REETA CHAUHAN vs RAHEJA DEVELOPERS LTD.

ffiHARERA ffi eunuennvt BEFORE THE HARYANA REAI ESTATE REGULATORY AUTHORITY, GURUGMM Date of decision: 0a.12.2023 ORDER 1.

This order shall dispose of all the 9 complaints titled as above filed before this authority in form CRA/CAO under section 31 of the Real Estate (Regulation and DevelopmentJ Act, 2016 (hereinafter referred as "the Act"J read with rule 28 ofthe Haryana Real Estate (Regulation and CORAM: Shri Sanjeev Kumar Arora APPEARANCE WHEN AGRUED: Mr.

Utkarsh Thapar & Ms.

Aasma Sachdeva (Advocate) Mr, Garvit Gupta (Advocate) Complaint no.

1446 of 2022 & ors.

Member Complainants Respondent NAME OF THE BUILDER RAHEJA DEVELOPERS LTD.

PROJECT NAME RAHE'A REVANTA s.

No.

Case No.

Case title 1. cR/ 1446 /2022 ., cR/rM7 /2022 RAKHI CHAUHAN V/S RAHEIA DEVELOPERS LTD. cR/A4a/2022 4. cR/ 1449 /2022 5. cR/ t4so /2022 REETA CHAUHAN V/S RAHEIA DEVELOPERS LTD.

6. cRlt4st /2022 REETA CHAUHAN V/S RAHEIA DEVELOPERS LTD.

7. cP./ t4s3 /2022 REETA CHAUHAN V/S MHEIA DEVELOPERS LTD.

B. cR/ 7454 /2022 9. cR/ 14SS /2022 Page 1 of40 RAKHI CHAUHAN & ANR.

V/S RAHEJA DEVELOPERS LTD.

RAKHI CHAUHAN V/S RAHEJA DEVELOPERS LTD.

RAKHI C1IAUHAN V/S RAHEIA DEVELOPERS LTD.

REETA CHAUHAN V/S RAHEJA DEVELOPERS LTD.

HARERA ffi GURUGRAIV 2.

Complaint no.

3.

Development) Rules, 2017 (hereinafter referred as "the rules"J for violation ofsection 11[4J (a) ofthe Act wherein 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 sale executed inter se between parties.

The core issues emanating from them are similar in nature and the complainant(sJ in the above referred matters are allottees of the project, namely, "RAHE|A REVANTA" (group housing colony) being developed by the same reipiltii$ntlpromoter i.e., M/s Raheja Developres Ltd.

The t"...

The t"... ,n,t conditions of the buyer's agreelnents, fulcrum ofthe issue involvedirl g'tlthe,se cases pertains to failure on the part of the promoter to da'lhier fimely possession of the units in question, seeking award ofrefund the entire amount along with interest and the compensatiori.

The details ofthe complaints, reply to status, unit no., date ofagreement, possession clause, due date ofpossession, total sale consideration, total paid amount, and relief sought are given in the table below: Project Name and Location RAHEJA DEVLOPERS LTD "RAHEJA REVANTA" Sector-78, GURUGRAM.

Possession Clause: - 4.2 "That the Seller sholl sincerely endeavor to give possession ofthe Unit to the purchaser within thirty-six (36) months in respect oI'TAPAS' lndependent Floors and lorly eight (48) months in resped of 'SURYA TOWER' from the date of the execution of the Agreement to sell ond ofter providing of necessory infrastructure specially rood sewer & water in the sector by the Government but subject to force mojeure conditions or any Government/ Regulatory authority's oction, inaction or omission and reasons beyond the control of the Seller.

However, the seller shall be entitled lor compensation Jree groce period of six (6) months in cqse the construction is not completed within the time period mentioned above.

The seller on obtoining certifrcate for occupation ond use by the Competent Authorities shqll hqnd over the Unit to the Purchoser for this Page 2 of40 # ttzJ HARERA GURUGRAN,4 Complaint no.

1446 of2022 & ors. occupotion and use ond subject to the Purchoser having complied with all the terms ond conditions of this application form & Agreement to sell.

In the event of his failure to take over and /or occupy ond use the unit provisionally ond/orfinally allotted within 30 days from the date ofintimation in writing by the seller, then the same sholl lie ot his/her risk and cost and the Purchoser sholl be liqble to compensqtion @ Rs.7/- per sq. /- per sq. ft of the super areo per month os holding chorges for the entire period of such deIay......." (Emphasis supplied) Occupation certificate: - not obtained Offer ofpossession: not offered ReliefSought: The complainants in the abovemenBonqdaonplaints have sought refund ofthe amount Daid alons with the interest: Note: Grace period possession. is allowed while computing due date of Complaint No.

Unit details , /T.

Total consideratio n(Tc) & amount paid tAP) Due date of possession cR/1446/20 22 rF10-01 admeasuring 2891.66 sq. ft. t I )1 lpg.

23 of comDlaintl $ 12.10.207A with original allottee and complainant no.2 [pg.

20 of complaintl Endorsed in name of complainant no.

1 on o2.o7.2020 lpg.

15 of complaintl TC: <3,2t,39,088 / AP: <3,21,39,087 / l[as per lapplicant lledger dated | 07.03.2020 at lor. s6 of lcomolaintl 72.04.2022 cR/1447 /2O 22 IF21-01 admeasuring 2891.66 sq. ft.

27 .tt.20t5 TC: <2,69,4_6,620 / AP: 12 ,53 ,56,7 29 / 27.05.2079 Page 3 of40 Date of ffiHARERA S-eunuenntr,t Complaint no.

1446 of 2022 & ors. [as per applicant ledger dated 07.03.2020 at pg.

57 of lpg.

16 of lpg.

23 of 27 .05.2079 TC: <2,49,3-2,784 / AP: <2,33,42,994 / applicant .03.2020 at pC.

57 of 27 .tt.2075 tF22-01 admeasuring 2891.56 sq. ft. lpc. t9 comolaintl cR/tMa/2o 'r', 27 .05.2019 'l L; 49,32,78+/ 3,42,993 / 7 .03.2020 at 27 .1t.20 admeasuring 2891.66 sq. cR/1449 /2O ,) RE lhr l^.

27.05.2019 'I U: 12,49,32,784 / AP: <2,33,+2,99+/ 27.tt.2015 tF24-Ol admeasuring 2891.65 sq. ft. t4so /2o 22 Page 4 of40 It_ltt, ltpe. te I I I lt"' Per I I I I lapplicant I *HARERA S- eunuennvt Complaint no.

1445 of2022 & ors. ledger dated 19.04.2018 at 55 0t lpg.

16 of lpe. com 27.05.2019 TC: <2,49,32,784 / AP: <2,33,+_2,994/ [as per applicant ledger dated 19.04.2018 at pC.

57 of 27.t1.20L5 IF2 5-01 admeasuring 2891.65 sq. ft. t4stlzo 1) 27.05.2079 <2,49,32,7A+ / eP, 2,33,42,99+ / 19.04.2018 at tF26-01 2891.66 sq. ft. cP.l7453 /2O 22 r rrl 16 of 13.03. of 13.03.2016 TC: l <t,75,63,9?jl1 | AP: <r,68,7 _3,A9A/ [as per applicant ledger dated 07.03.2020 at 73.09.2012 IF41-01 2891.66 sq. ft. cR/L4S4l2O .,) Page 5 of40 l:., *lP* pI \q __'] 19 of .l l[rt per lapplicant HARERA MGURUGRAM The aforesaid @#rt. rc"rrrt # 5. promoter on account of violation of the apartment buyer,s agreement executed between the parties in respect of said unit for not handing over the possession by the due date, seeking award ofrefund the entire amount along with interest.

