BHOLA SHANKAR SHARMA AND BHAWNA SHARMA vs MS RAHEJA DEVELOPERS LTD

HARERA MGURUGRAM BEFORE THE HARYANA REAL ESTATE REGULA AUTHORITY, GURUGRAM Complaint no.

Date of complaint Date oforder 1.

Bhola Shankar Sharma 2.

Bhawna Sharma Both R/o: - House No.

3034-p, Sector 23_234, Near Palam Vihar, Gurugram Haryana- 122017.

Regd.

Office at: 406 ,4th Floor, Rectangle One, D_4, District Center, Saket, New Delhi -110017.

CORAM: Ashok Sangwan APPEARANCE: Sushil Yadav (AdvocateJ Garvit Gupta (AdvocateJ ORDER 1.

The present complaint has been filed by the complainant/all Form CRA under section 31 of the Real Estate (Regula Development) Act,201.6 fin short, the Act) read with rule Haryana Real Estate (Regulation and Development) Rules, short, the Rules) for violation of section 11(4)[a) of the Act w is inter alia prescribed that the promoter shall be responsib obligations, responsibilities and functions to the allottees as agreement for sale executed inter se them.

Complaint No.47B Comp Com Re of 2022 2.2022 .2023 nden t inants dent ees in n and of the 17 (in n it for all k r the Member Page 1 ol2B ffiIAIENA ffieunuenRvr Complaint No.

478 0f 2022 A.

Unit and proiect related details 2.

The particulars of unit details, sale consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: S.

N.

Particulars Details "Raheja Revanta", Sector 7P,, Gurugram, Haryana 1.

Name of the project 2.

Proiect area 18.7213 acres 3.

Nature of the oroiect Residential Group Housine Colon 4.

DTCP license no. and validity status 49 of201l dated 01.06.2011palid up to 31.05.2021 I 5.

Name of licensee Sh.

Ram Chander, Ram Sawroop and 4 Others 6.

Date of environment clearances 23.L0.20L3 [Note: - the date of EC is taken from the complaint no.

737 /2021/3678/ 2019 of the same project being developed by the same promoterl 7.

Date of revised environment clearances 3L.07 .20L7 [Note: - the date of revised EC is taken from the complaint no. plaint no.

737 /202L/3678/ 2019 of the same project being developed by the same pLoqroled Registered vide no.

32 of 2017 dated 04.08.20L7 8.

RERA Registered/ not registered 9.

RERA registration valid up to 31.0't_.2023 5 Years from the date of revised Environment Clearance i.e., 31.07.2022 + 6 months in view of covid - 19.

10.

Unit no.

C-084, 8,h floor, Tower/bloc{- C (Page no. l8 ofthe complainl) 11.

Unit area admeasuring 1621.390 sq. ft.

I (Page no.

18 of the complainl) 12.

Allotment letter 28.03.20L3 fPage no.

58 of the relly Page 2 ol28 /\, HAR \RERA RUGRAM Complaint No.478 o 2022 13.

Date of execution agreement to sell Raheia Revanta of 28.03.2013 (Page no.

16 ofthe complaint 14.

I Possession clause Possession Time Compensation That the Seller shall s endeavor to give possessit llnit to the purchaser thira-six (36) mont respect oI 'TAPAS' Indel Floors and forty eigl months in respect of TOWER' from the date execution of the Agreeme, and after providing of n [nfrastructure specialll sewer & water in the sectt Government, but subject majeure conditions ( Government/ Re, authoriry's action, ina( omission and reasons bel control ofthe Seller.

Howt seller shall be entit compensotion free groc of six (6) months in ( construction is not co within the time mentioned above.

The obtaining certifcate occupdtion and use Competent Authorities sl over the Unit to the Purc, this occupation ond i subject to the Purchase complied with all the te conditions of this applica r & Agreement To sell.

In t of his failure to tdke ovel occupy and use tl provisionally and/or allotted within 30 days and ncerely n of the within hs in endent t (48) ,SURYA of the t to sell 'cessary road r by the lo force " dny ulatory ion or )nd the rcr, the zd for period Ee the ryleted period zller on for ,y the rll hand oser for se and hoving 'ms and on form te event and /or 2 unit f;nalty rom the ge3of2 bU sl/ II Complaint No. plaint No.

478 date of intimation in the seller, then the same his/her risk and cost Purchaser shall be li compensation @ Rs.7/- of the super area per m holding charges for period of such de|ay..........

Pase no.

74 of th Grace period Allowed As per clause 4.2 of the sell, the possession of was supposed to n a stipulated ti months plus 6 months period.

It is a matter of fact respondent has not compl roject in which the all situated and has not obtai occupation certificate by 2077.

As per agreement to construction of the project completed by March 2017, not completed till date.

Acco in the present case d of 6 months is Due date of possession 28.09.20L7 (Note: - 48 months from agreement i.e., 28.03.201 months erace Deriod Basic sale consideration as per BBA at page no.

33 of the comDlaint Rs.7 ,22 ,27 ,297 / - Total sale consideration as per customer ledger dated 2 3.01.2023 page no.

104 of the reol Rs.\,29 ,10,462 /- Amount paid by the complainants Rs.1,08,90,734l- [As per statement made complainants at page no.

3 comDlaint ffiHARERA S* eunuenRu ng by ll lie at d the eto sq.ft. th as entire ent to lotted offered of 48 grace the the unit is the March ell, the to be hich is nglY, grace by of the the 4of28 B.

3.

I.

Complaint No.

478 Occupation certificate ComDletion certificate Not received Offer of possession Not offered Withdrawal request made by the complainants through lesal notice 02.07.20t9 (Page no.

