B GANGAR vs VATIKA LTD

HARER&, ffiGUI?UGI?AM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ORDER The present complaint has been filed by the complainant/alllottees under section 31 of the Real Estate (Regulation and Development) Act,2016 (in short, the Act) read with rule 28 of the Haryana Real Estate [Regulation and Development) Rules, 2017 [in short, the Rules) for violation of section 1,1,(4)[a) of the Act wherein it is inter alla prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the Rules and regulationrs made there under or to the allottees as per the agreement for sale executed inter se.

1.

Complaint no.

Date of filing Date of decison 1.

B.

Gangar S/o Sh.

Chhotu Gangar 2.

Saleem Gangar S/o Sh.

Gangar both RR/o: -1340, Sector-17-C, Gurugram, Haryana-122001.

Versus M/s Vatika Limited Regd.

Office at: 4-002, INXT City Centre, ground floor, block A, sector 83, Vatika I n dia N ext, G u ru gram - 1220 1,2, Hary ana.

CORAM: Shri Vijay Kumar Goyal Shri Sanjeev Kumar Arora APPEARANCE: Sh.

B Gangar Sh.

Harshit Batra Complaint No.

31419 of 2027 ',34L9 of ZOZL 06.o9.202L : 28.03.2023 Complainants Respondent Member Member Complainarnt in person Advocate for the respondent A.

Unit and proiect related details Page 1 of24 HARERE W*GURUGI?AM Complaint No.

3419 of 2021, 2.

The particulars of unit details, sale consideration, the amount paid by the complainants, date of proposed handing over the possession, rielay period, if any, have been detailed in the following tabular form: S.No.

Heads Information L.

Project name and location "Vatika Town Square" at sector 82, Vatika India Next, Gurgartn, Haryana.

2.

Nature of the proiect Commercial complex 3.

Project area 1.60 acres 4.

DTCP License 113 of 2008 dated 01.05.2008 valid upto 31.05.2018 7L of 20L0 dated 15.09.2010 valid upto 14.09.2018 62 of 20Ll dated 02.07.201.1 valid upto 0.07.2024 76'of 20L1, dated 07.Og.z}tl- valid upto 05.0 ?*2;$17 5. ?*2;$17 5.

RERA registered/ not registered 40 of 2021, 6.

RERA Registration valid upto 31,.03.2022 2.

Date of allotment N/A 3.

Date of buyer agreement 05.L0.2015 (Page 50 of complaint) 4.

Unit no.

254, 1tt floor, block A a.dmeasuring 580 sq.ft. (Page 52 of cornplaint) 5, New area 635 sq.ft. fpase B3 of complaint] 6.

Possession clause lT.Handing over possession of the commercial unit The Developer based ont its present plans and estimates and :;ubject to all just exceptions, contemplates to complete construction of the said unit within a period of48 months from the date of execution of this Agreement unless there shall be delay or there shall be failure due to reasons mentioned in thi,s agreement or due to failure of buyer(s) to pay in time the price of the said commercial unit olong with all other charges and dues in accordance with the schedule oW Page 2 of 24 HARERA ffiGUI?UGI?AM Complaint No.

3i419 of 202L (Emphasis supplied) 7.

Due date of possession 05.10.2019 [Due date of possession calculated from the date of BBAI B.

Total sale consideration Rs.

60,54,090/- as per SOA dated 22.09.2021 (page 41of replyJ 9.

Amount paid by the complainant Rs.

30,18,389/- as per SOA dated 22.09.2021 fpaee 47 of reolv] 10.

Occupation certificate L7.02.2022 (As submitted by counsel for respondent during proceedings dated 28.70.2022) tt.

Intimation of offer of possession L5.07 .2019 fpage B3 of complaint) L2.

Notice for termination 24.02.2021 (page 35 of reply) 13.

Letter for cancellation 27 .07 .2021 (page 38 of reply) B.

3.

Facts of the complaint The complainants have made the following submissions in the complaint: - a.

The complainants booked a unit no.254,1't floor, block no.

A in the respondent project namely "Town square-ll, vatika India Next, Gurugram, Haryana-122004, having basic sale price of Rs.52,20,000/- along with EDC/lDC of Rs.

2,6L,00O/- as also mentioned in the buyers' agreement.

They booked the said commercial unit in the joint names of himself and his son Mr. is son Mr.

Saleem Gangar.

However, in the account statement dated 06.'L2.2018, the respondent has malafide shown the total basic sales price of Rs.

57,15,000/- with other charges of Rs.