It has been decided to treat the said complaints as an application for non-compliance of statutory obligations on the paft of the promoter/ respondent in terms of section 34(f) of the Act which mandates the authority to ensure compliance of the obligations cast upon the promoters, the a ottee(s] and the real estate agents under the Act. the rules and the regulations made thereunder.

The facts of all the complaints filed by the complainant(s)/allottee(s] are also similar.

Out ofthe above_mentioned case, the particulars of lead case CR/7446/2022 Rakhi Chouhan & anr.

V/s Raheja Developers Itd, are being taken into considr ar rotteefsJ qua rerund ",,r" ;i:'J:::ff:ffi T,::: :',i:::T; compensation 6. pC.

27 of complaint lpg.

17 of complaint complaint cR/t4ss/20 22 tF42_07 admeasuring 2891.65 sq. ft. fpg.

20 of complaint 73.09.2072 lpC.

16 of complaintl TC; 11,75,6-3,921/ AP: <7,68,7 _3,898 / [a" per applicant ledger dated 79.04.2018 at pg.

68 of complaint 13.03.2016 Page 6 of40 Complaint no.

7446 of 2022 & ors.

MHARERA # eunuenAM A.

7.

Proiect and unit related details The particulars of the project, the de.,irs of sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: CR/t446/ZOZZ Rakhi Chauhan & anr.

Name ofthe pro ", Sector 78, Gurugram, 01.06. am, 01.06.2011 valid up to Name oflicensee ; Ram Sawroop and 4 Date of clearances GUR EC is taken from the /2027/3678/20t9 or same promoter] Date of revised environment clearances 37.07.2017 [Note: - the date of revised EC is taken from the complaint no.

737 /2021/3629/2019 of the same proiect being developed by the same promoter] Page 7 of 4O ]earticutars ] DTCP license no. ] validity status Complaint no.

1446 of 2022 & ors. | 18.7213 acres is lt.lt & ffi HARERA GURUGRAM Complaint r,o.

7446 of 2OZz & ors.

RERA Registered/ not registered Registered vide no.

32 of ZOIZ dated 04.08.20t7 RERA registration valid up to 31.07.2023 5 Years from the date of revised Environment Clearance + 6 Months grace period in view ofCovid-19 Since the said registration has expired therefore the registration branch may necessary actions under the Act, Unit no. ground floor, Tower/block- complaint) agreement to sell - 74.

Compensation Thqt the Seller shall sincerely endeavor to give possession of the llnit to the purchaser within thirty-six (56) months in respect of 'TApAS, lndependent Floors and forty eight (48) months in respect of 'SURYA TOWER' from the date of the execution of the Agreement to sell dnd aftcr providing of necessary infrastructure specially road sewer & water in the sector by the Government, but Page B of40 I 2016 againsr the respondent.

I zasr.ooo sq. rt.

12.

I Allotment letter 4.2 Possession Time and ffi 6 HARERA GURUGRAM Complaint no.

1446 of2022 & ors. lsubject to force moj"ii*diti*, "r rry Government/ Regulatory authoriO).s action, inqction or omission and reasons beyond the control of the Seller.

However, the seller shall be entitled for compensation lree grace period of six (6) months in case the construction is not completed within the time period mentioned above.

The seller on obtoining certilicqte for occupation and use by the Competent Authorities shall hand over the Unit to the purchqser for this o. or this o.ccupqtion ond use ond sublect to'the I Purchoser hoving complied with all the termi snd conditions of this opplicotion I form & Agreement To sell. ln the event otl hisfailure to toke ov", ord 7o, orrupy ond I use the unit provisionolly and/or finalfu ) zllotted within 30 doys from ,n" arr" of) 'ntimation in writing by the seller, then) :he some shall lie at his/her risk and cost md *e Purchaser shall be liabte to I :ompensotion @ Rs.Z/- per sq. ft. of thel 'uper oreq per month os holding chorges I br the entire period of suchde\ay..........,, ) Page no.3l ofrhe comptainr).

I 15.

Grace period I altowea I I As perclause 4.2 ofthe agreement to sell, I the possession of the allotted unit was supposed to be offered within a stipulated timeframe of35 months plus 6 months of grace period.

It is a matter of fact that the respondent hm not ] completed the project in which the l allotted unit is situated and has not I obtained the occupation certificate by i Page 9 of40 il HARERA GURUGRAM Complaint no.

1446 of2022 & ors.

B.

8.

The complainant in the complaint: intention to develop Facts ofthe co an SEZ at village Hamirpur, Tehsil and District Gurgaon, Haryana, approached Late Sh.

Desh Rai, the complainant no.1,s father-in- law, with an offer to enter into a "developer agreement,,with respect to the agricultural land owned by him at village Hamirpur.

That Late Sh.

Desh Raj accepted the respondent,s offer and hence the developer agreement was executed on 15.12.2006 between the a.

That in the October 2021.

As per agreement to sell, the construction of the project is to be completed by october 2021 which is not completed till date.

Accordingly, in the present case the grace period of 6 months is allowed.

Due date ofpossession r2.04.2022 (Note: - 36 months from date of ment i.e., 72.10.207a + 6 months Total sale consideration per customer le 07.03. le 07.03.2020 the complaint Amount ledger dated 56 ofthe complaint) Occupation /Completion Offer ofpossession Page 10 of40 lt ] ruot off"r"d HARERA ffiGURUGRAM complaint no.

1446 of 2022 & ors. two parties.

That in furtherance to the developer agreement, the land owned by Late Sh.

Desh Raj admeasuring 47 acres g marla situated in the revenue estate of village Hamirpur Tehsil and District Gurugram, Haryan4 (hereinafter referred to as .the land,) was leased out to the respondent.

That vide the developer agreement dated 15.12.2006, Late Late sh.

Desh Raj had also agreed to sell, transfer, convey the said land along with his total share in the built up and un built up area of the developed SEZ to the respondent for a totiisale'consideration of{ 67,16,SO,OOO/-. b. rharin 20t2,they*tfrffi sed his desire to execute the said clause of the d er agreement pertaining to the sale, transfer, conveyance of the said land and Late Sh.

Desh Raj agreed to the same.

That subsequently the respondent and Late Sh.

Desh Ra, entered into a sale deed dated 30.06.20L2 wirh respect to the said land admeasuring 47 acres B marla situated in the revenue estate of village Hamirpur Tehsil and District Gurugram, Haryana.

That out ofthe total sale consideration of { 6tt,16,50,000/_ for the said land, an amount of t18,82,00,000 /- remained to be paid by the respondent at the time of execution of the sale deed dated 30.07 .2072 for the above mentioned land. c.

That the respondent, in partial discharge of the total Iiability of { 18,82,00,000/-, offered to allot residential units in their upcoming Iuxury group housing proiect,Raheja Revanta, to Late Sh.