48 ofthe complain Delay in handing over the possession till date of filing complaint i.e., 08.0?.2022 4 vears 4 months and 11 MHARERA ffi eunueRrurr Facts ofthe complaint The complainants have made the following submissio complaint: - That the respondent gave advertisement in various Newspapers about their forthcoming proiect named "Raheja in Sector 78 Gurgaon promising various advantages, like amenities and timely completion/execution ofthe project Relying on the promise and undertakings given by the respo in the aforementioned advertisements the complainant, b an ap t, b an apartment/floor admeasuring built up area 1621 sq. ft. in project o[ the respondent for total sale conside Rs.1,19,59,1.52/- which includes BSP, car parking, I iffe re n t in the leadi ng n ta" d class resaid tion is S, Club Membership, PLC etc.

The complainants made nt of Rs.1,08,90,734/- to the respondent vide different cheques on dates.

That as per flat buyers' agreement the respondent had allo d a unit no.

C-084 on 8th floor in Tower -C admeasuring 1621 sq. ft. i the said project to the complainants.

That as per para 4.2 of the r, rhe II. respondent had agreed to deliver the possession of the flat ithin 48 A/ Page 5 ol28 HARERA MGURUGRAN,,I months from the date of execution of the Flat buyer's agreement dated 28.03.2013 with an extended period of six months.

That complainant regularly visited the site but was surprised to scc that construction work was very slow in progress and no one was present at the site to address the queries of the complainant. lt appears that respondent has played fraud upon the complainants.

The only intention ofthe respondent was to take payments fbr the prolect without completing the work.

The respondent mala-fide and dishonest motives and intention cheated and defrauded the complainants.

That despite receiving the payment as demands raised by the respondent for the said flat and despite repeated requests and reminders over phone calls and personal visits ofthe complainant, the respondent has failed to deliver the possession of the allotted flat to the complainant within stipulated period.

That it could be seen that the construction of the project in which the complainant flat was booked with a promise by the respondent to deliver the flat by 28.09.201,7 but was not completed within time for the reasons best known to the respondent, which clearly shows that ulterior motive of the respondent was to extract money from thc innocent people ft'audulently. udulently.

That the complainant visited the site but are shocked to see that construction was going on very slow speed then the complainants contacted the respondents through mails and personal visit , about the project but the respondent did not give any satisfactory answer and complainant had paid Rs.\,08,90,734 /- by then as and when demanded by the respondent but the construction was goin! on at a very slow speed and even the respondent did not know that +en they will able to deliver the proiect.

I Complaint No.

478 of 2022 l . tv.

P4e 6 of 28 ,/1 ffiHARERA #- GuRuGRAr,/ Complaint No.

478 of 2022 That due to this omission on the part of the respon{ent the complainant has been suffering from disruption, mental tortufe, agony and also continues to incur severe financial losses.

This could be avoided if the respondent had given possession of the flat ol time or refunded the money.

That as per clause 4.2 ofthe flat buyer agreement dated 28.03.2013 it was agreed by the respondent that in case of any delay, the respondent shall pay to the complainants a compensation @ Rs.7/- per sq.ft. per month of the super area of the apartment/flat. lt is, however, pertinent to mention here that builder is not giving the possession and nor giving any satisfactory answer which is unjust and the respondent has exploited the complainant by neither providing the possession of the flat even after a delay nor refunded the amount paid by the complainant.

The respondent cannot escape the liability merely by mentioning a clause in the agreement. lt could be seen here that the respondent has incorporated the clause in one sided buyer's agreement and usurp such a huge amount of the complainant.

VIl.

That on the ground of parity and equity the respondent also be subiected to pay the same rate of interest hence the respondent is Iiable to pay interest on the amount paid by the complainants @180/oper annum to be compounded from the date of amount paid.

Vlll. aid.

Vlll.

That the complainant has requested the respondent several times on making telephonic calls and also personally visiting the office of the respondent to refund the amount along with interest @ 180/o pcr annum on the amount deposited by the complainant, but respondent has flatly refused to do so.

Therefore, the complainants vide legal notice dated 02.07.2019, requested the respondent to refund the entire amount paid by them alongwith interest.

However, th€, respondent despite receipt of said legal notice has not even bothered VI.

4, Ptge 7 of 28 I{ARERA ffiGURUGRAM l. ll.

478 d 2022 C.

4.

D. to reply but also failed to refund the money.

Thus, the respondent in a pre-planned manner defrauded the complainant with his hard-earned huge amount and wrongfully gain himself and caused wrongful loss to the complainant.

Relief sought by the complainants: The complainants have sought following relief(sl.

Direct the respondent to refund the entire paid-up amount to the complainants along with prescribed rate of interest.

Reply by the respondent The respondent contested the complaint on the following grounds: - That the agreement to sell was executed between the parties prior to the enactment oftheAct,2016 and the provisions laid down in the said Act cannot be enforced retrospectively.

Although the provisions of the Act, 2016 are not applicable to the facts of the present case in hand yet without prejudice and in order to avoid complications later on, the respondent has registered the project with the authority undcr thc provisions of the Act of 2016, vide registration no.

32 of 2017 dated 04.08.20t7.

That the complaint is not maintainable for the reason that the agreement contains an arbitration clause which refers to the dispute resolution mechanism to be adopted by the parties in the event of any dispute i.e., clause 14.2 of the buyer's agreement.

That based on the application for booking, the respondent vide its allotment offer letter dated 19.03. ted 19.03.2013 allotted to the complainants unit no.

C-084 admeasuring 1621 sq. ft for a slae consideration ot Rs.\,22,21,,297 / - without taxes. 'l'he complainants signed and executed the agreement to sell on 28.03.2013 and the complainants agreed to be bound by the terms contained therein. lll.

Page B of 28 ffiHABERA S* eunuenRu Complaint No.