3,39,090/- and ttre total sales consideration for the said unit as Rs.

60,54,090/-.

Thel,booked the above-mentioned commercial unit on 19.12.201,3 and deposited the advance payment of Rs, 6,00,000/-. 'Ihey also deposited the sum of Rs.

10,44,000/- in cash on 27.1,2.2013 but the respondent has not given the receipt of the same despite repeated several requests and demands of the complainants.

It appears that it has turned dishonest Page 3 of24 ffiHARERA ffiEJRUoRAM Complaint No.

31419 of 2027 and fraudulent and therefore, mischievously and malafide not issuing the receipt and acknowledging the payment of the sum of Rs.

70,44,000/- as paid by them on the firm assurance and promise of the respondent and its officials that the receipt and acknowledgement for the same would be issued for the said cash payment.

But till date the said assurances and promises have not been fulfilled by it.

Even in the account statement, it hers not shown the payment of Rs.

10,44 ,0oo /- as received from them in cash.

They further deposited the sums of Rs.

4,so,3osf -, Rs. l,Tofi}}f -, Rs.2,80,333/-,Rs.

15,010/ & Rs.

1s,00,000/- - respectively. so, in this way they have deposited the total sum of 40,5g,648/- with it rill date, out of the aforementioned total sale price of Rs. sz,zo,ooo/- along with EDC/IDC of Rs.

2,61.,000/-. b.

The respondent has executed the buyer's agreement dated 05.10.2015 and as perthe clause no.

17 of the said agreement, the respondent/developer has agreed and assured the complainants that the construction of the said commercial unit would be completed within a period of 48 months from the date of execution of the agreement. agreement.

It has also been agreed by it that on completion of construction, they would offer in writing for taking over the physicat possession of the commercial unit and use in terms of the agreement within 60 days.

It has further agreed that if they failed to handover possession of the commercial unit within the stipulated period, then they would pay to the complainants a compensation of Rs.

5/- per sq.ft. of the super area per month for the period of such delay after expiry of the initial period of sixty days from the stipulerted date for delivery of possession.

Page 4 of24 HARERE ffiGURUGI?AM It is submitted that the said commercial unit was booked by the complainants with the respondent on 19.tz.z01r3, and the buyer agreement was executed on 05.10.201s.

Even if the period of 4g months is considered from the date of the said agreement, then also the construction had to be complered by it by 05.10.2019 and to give the physical possession of the said commercial unit to the complainants within next 60 days.

However, it has not only failed to complete the construction work of the said commercial unit within the said stipulated period but has also failed to handover the physical possession of the,$ roperty to them till date.

In fact, it has failed to obtain the 0C *nd.o*pletion certificate of the said unit from the comp-eteof auiHotry'+u -art* and legally, it cannot handover the possession of theluhit to them.

That the cornplainants have already made several requests and representations through various correspondences to the respondent and has shown intention for taking over the physical possession of the said commercial unit and to make the remaining cost of the said unit subject to the grant of oc to it by the competent authority.

However, it has not been granted oC and completion certificate by the competent authority tilr date and on the other hand, the respondent is unnecessarily and malafidely harassing and threatening the complainants, with dire consequences, sequences, for cancellation/termination of the allotment and agreement of the said commercial unit and also to forfeit the deposited arnount of Rs.

40,59,648/- by them with it.

It is submitted that the respondent cannot adopt unfair means and tactics to harass or cancel/terminate the allotment of the commercial unit made in fav,our of the complainants and forfeit and usurp the deposited amount of sale Complaint No. !t419 of Z0Z1 c. d. tA/ Page 5 of24 HARERE ffi-OURUGI?AM consideration.

The respondent is legally bound and recluired to first obtain the OC and completion certificate for the saidl commercial unit & project from the competent authority and only thereafter, it can offer and deliver the physical possession of the saicl commercial unit.

However, since it has failed to fulfil the said mandatory legal requirements of obtaining OC and completion certificate.

Therefore, the action of it is discriminatory, unconstitutional, arbitrary and illegal in the eyes of law.

That the respondent malafide and wrongly issued a letter dated 1'5.07.2019 and stated that it is an intimation of possession of the unit no.

RET-007-level z A1,-zs4 at "Town Square-2''.

It has also been informed that after completion of construction, the final area of the said property is 635 sq.ft. and they are comrrnencing the process of handing over the project.

After receipt of thre said letter dated 15.07.2019, they contacted the respondent and enquired whether the OC and completion certificate have been olbtained by it while offering the possession of the unit.

But no reply'uvas given by it and instead it's officials asked for depositing the wronrg and illegal demand of the dues.