Desh Raj and/or his nominees of an equivalent amount.

That the respondent, with the intention to impress Late Sh.

Desh Raj and his nominees, made grand promises and presentations of the project.

Page 11 of40 ffiHARERA ffi eunuennnr e.

1446 of2O22 & ors.

O22 & ors.

That the respondenl in part fulfillment of the due sale consideration amount for the said land, offered to allot a unit in their latest luxury group housing project, Rahe.ia Revanta, Sector_ 78, Gurugram (hereinafter referred to as ,the project,J to Late Sh.

Desh Raj and/or his nominees.

That with the intention to lure the complainants, the respondent made stellar representations pertaining to their reputation, professionalism and goc :in the market.

That believing the respondent's represen d promises, the complainants agreed to the receipt of respect to the part-settlement of the due sale consi nt for the said land, with the promise of possession beinl ?02L.

That believing the grand and luxurious portrayal of the project made by the respondent Late Sh.

Desh Rai accepted the allotment of apartment no.

IF 10-01, Tapas, Raheja Revanta, Sector-78, Gurugram, Haryana (hereinafter referred to as,the unit,) in the name of his sons, Late Sh.

Rajeev Chauhan and the complainant no.2 and entered into an agreementto sell with respect to the same on 12.10.2018.

That it was agreed to by both parties that the total sale consideration for the unit, being < 2,64,96,525/-, would be considered settled against the part fulfillment of the due sale consideration amount for the said land.

That the applicant ledger/ statement of account maintained by the respondent mentions that as on 07.O3.ZOZO, the complainants have paid { 3,21,39,088/- to the respondent i.e., more than 100%o of the sale consideration for the unit has been received by the respondent.

Page 12 of 40 d.

HARERA ffiGURUGI?AI/ Complaint no.

1446 of2022 & ors. h.

That the respondent promised to handover the possession of the unit within 36 months from the date ofexecution ofthe agreement to sell.

That the same is also mentioned in article-4.z of the agreement to sell stating that the possession ofthe unit is promised to be offered within 36 months from the date of execution of the agreement to sell i.e., by 12.L0. by 12.L0.2021.

That they assured the complainants that there will not be any delay as, they had obtained all requisite sanctions/appro, project was being c had further promised construction of the projec and the construction of the t the officials ofthe respondent timely updates about the That the complainants trusted the respondent based on their promises and representations, however, as the date of possession came closer, the respondent's officials started making excuses and avoiding the complainants' calls for updates of construction.

That the respondent repeatedly reassured the complainants that the possession of the apartment would be provided to them by and before October 2021,, however, the complainants became extremely demoralized upon visiting the construction site and seeing the state it was in.

That due to the irresponsive and unethical demeanour of the respondent, the complainants went to visit the project site and to their utter shock and disappointment, the construction of the project was nowhere close to completion.

That when the complainants approached the respondent and their officials for an explanation they emptily reassured them yet again that the Page 13 of40 * HARERA ffi, eunuennvr Complaint no.

1446 of2022 & ors. construction of the proiect would soon complete and the possession ofthe unit would be provided to them by 0 ctober ZOZI. k.

That the complainants visited the proiect site on O6.L2.ZOZ0 and again on 28.09.2021 only to find the proiect in a dire state.

That it is pertinent to mention that till date the proiect is under construction and is nowhere near completion.

That it has been more than 3 years since the executlon ofthe said agreement to sell, and till date not only )essession not been offered. the construction of the en dependent floors is yet far from completion.

Further, as per n'ble Authority, the registration certificate of the pro,ect, valid starting from 04.08. rom 04.08.2017 till 5 years from the date of revised environment clearance obtained on 23.t0.2073, stands expired.

The respondent maliciously lured the complainants into purchasing a unit in the project by making false representations.

That the complainants are suffering from grave mental agony and financial hardship due to the illegal, unethical and unprofessional C.

9. :::,".,::J[K#liffi ffi ffi k'::fi ]:".;":::1 their hard e$il!id**{9*#$el4d in t}e uniL rhat the project is nowhere near completion and cannot be completed within the next 5 months.

It is a settled law that the complainants cannot be made to wait indefinitely for the possession.

Reliefsought by the complainant The complainant has filed the present compliant for seeking following relief: Page 14 of 40 ffi HARERA tl$l eunuennr.r Complaint no.

1446 of 2022 & ors. a.

Direct the respondent to refund the paid-up amount along with the interest for every month ofdelay.

D, Reply by the respondent 10.

The respondent has raised certain preliminary objections and has contested the present complaint on the following grounds: a.

That the complaint is neither maintainable nor tenable and is liable to be out-rightly dismissed.

The agreement to sell was executed between the parties pri entof theAct, 2016 and the provisions laid down said Act cannot be enforced retrospectively.

Al ons of the Act, 2016 are not applicable to e in hand yet without prejudice a respondent tions later on, the e authority under the provisions no.

32 ofzo17 dated b.

04.08.2017.

That the re dealing with only those allegations, conten ions that are material and relevant for present dispute.

It is further su would appear from the records and what is expressly admitted herein, the remaininB allegations, contentions and/or submissions shall be deemed to have been denied and disputed by the respondent. espondent.

That the complaint is not maintainable for the reason that agreement contains an arbitration clause which refers to dispute resolution mechanism to be adopted by the parties in event of any dispute i.e., clause 14.2 of the buyer's agreement. the the the Page 15 of40 ffiHARERA ffi,eunuennHir Complaint no.

1446 of2022 & ors, That the complainants have not approached this authority with clean hands and has intentionally suppressed and concealed the material facts in the present complaint.

The complaint has been filed by it maliciously with an ulterior motive and it is nothing but a sheer abuse of the process of law.

The true and correct facts are as follows: .

That the respondent/builder is a reputed real estate company having immense peace-loving pers prised of law abiding and always believed in satisfaction has developed and delivered several p Atharva', allottees ofthe r such as 'Raheja Atlantis' 'Raheja ta' and in most of these projects large number of families have already shifted after having taken possession and resident welfare associations have been : of the d: rjects. formed which are taking care of the day' to day needs of the That the project is one of the most Iconic Skyscraper in the g}.- - -r.tY.', makins. a o many infinity pool and club in India.

The scale of the project required a very in-depth scientific study and analysis, be it earthquake, fire, wind tunneling facade solutions, landscape management, traffic management, environment sustainability, seryices optimization for customer comfort and public heath as well, luxury and iconic elements that together make it a dream project for customers and the Page 16 of40 HARERA ffi.GURUGRAM Complaint no.

1446 of2022 & ors. developer alike.

The world's best consultants and contractors were brought together such as Thorton Tamasetti (USA) who are credited with dispensing world's best structure such as Petronas Towers [MalaysiaJ, Taipei 101(TaiwanJ, Kingdom Tower feddah (world' tallest under construc r construction building in Saudi Arabia and Arabtec makers of Burj Khalifa, Dubai fpresently tallest in the world), Emirates palace Abu Dhabi r That compatible infrastructure (external] was required to be internal infrastructure and requiring facilities and be offered for possession without integration of external continuity of services in terms of clean water, continued fail safe quality electricity, fire safety, movement of fire tenders, lifts, waste and sewerage ing and disposal, traffic management etc. every aspect in mind this iconic complex was cor xture oftallest high-rise towers & low-rise apartment blocks with a bonafide hope and belief that having realized all the statutory changes and license, the government will construct and complete its part of roads and basic infrastructure facilities on time.