478 of 2022 That the respondent raised payment demands from the complainants in accordance with the mutually agreed terms and condltions of allotment as well as ofthe payment plan and the complainalts made the payment of the earnest money and part-amount of the lotal sale consideration and is bound to pay the remaining amount towards the total sale consideration of the unit along with applicable reftstration charges, stamp duty, service tax as well as other charges payable at the applicable stage.

That as per statement of account as on 23.07.2023, an amount of Rs.12,27,355/- is still due and payable by the complainants. v.

That despite the respondent fulfilling all its obligations as per the provisions laid down by law, the government agencies have fhiled miserably to provide essential basic infrastructure facilities such as roads, sewerage line, water and electricity supply in the sector where the said project is being developed.

The development of roads, sewerage, laying down of water and electricity supply lines has to be undertaken by the concerned governmental authorities and is not within the power and control of the respondent.

The respondent cannot be held Iiable on account of non-performance by the concerncd governmental authorities.

The respondent company has even paid all the requisite amounts including the external development charges (EDC) to the concerned authorities.

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

There is no infrastructure activities/development in the surrounding arla of the project-in-question.

Not even a single sector.oad or serv[e. haue been put in place by HUDA/GMDA/HSVP till dare.

I Page 9 ol28 HARERA ffi GURUGRAIV That the respondent had also filed RTI application for seeking information about the status of basic services such as road, sewerage, water, and electricity.

Thereafter, the respondent received reply from HSVP wherein it is clearly stated that no external infrastructure facilities have been laid down by the concerned governmental agencies.

The respondent can't be blamed in any manner on account of inaction of government authorities.

That furthermore two High Tension (HTl cables lines were passing through the project 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.'lhe 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. lt is pertinent to mention that such HT Lines have been put underground in the revised Zoning Plan.

The fact that two 66 KV HT lines were passing over the project land was intimated to all the allottees as well as the complainant.

The Respondent had requested to M/s KEI Industries Ltd for shifting ofthe 66 KV S/C Gurgaon to Manesar Line from overhead to underground Revanta Project Gurgaon vide letter dated 01.10.2013.

The t{VpNL took more than one year in giving the approvals and commissioning of shifting ofboth the 66KV HT Lines.

It was certified by HVpNL Manesar that the work of construction for laying of 66 KV S/C & D/C 1200 Sq. mm.

00 Sq. mm.

XLPE Cable (Aluminium) of 66 KV S/C Gurgaon - Manesar ljne and 66 KV D/C Badshahpur - Manesar line has been converted into 66 KV underground power cable in the land of the respondent/promoter project which was executed successfulJy by M/s KEI lndustries Ltd has Complainr No.

478 of 2022 vl.

VII.

Page 10 of 28 /V UREIA GURUGRAM Complaint No.

478 of 2022 been complered successfully and 66 I(V D/C Badshahpur _1U.n"...

Line was commissioned on 29.03.2015.

I viii.

That respondent got the overhead wires shifted undergrorfnd at its own cost and only after adopting all necessary proce{ses and procedures and handed over the same to the HVpNL and the Sme was brought to the notice of District Town planner vide letter dated 2A.10.20L4 requesting to apprise DGTCp, Haryana for the safne.

That as multiple government and regulatory agencies and their cltarances were in involved/required and frequent shut down of HT supDlies was involved, it took considerable time/efforts, investment and resources which falls within the ambit of the force majeure condition.

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

That GMDA, office of Engineer-Vl, Gurugram vide letter dated 03.L2.20L9 has intimated to the respondent company that the land of sector dividing road 77 /ZB has not been acquired and sewerlline has not been laid.

The respondent/promoter wrote on several occilsrons to the Gurugram Metropolitan development Authority [GMDA) to expedite the provisioning of the infrastructure facilities at the said project site so that possession can be handed over to the allottees.

However, the authorities have paid no heed to or request tilldate.

That the construction of the tower in which the plot allotted to the complainant is located is 800/o complete and the respondent shall hand over the possession of the same to the complainant after its completion subject to the complainants making the paym g the payment of the due installments amount and on availability of infrastructure facjlities such as sector road and laying providing basic external infrastructure Page 11 oi 2B ^r- HARERA MGURUGRAI/ Complaint No.

478 of 2022 such as water, sewer, electricity etc. as per terms ofthe application and agreement to sell. xi.

That due to the above-mentioned conditions which were beyond the reasonable control of the respondent, the development of the township in question has not been completed and the 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 ofiustice. xii.

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

That the origin of the 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 th€ background that there are other motives in mlnd by few who .,, i:i,:j,'iliil:H;i;i*.*,l;;";:,il ;x":h;:; day and late night towards finishing the project to handover to th€' esteemed hundreds of customers in the waiting.

Some flat brfers who had invested in the hope ot rising markets, finding insufficlent price rise-due to delay of Dwarka expressway, delay in develotment of allied roads and shifting of toll plaza engineered false and lrg.niou Pate 12 of 28 L ffiHARERA ffieunuennl,r Complaint No. plaint No.

478 Qf 2022 excuses to complain and then used social media to make other (non speculator) flat buyers join them and make complaints, in al probability, by giving them an impression that the attempt may mear 'profit', and there is no penalty if the complaint failed. xv.

That the three factors: (1) delay in acquisition of land for developmenl ofroads and infrastructure (2) delay by government in construction ol' the Dwarka Expressway and allied roads; and (3) oversupply of th€ residential units in the NCR region, operated to not yield the price ris€ as was expected by a few.

This cannot be a ground for complaint for refund as the application form itself has abundantly cautioned about the possible delay that might happened due to non-performance by Government Agencies. xvi.

That amongst those who booked (as one now sees) were two categories: (1) those who wanted to purchase a flat to reside in future; and (21 those who were looking at it as an investment to yield profits on resale.

