., o. the sone rorz at whkh .h. soitt ltrenis.s was ttrot@d aad Mardkoty, 6 o conseqlence ol such redrction n hcrear in b. titbte to rctund whhou. tntet5r ontr.he rg.src.overe.lalshobeenrl..]lor4ov4 fion the ^LLorrEE(s) odditinat p t, the aLLonEEtstshalb? rauc ta po! rrk,ea nad lot poln.nr ot tu :qn.

6.anhu .aftd br 35.

Sjmilarly, a perusal of rhe above-mentioned facts shows rhat in CR no.

371-2019, 3A4-2O19 ,1277-ZOt9 and 5774-2019 rhe allotrees agreed for change in dimensions, area and number oithe allorted unit and no prior consent for rhe sam€ was required bythe buitder. tt is not proved that the allottee executed the buyer,s agreement under any pressure or inducemenr.

Though, rhataction oithe respondent builder has been challenged being illegal and rhe consent having not being taken but the allortees agreed to the sam€ while executing buyers, agreements and particularly rlause 14 wherein no provision tor obtaining consent olan allortee before effecting change of number of th€ allotted unit.

So, in such a situation, the complainants bejng a subsequent allottees are required to take possession ofrhe allofted unjt with lessor area but subject to r€fund ofthe amount received in excess of decrease in the area.

However, the demand tor extra paymenr on account ofincrease in the super area by rhe respondent-p.omoter from the allottee[s) is legal but subjecr to condition that before raising such demand, details have to be given to rhe allorree(, and without justi6cation olincrease in super area, any demand raised in this regard is liable to be quashed.

36.

Further, In CR no.

1147-2019, the romplainant raised an issue with regard to EDC/IDC i.e., rhe respondent builder raised unnecessary demand of additional EDC/IDC. l EDC/IDC.

The authoriry oi is view thar the ffHARERA S!- eunuennl,l promorer woutd be enritled to recover rhe aduat charges paid to rhe concerned departments tom the comptainanr/atlottee on pro,rata basis on thar account besides electricity connectjon, sewer:ge connecrion and wate. connection, etc., i.e., depending upon the area of the unjr atlotted to her vis a-vis rhe area otalt the units in the project.

The complainant would atso be entitted ro proot ofsuch payments ro theconcerned departments atong wirh a compuration proporrionate to the allotted unit, before making payments under the aforesaid beads.

The respondent is directed to provide speciftc detaits wrth regards ro thesecharges.

37.

Further, in complaint bearingno.

STT4-2019, the .omplaina nt pieaded thar rhe front portion olthe unit was;tocked by the builder, but larer builder charged pLC of Rs.

1,36,800/- when he booked the unit as a corner lacing.

The authoriry observes that in such cases where the apartment/unir has ceased to be preierentially Iocared, the amount charged for p.ef€.enflai location sha be retunded/adjusted.

The same should be reiunded to the allortee along with interestarthe prescribed rate w.e.t the date of paymenr made by the a ottee ti rhe amounr is repaid/adjusted.

38.

In complainr bearing no. :1147-2019, it is pleaded by the comptainant that though he is a subsequent atlottee vide endorsement dared 22.03.2013, but the builde. imposed a unitaterat condirion w.r_t. car parking as per condirion 2 ofspace buyer agreement dated 10.04.2010.

There is no provjsion for free car parking ior rhe projed and rhe unit which he purchased from the respondent.

So,adirecrion be given inrhis regard ro rhe buitde. tor providing a dedicated car parking slot in the basemenr otthe buitdjng.

Bur the ptea raised in rhis regard is devoid of HARERA GURUGRA[/ Conplarotno 1277 and 7 orhe. nd 7 orhe.s merit and against rhe terms and condjrions of the agreement and particularly clause two providing as under: The pbvlson at Basenart ih the said BLrhtrns daas nat ent e the aLLaffEE(s) to he tacrtrty al pa*ne hghet ca4s) thetetn untess ho has acjrred the nght to use at cat parklns s}ac. ntt6 Ba* ent Lnder a sepahte an ngenent || th the DEvELopE R atl anaunts payable shatt be pad drcctly to tha DEvELopER ahd/at the apehn and n ,ntononco ag.hcy authansed by th.