Every customer including the complainant was well aware and was made well cautious that the respondent cannot develop external infrastructure as land acquisition for roads, sewerage, water, and electricity supply is beyond the control of them.

Page 17 of 40 ffiHARERA S-eunuenAHl Complaint no.

Therefore, as an abundant precaution, the respondent company while hedging the delay risk on price offered made an honest disclosure in the application form itselfin clause no.

5 ofthe terms and conditions.

That the complainants are real estate investor and they have booked the unit in question with a view to earn quick profit in a short period.

However, it appears that its calculations have gone wrong on re slump in the real estate market, and they ng untenable and illegal Pleas on highly flim unds.

Such malafide tactics ofthe co to succeed.

That sell on agreed Despite provlslons the agreement to the complainants therein. obligations as per the t agencies have basic infrastructure water and electricity is being developed. developed. facilities such supply in the s The development of roads, sewerage, Iaying down of water and electricity supply lines has to be undertaken by the concerned governmental authorities and is not within the power and control ofthe respondent.

The respondent cannot be held liable on account of non-perfolmance by the concerned governmental authorities.

The respondent company has even paid all the requisite amounts including the Page 18 of40 ffiHARERA ffieunuenRH,rt Complaint no.

1446 of2022 & ors. external development charges (EDC) to the concerned authorities.

However, yet, necessary infrastructure facilities like 60 meter sector roads including 24 rneter wide road connectivity, water and sewage which were supposed to be developed by HUDA parallelly have not been developed.

There is no infrastructure activities/development in the surrounding area ofthe project-in-question.

Not even a single sector road or ve been put in place by HUDA/GMDA/ That the respo RTI application for seeking informati c services such as road, sewe r, the respondent rec clearly stated that no extern en laid down by the concern e respondent can't be blamed in inaction of government authorities.

That fu*hermore two High Tension (HT) cables lines were I passing through the pFotbct site which were clearly shown and visible in the zoning plan dated 06.06.2011.

The respondent was required to get these HT lines removed and relocate such HT Lines for the blocks/floors falling under such HT Lines.

The respondent proposed the plan of shifting the overhead HT wires to underground and submitted building plan to DTCP, Haryana for approval, which was approved by the DTCP, Haryana.

It is pertinentto mention that r, Page 19 of40 HARERA GURUGRAM Gurgaon - Manesar lin Complaint no.

1446 of2022 & ors. dshahpur - Manesar such HT Lines have been put underground in the revised Zoning Plan. ning Plan.

The fact that two 56 KV HT lines were passing over the project land was intimated to all the allottees as well as the complainant.The Respondenthad requested to M/s KEI lndustries Ltd for shifting of the 66 I(V S/C Gurgaon to Manesar Line from overhead to underground Revanta Project Gurgaon vide letter dated 01.10.2013.

The HVPNL took more than one year in giving the approvals and commissioning of shifting of both th 'Lines. lt was certified by HVPNL Manesar that the on for laying of 66 KV S/C & D/C 1200 Sq. mm. uminium) of 66 KV S/C and 56 KV D/C Badshahpur - Manesar Line was commissioned on 29,03.2015.

That respondent got the overhead wlres shifted underground at its own cost and only after adopting all necessary processes and procedures and handed over the same to the HVPNL and the same was brought to the notice of District Town Planner vide letter dated 28.10.2014 requesting to apprise DGTCP, Haryana for the same.

That as multiple government and regulatory agencies and their clearances were in involved/required and frequent shut down of HT supplies was involved, it took considerable time/efforts, investment and resources which falls within the ambit of the force Page 20 of40 ffi HARERA ffi,eunuennll Complaint no.

1446 of2022 & ors. majeure condition.

The respondent has done its level best to ensure that the complex is constructed in the best interest and safety of the prospective buyer's.

That GMDA, office of Engineer-Vl, Gurugram vide letter dated 03.12.2019 has intimated to the respondent company that the land ofsector div iding road' 77 /7ahas not been acquired and sewer line has not been laid.

The respondent/promoter wrote on several the Gurugram Metropolitan development Auth AJ to expedite the Provisioning of the in the said proiect site so that possessio allottees.

However, the authori uest till date. till date.

That hich the plot allotted to the complete and the respond of the same to the compl ect to the complainants making the installments amount and on availabiliW uch as sector road and laying sewer, such as water, the application and agreement to sell.

The photographs showing the current status of the construction of the tower in which the unit allotted to the complaint is located' It is submitted that due to the above-mentioned conditions which were beyond the reasonable control of the respondent, the development ofthe township in question has not been completed and the Page 2l of 4O ffiHARERA ffieunuennr,l Complaint no.

1446 of2022 & ors. respondent cannot be held liable for the same The respondent is also suffering unnecessarily and badly without any fault on its part.

Due to these reasons the respondent has to face cost overruns without its fault.

Under these circumstances passing any adverse order against the respondent at this stage would amount to complete travesty of justice.

That the construction of the tower in which the floor is allotted to the complainants is located already complete and the respondent shall hand over the possession of the same to the complainants after getting the occupation certificate subiect to the complainants making the payment of the due installments amount as per terms of the application and agreement to sell.

That the origin ofthe present complaint is because an investor is unable to get required return due to bad real estate market.

It is increasingly becoming evident, particularly by the prayers made in the background that there are other motives in mind by few who engineered this complaint using active social media.

That the complaint has been worded as if simpleton apartment buyers have lost their monies and therefore, they must have their remedy. ir remedy.

The present case also brings out how a few can misguide others to try and attempt abuse of the authority which is otherwise a statutory body to ensure delivery of apartments and safeguard of investment of every Page 22 of 40 ff# HARERA GURUGRAM Complaint no.

1446 of 2022 & ors. single customerwho puts his life saving for a dream house and social securitY. e.

That in the present case, as compared to others in the region, the building has been standing tall and with almost 1000 workers working day and late night towards finishing the proiect to handover to the esteemed hundreds of customers in the waiting' Some flat buyers who had invested in the hope of rising markets' finding insufficient Price to delay of Dwarka exPressway, delay in development ads and shifting of toll Plaza engineered false and ;es to complain and then used social media to make other [non'speculator) flat b at buyers ioin them and make complaints, in all probability, by giving them an impression that ' 'profit', and there is no penalty if the complaint failed. development of roads in construction of ructure (2J delaY bY government rressway and allied roads; and (3) s*il:';::::::::i: ground for mmplaint for refund as the application form itself has abundantly cautioned about the possible delay that might happened due to non-performance by Government Agencies' That amongst those who booked (as one now sees) were two categories: (1J those who wanted to purchase a flat to reside in future; and (2) those who were looking at it as an investment to yield profits on resale.

For each category a lower price for a Revanta type Slry Scaper was an accepted offer even before Page 23 of 40 ffi ffi HARERA GURUGRAM Complaint no.

1446 of2022 & ors. tendering any money and bilaterally with full knowledge and clear declarations by taking on themselves the possible effect of delay due to infrastructure. h. ucture. h.