They also lodged strong protest and objections for the alleged demand of dues and also for not showing the cash deposit of Rs.

L0,44,000 /- and it did not give any satisfarctory reply That to further shock and dismay of the complainants, the respondent sent further letter dated 01.08.20j.

01.08.20j.9 and asked the complainant to immediately deposit the alleged amount of Rs.

51',70,270/-.

However, they sent an email dated 18.09.2019 to the respondent and objected to the inclusion of Rs.

32,934 / - as interest on overdue amount as the respondent has not yet offered the possession.

They have also mentioned that they visited the site and complaint No. ll41g of 202t Page 6 of24 HARERE MGUI?UGRAM found that the construction was still underway and not complete and the unit was not fit for possession.

It was also stated in the said email that as per the terms and conditions of the allotment/p u rch ase agreement, th e remai ni ng outstan ding i.e., 7 0o/o amount would become payable at the time of offer of possession and no offer of possession has been made by the respondent as yet.

They requested to provide the completion certificate and offer of possession letter. g.

The complainants further sent email dated r4.lo.za9 to the respondent.

But instead of replying to the said ,email of the complainants or complying with the requirements, it nnalafide issue the notice for termination of dated 06.11,.2020 and have alleged that there is breach of the terms of agreement by the complainants and non-payment of the amount of Rs.

52,94 ,407 /-.lt was informed that in case the complainants fail to pay the alleged demanded amount, then the allotment of the said unit would be cancelled and there would be forfeiture of the amount deposited by them.

They sent an email on dated 16.11.2020 with regard to the above letters dated 01.08.2019 and 06.11.2020 af the respondent, and referrred to email dated L4.1.0.201,9, with request for justification for interest amount of Rs.

32,934/- under the header "interest on overdue amount", completion certificate & offer of possession letter but there was no response from it on the above three points.

Through the said email on dated 16.L1. ted 16.L1.2020, they also protested for increasing the outstanding amount charging of excessive interest amount and it was also mentioned that there is no justification for charging interest amount in absence of completion certificate and offer of possession letter.

The complainants have specifically mentioned Complaint No.

3419 of 202L PageT of24 HARER& ffiGUI?UGRAM that they are ready to make the outstanding payment but since the completion certificate and possession letter is not providing, charging of interest on outstanding amount unjustifialcle. h.

A personal meeting was held between the partiels/authorized official in November, 2020 and in that meeting, it was agreed that the remaining outstanding payment could be made in three phases i.e., first immediately and accordingly, the complainants and has already paid Rs.

1s,00,000/- on zL.tz.zozo and second in March/Aprll 2021 and third & final at the time of harnding over of physical possession.

However, they sent an email dated ol.o3.zozl to the final notice for termination as sent by it.

They harze specifically mentioned that the outstanding amount shown by it is incorrect as payment of Rs.

15,00,000/- as made on 24j,2.2:,OZO by the complainants have not been shown and credited while making claim of alleged outstanding amount.

But to the great shock and disappointment of the complainants, the respondent sent an email dated 02.03.2021, asked them to make the payment immediately, It was further wrongly stated that the shop is ready for possession.

They also sent an email dated or.oq.zozl to it and requested for providing via email statement of account of the unit.

Since it has failed to complete the construction and obtain ther completion certificate, therefore, did not issue offer of possession letter, as per the request of the complainants made repeatedly through various communication.

Rather, the respondent sent an email dated 17.06. ted 17.06.2021 and informed that the booking is terminated with immediate effect and the property would be released for further selling and they are sending the final calculation sheet with all deductions and forfeitures.

3419 of Z0Zl {M Page B of24 HARERA ffi,GURUGI?AM i.

Lastly, the respondent sent a letter dated zr.o7.20zl to the complainants and stated therein that they have cancelled the builder buyer agreement and forfeited the deposited amount and made further demand of Rs. s,43,Bgo/- from them.

They crave the indulgence of the authority to direct it to provide the completion certificate and offer of possession letter to them.

After completion of the construction work of the unit, they are ready to deposit the actual and outstanding amount, without penal or other interest and levies, after the fulfilmenl+l*fr# above requirement by the respondent. ';i;'"r1;i."t"i11,"" Relief sought by the complainina* The complainants have sought following relief(s).

Direct the respondent to obtain the cc and provide the copy of the cc along with offer of possession letter to the complainants in respect of the booked/allotted unit.

Direct the respondent to deliver the physical possession of the booked unit no.

254,located on the 1't floor of building block no.

