ASHISH SHARMA vs VATIKA LTD

*HARERA #eunuennvr Complaint No.

3792 of 2019 BEFORE THE HARYANA REAL ESTATE REGUTATORY AUTHORITY, GURUGRAM Mr.

Ashish Sharma R/o: H.no-129, GF, Navjiwan Co-operative Housing sociery, New Delhi-110017.

M/s Vatika Ltd.

Office: Vatika Triangle, MG Road, Gurugram- 1 Complaint no.

Date ofliling: Date ofdecision 3792 of 2019 20.o9.2079 14.03.2023 Complainant Respondent Member Member Member Complainant Respondent CORAM: Shri Vijay Kumar Shri Ashok Sangwan Shri Sanjeev Kumar APPEARANCE: Sh.

Rishabh Gupta [Advocate) Sh.

Anurag [Advocates) ORDER 1.

The present complaint has been filed by the complainant/allottee under section 31 of the Real Estate [Regulation and Development) Act, 2016 (in short, the ActJ read with rule 28 of the Haryana Real Estate fRegulation and DevelopmentJ Rules,2017 (in short, the RulesJ for violation ofsection 11(4) [aJ ofthe Act wherein it is inter alro prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provisions of the Act or the catel r.b! *, Page 1 of 15 MHARERA ffieunuenRtrr A.

2.

Complaint No.

3792 of 2019 Rules and regulations made there under or to the allottees as per the agreement for sale executed inferse.

Unit and proiect related details The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: s.

N.

Particulars Details 1.

Name and location of .g! -effi:iSr Seven Element" at Sector 89A, project f.Sffiffi&', ttrryrnr.

Nature ofthe project ) housing 3.

Proiect area -"ql\ ) acres 4.

DTCP license no. ] +t ofZOf: dared 06.0b.20tJ vrliJ upro | 0s.o5.2o r 7 5.

Name of licensee M/s Strong Infrabuild Pvt.

Ltd. & others 6.

RERA Re1 registered istered/ nc ride qm. ]o.

281 of 2017 dated lrea admeasuring falid upto 31.03.2021 7. as per allotment letter, 0 B.

Unit area admeasuring )tment letter, page 33 of 9. e 33 of 9.

Date ofallognEn \-7 t 17Qry,81* fttnryrxure C2, page 33 of [,,'rdd611171 10.

Date of builder buyer agreement Not executed 11.

Possession clause Not provided 1,2.

Due date ofpossession 27.02.2077 Fortune Infrostructure and Ors' vs' Trevor D' Lima and Ors, (12.03.2078 SC); MANU/SC/0253/207Bobserved that"a person cannot be made to wait indefinitely for 'the possession of the Flats allotted to them, and they are entitled to seek the Page 2 of 15 ffiHARERA ffi aJRTJGRAI/ I.

3792 of 2019 3.

The complainant slons: That the sentation made by respondent, about its project namely "The Seven Elements" booked a unit bearing no.

1504 /15 HSG-023/ 1504/ Tower A4 admeasuring 1610 sq. ft and accordingly paid an amount of Rs.

6,00,000/- as initial payment for the purpose of registration.

The respondent thereafter issued a receipt for the same on 30.04.2013.

The complainant in a bonafide belief made a further payment of Rs.

10,45,068/- as per the demand as stipulated in the agreed sale consideration in accordance B. refund of the amount paid by them, along with compensation.

Although we are aware ofthe fact that when there was no delivery period 'stipulated in the agreement" a reasonable time has to be taken into consideration' ln the facts and circumstances ofthis case' a time period of 3 years would have been reasonable lor completion of the contract' ln view of the above-mentioned reasoning' the date of ng ofapplication for allotment ofshop, be taken as the date for calculating of possession' Therefore, the due handing over ofthe possession ofthe o]ut to be 27 .02.2077 Total sale co Amount complaina Offer ofp .07.2019 (page 53 & 58 the complaint) Facts ofthe compla Page 3 of 15 I Not obtained Not offered MHARERA ffi eunuenRvr Complaint No.

3792 of 2019 with the payment schedule and accordingly, it issued a payment receipt for the same on 22.07 .20L3.

II. .20L3.

II.

That the respondent in furtherance of the request of the complainant generated a computerized receipt acknowledging payment of Rs.

6,00,000/- and Rs.

10,45,068/- on 29.07.2013.

On the consistent request made by him, it issued an allotment letter on 27.02.2074 i.e., almost after one year of booking and was allotted park facing corner unit detailed above.

III.

It is further submitted tha the allotment of the unit and subsequent ofthe te instalments, he made a long follow up with it of the builder buyer's agreement, but it did not execute it till t for the reasons best date.

It is rel known to it in lletters to the complainant with agreement.