That in the present case, keeping in view the contracted price' the completed (and lived-in) apartment including interest and opportunity cost to the Respondent may not yield profits as expected than what envisaged as possible profit' The completed building structure as alsothoptice charged may be contrasted with the possible profit's v/s building investment, effort and intent.

It is in this background that the complaint' the prevailing situation at site and this response may kindly be considered The E.

12. situation at site and this response may kindly be considered The present complaint has been filed with malafide motives and the same is liable to be dismissed with heavy costs payable to the respondent.

11.

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

Their authenticity is not in dispute Hence' the complaint can be decided on the basis of these undisputed documents' iurisdiction to adiudicate the present complaint for the reasons given below.

E.

I.

Territorial iurisdiction 13.

As per notification no.

L/g2/2017-ITCP dated 14'12'2017 issued bv Town and Country Planning Department, Haryana' the iurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram ln the present Page 24 of 4O trHARERA Heunuennt'l Complaint no.

1446 of 2022 & ors. case, the project in question is situated within the planning area of Gurugram District, therefore this authority has complete territorial iurisdiction to deal with the present complaint' E.II.

Subiect-matter iurisdiction 14.

Section 11(a)(a) of the Act provides that the promoter shall be responsible to the allottee as per agreement for sale' Section 11(4)(aJ is reproduced as hereunder: Section 77 (4) The promoter sholl' i;) be responsible for all obligotions, responsibilities ond functions under the provisions ofthisActor the rules and regulotions made thereunder or to the allotbes as per the agreementfor sa mentfor sale, or to the association ofallottees, os the case moy be, till the conveyance of all the aportments, Plots o) ngs, as the case may be, to the allottees, or the common areos to the ossociation oJ allottees or the competent authority, as the cose msy be; Section 34-Functions of the Authorityl 34A ofthe Actprovides to ensure compliance oI the obligations cast ,pii [n" prouit"rs, the allottees ond the real estate qgents under ti,is Act and the rules and regulations made thereunder' 15.

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 as per provisions of section 11(4)(aJ of the Act leaving aside compensation which is to be decided by the adiudicating officer ifpursued by the complainant at a later stage' 16.

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 judgement passed by the Hon'ble Apex Court in Newtech Promoters and Developers Private Limiteit Vs State of II'P' and Ors' 2027'2022 (1) RCR (Civil),357 and reiterated in case of M/s Sana Realtors Private Page 25 of40 HARERA S*GURUGRAM Limited & other Vs llnion of India & others SLP (Civil) No' 13005 ol 2020 decided on 72.05'2lZ2wherein it has been laid down as under: 17. the Act 2016." Hence, in view of the authoritative pronouncement of the Hon'ble Supreme Court in the case mentioned above, the authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amounL Findings on the obiections raised by the respondent F.l.

Obiections regarding the complainant being investor' 18.

The respondent has taken a stand that the complainants are the investors and not consumers, therefore, they are not entitled to the protection ofthe Act and thereby not entitled to file the complaint under section 31 of the AcL The respondent also submitted that the preamble e preamble of the Act states that the Act is enacted to protect the interest of consumers of the real estate sector' The authority observes that the respondent is correct in stating that the Act is enacted to protect the PaEe7,6 of 40 Complaint no.

1446 of 2022 & ors. "86.

From the scheme of the Act of which a detailed reference hos been made qnd taking note of power of adiudication delineated with tii regulotory outhirity oni odiudicating officer, what frnally cu.l.ls out ir"tnot oitnorgn tie Act indicates the distinct expressions like - : r"iiii;, : i n * r"t',1p"nolty' and'compensotion" o conJoint reod ing.of. s"lriiont fi ora il cleor'ly monilesu thotwhen it comes to relund of the omount and interest on the refund omount or directing poyment of interest for delayed delivery of possessi*,.?',p:"ly,tnd-'-i.Y:: ihereon, ii is thi regutotory authoriry which has the power. to examine ond determiie the oukome ofo complaint At the some time' iien it comes to o questlon o! seeking the relief of adjudging compensation ond interesttheritottttnder Sections 12, 14' 1,8 and 19: ii"'oaluai"oting officer excltiively has the power to determine' keeping inview the t ofsection 71 readwith Section ziZtin" ert. if the adiudicotion uider Sections 12 l4 l8 ond ]q orn", ,non compensotion as envisoged' if extended Lo rhe, o'iiui,aicotirg olrtrir os proyed thot' in oui view,moy intend to expond LhL onbit ini scope oi the powers ond lunctions oI the odiudicoting. officer under Seciion 71 ond that would be qgoinst the mondote ol F.

HARERA GURUGRAM Complaint no.

1.446 of 2022 & ors. interest of consumers of the real estate sector.

It is settled principle of interpretation that preamble is an introduction of a statute and states main aims & objects of enacting a statute but at the same time, preamble cannot be used to defeat the enacting provisions of the Act' Furthermore, it is pertinent to note that any aggrieved person can file a complaint against the promoter ifthe promoter contravenes ntravenes or violates any provisions ofthe Act or rules or regulations made thereunder' Upon careful perusal of all the terms and conditions of the apartment buyer's agreement, it is revealed that the conrPlainants are buyer and they have paid total price of { 3,213g,Adfl:,io the promoter towards purchase ofan apartment in its proieEt' At'thiislage, lt is important to stress upon the definition of term allottee under the Act, the same is reproduced below for ready reference: "2(d) "allotae" in relation.to a reol estate proiect meons the person to whom a ploC aportment or builAing, os the case may be, hos been ollotted, sotd (whether qs [reehold or'leasehold) or othetwise transferred by the promoter, And lncludes the person who subsiquently acquires the sc,id allotment through sole, transfer or othetwise but doet nbt incl\de a person to whom such plot' aportmentor building, os the case may be, is given on renti' 19. ln view of above-mentionPd .de'finition. of "allottee" as well as all the terms and conditions of the apartment buyer's agreement executed between promoter and complainants, it is crystal clear that the complainants are allottee(s) as the subiect unit was allotted to them by the promoter.

The concept of investor is not defined or referred in the AcL As per the definition given under section 2 of the Act, there will be "promoter" and "allottee" and there cannot be a party having a status of "investor".

The Maharashtra Real Estate Appellate Tribunal in its order dated 29.0L.2019 in appeal no.0006000000010557 titled as M/s Page 27 of 40 HARERA ffiGURUGRAM Complaint no.

Srushti Sangam Developers PvL Ltd' Vs' Sarvaprtya Leasing (P) Lts' And anr. has also held that the concept of investor is not defined or referred in the Act.

Thus, the contention of promoter that the allottees being investors are not entitled to protection of this Act also stands reiected.

F, lI Obrection regarding iurisdiction of authority. authority. w'r'L buyer's tgreem"nt execrted prior to coming into force ofthe Act' zo. nnott?. ou;"ction raised ihe respondeni that the authority is deprived ofthe iurisdiction to 8o into:th9$$ipr,etation ol or rights ofthe parties inter-se in accordance witff[tql1$t buyer's agreement executed between the parties and no aryeement for'sale as referred to under the provisions ofthe Act or the sdid iiildi'lihs beeri executed inter se parties' The authority is of the,view tfrit thd-'Act nowhere provides' nor can be so construed, that all previous agreements will be re-written after coming into force ofthe Act.