For each category a lower price for a Revanta type Sky Scaper was an accepted offer even before tendering any money and bilaterally with full knowledge and clear declararions by $king on themselves the possible effect of delay due to infrastructure. xvii.

That in the present case, keeping in view the contracted price, th€ 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 I buildtng structure as also the price charged may be contrasted with th{ possible profit's v/s cost of building investmenr, effort and intent.

Itlis in this background that the complaint, the prevailing situation at sit? and this response may kindly be considered.

The present complaint fras been Page 13 of 28 /'- 6. l-lARERA GUl?UGRAM filed with malafide mouves and the rrr" ,riO*i-ffi healy costs payable to the respondent.

Copies of all the relevant docum re.or. cum re.or.r rh^r- __--, tents have been filed and p record.

Their authenHcity is not -"'q qrru pr. decirtp.t ^- ,r-^ . - in dispute.

Hence, the compl decided on the basis of these un r,E Lor.plat h.r^ L-, -, Ldisputed documents and sub E.

7. made by the parties.

Iurisdiction of the authority E.II Subiect-matteriurisdiction The authority has complete terl to_ad j u d i cate th e p.". ";, ."r;;:: r;l ilj;: ::: #H j: E.I Territorialiurisdiction As per notification no.

1/g2/2017-1TCp dared 14.12.2017 is Town and Country planning D€ rren.--^ n- , ^ rpartment, Haryana the jurisdi Haryana Real Estate Regulatory O*n*,V, ;;;;;;#J; :::::::-i"t::".t ror ar purposes. rn the present case, the p question is situated within th( ----' !r!L t/ .fherefore, this authority nr, ., o'"n'" area of Gurugram with the present compraint. )mplete territorial iurisdiction 8.

9.

Section 11(4)(a) of rhe Act, Z0: responsibre to the r,,o*u" r, ,",'u provides that the promoter sr reproduced ashereunder: r agreement for sale section 11(4 Section 77 '[i) rn" prorot"r rnor- fw#*-rn*ylW Complaint No.

478 sed with on the t can be issions diction dbv on of entire ect in strict. deal I be aJ is Page 14 jr;r' 10.

HARERA GURUGRAM Section 34- Functions of the Authority: 344 of the Act provides to ensure compliance of the obligot cost upon the promoters, the allottees ond the reol estote agen under this Act ond the rules ond regulotions mode thereunder.

So, in view of the provisions of the Act quoted above, the au complete jurisdiction to decide the complaint regard compliance of obligations by the promoter leaving aside com which is to be decided by the ad.iudicating officer if pursu complainants at a later stage.

11.

Further, the authority has no hitch in proceeding with the and to grant a relief of refund in the present matter in vi judgement passed by the Hon'ble Apex Court in Newtech and Developers Private Limited Vs Stote of U,p. te of U,p. and Ors, 2 (1) RCR (Civil), 357 ond reiterated in case of M/s Sona Real Limited & other Vs Union of India & others SLp (Civil) No.

2020 decided on 12.05.2022wherein it has been laid down "86.

From the scheme of the Act of which o detoiled relerence been made ond taking note of power ofodjudicotion delineoted the regulatory outhority ond adjudicating officer, whot finolly out is thot olthough the Act indicates the distinct expressions 'refund', 'interest', 'penolty' ond 'compensotion', a conJoint reod Sections 18 and 19 cleorly monifests that when it comes to reft the omount,and interest on the refund omount, or directing paym of interest for delayed delivery of possession, or penolty qnd i thereon, it is the regulatory authority ,tyhich has the power examine ond determine the outcome ofo comploint At the some ti when it comes to o question of seeking the relief of odjudg compensation dnd interest thereon under Sections 12, 14, 18 ond the odjudicating offrcer exclusively hos the power to determ keeping in view the collective reoding ofsection 71 reod with S, 72 of the Act if the adjudication under Sections 12, 14, 18 and other than compensation os envisaged, if extended to adjudicoting olJicer as proyed that, in our view, moy intend to exp the ombit and scope of the powers and functions of the odjudico oflicer under Section 71 ond that would be against the mondo the Act2016." Hence, in view of the authoritative pronouncement of th -tz.

Supreme Court in the case mentioned above, the authori 15 ol28 Complaint No.

478 rity has g non- nsation by the mplaint of the 1-2022 Private 3005 of under: of Hon'ble has the of nt HARERA ffiGURUGRAI/ jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

F.

Findings on the obiections raised by the respondent F.L Objections regarding the complainant being investor.

13. estor.

13.

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 Act.

The respondent also submitted that the 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 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 ofenacting 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 if the promoter contravenes or violates any provisions ofthe Act or rules or regulations made thereunder.

Upon careful perusal ofall the terms and conditions ofthe apartment buyer's agreement, it is revealed that the complainants are buyer and they have paid total price of Rs.1,08,9O,734 / -to the promoter towards purchase ofan apartment in its project.

At this stage, it is important to stress upon the definition of term allottee under the Act, the same is reproduccd below for ready rel'erence: "2(d) "ollottee" in relation to a real estate proje.-t meons the person to whom a plot, apartment or buildtng, as the cose moy be, hos been ollotted, sold (whether os freehol.l or leosehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the soid allotment through sole, transfer or otherwise but does not include a person to whom Complaint No.

478 of 2022 Page 16 ol28 t- HARERA ffiGURUGRAII 1,4.

478 of 2022 15. f 2022 15. such plot, aportment or building, os the cose moy be, is given on renti, ln view of above-mentioned definition of "allottee" as well !s all the terms and conditions of the apartment buyer's agreement texecuted between promoter and complainants, it is crystal clear that the complainants are allottee(sJ as the subject unit was allotted tO them by the promoter.