However, no sample copy o sed therein with the respective letters for th iation by the complainant.

He raised his corueryr auheofficqof &q*esDondent but turned deaf lJ /B L r.

1., it ears to the persidhrt drilejt d. du&rMnitrt and false assurance was given with respect to the sending of a copJ of the builder buyer's agreement.

IV.

It is further the case of complainant that he also had booked a unit in another project of the respondent namely "Vatika Town Square" in the year August 20lZ and had paid a total sum of Rs.

33,32,370/-.

The complainant after investing a huge amount of money in the project of the respondent came to realize about its fraudulent commitments and seeing no tenable progress at the work site caused mental agony to him. lrer+q iirrd int out Page 4 of 15 ffiHARERA ffi aJRucRAr/ Complaint No.

3792 of 2019 The unprofessional work ethics of the promotor had broken the complainant to financial turmoil.

He is finding himselftricked in such a situation at the pretext of the promotor had found it more relatable to merge the projects and considered it prudent to withdraw the allotment with one project and seek transfer of fund to the other project.

Hence, he contacted the respondent to withdraw the aforementioned allotment in the project "Vatika Town Square" and also to transfer the respective amount of Rs. unt of Rs.

3 to the instant project under the name and style "Seven 13.08.2015 rejected the 'e respondent vide email dated e complainant.

On 1,8.07 .2077 , the complainant pondent to redress his concerns.

H eed to the legal notice sent by him nor That the resp e request of the complainant 019 with respect to reminder for the n respect of the booked unit.

On account of e complainant to clear the standing dues wi it was mentioned that it could cancel ent and further it wourd forfeit *v@t*FR @Q$,[grt"r,naabre charges as per the builder buyer agreemenL That the complainant on seeing no progress with the prevailing scenario at the end ofthe respondent, sent an another legal notice dated 03.07.2079 to the respondent stating therein about the laissez faire attitude towards him and continuously receiving consistent and disioint response and also pointed about the prorect nowhere near completion. lt was also pointed out about the failure of the promotor for non- Page 5 of15 MHARERA ffi eunuenlvr Complaint No.

3792 of 2019 fulfilment of its obligations.

But the respondent without giving an opportunity ofbeing heard to the complainant and taking advantage of its dominant position, unilaterally rejected his request without assigning any valid reason for the same and malalidell had resorted to unfair trade practices by harassing him by way of making several demands along with interest without highlighting any remarkable progress in the prorect.

VII.

The respondent in order to oney from the complainant had been raising different dema' llizing interest over the same and also first provided wi icture to him on account of his withdrawal from th ount.

Further, without ocuments forming the appreciating his c basis of such ill manner rejected the request of with ed demands to pay the dues along VIII. long VIII.

The complainant in the construction of the project for a ed his concern before the and it is also to mention that despite ofall efforts, it was difficult for him to get the actual status of the construction.

The respondent has utterly failed to fulfil his obligations to deliver the possession in time or refund the money along with the interest and has caused mental agony, harassment and huge loss to the complainant and hence the present complaint seeking refund of the paid up amount besides interest.

Relief sought by the complainant: IX, Page 6 of 15 4.

The complainant has sought following relief[s). a.

Direct the respondent to refund the amount paid by the complainant along with interest from the date of making payment till the realization of money. b.

Compensation.

5.

Though, the respondent put in appearance through its counsel Sh.

Anurag but failed to file any written reply despite giving a number of opportunities and imposin in such a situation the authority was left with no alternati struck off the defence of the respondent for neithe ing of payment ofthe cost imposed by the A HARERA ffi GURUGRAI/ Copies of all th record.

Their au decided on the oral as well as wri Jurisdiction of the autho Complaint No.

3792 of 2019 filed and placed on the complaint can be and submissions t) made by the parties. well as subject matter E.

7. rhe authority ob$"$.re. :",j:..."" "guluygRHlvl"r the reasons siven E.

I Territorial jurisdiction As per notification no.

L/92/20t7-1TCp dated 74.lZ.ZOtZ issued by Town and Country Planning Department, Haryana, the ,urisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes.

In the present case, the project in Page 7 of 15 ffiHARERA #*ounuenRHl Complaint No.

3792 of 2019 question is situated within the planning area of Gurugram district.

Therefore, this authority has complete territorial .jurisdiction to deal with the present complaint.

E.

II Subiect-matter iurisdiction 9. diction 9.

Section 11(4J(al of the Act, 2076 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 11[4)(a) 10. is reproduced as hereunder: Section 77 (4) The promoter sholl- (a) be ties ond functions under the regulations made thereunder ent for sale, or to the sssocia the conveyonce of qll the a allottees, o competent moy be, to the ollottees or the Section 344 of the of the obligotions real estate qgents cqst upon the under this Act ond made thereunder.