A in town square II Vatika India Next, Gurugram.

Direct the respondent to pay the charges for delay in completing and delivering the said unit on the deposited amount i.e., Rs.

40,59,648/- at the prescribed rate of interest as per rure r.5 of HRERA w.e.f. oct 2019 till the filing of this present complaint i.e.

Rs.

5,42,914/- and further till the delivery of possession and grant of oc.

Direct the respondent to withdraw all the illegal email and correspondences of cancellation of the builder buyer agreement, forfeiture etc. v.

Direct the respondent to withdraw the penal interest or any other levies etc. evies etc. other than the actual basic price as per the buyers' agreement and further to give credit and issue the receipt of the deposited cash amount of Rs.

10,44,000/-.

3419 of 2027 C.

4. ii. iii. iv.

Page 9 of24 ffiHARERA #- GURUGRAM Complaint No.

3419 of 2021, Direct the respondent to reimburse litigation cost of Rs.

1,00,000/- to the complainants as they were constrained to file the same due to its callous and indifferent attitude and the same has been deposited in the account of the lawyer.

5. on the date of hearing, the authority explained to the respondent/promoter about the contraventions as alleged to have been committed in relation to section 1r(4) (a) of the Act to plead guilty or not to plead guilty.

Reply by the respondent.

The respondent contested the complaint on the following grounds: - aJ That the complainants have got no locus standi or caus;e of action to file the present complaint.

The complaint is based on an erroneous interpretation of the provisions of the Act as well as an incorrect understanding of the terms and conditions of the buyer,s'agreement dated 05.10.2015 as shall be evident from the submissions made in the following paras of the reply. b) That the complainants have himself violated the oblig;ations as set in within the Section 19 of the RERA Act and has further breached the terms of the buyer's agreement dated 05.10.2015.

The complaint has been filed by hiding the true facts of the case and by placing half-baked truths.

Thus, the complaint ought to be outrightly be dismissed with heavy costs. c) The complainants have failed to make payments as per the agreed payment plan and an outstanding is Rs. sL,2j.,912/- in lieu of the 'lnstalment due offer of possession' resulted in cancellation of booking and termination of the agreement. agreement.

It is most pertinent to submit that even after numerous opportunities and reminders, the complainants have failed to fulfil their promise of paying the consideration amount as mutually decided.

Hence, there being no Page 10 of24 vi.

D.

6.

HARERA ffiGUI?UGI?AM fault on the part of respondent, it is entitled to cancel the booking.

The respondent issued several reminders to the cornplainants to pay the balance amount and yet they failed to do so. d) It is submitted that when the above-mentioned demand letters, reminders and termination notice were issued, the res;pondent was legally entitled to cancel the allotment on account of non-payment of due instalments and to forfeit the earnest money.

It is pertinent to mention that the complainants have committed breach of understanding arrived at between the parties and failed to make any payment towards the unit.

They have wilfully defaulted against the payrnents of due instalments with regard to demand letter as marked in annexure R-2, R-3 and R-4.

The continued failure of the complainants to fulfil obligations under the buyer,s agreement dated 05.10.2015 and also under section 1-9 of the Act resulted in issuance of cancellation-cum-recovery notice dated 27.o7.zoz1,.

Thus, the booking and allotment of the complainants have already been terminated and accordingly cancelled by it vide cancellation- cum-recovery notice dated 27 .07 .2021 marked here as annexure R- 5. e) That the right of the respondent to cancel allotnnent/buyer,s agreement emanates out of the agreed clause t2 of the terms and condition of the application for allotment dated tg.Lz.zo1,3 and clause 2(e) of the buyer's agreement dated 05.10.2015 whereby the complainants, were aware and agreed to cancellation of the allotment upon default in making payment within the time as stipulated in the payments schedule. schedule.

As per the procedure to be followed for cancellation, the company if elects to cancel the agreement, they had 30 days from the date of notice to recti$r the complaint No.

3419 of 2027 tv Page 11 of24 HARERA ffiGURUGI?AM default of non-payment.

Further upon the expiry of 15 days of notice if the default of non-payment continued, then the agreement was to be automatically cancelled without further notice to the complainants.

Also, upon the cancellation the company'had the right to retain, as for liquidated damages, the entire earnest money as specified in clause 4 of the buyer's agreement along with other non- refundable amounts like interest on delayed payments, brokerage, etc.

As per claus e 4 of the buyer's agreement dated 05.10.2015, the complainants agreed that the earnest money would be an amount of 1,Oo/o of the total consideration amount of the unit.