DEvELopER resulat1y by the ALLorrEEp fh.

ALLoffEEls) htaGl in the parkho area atcngtu,th pREc,s/oA/ soro rOwER to anf p.enls) at rs sota drscrehan tn case tha DEvELapER wahts ta p@rde valot seryEe tu patktns ot vohit s, the ALLorrEqq undotlakos b pat such chaees as may b6 hxed by tho oEvELapER MAINIENAN:E AGENCy tat pbvnlrns ths taat y Thus, in view oa the sriputations in the buyer,s agreemenr detaited above, the builde. is nor obliged to provide car parking stor to rhe allottee but only as perthe agreement entered into berween the parries.

To provlde roilets lnthe pro,ectasper the layout ptan 39.

While filing complaint a speciflc plea was raken by the complainant in para 3(kJ ofthe complainrw.r.t. provlding less area than the sandioned one for toilets on each floor ofihe project and setting that area ro make more profit.

A relerence jn this regard has been made to documenrs C- 3 and C-4 fpage 7s & 76 of the complarnt].

Adminedty annexure C-4 dated 03.02.2017 relares to some othe. commerc,at projecr ot Parasavnath Exotic4 Golf Course Curug.:m and not to the project rn question.

Secondly, annexure C 3, stared ro be obta,ned through Right to Informat,on Act cannot be pressed into service unless supported by sanctioned site plan and as built drawings oithe project.

So, the plea advanced in th,s regard by the complajnant is not susrainable.

Delay possession charg€s: 40. arg€s: 40.

In all the complaints, the allottees intend to continue with the project and areseekingdelay possession charges as provided underthe provlso to section 18(1) ofthe Act.

Section 18[1] proviso reads as under: ffiIARERA S- eunuennur CompLa nt no.l27'and 7 others "Section 18: - Retum oJ anount oa.l conpemotlon 1e(1). [the pronotet laits to conplete or k unabte to sive p$e$ion oJoh aponnena plot, ot buiAing, - Prcvided thot where an ollottee does not intend to \|ithdrow fron the projecl he shall be poi.l, by the pronoter, intetest lot every nonth ofdelo!, till the honding over oI the p{s.sto.n, orsrch mte os not be prcsnibed.

41.

Clause 3 otthe buyer's agreerlleru pmvides the time period ofhanding over possession and thesame is roproduced below: CloLy 3.

3.1 ,.,the seller/confming purry pnpoSes to hondovet ke physnolpose$ian ol the said unit to the purchose4s) withn a period of i6 nonths lron the dote of execution aJ the Flot bure. agrcenent kahhttnent pe od). l-he purchose/s) futther osre* ard unde5tonds thot the se e./cohlrntng potty sholladdittanally be entitled too petiatl of fia dols oftet the dpiDt ofsoid connithent penad) 42.

The autho rity has gone through the possession clau se of the agreement.

Attheoutset, it is relevantto commenton the pre set possess,on clause ofthe agreement wherein the possession has been subjected to allkinds of terms and conditions oi thls agreement and the complainant not being in deiault under any provision of this agreement and in compliance with all provisions, lormalities and documentatior as prescribed by the promoter.

The drafting of this claus€ and incorporation olsuch cond,tions is notonlyvague and uncertain but so heavily loaded in favour oithe promoter and against the allottees that even a single default by the allottees in fulfilling formalities and documentations etc. as prescribed by the promoter m:y make the PaEe 20 otZS *HARERA &eLLnuenmr Compla nt no.1277 and Tothers possession clause irrelevant fo. levant fo. rhe purpose oi allottees and rhe commitmentdate lor handing over possession loses its meanjng.

43.

The buyer's agreement is a pivotal legal d ocu ment wh ich shoutd ensure that the rights and liabilities oi borh the builder/promoter and buyers/auottees are p.otected candidly.

The space buyer's agreement lays down the terms that govern the sale ofdifferenr kinds olproperties like residentials, commercials etc. between the buyer and builder.1t is in the interest of both the parties to have a well-dralred flat buyefs agreement which would th€reby prorect the rights ofboth the builder and buyers in the unlortunate event of a dispute thar may arise.