The concept of investor is not defined or refer(ed in the Act.

As per the definition given under section 2 of the Act, thefe will be "promoter" and "allottee" and there cannot be a party having 4 status of "investor".

The Maharashtra Real Estate Appellate Tribunal irl its order dated 29.01.2019 in appeal no.0006000000010557 tirle4 as ,r/s Srushti Sangam Developers Pvt, Ltd, Vs.

Sarvapriya Leasi\ (P) Lts.

And anr. has also held that the concept of investor is not dffined or referred in the Act.

Thus, the contention of promoter that th{ allottees being investors are not entitled to protection of this Act alfo stands rejected.

I I F.II Obiection regarding iurisdiction of authority w.r.tl buyer's agreement executed prior to coming into force of the A+.

Another obiection raised the respondent that the authority isheprived ofthe iurisdiction to go into the interpretation of, or rights oftfe parties inter-se in accordance with the flat buyer's agreement lexecuted between the parties and no agreement for sale as referred to [nder the provisions ofthe Act or the said rules has been executed inter f parties.

The authority is of the view that the Act nowhere provides, rfr can be so construed, that all previous agreements will be re-wrifen after coming into force of the Act.

Therefore, the provisions of the [ct, rutes and agreement have to be read and interpreted harfniously.

However, if the Act has provided for dealing with certait specific provisions/situation in a specific/particular manner, then thal situation will be dealt with in accordance with the Act and the rules aftel the date Page 17 of ztl + HARERA f + HARERA ffiGURUGRAM of coming into force of the Act and the rules.

Numerous provisions oi the Act save the provisions ofthe agreements made between tle buyers and sellers.

The said contention has been upheld in the bndmark judgment of Neelkamal Realtors Suburban pv/- Ltd.

Vs, llol and others. (W.P 2737 of 2077) decided on 06.1.2.201.7 which provides as und er: "119.

Under the provisions oJ Section 18, the deloy in honding over the pos.ression would be counted from the dote mentioned in the agreement for sole entered into by the promoter ond the ollottee prior to its registrotion under REp,A.

IJnder the provisions of RE'#, the promoter is given a focility to revise the date of completion of project and cleclore the same under Section 4.

The REt#. does not contemplate rewriting of contrdct between the Ilat purchoser ond the promoter......

122.

We hove alreody discussed thot above stoted provisions of the REF./ are not retrospective in noture.

They may to some extent be hoving o retrooctive or quasi retrodctive effect but then on thot ground the volidity of the provisions of RDt'/t cqnnot be chollenged.

Ihe Pqrliament is competent enough to legislate law hovmg retrospectiye or retrooctive effect.

A low can be even fromed to offect subsisting / existing contractual rights between the pqfties in the lorger public interest.

We do not have any doubt in our mind thqt the REP'4 hos been framed in the lorget public interest after o thorough stud! and discussion made ot the highest level by the Stonding Comtnittee ond Select Committee, which submitted its detailed reports." 16.

Also, in appeal no.

173 of 2019 titled as Magic Eye Developer pvt.

Ltd.

478 of 2022 Vs.

Ishwer Singh Dahiya,in order dated L7.72.20-t9 the Haryana Real Estate Appellate Tribunal has observed- Thus, keeping in view our aforesoid discussion, considered opinion thot the provisions of the retrooctive to some extent in operotion ond wi Hence in cose of delay in the olfer/delivety of possession possession os p{ the terms and conditions ol the ogreement lor sale the ollottee shdll be entitled to the interest/deloyed possession chorges onl the reasonoble rote of interest os provided n Rule t 5 of the rulelond one stded, unfoir ond unreosonoble rote ofcompensotton men $ned in the agreement for sale is liable to be ign(tred." 17.

The agreements are sacrosanct save and except for the provisions which have been abrogated by the Act itself.

Further, it is noted that the Page 18 of 28 "34. we ore Act are the uosi v HARERA GURUGRAM agreements have been executed in the manner that there is no scoper Ieft to the allottee to negotiate any of the clauses contained therein.

Therefore, the authority is of the view that the charges payable under various heads shall be payable as per the agreed terms and conditions of the agreement subject to the condition that the same are in accordance with the plans/permissions approved by the respective departments/competent authorities and are not in contravention ot any other Act, rules, statutes, instructions, directions issued thereunder and are not unreasonable or exorbitant in nature.

F.III Obiection regarding agreements contains an arbitra which refers to the dispute resolution system men oned in agreement The agreement to sell entered into between contains a clause 14.2 relating to dispute parties.

The clause reads as under: - the parties 2 03.2013 clause 18. "All or ony disputes arising out or touching upon in relation terms of this Applicotion/Agreement to Se / Conveyance including the interpretation ond volidity ofthe terms thereof o respective rights ond obligotions of the porties sholl be through orbitration.

The arb[trotion proceedings sholl be gor by the Arbitrotion ond Conciliotion Act, 1996 or any ito amendments/ modifications thereoffor the time being in force arbitrotion proceedings shqll be held atthe ollice ofthe seller in Delhi by q sole orbitrotor who shalt be appointed by mutuol nt of the porties. e porties.

U there is no consensus on appointment o Arbitrator, the mqtterwill be referred to the concerned court same, In case of any proceeding, reference etc. touching u qrbitrator subject including any award, the territoriotjurisdt the Courts sholl be Gurgaon os well as of punjob and Haryqna Court at Chondigarh".

The authority is of the opinion that the jurisdiction of the cannot be fettered by the existence of an arbitration clau resolution h een the The 19. the the thed ish thoriry in the buyer's agreement as it may be noted that section 79 of the A rs the jurisdiction of civil courts about any matter which falls w hin the purview of this authority, or the Real Estate Appellate Tribu .