That as per clause 17 of the terms and conditions of the application for booking the respondent was to make delivery o,f possession within 48 months from the date of the agreement, further vide letter of intimation of possession dated rs.or.zor7 the complainants were informed of completion of construction and demand of last instalment was raised.

However, the comprainants were not making due payments to it for the unit in question and got tlheir booking terminated on 27 .07 .2021.

That the complainants have come before the authority with un- clean hands.

The complaint has been filed just to harass the respondent and to gain unjust enrichment.

The actual reason for filing of the present complaint stems from the changed financial valuation of the real estate sector in the past few years and the allottee malicious intention to earn some easy buck.

It is pertinent to mention here that for the fair adjudication of grievance as alleged by the complainants, detailed deliberations by leading lthe evidence and cross-examination is required.

Thus, only the civil court has Complaint No. plaint No.

3419 of Z0Zl 0 s) lD Page 12 of 24 HARERA GUl?UGl?AM complainr No.

3419 of 202L jurisdiction to deal with the cases requiring detailed evidence for proper and fair adjudication. h) It is submitted that the complainants entered into buyer,s agreement dated 05.10.2015 with the respondent owing to the name, goodwill and reputation of the respondent, in terms with the buyers' agreement promised to deliver the possession of the residential unit within the time frame as defined under clause 1.7 of the buyer's agreement within 48 months from the date of execution of buyer's agreement, i.e., by 05.10.2019 and the respondent as promised issued the letter of intimation of possession dated 15.07.2017.

However, the complainants failed to make due payment of instalment as agreed vide annexure II of the buyer's agreement dated 05.10.2015.

Thus, the respondent had no option but to cancel the allotment vide cancellation-cum-recovery notice dated 27 .07.2021. il That it is brought to the knowledge of the authority thar the complainants are guilty of placing untrue facts and are attempting to hide the true colour of their intention.

Before signing the buyer,s agreement, the complainants were well aware of the terms and conditions as imposed upon the parties under the buyer's agreement and only after thorough reading, the said BBA signed and executed. j) That the various contentions raised by the complainants are fictitious, baseless, vague, wrong and created to misrepresent and mislead the authority, for the reasons stated above.

It is further submitted that none of the reliefs as prayed for by the complainants are sustainable in the eyes of law.

Hence, the complaint is liable to be dismissed with imposition of exemplary cost for wasting the tL Page 13 of24 ffi ffi ilrq{q qcil 7.

HARER& GUr?UGl?AM Complaint No.

3419 of Z0ZI precious time and efforts of the authority.

The complaint is an utter abuse of the process of law and hence deserves to be cjlismissed. lismissed.

Copies of all the relevant documents have been filed and ;placed on the record.

Their authenticity is not in clispute.

Hence, the complaint can be decided on the basis of these undisputed documents and written submissions made by the parties. jurisdiction of the authority The authority has complete territorial and subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.

I Territoriat jurisdiction As per notification no. t/92/2017-trcp dated t4.rz.zot7 issued by Town and country Planning Department, Haryana, the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes.

In the present case, tJhe project in question is situated within the planning area of Gurugram District.

Therefore, this authority has complete territorial jurisdir:tion to deal with the present complaint.

E.II Subject-matter jurisdiction Section 11(4)(a) of the Act, 2OL6 provides that the pror1roter shall be responsible to the allottee as per agreement for sale.

Section 11[a)[aJ is reproduced as hereunder: Section 11@)(a) Be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulatiohs mod€ thereunder or to the allottees os per the agreement for sale, o," to the associotion of allottees, as the case may be, till the conveya,nce of all the apqrtments, plots or buildings, as the case may be, to the allottees, or the common areos to the ossociation of allottees: or the competent authority, as the case may be.

Section 34-Functions of the Authority: E.

9.

10.

Page 14 of24 ffiIjABEBE ffi oUnUGRAM complaint No.

3419 of 202L 34(fl of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estati agents under this Act and the rules and regulations made thereunier.

11. unier.

11.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non- compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a later stage.

F.

Findings on the relief sought by the complainants.

F.I Direct the respondent to withdraw all the illegal emails/ letters and correspondences of cancellation/termination of the buyers' agreement, forfeiture etc.

12.

The complainants booked a unit in the project of respondent namely "Town Square II" and paid booking amount of Rs.

6,00,000/- leading to allotment of the subject unit.

A buyers' agreement in this regard was executed between the parties on 05.10.2015.

The compJlainants paid Rs.30,l-8,389/- out of total sare consideration of Rs.