So, in view of thepro_vis_ions ofthe Act quoted above, the authority has l'tJErlr-l\-{r complete iurisdiction J9 .qegide the complaint regarding non- {---,1 li/r l( -,i11-\l\,. compliance ofobligations by the promoter leaving aside compensation which is to be decided by the adiudicating officer if pursued by the complainant at a later stage.

Further, the authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the iudgement passed by the Hon'ble Apex Court in cases of Newtech llottees, os the case m 7L.

Page B of 15 ffi HARERA ffi aLnuennHr Complaint No.

3792 of 2019 Promoters and Developers Private Limited Vs State oI U.P. and Ors." 2O2l-2O22(l) RCR(C), 357 & M/s Sana Realtors Private Limited & other Vs Union of India & others SLP (Civil) No.

73005 of 2020 decided on 72.05.2022 and wherein itwas held as under: "86.

From the scheme of the Act ofwhich q detoiled reference has been made and toking note of power of odjudication delinedted with the regulatory authoriy ond adjudicating olficer, whotlinolly culls out is that although the Act indica distinct expressions like'refund', 'interest', 'penalty' qnd \ conjoint reoding of Sections 18and 19 cleorly man to refund ofthe amount, ond interest on the refund ng payment of interest for delayed delivery ofp nd interest thereon, itis the mine and determine when it comes to a the outcome oI a question of thereon under exclusively ha under envisaged, if view, may in ew, may in functions of the be ogainst the 12.

Hence, in view of the and interest icoting oJfrcer the collective the odjudicqtion pensation qs Ved that, in our the powers and 77 and thqt would ouncement of the Hon'ble F.

Supreme Court in the cases mentioned above, the authorify has the ;":::. ;: J#Lft?tl$l?X,f,lnd'r'lhe am'un'i and Findings on the reliefsought by the complainant F.

I Direct the respondent to refund the paid amount along with interest.

It is not disputed that the complainant booked a unit in the project of the respondent namely "Seven Elements", situated in a Sector 89 A, Gurugram on 01.10.2012 and the same led to allotment of the unit in 13.

Page 9 of 15 MHARERA ffi euRuennvr Complaint No.

3792 of 2019 question vide letter of allotment dated 27.02.2014.

The complainant paid a total sum of Rs.

16,45,068/- against the allotted unit from time to time as per the demands raised by the respondent.

No buyer's agreement wr.t. the allotted unit was executed beBveen the parties for one reason or the other. [t has also come on record that the complainant also booked another unit in the project of respondent namely Vatika Town Square and paid a ,32,370/.

Though, a request for transfer ofthat amount to th ofthe subject u nit was mailed by the complainant but ded to.

The complainant admittedly made a /- to the respondent case of complainant against the all that seeing a p ght to withdraw from Vatika Town Sq osited amount in the account ofthe subi regard has been made to email dated 06.08.2015 ly dated 07.08.2015 has been made.

But that request ofthe complainant was rejected as evident front email dated 13.0raa1s fPfP PP.+of,yk R?ftion the comptainant sou ght p rocedu rVo.Viin\V-MtlG"\Jhliil. p roi ecr by writi n g emails dated 14.08.2015 and 19.08.2015 respectively.

But neither there was any progress ofthe proiect at the spot nor any satisfactory reply to the above-mentioned emails was received. received.

Rather, the complainant raised his concerns to the respondent vide email dated 02.09.2015, 23.10.20L5 & 25.0L.2017 respectively.

But instead of acting on his Page 10 of 15 ffiHARERA fficuRilcRAM Complaint No.

3792 of 2019 representations and finding a solution to the concerns raised, the respondent sends a final reminder for payment of the dues vide letter dated 15.02.2016.

14.

A perusal of above-mentioned correspondent exchanged between the parties shows that the respondent did not care to attend the concerns of the complainant and rather sent reminders' for making remain payment and which led to hi aw from the project by issuance oflegal notices dated 18.07 7.2019 respectively.

15.

The allotment of the ur of the complainant vide letter dated 2 7.02. respondent has already received Rs.

16,4 bject unit.

No buyer's agreement was .t. to the subiect unit.

So, the due date offer of possession is being taken as 3 I as 27 .02 .2017 in view of judgment of the Ho Court in case of Fortune Infrastructure & Anr.

VS Trevor D'lima & Ors., [(2018) 5 SCC 442].

Neither the *'p?*f,flT fTruf5,fl fiTroiect nor made any off erof possessioh.{oM j.\hrirVrl,\S"llrKl,""ntto.ontinuewith the proiect.

16.

Keeping in view the fact that the allottee/complainant wishes to withdraw from the proiect and is demanding return of the amount received by the promoter in respect of the unit with interest on its failure to complete or inability to give possession of the unit in Page 11 of 15 HARERA ffiGURUGRAM Complaint No.