Thus, stobe 19 ot 2a Complaint No.478 f 2022 the intention to render such disputes as non-arbitrable see A.

HARERA GURUGRANI clear.

Also, section 88 of the Act says that the provisions of thi 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 in Nationol Seeds Corporation Limited v, M.

Madhusudhan Reddy & Anr. (2012) 2 SCC 506, wherein it has been held that the provided under the Consumer Protection Act are in addition in derogation of the other laws in force, consequently the would not be bound to refer parties to arbitration even ifthe between the parties had an arbitration clause.

Therefore, by same analogy the presence ofarbitration clause could not be to take away the jurisdiction of the authority.

Further, in A./tab Singh and ors, v.

Emoar MGF Land Ltd Consumer case no, 701 of 2015 decided on 13.07.2077, th Consumer Disputes Redressal Commission, New Delhi (NC held that the arbitration clause in agreements be complainants and builders could not circumscribe the jurisdi consumer.

The relevant paras are reproduced below: "49. elow: "49.

Support to the above view is olso lent by Section 79 of the enacted Reol Estote (Regulotion ond Development) Act,2016 Uor "the Real Estote Act").

Section 79 ofthe soid Act reads os follows: - "79.

Bor ofjurisdiction - No civilcourt shall hove jurisdiction to entertain ony suit or proceeding in respect of any motter which the Authoriry or the odjudicating oltrcer or the Appellate Tribunol is empowered by or under this Act to determine and no injunction sholl be gronted by ony court or other outhority in respect of ony action token or to be taken in pursuonce o ony power conferred by or under this Act." It can thus, be seen that the soid provision expressly ousts the juri. oftheCivil Court in respectofony matterwhich the Reol Estote Reg Authority, established under Sub-section (1) of Section 20 o Adjudicating Officer, appointed under Sub-section (1) ofSection 71 Reol Estote Appellant Tribunol established under Section 43 of th Estate Act, is empowered to determine.

Hence, in view of the bi dictum of the Hon'ble Supreme Court in A.

Ayyoswamy (supro 20.

478 f 2022 matters/disputes, which the Authorities under the Reol Estote A 20 of 28 + Act shall medies and not uthority reement a pplyin g, nstrued nd ors., N atio na l RC) has n the on ofa on ttly ort tory the the Reol ding the HARERA ffiGURUGI?AII empowered to decide, are non-arbitrable, notwithstonding an Arbi tion :ent, tof not the Agreement between the porties to such matters, which, to a large e. ore similor to the disputes falling for resolution under the Consumer 56.

Consequently, we unhesitatingly reject the orguments on beholf Builder and hold thqt on Arbitration Clouse in the afore-stoted Agreements between the Complainonts ond the Builder 27. circumscribe the jurisdiction of o Consumer Foro, notwithstondin! amendments made to Section I ofthe Arbitrotion Act. otion Act." While considering the issue of maintainability of a complain consumer forum/commission in the fact of an existing a clause in the builder buyer agreement, the hon'ble Suprem case titled as M/s Emaar MGF Lond Ltd, V, Aftob Singh i petition no.

2629-30/2078 in civil appeal no.

23512-2357 decided on 70,72,2078 has upheld the aforesaid judgement and as provided in Article 141 of the Constitution of lndi declared by the Supreme Court shall be binding on all courts territory of India and accordingly, the authority is bo aforesaid view.

The relevant paras are of the judgement pa Supreme Court is reproduced below: "25.

This Court in the series ofjudgments os noticed obove consi provisions of Consumer Protection Act, 1986 os well os Arbitrqti 1996 ond Ioid down that comploint under Consumer Protection Act a special remedy, despite there being on orbitrotion ag proceedings before Consumer Forum have to go on ond no committed by Consumer Forum on rejecting the application.

Th reosonfor not interjecting proceedings under Consumer Protection the strength on arbitration ogreement by Act, 1996.

The remedy Consumer Protection Act is o remedy provided to a consumer when is o defect in ony goods or services.

The comploint meons ony allegq writing made by o comploinqnt has olso been exploined in Section the Act, The remedy under the Consumer Protection Act is conf provided to the consumer which is the object qnd purpose of the noticed above." Therefore, in view of the above judgements and consi provision of the Act, the authority is of the view that compl before a itration Court in revision of 2017 f NCDRC the law' ithin the by the by the c) of to ies o5 ring the ants are I the Act, eing the "e is :t on er complaint by consumer as defined under the Act for defect or delci coused by o service provider, the cheop ond o quick remedy been neficial 21 of 28 Complaint No.478 22.

No.478 22. well within their rights to seek a special remedy available in a HARERA P*GURUG]]AI/ Act such as the Consumer Protection Act and RERA Act, 2016 instead of going in for an arbitration.

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

G.

Findings on the reliefsought by the complainants. project and are seeking return ofthe amount paid by them in rEspect of subject unit along with i nterest at the prescribed rate as provided under section 18(1) of the Act.

Sec.

18(1) of the Act is reproduced [elow for ready reference. "Section 78: - Return of amount qnd compensation 1B(1). lfthe promoter fails to complete or is unable to give possessio on aportment, plot, or building.- (a) in qccordoncewith the terms ofthe qgreementfor sqle or, osthe may be, duly completed by the date specifed therein; or (b) due to discontinuonce of his business as o developer on occou suspension or revocotion ofthe registrotion under this Act or for other reoson, he shall be liable on demqnd to the allottees, in case the o wishes to withdrow from the project, without prejudice to any o remedy availoble, to return the qmount received by him in oJ thot apartment, plot, building, as the case may be, v,ith i dt such rate as moy be prescribed in this behalf incl compensotion in the monner os provided under this Act: Provided thot where an ollottee does not intend to withdrow from projec| he shall be psid, by the promoter, interest for every mont delay, till the handing over of the possession, at such rote as moy prescribed." (Emphasis supplied) 24.