The due date for completion of project and offer of possession of the allotted unit was agreed upon as 05.10.201,9.It is evident that the respondent issued an intimation of offer of possession of the allotted unit on 15.07.2019 without obtaining an occupation certificate or completion certificate of the project and thereafter issued reminder letters to clear outstanding dues.

It is a fact that the occupation certificate r:f the project was received by the promoter only on l7.oz.zozz. when the complainants failed to comply with reminder letters and to pay the amount demanded vide those communications, it led to issuance of notice of termination of the allotted unit vide letter datecl Z4.OZ.ZOZ1, and followed by a letter of cancellation dated 27 .07 .2021. llide the later fi/ Page 15 of24 HARERA ffiGUI?UGI?AM Complaint No. .1419 of 2021 communication, the complainants were directed to pay Fis.

5,43,890/- to the promoter within 10 days from the receipt of that letter and failing which the allotment was liable to be cancelled.

It is not disputed that till the issuance of letter dated 27.07. ted 27.07.2021, the complainants; had already paid 49o/o of the sale consideration against the allotted unit.

The due date for completion of the project has already expired orr 05.10 .ZOlg.

Though, the promoter offered possession of the allotted unit to the complainants vide an intimation of possession dated 15.07.2019, but without obtaining occupation certificate of the project and the same being not valid in the eyes of law.

Moreover, at the time of executing builder buyer agreement on 05.10.2015, a payment plan of the allotted unit was also agreed upon between the parties.

A perusall of the same shows that?Bo/o of the BSP was to be paid by the allottees prior to offer of possession and the remaining was to be paid after completion of the project and on valid offer of possession.

Thus, in such a s;ituation, the respondent/builder was not entitled to raise demand against the alL:ttees when they have already paid 48% of the sale pricer and that too without completing the project and obtaining occupation certificate, adrnittedly received on 17 .02.2022.

13.

On consideration of above-mentioned facts, the authority observes that the allottees paid a sum of Rs.

30,18,389/- out of total consideration of Rs.

60,54,090/- i.e., (49o/o) of the total sale consideration.

Though the allottees made payments as per the payment plan but the fact cannot be ignored that the respondent has offered the possession o1'the allotted M/ Page 16 of24 HARER& GUl?UGI?AM unit on L5.07.2019, without obtaining oc/cc.

Hence, it is concluded that the said offer of possession was a not a valid offer of possession and thus, the corresponding demand raised vide letters dated LS.oz.z}Lg, 24.02.2021and lastly on27,07.202L cancelling the allotted unit are not legally sustainable and the same hereby ordered to be set-aside.

1,4.

Though, while filing written reply on 22.07. on 22.07.2022, it was pleaded by the respondent/builder that the unit allotted in favour of the r:omplainants has been cancelled on the ground of non-payment of dues vide letter dated 27.07.2021 but there is no whisper w.r.t. its re-allotment in favour of any person including Mr.

Naresh Parshad vide letter dated 1,2.08.2021.

If that would have been the position and the faLctual matrix, then the factum of re-allotment of the subject unit migtrt have been disclosed in the pleadings while filing written reply.

So, thLe plea of the respondent w.r.t. re-allotment of the subject unit after its cancellation vide letter dated 27 .07 .202 i" is norhing but an aftertho,ught ploy to defeat the legitimate claim of the allottees and deprived them of their valuable rights in that property.

So, the plea of responrlent/builder w.r.t. re-allotment of the subject unit vide letter dated 12..082021,, in favour of Mr.

Naresh Parshad is after thought just to escape the consequences of the case and defeat the genuine claim of the claimants.

Thus, the re-allotment of the subject unit vide letter dated 1,2.08.202L, is ordered to be se-aside and the unit is ordered to be restored to its original position.

F.II Direct the respondent to obtain the completion certificate (sic: occupation certificate) and provide the copy of the completion PagelT of24 Complaint No.

11419 of 20Zt ffiHARERA #.GuRUGtlRtvt 15. complaint No.

3419 of 2027 certificate (sic; Occupation certificate) along with offer of possession letter to the complainants in respect of the booked/allotted unit Though, at the time of filing of the compraint, the respondent/builder did not obtain occupation certificate of the project, but during the course of filing written submission, it was pleaded by the later that it has obtained the same from the competent authority on 1.7.0}.zozz.

F.III Delay possession charges.

In the present complaint, the complainants intend to continue with the project and are seeking ael-ayrpps$c. -ayrpps$c.qsion charges as provided under the ;,, *,t:'r"'.,i' proviso to section 1B(1) of thH$ti$db: 1g(1) proviso reads as under. "section 78: - Return of amount and compensation 1S(1).