TherefQre, the provisions of the Act' rules and agreement have to, be read: and intelpreted harmoniously' However, if the Act has 'provided fer dealing with certain specific provisions/situation in a sliecihefparticular manner' then that situation will be dealt with ii, ii-i{,nte *ia iheAct and the rules after the date trovisions of of coming into force of the Act and-the rules- Numerous p the Act save the provisions ofthe agreements made between the buyers and sellers.

The said contention has been upheld in the landmark judgment of Neetkamal Realtors Suburban PvL Ltd' Vs' Uol ond otherc. (W.P 2737 of 2077) decided on 06 12'2017 which provides as under: " 11g. l der the provisions of Section 18' the delay in honding over tii pou"rrion woutd be cointed from the dote mentioned in the iirli^tnt 1o, tot" entered into by the promoter ond.the allottee {rior to i*'registrotion under REP#,' Ilnder the provisions of REP,I,' Page 2B of40 HARERA @ cr rDr rcDAlI Complaint no.

1446 of2022 & ors. the promoter is given a locility to revise the dqte of-com.pletion of project and declare the same under Section 4 The REM does not 'co;bmplote rewriting of contract between the llat purchoser ond the Promoter..,.. iiz. ..,.. iiz. w" nor" otr"ody discussed that above stoted provisions ofthe REM are not retrospective in nature' They mqy to some extent be hoving o retroactive or quosi retrooctive elfect but -then on thot gioiia tne vataity ol the provisions of REP#. cannot be .challenged' the Parliament is competent enough to legislote low hoving retrospectiveor retroactiie elfect A low con be even.fromed.to oJfect subsis; ng / existing contrqiiuot rights between the parties,in the larger pibiic intereit. we do nothove ony doubt in our mind .thot the RE'M ias been framed in the lqlg?r pubtic interest after.a thorough study and disiussion mode'ii;"ihet iighest level bv .the Standing Coimittee and Select iiiiril&*; wnicn submitted its detailed re\orls." ; 21.

Also, in appeal no' 173 of zo1?titled as Mog ic Eye Developer PvL Ltd' Vs.

Ishwer Singh pahiyouln order d aied 17 '12'2019 the Haryana Real Estate Appellate Tribunal has obsewed- "34.

Thus, keeping in view our qforesaid discussioa we ore of the cionsid"rid opinlon that the provisions of the Act.ore. quasi retroactive to some ex@nt in operqtion and will be aDplicoble to the agreements for sale entered intD evgn pdpr Co coming into opefation iiiJiiiie thq tra\soction are still ln the orocess Qf completion' i"r"" lr rrt" rfiatq' in the offeldelivery ofpossessio' os p.er the iri, ,nd "orirtioni of the ogieement lor sole the ollottee shall be ;nfided to the interestfdelayed possession chorges on the.reosonoble rote of interest as pravided in Ru.te 15 oI the.rules ond one sided' ,ijoii ora ,n eorindbl" ratc ol compensotion mentioned ln the oireement for sale is tiobte tobe ignored r 22.

The agreements are sacrosanct.save and except for the provisions which have been abrogated by the Act itself' Further' it is noted that the agreements have been executed in the manner that there is no scope left to the allottee to negotiate any of the clauses contained therein' Therefore, the authority is of the view that the charges payable under variou der various heads shall be payable as per the agreed terms and conditions of the agreement subiect to the condition that the same are in accordance with the plans/permissions approved by the respective Pa1ezg of 40 HARERA ffiGURUGRAM Complaint no.

1446 of2022 & ors. departments/competent authorities and are not in contravention of any other Act, rules, statutes, instructions, directions issued thereunder and are not unreasonable or exorbitant in nature' F.III obiection regarding agreements contains an arbitration clause which refers- to the disp,,te resolution system mentioned in agreement 23.

The ag-reement to sell entered into between the two side on 12 10'2018 contains a clause 14.2 relating to dispute resolution betlveen the parties.

The clause reads as underr' ''Atl or ony dispules arising out or touching upon in relotion to^Lhe, t"rii ,finit'Applica o;ibgreement to sell/ conueyance D,eed includin'g the intiipretation aid iolidiry of the terms thereof ond-the, ,ipiiaitr" ,ign*'and obligations of the porties shall. be settled. tiiough ortiration.

The o;biffation proceedings sholl be governed bv tie Arbitrotion ond Conciliation Act, 1996 or ony stolutory imendments/ modilicolions lhereof lor Lhe time being in force.

The arbitration iroceedings shalt be held ot the olfice ofthe seller in New Delhi by o sole orbitritorwho shqll be appointed by mutual con-sent of the oorties I there is no consensus on oppointment of the ArbtLroior, the motter will be re\erred to the concerned LourL lor Lhe ,o^". ln ior" of ony proceeding, reference etc touching upon the orbitrator subi;ct iiclluding any oword, the territoridl jurisdiction of ini corrtt tnil b" curgoin oi well as of Punjob ond Horyona High Court at Chondigorh".

24.

The authority is of the opinion that the iurisdiction of the authority cannot be fettered by the existence of an arbitration clause in the buyer's agreement as it mFy be noted thEt section 79 ofthe Act bars the iurisdiction of civil courts about any matter any matter which falls within the purview of this authority, or the Real Estate Appellate Tribunal Thus' the intention to render such disputes as non-arbitrable seems to be clear.

Also, section 88 ofthe Act says that the provisions ofthis Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

Further, the authority puts reliance on catena of judgments of the Hon'ble Supreme Court' particularly Page 30 of40 HARERA ffiGURUGRAM Complaint no.

1446 of2022 & ors. in Nationol Seeds Corporation Limited v' M' Mailhusudhan Reddy & Anr. (2072) 2 SCC 506, wherein it has been held that the remedies provided under the Consumer Protection Act are in addition to and not in derogation of the other laws in force, consequently the authority would not be bound to refer parties to arbitration even ifthe agreement between the parties had an arbitration clause' Therefore' by applying same analogy the presence of arbitration clause could not be construed to take away the iurisdiction of the authority' 25.

Further, in Aftab Singh and orc. v..

Emaar MGF Land Ltd and ors" Consumer case no.

707 of 2075 itecided on 73'07'2017' the National 't t" '' Consumer Disputes Redressal .Comq.rission, New Delhi (NCDRC) has held that the arbitration clause in agreements beBveen the complainants and builders could not circumscribe the iurisdiction of a consumer.

The relevant paras are reproduced below: "49.

Support to the obove view is also lent by Section 79 of the recently enacte'd Reol Estote (Regulation and Development) Act' 2016 (for short "the Reql Estate Act").

Section 79 oI the soid Act reads os Iollows: ' "7g.

Bar of iurisdiction - No civil court shall have iurisdiction to entertain ;ny suit or proceeding in respect ofony motter w.hich the Authority oi the adjudicoting olfrcer or the Appellote Tribunol is empowired by or uider this ict lo determine and no iniunction shall be'granted by any court or other authority in respect of -ony oction ny oction taien or to bi mien in pursuonce of any power conferred by or under this AcL" It con thus, be seen thot the said provision expressly ousts the jurisdiction'of the Civil Court in respect of any motter.which the Reol 'Estote Reguiatory Authority, established under Sub'sectio-n (1) of Section 20 or thi Adiudicating Olficer, oppointed under Sub-section (1) of Section 71 or the Reol Estote Appellont Trihun.ol es-toblished uidir Section 43 of the Real Estote Act, is empowered to deternine' Hence, in view of tie binding dictum of the Hon'ble Supreme Court in A.