As per clause 4.2 ofthe agreement to selldated 28.03.2013 p handing over of possession and is reproduced below: 4. below: 4.2 Possession Time and Compensation Thqt the Seller shall sincerely endeovor to give possession ofthe to the purchaser within thirty-six (36) months in respect of 'TA lndependent Floors qnd forty eight (48) months in 23.

G.l.

Direct the respondent to refund the entire paid-up amount to the complainants along with prescribed rate ofinterest. ln the present complaint, the complainants intend to withdraw from the ides for 1it ts' of 'SURYA TOWER'from the date ofthe execution of the Agreem 22 of 28 4,- Complaint No.

478 of 2022 HARERA ffiGURUGRAN/ to sell and ofter providing ofnecessory infrostructure speciolly sewer & woter in the sector by the Government, but subject to majeure conditions or ony Government/ Regulotory outho action, inaction or omission and reosons beyond the control of Seller.

However, the seller shqll be entitled for free grace period of six (6) months in case the not completed within the time period mentioned obove. seller on obtaining certifrcote for occupation and use by Competent Authorities shall hond over the Unit to the Pu this occupation and use ond subject to the Purchoser ho complied with oll the terms and conditions ofthis application for.

Agreement To sell.

In the event of his failure to toke over ond occupy ond use the unit provisionally qnd/or fnolly ollotted wi 30 days from the dote of intimotion in writing by the seller, then some shall lie at his/her risk qnd cost and the Purchoser shal lioble to compensotion @ k,7/- per sq. ft. of the super oreo month as holding charges Jor the entire period of such de|oy........

25.

At the outset, it is relevant to comment on the preset possess of the agreement wherein the possession has been su providing necessary infrastructure specially road, sewer & sector by the government, but subject to force maieure con any government/regulatory authority's action, inaction or and reason beyond the control of the seller. he seller.

The drafting of t and incorporation of such conditions are not only vague and but so heavily loaded in favour ofthe promoter and against that even a single default by the allottee in making payment plan may make the possession clause irrelevant for the p allottee and the commitment date for handing over possessi meaning.

The incorporation of such a clause in the agreemen the promoter is iust to evade the liability towards timely subject unit and to deprive the allottee of his right accruing in possession.

This is just to comment as to how the builder his dominant position and drafted such a agreement and the allottee is left with no dotted lines.

Complaint No.478 ng t& lor iin :he be ler n clause ected to r in the itions or mlsslon is clause ncertain allottee per the rpose of loses its to sell bv livery of er delay misused mischievous cla se in the n on the option but to si e23ofZB ,v ffiIAREBA # eunueRRvr Complaint No.

478 of 2022 Due date of handing over possession and admissibility iof Srace period: As per clause 4.2 ofthe agreement to sell, the possesslon ofthe allotted unit was supposed to be offered within a stipulated tfneframe of 48 months plus 6 months of grace period, in case the constfuction is not complete within the time frame specified.

It is a matter oifact that the respondent has not completed the project in which the all{tted unit is situated and has not obtained the occupation certificate fV Iutarctr 2017.

However, considering the ground in above clause ofhanfing over possession which led to delay incompletion ofthe project, in thf present case, the grace period of 6 months is allowed.

I Admissibility of retund along with prescribed rate of intefest: The complainants are seeking refund the amount paid by thelr at the prescribed rate interest. interest.

However, tle allottees intend to Inndrr* trom the proiect and is seeking refund of the amount paid UJ tl"rn in respect of the subject unit with interest at prescribed rate as frovided under rule 15 ofthe rules.

Rule 15 has been reproduced as un[er: Rule 75.

Prescribed rutz oI intcrest- [Proviso to section 72, seaif,t 78 ond sub-section (4) ond subsection (7) oI section 19|.

I (1) For the purpose of proviso to section i2: section 18; andlsub- sections (4) ond (7) oI sect@n 79, the interest ot thelrote prescribed" shall be the Stote Bank of lndia highest morginolcost oflending rote +20rt: I Provided thot in case the Stote Bonk oI lndia morginol c$t of lending rate (MCLR) is not in use, it shall be reptoced bylsuch benchmark lending rotes which the Stote Bonk of lndio mly fix from time to time Ior lending to the general publtc.

I The legislature in its wisdom in the subordinate legislation dnder the provision of rule 15 of the rules, has determined the prescribfd rate of interest.

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

I 26.

27.

Page 24 ol28 ,v HARERA ffiGURUGRAII Consequently, as per website of the State Bank of India r.e., https://sbi.co.in. the marginal cost of lending rate [in short, MCLR) as; on date i.e., 20.09.2023 ts 8.75o/o.

Accordingly, the prescribed rate ol interest will be marginal cost of lending rate +Za/o i.e.,10,75o/o.

0n 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 of the Act.

By virtue of clause 4.2 ol the agreement to sell dated form executed between the parties on 28.03. on 28.03.2013, the possession of the subject unit was to be delivered within a period of 48 months from the date of execution of buyer's agreement which comes out to be 28.03.2017.

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 2 8.09.2 017.

Keeping in view the fact that the allottee/complainant wishes to withdraw from the project and demanding return of the amount received by the promoter in respect of the unit with interest on failure of the promoter to complete or inability to give possession of the plot in accordance with the terms of agreement for sale or duly completed by the date specified therein.

The matter is covered under section 18[1] ol' the Acr of 2016.

The due date of possession as per agreement for sale as mentioned in the table above is ldays on the date of filing of the complaint.

The authority ha| further, observes that even after a passage of more than 5.ft yearJ till date neither the construction is complete nor the offer of possesslpn of the allotted unit has been made to the allottee by the respondent//romoter.