3792 of 2019 accordance with the terms of allotment/agreement for sale or duly completed by the date specified therein.

The matter is covered under section lB(1J of the Act of 2016.

17.

The due date of possession as per agreement for sale as mentioned in the table above is 27 .02.2077 andthere is delay of 2 years 6 months 24 days on the date of filing of the complaint. complaint.

The occupation certifi cate/completion ce the project where the unit is situated has still not been the respondent-promoter.

The authority is of the vi ot be expected to wait endlessly for taki it and for which he has paid a consid consideration and as observed by H lreo Grdce Realtech PvL Ltd, Vs, Abh I no.

5785 of 2079, decided on 11.01.2 "" ....

The occupation certifica ble even os on date, which cleorly amounts wait indefinitely not be mode to con they be to them, nor project......." 18.

Furtherin rh",,@t lQtj@RAM courrorrndiain the cases of/Vewtech Promoters and Developers Private Limited Vs State of U,P, and Ors. (supra) reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLP (Civil) No.

13005 of 2020 decided on 12.05.2022.

It was observed: 25, The unqualified right of the ollottee to seek refund refeqed Under Section 18(1)(o) and Section 19(4) ofthe Act is not dependenton any ['-H, Page 12 of 15 MHARERA S- eunuenRvr Complaint No.

3792 of 2019 contingencies or stipulations thereof, lt appears that the legislature hos consciously providedthis right of refund on demand asan unconditional obsolute right to the allottee, if the promoter fails to give possession of the opartment, plot or building within the time stipulated under the terms of the agreement regardless of unforeseen events or stqy orders of the Court/Tribunol, which Is in either woy not attributoble to the ollottee/home buyer, the promoter is under an obligation to refund the omount on demand with interest at the rate prescribed by the Stote Government including compensation in the manner provided under the Act with the proviso that if the ollottee does not wish to withdraw from for the period of delay till handing over possession ot th 79.

The promoter is responsib ligations, responsibilities, and functions under the of 2016, or the rules and regulations made per agreement for sale under section 11 to complete or unable to give possessio for sale or d sale or duly the promoter is lia the project, without prei e terms ofagreement therein.

Accordingly, \ /ish to withdraw from remedy available, to return the amount received by him in respect of the unit with interest at such ,, il: ,: ffi :;.,;ffiffi "Lj #"llsllai,ab,e,o,he a,,o,,ee including compensation for which they may file an application for adjudging compensation with the adiudicating officer under sections 71 & 72 read with section 31(1) ofthe Act of 2016.

21.

The authority hereby directs the promoter to return to the complainants the amount received by him i.e., Rs.

Rs.

16,45,068/- with .

The promoter has Page 13 of 15 HARERA ffiGURUGRAN/ interest at the rate of 10.70o/o (the State Bank of lndia highest marginal cost of lending rate (MCLRJ applicable as on date +20lo) as prescribed under rule 15 ofthe Haryana Real Estate [Regulation and Development) Rules, 2017 from the date of each payment till the actual date of realization of the amount within the timelines provided in rule 16 ofthe Haryana Rules 2017 ibid.

F.II Compensation 22.

The complainant is seeki mentioned reliefs.

Hon' 67 45-67 49 of 202L PvL Ltd.

V/s entitled to cl 12,14,18 and se officer as per sectio expense shall be adjudgd Complaint No.

3792 of 2019 .t. compensation in the above- of India in civil appeal nos. and Developers that an allottee is rges under sections by the adjudicating mpensation & litigation officer having due regard judicating officer has exclusive.juri laints in respect of compensation & claiming compensation under sections 12, 14, 18 and section 19 ofthe Act, the complainant may file a separate complaint before Adjudicating Officer under section 31 read with section 71 ofthe Act and rule 29 ofthe rules.

F.

Directions ofthe authority to the factors mE Page 14 of 15 HARERA ffiGURUGRAI/ Complaint No.

3792 of 2019 23. f 2019 23.

Hence, the authority hereby passes this 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 entrusted to the authority under section 34[fJ: i.

The respondent is directed to refund the entire amount of Rs.

76,45,068/- /- paid by the complainant along with prescribed rate of interest @ 10.70 scribed under rule 15 of the Haryana Real Estate ( and Development Rules, 2017) from the date of e actual date of realization of the amount.

A period of ii.

24.

25. nt to comply with the directions would foll legal consequences Complaint stands File be consigned to HARERA GURU RAM \'\- -4.--2 [Viiay Kuffiar Goyal) Member Haryana Real Estate Regulatbry Authority, Gurugram at,rn Ihts W is given to the Dated: 14.03.202 3 Page 15 of 15 I I ferrixSi-e*"r,1 Menlber