1t should be draited in the simple and unambiguous language which may be understood by a common man with an ordinary educational background.

It should contain a provision with regard to stipulated time oldelivery ofpossession ofthe apartment, plot or building, as the case may be and the right of the buyers/allottees in case of delay in possession ofthe unit.

44.

Admlsslbllity ofgrace perlod: The promoter proposed to hand ove. the possession ofthe said unitwithin period of36 months from the date execution ofbuyer's agreemenL It is furth€r provided in the agreement that iithe completion of the said building is delayed by .eason ol non- availability ofsteeland/or cement or other building materials, or water supply or electric power or slow down, strike or due to a dispute with the construction agency employed by the developer, lock out or civil commotion or by reasoD ofwar ofenemy action or terrorist action or earthquake or any act of god o r non' delivery ol possessio n is as a result olany act, notice, order, rule or notification oithe Covernment and/or any other public or competent authority or due to delay in action ol HARERA GURUGRAIT,,I building/zoning plans/granrolcomplerion / occupatjon certificate by any competent authority or for any other reason beyond the control ot the developer, the developer shall be en hall be entitled to extension of time for delivery o[possession of the said prem,ses. ]t h observed rhar the said clause is not only one sjded and vague but also doesnt provide any specific period to be allowed as grace period in above menrioned exjBencies.

Therefore grace pe.iod is not allowed.

45.

Admisslbllity of delay possession charges at pr€scrib€d rate of interes!

The complainants are seeking d elay possess ion charges at the prescribed rate oi interest on the amou nt al.eady paid byher.

However, proviso to section 18 provides thatwhere an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month ofdelay, tillthe handing over ofpossession, at such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules.Rule l5hasbeenreproducedasunder: Rule 15.

Presdibe.l mte ol interest [Proiso to section 12, ection 18 aa.t sub.s4tion (4) dn.t tubsection (7) ol ectton 1el (1) Fot the purpose al provito to sectian 12: sectbn fi) and sLb. secttans (4) and (7) ol section 1e, the "inErcn at the rote presctibed"shall be the State Bahkollndio highest notgihot cast of lending rlte +2% : Prcvidedthotin cote the Stdte Bankaftndio mo.ginolcost ollendina ruE (n CLR) k nat th use, it shall be.eploced by such behchnork tending toreswhich the state Bank oltnAn nay lix fram tne to tine fo.lendhg tn the generot ptbtit.

46.

The legislature in its wisdom in the subordinate legislation under the provision of rule 15 of the rulcs, has determined the prescribed rate of interest.

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

Complarntno. t277 cnd 7 orhe.s PaEe22 ol2A ffHARERA SeunuEmM 47.

CoDsequehtly. as per websire of the S hnbsj//sbjcoin rh;mars,;;J;,;;:,:*' BaDk or rndia ,.r. ,g rare (in shon, MCLR) as on da@ i.e., 28.03.2023 is 8.7%.

Accordingty, ,r";";;;;"; ": ^ l il"'j *',, * . j *',, * ."oinar cosr or rendjns rare +2 o/o i.e..1o.70vo +o.

I ne defin ron otterm.rnreresaas defined under secr,on 2(zr) ot the Act provjdes that rhe rare of interest cbargeabte froh the ailoEee by the promoter, jn case ofdefautt shaljbe equal x *" r..r* *r, 0",,,0; ;;,;: j,J""I1:.:t:ffi :T: retevant sedion is reproduced below: ..ko) htere*, neon, he rcrp. ot ,- ,..,.,", ", ,^",,,.,:,)) ;,,,,,")":"..la,rte,4, eo\abk o, ie ,"otoc_otto. nr e pdpueolat. ion* ,,.. .\q.( ut 4ret4tthotq@ble l,o4 thp olotLee bJ,h" p,aaa@r nt.u\eatdeJout shot be eouotro tha.nj p'"** ""tt o" r,."i.. o"i, 'u t\c trok othtet$' tht\h thP 111...'",.* oo.t" tt,*. i-i"il.,ii ","." q *,,t' , ';- wod oe prcnot d ret qved t \e on.,,"t" alloh eP thoi be hon ,.t,,aoed_,ond the inkrea parobk tu t:he,j X::.::":,:;*i!i:i{i j:!ti;:{::;::;:*;;z:r;::"::; 49.