The authority is ofthe view thar the allottee cannot be expect4d to wait 4- Complaint No.

478 of 2022 29.

30.

31.

Pa9e 25 of 28 HARERA GURUGRAM endlessly for taking possesslon ofthe unit which is allotted to them and for which they have paid a considerable amount of money towards the sale consideration.

It is also pertinent to mention that comllainants have paid almost gg%o of tota I authority observes that there I consideration till 2016' Fu$her' the which it can be ascertained thatl , :,oo::t"nt nlale on rec{rd from occupation certincate/part o.JI'::::il::',:::il::',."fl :::: of construction of the project.

In view of the abou"-rn"ntion"j fr.t, th" allottees intend to withdraw from the project and is well within ttre right to do the same in view of section 1B(1) of the Act, 2016.

33.

2016.

Moreover, the occupation certificate/completion certifica project where the unit is situated has still not been obtaine respondent/promoter.

The authority is of the view that the cannot be expected to wait endlessly For taking possessio allotted unit and for which he has paid a considerable amount the sale consideration and as observed by Hon,ble Supreme of the by the llottees of the wards ourt of India in lreo Grace Reoltech pvL Ltd.

Vs.

Abhishek Khan & Ors., civil appeal no.

57BS of 2079, decided on 77.07.2021 "....

The occupotion certificate is not ovoiloble even os on date, clearly qmounts to deficiency of service.

The allottees cannot be to woit indefinitely for possession of the aportments allotted to nor con they be bound to toke the aportments in phase 1 project......." 34.

Further in the .judgement of the Hon,ble Supreme Court of [n in the cases ofNewtecft Promoters and Developers private Limited 's State of U.P. and Ors. (supro) reiterated in case of M/s Sana Itors Private Limited & other Vs llnion of India & others SLp (t l) No.

73005 of2020 decided on 12.05.202 2. it was observed: 25.

The _unquolified right of the ollottee to seek refund referred lJnder Se 18(1)(a) ond Section 19(4) of the Act -is not'deperdeni ii contingencies or stipulations thereof. tt oppeors thot tie legislature em, the on ny ros Page 26 of 28 ,l-- ffitnnrnn #- eunuoqAl/ t h e a p a r t m e n c o t o t o r t u-i ii i n e w ili;; -' ;; ;,,1,;; :; ;;i ; r: ; t ::; ;f ;[ terms olthe ogreement regordless ofunfor"r""n "rir? ir rii oraqrc o1 the court/rribunqt, whic! ts i! i,rni, *iy )"i".rii,tai,ilrue tq ne f::r:{:xr"X:l:; Iietft:loter is und* i' iitis"n,"ii"1,,t1,n" cou",,,",,'ij,tniini';;:;;":;::*f ,,::r,::,::::;::lry,JX j;i;: Act with the provisoihot if t.h,e ollottee dou n* ,iri ,Z'ri,iiio* po. ".*.'l:,ii:';::;t:;:!:::,n7';;l;i ji j:iii;"'fliii"o2i,,Tiai",;i,,, rr. ,;i,,, rr.

Ine promoter is responsible for ali oblitations, responsibilitfes, and functions under the provisions of the Act of 201.6, or the nles and c-on-sciousry provided rhis right of refund on demand 0s an uncondiaonor obsotute right to the ollottee, if th; br me aDortment nlnt ^.

A,,;t,rj-- .'-,omorcr foib to gtve possession of regulations made thereunder or to the allottee as per agreement for sale under section 11tal(al.

The promoter has lailed to complete or unable to give possession ofthe unit in accordance with the terms ofagreement 36. withdraw from the proiect, without prejudice to any other remedy available, to return the amount received by it in respect of the unit with interest at such rate as may be prescribed.

Accordingly, the non-compliance of the mandate contained in section 1 1(4J [a) read with section 18( 1) ofthe Act on rhe parr of rhe respond ent is established.

As such, the complainants are entitred to refund of the entire amount paid by him at the prescribed rate of interest i.e., (, 10'750/o p.a. [the state Bank of India highest marginar cost of rending for sale or duly completed by the date specifi ed therein.

Accordingly, the promoter is liable to the allottees, as the allottees wl{res to rate (MCLR) applicable as on date +2o/o) as prescribed under rulJ 15 of the Haryana Real Estate (Regulation and Development) Rules, 2017 from the date of each payment till the actual date of refund of the amount within the timelines provided in rule 16 of the Haryana Rules 2077 ibid.

PaEe 27 of 28 ,1- I Complainr No.47B of ZO22 ffi (ru H.

37.

HARERA GUl?UGRAM Directions of the authority Hence, the authority hereby passes this order and issues the directions under section 37 of the Act to ensure compli obligations cast upon the promoter as per the function en authority under section 34(0: i.

The respondent/promoter is directed to refund the i.e., Rs.1,08,90,734/- received by it from the complainan with interest at the rate of 10.75% p.a.

0.75% p.a. as prescribed under of the Haryana Real Estate (Regulation and Development 2017 from the date ofeach payment till the actual date ofrc the deposited amount.

A period of 90 days is given to the respondent to comply directions given in this order and failing which legal conseq would follow. iii.

The respondent is further directed not to create any thi rights against the subiect unit before full realization of the amount along with interest thereon to the complainants, if, any transfer is initiated with respect to subiect receivable shall be first utilized for clearing dues of al complainants.

38.

Complaint stands disposed of.

39.

File be consigned to registry.

Haryana Real Estate Regulatory Authority, Gurrg.r, M"' Datedt 20.09.2023 Complaint No.

478 of wing ce of to the ount along e 15 Rules, nd of the NCES party id-up even the ttee/ (Asho ( Page 28 ot 28