If the promoter fails to complete or is unable to give pos:session of an apartment, plol or building, - Provided that where an allottee does not intend to withdraw from the proiect, he sholl be paid, by the promoter, interestfor every month of delay, till the handing over of the possession , at such rate as may be prescribed," 1,7.

Clause 17 the agreement to sell provides for handing over r:f possession and is reproduced below: TT.Handing over possession of the commercial unit The Developer based on its present plans and estimates and su,bject to all iust exceptions, contemplates to complete construction of tlhe said unit within a period of 48 months from the date of execution of this Agreement unless there shall be delay or there shall be failure' due to reasons mentioned in this agreement or due to Jailure of buyer(s.) to pay in time the price of the said commercial unit along with all other r:harges and dues in accordance with the schedule of payments, At the outset, it is relevant to comment on the preset possr:ssion clause of the agreement wherein the possession has been subjected to providing necessary infrastructure specially road, sewer & water in the sector by the government, but subject to force majeure conditions or t6. [L'' Page 18 of24 HARERE ffiGURUGRAM and reason beyond the control of the seller.

The drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promoter and againsl[ the allottees that even a single default by the allottee in making payment as per the plan may make the possession clause irrelevant for thr: purpose of allottee and the commitment date for handing over posses;sion loses its meaning. s meaning.

The incorporation of such clause in the agreement to sell by the promoter is just to evade the liability towards timely delivery of subject unit and to deprive the allottee of his right accruing after delay in possession.

This is just to comment as to how the builder has misused his dominant position and drafted such mischievous clause in the agreement and the allottee is left with no option but to, sign on the dotted lines.

Payment of delay possession charges at prescribed rate of interest: Proviso to section 1B provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promroter, interest for every month of delay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 75.

Prescribed rate of interest- [Proviso to section 72, section 78 and sub-section ft) and subsection (7) of section 191 (1) For the purpose of proviso to section 12; section 18; and sub- sections @) and (7) of section 19, the "interest at the rote prescribed" shall be the State Bank of lndia highest marlTinal cost of lending rate +20/0.: Provided thot in case the State Bonk of lndia marginal cost of lending rate (XICLR) is not in use, it shall be replacetl by such Complaint No.

13419 of 2027 any government/regulatory authority's action, inaction or omission 18. fd/ Page 19 of24 HARERE ffiGUI?UGI?AM Complaint No.

3419 of 2021, benchmark lending rates which the state Bank of India may fix from time to time for lending to the general public.

L9' The legislature in its wisdom in the suboidinate legislation under the provision of rule 15 of the rules, has determined the prescribed rate of interest.

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

20' Consequently, as per website of the State Bank .f India i.e.

India i.e., https: , hi.co'in. the marginal cost of lending rate (in short, MCLR) as on date i.e., 28.03 .zoz3 is B.7ovo, Accordingly, the prescribed rate of interest will be marginal cost of lending rate +zo/o i.e.,1.o.7,oo/o.

21'' The definition of term'interest'as defined under section Z(za)of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: "(ze) "interest" means the rates of interest payable by the promo6er or the allottee, as the case may be.

Explanation. -For the purpose of this clause_ (i) the rate of interest chargeable from the ollottee by the promoter, in case of default, shqll be equal to the rate of inierest uthich the promoter shall be liable to pay the allottee, in case of defautt; (ii) the interest payable by the promoter to the ailottei shall be from the date the promoter received the amount or any part th,ereof till the date the amount or part thereof and inierest thereon is refunded, and the interest poyable by the allottee to the ptromoter shall be from the date the allottee defaults in paymerlt to the promoter till the date it is paid;,, 22' Therefore, interest on the delay payments from the complerinants shall be charged at the prescribed rate i.e., L}.TTo/o by the respondent Page 20 of24 ffiHARERA ffi- GURUGRAM 23.

Complaint No. ,3419 of 2021. /promoter which is the same as is being granted her in case of delayed possession charges.

On consideration of the circumstances, the documents, submissions made by the parties and based on the findings of the authority regarding contraventions as per provisions of rule 2B(2), the Authority is satisfied that the respondent is in contravention of the provisions of the Act.

By virtue of clause 1,7 of the agreement executed between the parties on 05.10. on 05.10.2015 and the possession of the subject apartment was to be delivered within 48 months from the date of agreement to sell.

As far as grace period is concerned, the same is disallowed for the reasonLs quoted above.