Therefore, interest on the detaypayments trom the compjajnants shalt be charged at rhe prescribed rate respondent/promorer wh" ," ,r" .".";" ,":;r;:;:"f ,":;,,,1; case of delayed possession charges.

50.

Now the quesrion io. consideration arises : rhe airottees are entjrred fo..";;;; j;1,;::ow much period, votidity ololJer ol possession 51.

It is necessaryto clarirythls concept becaLrseaftervalid and lawful of€r ofpossession, the liabiliry ofpromorer for delayed offer of possession comes ro an end.

On lhe other hand. itrhe possessioh js not vajtd and lawful. the liabitity of promorer conrinues tilt vatid ofter is made and IIARERA GURUGIiAIV allogee remains enu ed ro receive jnrerest tor the delay caused tn handing over valid possession.

The authorjty is ofconsidered vjew that a vdtjd o er otpossessron musl have ro owrng romponent\: i. posse(sron mLrsi beofiered"fterobrain i, rhe subrect unit shourd,",,,;;ffi::::::]ion certiricate, iii.

The possession should nor be acco addirionajdemands. mpanjed bv unreasonabre 52.

Itis observed that the respondent offered rhe possession otrhe subiect uniton 01.08-201S without obtainingoccupation ce. pation ce.rjficate as the same was obtajned f.om the competent Au rhorit the oLrrset the "",0 "u", ";r";:;;i""J,:'ffi1i:;:ff, foremost criterja of the valid offer of possess,on.

Hence, rhe same .annol bc rFgarded asa \rId ofierotposspsjron.

53.

As per rhe buyer,s agreemenr entered between the parties on 31.03.2010 wr.r. the alioned unjt, rhe due dare for completion of rhe project and offer ofpossession of rhe allotred unit was agreed upon as 31.03.2013_ Bur the burder failed to honour its commitment and occupation certificate otthe project was recerved o nly on fi.07.2017, leading ro raising demand for the amounr due agatnst the unit vide lelter dated 24.07 .2077 _ Though there is no whisper in rhar terter w.r.t receipt of occu parion certifi cate and offer ot possessro n bu t the dem a nd tor the dues was raised against possession bur after receiDr.t oc(L'pclron rertrficare.

Thc po.itron rn lhrs regdro was c,dnljed rn tetrers dated 09.07.2018 treminderrl and 04.12.201A rremjnderll respecu\elv, tt is perUnenl io menLjon here thdl Fven dfter rhe reminders there h nothing on recoril thar dny amount asainst the ffHARERA $E eunuonTl.l demands so ratsed after receipt of occupa tjon cerrific ate on 78.02.20.17 were metwtrh by the allottees.

54.

Moreovet the fact cannot be ignored that occuparion certjficate is public document as welt as Sectjon 19(10) ot Act atso .onie..ed obligarjon over comptainant-atjottee to rake rhe possession of rhe subject unirwthin two months front grant otoccupatjon cerrificate.

The reievant parr ofthe Act ot,2016 is reproduced as betow: Every olottee shol toke physi.at po*ssion altl cok no! be,wthh a penoi of-" r",rr:;;;::::;,:;::,:r:::::,:j;: the sail aporthent, plot or buitding, as the case noy be.

55.

Sectjon 19(10J ofthe Act obtigates th€ ajlorree to take possession ofrhe subject unjt wirhin 2 monrhs from the date of receipr ot occupation cerrifi care. rifi care.Therefore,in theinterestoinaturat justice, rhecomptainanrs should be given 2 months, time from the date ofoccuparjon ce.tjficate.

This Z month of reasorabte time is ro b, keeping in mind that even ,r,u. ,r,i.,u,,o.l g'u"n to the compiaina'ts has to ar.anse a rot or rog,",,"" ;;;;r,i::il:i,:'J:::,:ril nor ]imired to inspedion of the completely finjshed unit and orher proced urat docu mentauons etc.