Ayyoswomy isupra), the motters/disputes, which the.

Authorities uniir the Real Estote Act ore empowered to decide' are non- arbitroble, notwithstonding on Arbitration Agreement between the Page 31of40 ffiHARERA s eunuennvt Complaint no.

1446 of2022 & ors. porties to such matters, which, to a large extenL are similor to the disputes fatling for resolution under the Consumer AcL '56, Consequentty, we unhesitotingly reject the orguments on beholf of the Buiider oid hold that an Arbitration Clause in the afore'stoted kind of Agreements between the Complainants ond the Builder connoi circumscribe the iurisdiction of q Consumer Foro, notwithstonding the qmendments mode to Section I oI the Arbitation AcL" 26.

While considering the issue of maintainability of a complaint before a consumer forum/commission ,il *" fact of an existing arbitration clause in the builder buyer agreement, the hon'ble Supreme Court in case titled as M/s Emaar MGF ,!n!

Ltd.

V' Afiab Singh in revision petition no.

2629-30/2078 in civil appeal no.

23572-23573 of 2077 decided on 10'72.2018has upheid the aforesaid iudgement of NCDRC and as provided in Article 141 of the Constitution of India, the Iaw declared by the Supreme Court shall be binding on all courts within the territory of India and accordingly, the authority is bound by the aforesaid view.

The relevant paras are of the,udgement passed by the Supreme Court is reProduced below: "25. elow: "25.This Courtin the series ofiudgments as noticed above considered the provisions of Consumer Protection Act, 1986 as well os Arbitrotion Act,1996 and loid down thot complaintunder Consumer Protection Act being a special remedy, despite there being on arbitrotion agreement the proceedings before Consumer Forum have to go on ond io error committed by Consumer Forum on reiecting the ap,-pticotion.

There is reamn lor not interiecting proceedings under Consumer Protection Act on the strength qn arbitration ogreement by Act,1996, The remedy under Consumer Protection Act is a remedy frovided to a consumer when there is o defect in any goods or 'services.

The complaint means any allegation in writing mode by o comploinant has qlso been explained in Section 2(c) of the AcL The remedy under the Consumer Protection Act is confrned to complaint. by coisumer as defined under the Act for delect or deliciencies caused iy a service provider, the cheap and o quick remedy has.been provided to thie consumer which is the object ond purpose ofthe Act as noticed obove." Page 32 of40 HARERA ffiGURUGRAI/ Complaint no.

27.

Therefore, in view of the above iudgements and considering the provision of the Act, the authority is of the view that complainants are well within their rights to seek a special remedy available in a beneficial Act such as the Consumer Protection Act and RERA Act' 2016 instead of going in for an arbitration.

Hence, we have no hesitation in holding that this authority has the requisite iurisdiction to entertain the complaint and that the dispute does not require to be referred to arbitration necessarily.

Findings on the reliefs sought by the complainant' G. the entire amount Paid bY the such rate as maY be Prescribed' ants intend to withdraw from the project and are seeking return ofthe amount paid by them in respect of subject unit along with interest at the prescribed rate as provided under section 18(1) of thEAct.

Sec.

18 r Act.

Act.

18(1) c 18(1) of the Act is reproduced below for , ready reference. "section 78! - Return oI dmount qnd compensation 18(1).lfthe promoter fiils to complete or is unqbleto give possession ofon oPortment, Plol, or building - f"l in qccor.lancewith the terms ofthe agreement for sole or' as tie case may be, duly compteted W the late speciled therein; or (b) due to discbntinuance of his buiness as o develop,er on. aicountof suspension or revocation ofthe registration under this Act or for onY other reoson' ni snai be tiqbte on demand to the allottees' in case the allottee wishes to withdrow from the project, without preiudice to any other remedy availoble, to return the amount received by him in respect iI tnit oport r.nt, ptot, building, os the cqse -m.ay. -be'. with iiterest it such rqte as moy be prescribed in this beholfincluding compensotion in lhe manner as provided under this Acl: Proiided thatwhere an allottee does not intend toutithdrawfrom the p,roiect, he sholl be paid, by the promoter, interestfor every month of 'delay, dll the handing over of the possession' ot such rote os moy be prescribed " (Emphasis suqPlied) Page 33 of40 HARERA ffieunuennu As per clause 4.2 of the agreement to sell dated 12'10 2018 provides for handing over ofpossession and is reproduced below: 4.2 Possession Time and Compensation Thot the Setler shatl sincerely endeovor to give possession ofthe Unit. i'the purchoser within thi;ry-six (96) months in respect of'TAPAS'- iia"pkam Floors rLnd [orty eight (48) months in resped of^ 'SUiVe fOWCn'1rom the dote ol the execu'ion of the Agre.ement. to sell ond ofier providing ofnecessory inlrastructure speciolly rood ,ii", a *oie, in the secioi by the Government, but subiect to force majeure conditions or ony Government/ Regulatory authontys oction, inoction or omission ond reasons beyond the control of the Seller.

Howeven the seller shalt be entitled lor compensation iii iii p"itia ,f six16yatontls i. atontls i.n :'u th: '?:"t::-'::--:: Complaint no.

29. seller on obtaining certilicate Jor occupatton onu u}e uy Lttc iomi,oetent Authorlties shill hond over rhe lJniL to the Purchoser for thts occupdLion ond use ond subiect to the Pur'hoser hoving ;;mDlied'with ottthe terms ond conditions ol Lhis opplicotion form & igrl"irn, to sell. ln the event of his lail.ure '^o '?.k' :"1: i'd,1:: oirrly o,na ,u tn" ,nit provisioially and/or finattt' allotted.within 3i iiys from the date ofintimotion in writing by the seller' then..the trii iiat lie at his/her risk and cost ond the Purchoser sholl be lioble to compensation @ Rs.7/- per sq ft of the s.uper orea pe,r iontn os notiing cnorges for the entire period ofsuch deloy "." " 30.

At the outset, it is relevant to Commerton thepreset possession clause of the agreement wherein .ths possession has been subiected to providing necessary infra$tructurespeeially road' sewer & water in the sector by the governmenL but suhiect to force majeure conditions or any government/regutatory authoriry's action, inaction or omission 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 against the allottee that even a single default by the allottee in making payment as per the plan may make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning.

The incorporation of such a clause in the agreement to sell by Page 34 of40 HARERA *@*GURUGRAM Complaint no.

1446 of2022 & ors. 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. ossession.

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

31.

Due date of handing over possession and admissibility of grace period: As per clause 4.2 of the a$eement to sell, the possession of the allotted unit was supposed tq,U9, bf.{qted within a stipulated timeframe , .,:,. .i,} of 36 months plus 6 month! tf lrtce period from the date of the execution of the agreemept to sell,. in case the construction is not complete within the time frame'ifodified It is a matter of fact that the respondent has not completed the proiect in which the allotted unit is situated and has not obtained the occupation certificate by October 2021.