Therefore, the due date of handing over possession was 05.10.2019.

The respondent has failed to handover possession of the subject apartment till date of this order.

Accordingly, it is the failure gf the respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

The authority is of the considered view that there is; delay on the part of the respondent to offer of possession of the allotterd unit to the complainants as per the terms and conditions of the agreement to se;[l dated 05.10.2015 executed between the parties.

Further no OC/part OrC has been granted to the project.

Hence, this project is to lle treated as on-going project and the provisions of the Act shall be applicable equally to the builder as well as allottees.

Accordingly, the non-compliance of the mandate contained in section 11(4)[aJ read with section 1B[1) of the Act on the part of the respondent tv'r Page2L of24 HARERA ffiGUI?UGI?AM Complaint No. ,3419 of 20Zt is established.

As such the complainants are entitled to delay possession charges at rate of the prescribed interest @ 1,o.zCIt% p.a. w.e.f.

05.10.2019 till receipt of occuparion certificate i.e., 1.2,,oz2oz2 + 2 months as per provisions of section 1B(1) of the Act read with rule 15 of the Rules.

F.IV Possession 25.

The complainants are seeking relief of possession in aforesaid relief.

It is observed that the occupation certificate has been obtained on 1,7.02.2022 from the competent Authority but till dater no offer of possession has been made. been made.

The respondent is directed to offer the possession of the allotted unit within compliance of section 11( )(hr) within two months from date of this order and to demand balance amount after adjusting delay possession charges. lFurther, the complainants are also directed to take the possession ol'the allotted unit in compliance of obligation conferred upon it under Serction 19[10) of Act within next two months after payment of such outs;tanding dues;.

V Direct the respondent to withdraw the penal interest or any other levies etc. other than the actual basic price as per the buyers'agreement and further to give credit and issue the receipt of the deposited cash amount of Rs.

26.

The above-mentioned relief sought by the complainants were not pressed during the arguments in the passage of hearing and thus, cannot be deliberated upon.

Hence, the authority has not raised any finding w.r.t. to the above-mentioned relief.

F.VI titigation cost The complainants are also seeking relief w.r.t. litigation expenses & compensation.

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

6745- Page22 of24 Complaint No.

3419 of Z\ZL 6749 of 2021 titled as M/s i,tewtech promoters and Dev,eropers pvl G.

28. ffiHARERA #h GuRUoRAM Ltd. v/s state of up & ors.

2021,-zoz2(1) RCR (c),3s1 has held that an allottee is entitled to claim compensation & Iitigation charges under sections 12,14,18 and section tg which is to be decided by the adjudicating officer as per section 71, andthe quantum of compensation & litigation expense shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.

The adjudicating officer has exclusive jurisdic$on !o deal with the complaints in respect r':''1":'1: i;i'i r": of compensation & regar .*F-iinses.

Therefore, the comprainants are advised to approach the adjuclicating officer for seeking the relief of' litigation expenses Directions of the authority Hence, the authority hereby passes this order an s order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entmsted to the authority under section 3 (Q: i.

The cancellation of the allotted unit vide letter dated '.27.02.2021, on the ground of non-payment of dues and its re-allotment vide letter dated 12.08.2021 are hereby ordered to be set_aside and the same is re-stored to its original position.

A direction is given to the respondent/builder to offer possession of the allotted unit to the complainants and give its possession after receipt of payments due.

Pitge 23 of 24 HARERA ffiGUI?UGI?AM Member Haryana Real complaint No.

341g of 202L The respondent is directed to pay interest at the prescribed rate of @ 1,0,700/o p.a. for every month of delay from ther due date of possession i.e., 05,10.2019 till receipt of occupation cr:rtificate i.e L7.02.2022 + 2 monrhs, The respondent is directed to issue a revised account statement after adjustment of delay possession charges as per above within 30 days and thereafter the comprainants are directed to pay outstanding dues, if any, within next 30 days.

The rate of interest chargeable from the allottrees by the promoter, in case of delayed payments shall be cha:rged at the prescribed rate i.e., 10.700/o which is the same rate of interest which the promoter shall be liable to pay the allottees, in case of default i.e., the delayed possession charges as per section z(za) of the Act. v.

The respondent shall not charge anything from the comprainants which is not the part of the buyer,s agreement.

The complaint stands disposed of, File be consigned to registry.

Sanjeev \.t- i; ii. iii. iv.

29.

30. rr Arora Vijay Kumar Goyal Membr:r Estate Regulatory Authority, Gurugram mar Arora Dated: 28.03.2023 Pitge 24 of 24