56.

Th€refore, in such a situation, the corhptauant-a ottees are allowed delay possession charges against the a orred unir from the due dare of possessjon i.e.

31.03.2013 ri the dare of receipt of occupation cerrificate i.e.

18.07.2017 plus two months i.e.

18.09.2017 as per rhe p.ovisions ofsedion 19[10) ofthe Act of,2016.

Littgation costr 57.

The complajnants in rhe aforesaid relier are seekjng retiet w.r.r compensation.

Hon,ble Supreme Courr of India in civil appeat titled as ffiIABERA S-eunuennu Complarnt no.

I277 and 7 olhers M/s Newtech Promotersand Developers Pvt.

Ltd. v/s SrareofUP &Ors. (Civil appeal nos.

6745-6749 of 2021, decided on 11.11.20211, has held that an allottee is entitled to claim compensation under sections 12, 14, 18 and section 19 wh,ch,s to be decided by the adjudicat,ng offcer as per section 71 aDd the quantum ofcompensarion shallbe adjudged by the adjudicating officer having due regard to the lactors mentioned in section 72.

The adiudicating officer has exclusive jurisdiction to deal with the complaints in .espect oi compensation.

Therefore, the complainant is advised to approach theadjudicating officer for seeking the relief olcompensations.

Directions of the authorlty 58.

Hence, the Authority hereby passes this order and issues the following di.ections under section 37 of the Act to ensure conpliance of obligations cast upon the promoteras per the iunctions entrusted to the Authority under Section 34(f) olthe Act o42016): The respondentis directedtopay interest at th e prescribed rate of 10.70% p.a.

0.70% p.a.lorevery month ofdelay from the date ofdue date i.e., 03.04.2013 rill obtain,ng of occupation certificate i.e-, -t807-20t7 plus 2 months i.e.

18.09.2017.

The respondent is directed to adjust the amount oi delay possession charges ol the allotted unit as per directions detailed under para 58(il ofthe order and refund the remaining amount, ii anv The arrears ol such interest accrued lrom due date of possession till its admissibility as per direction [i) above shall be paid by the promoter to the allottee withjn a period of 90 days. ffHARERA 9!- eunu mM jv.

The rate of interest chargeable from the allottee by the prohoter, in case of defautt shall be charged at the prescriUed rate i.e., 10.70% by the respondent/pronoter which is the same rale of interest which the promot€r shalt be ljable ro pay the allottee, in case ofd€fault i.e., the delayed possession charges as per sedion 2(za) ofthe AcL v.

The respondenr is directed to handover the alloned unft to the comptainanrs comptetes tn specificarions of buyeds ag$Oment wirhin two all aspects a! per vi.

The respondencbuilderis direcred not to cha.ge anything which js nor part of buyers, agreement. vii.

The respondenr buitder would be liabte to refund the amount received from the a otte€s w.r.r the size ofdecrease in areaoitheir unjrs.

Simitarly, in case oi increase ,n the super a.ea bv the re(pondenFpromorer from rhe aljo(ee(s) rs tegat bur sutr"rt rc , ondrtion rhdl bpfore rrisrng such demand. dera,t5 have to be given ro the allottee[s) and withoutjustification ofincrease in superarea, any demand raised in thjs regard tst,able to be quashed. viii.

Hotding charg€s: The respondent is n asainst hording cha.ges rr".,r".",,r::::il:;::,::'JJ:'J,; pojnt oitime even after being parr ofthe buyer,s agreement as Der lJw 5errjed bv Hon b,p Suprpme CoJrr ,n Crvit app"s1 ne5 3s6a- 3AA9 /2020 decided on 14.12.2020.

59.

This decrsion shatl muratis mutandis appty to cases mentioned in para 3 otthis order 60. order 60.

61 HARERA GURticRA[/ Complainrs stands djsposed otr True certified be placed in the case file ofeach matter.

Files be consigned to registry Me HaryaM Reat Estate Dated: 28.03.2023 rity, Gurugram .l GURUGiRA RAM Conplairt no, 1277 and 7 oriers