However, the faet cannot. be ignored that there were circumstances beyond the control ofthe respondent which led to delay incompletion of the proiecr Acidfdinlly, in the present case the grace period of 6 months iiallo'lYed; I , 32.

Admissibility of refund ilorig with prescribed rate of interest: The complainants are seeking refund the amount paid by them at the prescribed rate interest.

However, the allottees intend to withdraw from the proiect and is seeking refund ofthe amount paid by them in respect of the subiect unit with interest at prescribed rate as provided under rule 15 ofthe rules.

Rule 15 has been reproduced as under: Rule 75.

Prescribed ratc of interest- lProviso to section 12, section 78 ond sub-section (4) and subseaion (7) of section 791 (1) For the purpose of proviso to section 12; section 78; ond sub' sections (4) and (7) of section 19, the "interest at the rate Page 35 of40 HARERA ffiGUllUGilAI/ Complaint no.

1446 of 2022 & ors. prescribed" sholl be the state Bqnk of India highest mqrginol cost oflending rote +296. rote +296.: Provided that in case the Stote Bonk of lndia morginol cost of lending rqte (MCLR) is not in use, it sholl be replaced by such benchmark lending rotes which the Stote Bank of India may fix Irom time to time for lending to the generql public.

33.

The legislature in its wisdom in the subordinate 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 legislature, is reasonable and if the raid rule is,followed to award the interest, it will https: / /sbi.co.in. the ma ending rate (in short, MCLR) as on date i.e., 08.1.2.2023 is A.' interest will be marginal cost oflending rate +20l0 i.e.,lO.7So/o.

On consideration ofthe circumstances, the documents, submissions and based on the findings of the authority regarding contraventions as per provisions of rule 28(1), the authority is satisfied that the respondent is in contravention of the provisions,ofthe Act.

By virtue of clause 4.2 of the agreement to sell dated. form q<ecuted between the parties on 12.10.2078, the possession of the subject unit was to be delivered within a period of 36 months from the date of execution of buyer's agreement which comes out to be 12.70.2027.

As far as grace period is concerned, the same is allowed for the reasons quoted above.

Therefore, the due date of handing over of possession is 12.04.2022.

Keeping in view the fact that the allottee/complainant wishes to withdraw from the proiect and demanding return of the amount received by the promoter in respect ofthe unit with interest on failure ofthe promoter to complete or inability to give possession ofthe plot in 2E 36.

Page 36 of40 34. ffiHARERA ffieunuenqM Complaint no.

1446 of 2022 & ors. accordance with the terms ofagreement for sale or duly completed by the date specified therein.

The matter is covered under section 18[1) of the Act of 2016.

37.

2016.

The authority has further, observes that even after a passage of more than 4 years (from the date of BBA till date of fillingl neither the construction is complete nor the offer of possession ofthe allotted unit has been made to the allottee by the respondent/promoter.

The endlessly for taking possession ofthe unitit which is allotted to them and authority is of the view tha construction of the project. ln view of allottees intend to withdraw from cannot be expected to wait the above-mentioned fact, the roject and is well within the for which they have paid a considerable amount of money towards the sale consideration.

It is also pertinent to mention that complainants have paid 100% of total consideration.

Further, the authority observes that there is no document place on record from which it can be ascertained that whether the respondent has applied for occupation certificate/part occupation certificate or what is the status of right to do the same in view o.f sectio-n 18(1J ofthe Act, 2016' 38.

Moreover, the occupation certificate/completion certificate of the project where the unit is situated has still not been obtained by the respondent/promoter.

The authority is of the view that the allottees cannot be expected to wait endlessly for taking possession of the allotted unit and for which he has paid a considerable amount towards the sale consideration and as observed by Hon'ble Supreme Court of India in lreo Grace Realtech PvL Ltd.

Vs.

Abhishek Khanna & Ors', civit appeal no.

5785 of2079, decided on 77.07.2027: Page 37 of40 HARERA P* GURUGRAM Complaint no.

1446 of 2022 & ors. "....

The occupation certilicate is not available even as on date, which clearly amounts to deficiency oJsetvice.

The sllottees connot be mode to wait indefinitely for possession ol the apartments ollotted to them, nor cqn thEt be bound to take the opartmenB in Phose 1 oJ the project......." 39. ....." 39.

Further in the judgement of the Hon'ble Supreme Court of India in the cases of lvewtech Promoters onil Developers Private Limlted Vs State of 11.P. and Ors. (supra) reiterated in case of M/s Sana Realtors Private Limited & other Vs llnion of India & others SLP (Civil) No' 73005 of 2020 decided on 12'05.2022. it was observed: ''25.

The unquolified right oF the olloltee to seek refund referred IJnder Section 18(1)(o) ond Section 19 (4) oI the Act is not dependent Under Section 1B(1)(o) ond Section 19( on (tny contingencies or stipulotions Iegisloture has consciously provided th os on unconditional absolute righttotht prescribed by the Stote Governnent including compensation in the monner provided under the Act with the proviso that if the ollottee does not wish ta withdrow ftom the proiect, he shall be entitled for interestfor the period ofdelay till han prescribed." 40.

The promoter is iesponsible for all dbligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunder or to the allottee as per agreement for sale under section 11(4)(a).

The promoter has failed to complete or unable to give possession ofthe unit in accordance with the terms ofagreement for sale or duly completed by the date specified therein.

Accordingly, the promoter is liable to the allottee, as the allottee wishes to withdraw from the proiect, without prejudice to any other remedy available, to Wssession ot the rate Page 3B of40 ffiHARERA si$, ounuennu Complaint no.

1446 of2022 & ors. return the amount received by him in respect of the unit with interest at such rate as may be Prescribed.

41.

Accordingly, the non-compliance of the mandate contained in section 1L [4) [a) read with section 18[1) ofthe Act on the part ofthe respondent is established.

As such, the complainants are entitled to refund of the entire amount paid by him i.e', t 3,21,39,088/- at the prescribed rate of interest i.e., @ 10.750lo p.a.

750lo p.a. (the State Bank of India highest marginal cost H, 42. of lending rate [MCLR) 6s1s +2o/o) as prescribed under rule 15 ofthe Haryana Real 2017 from the date of each ation and Development) Rules, e actual date of refund of the amount within the timelines rule 16 of the Haryana Rules directions under section 37 of er the function entrusted to the obligations cast upo authority under section 34(0: a.

The respondent/promoter is directed to refund the amount received by it from each of the complainant(s-l along with interest at the rate of 70.7 5o/o p.a. as prescribed under rule 15 of the Haryana Real Estate [Regulation and DevelopmentJ Rules, 2017 from the date of each payment till the actual date of refund of the deposited amount. b.

A period of90 days is given to the respondents to comply with the directions given in this order and failing which legal consequences would follow.

Page 39 of40 ffiHARERA ffi eunuennvr 44.

43.

1446 of 2022 & ors. c.

The respondent is also directed to file an application for extension of registration under section 5 of the Act, 2016 since the said registration has been expired on 31 .07.2023.

This decision shall mutatis mutandis apply to all the cases mentioned in para 3 ofthis order.

The complaints stand disposed of.

True certified copies ofthis order be placed on the case file of each matter.

45.

Files be consigned to Kumar Haryana Member Gurugram Dated:08.12.20 HARERA GURUGRAM 8\Ir*-6, Page 40 of40