MAYANK BHATIA vs BRIGHT BUILDTECH PVT LTD

HARERA M,GURUGRAII BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no. ; L654 ofZOL9 First date ofhearing: O6.LL.ZO79 Order reserved on: 15.02.2023 Order pronounced onr 24.O}.ZOZ3 Mayank Bhatia, S/o Harish Bhatia, R/o: - H.

No.

1/289, Bhatia Niketan, Patel Nagar, Saharanpur, UttarPradesh-247001..

Complainant -1t.ri.,.,, vu..u, 1.

M/s Brighr Buildtech private Limitid.' Regd.

Office at: - D-107, Panchshiel Enclave-1, New Delhi- 110017.

2.

Golden Touch Investments, Regd.

Office at: - ML-7, Eldeco Mansionz, Sector-48, Sohna Road, Gurugram- I2ZO0|, Haryana.

3.

M/s Lotus Green Developers pvt Ltd.

Regd.

Office at: - Lotus Business par( Level 7, Tower-B, Plot No.

8, Sector-127, NOida Expressway, Noida-201304[U.P].

4.

Ace Mega Structures Pvt.

Ltd.

Regd, Office at: - Plot no.

1B, Greater.Noida Expressway, secror-126, Noida-201303.

Also At: - D-35, Anand Vihar, Delhi-110095.

5.

HDFC Home Loans Regd.

Office at: - 1st Floor, S.C.O, Sector-14, Gurugram, Haryana-722001.

Respondents CORAM: Shri Sanjeev Kumar Arora Member APPEARANCE: Sh.

Sangam Singh Kochar (Advocate) Complainant Sh.

Deeptanshu lain (Advocate) Respondents Complaint No.

1654 of2019 Paee I of 24 A, 2.

HARERA ffiGURUGRAI/ Complaint No.

7654 of 2079 ORDER 1.

The present complaint d,ated 2S.O4.ZO!9 has been filed by the complainant/allottee under section 31 of the Real Estate [Regulation and Development) Act,20J,6 (in short, the Act) read with rule 28 ofthe Haryana Real Estate (Regulation and Development] Rules, 2072 (in short, the Rules) for violation of section 11(4)(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities indttunliion, under the provision of the Act or the Rules and regulations made thereunder or to the allottees as per the agreement for sale executed inter se. inter se.

Unit and proiect related details 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.

1.

Particulars Details Name of the project 'Woodsview Residencies,, sector- 89-9Q Gurugram Residential plotted colony 34 0f 2020 dated 16.10.2020 59 of 2013 dated 16.07.2013 t5.07.202t Nature of project RERA registered/not registered 4.

DTPC License no.

Validity status Page 2 of 24 HARERA GURUGRAl\/ Complaint No.

7654 of 2079 6.

Name of licensee Orris Land & Housing Pvt.

Ltd. & 42 Ors.

7.

Licensed area 100.081 Acres Unit no.

B-49, first floor [As per buyer's agreement on page no.57 of complaintl 9.

Unit measuring 1090 sq. ft. [As per buyer's agreement on page no.

57 of complaintl 10.

Date of execution of Apartment buyer's agreement 08.02,2076 on page no.

56 of 11.

Possession clause application form in 5.

Possession 5.1 Subject to Clause 5.2 and subiect to buyers making timely payment, the company shall endeavor to complete the construction of the building block in which the dwelling unit is situated within 36 months with a grace period of 06 months from the date of issuance of allotment letter, provided that all amounts drre and payable by the buyer has been paid to the company in timely manner.

The company shall be entitled to reasonable extension of time for the possession of the dwelling unit in Page 3 of 24 HARERA ffi GURUGRAIV B.

Complaint No.

L654 of 2079 The complainant has made the following submissions: - I.

That the complainant along with a real estate broker named Mr.

Manish purwar of Golden Touch Investment (i.e. respondent the event of any default or negligence attributable to the buyer's fulfillment of terms & conditions of this agreement.

Date of allotment 29.r0.2075 (as per Annexure- C2 on page no.

32 of complaint) Due date of possession 29.04. ion 29.04.2079 s per buyer's agreement) [grace period of 6 months allowed being unqualifi ed) Basic sale price is.78,48,000/- fpage no.

18 of complaint] Total sale consideration 82,00,457 /- (as per payment plan on page no.

34 of complaint) Total amount paid by the co mplaina nt Rs.18,08,947l- (as per clarification submitted by complainant date d 03.02.2023) 0ccupation certificate 0ffer of possession Not offered Surrender by the allottee 05.01.20 t 9 [Page no.

42 ofthe complaint] Facts ofthe complaint: Page 4 of 24 Not Received 1-7 .

18.

HARERA ffiGURUGI?AN/ II.

1554 of20t.9 no.2) visited the township proiect ,,Woodview Residences,, to be developed by M/s.

Bright Buildtech private Limited, i.e. respondent no.1 and to be marketed by M/s Lotus Greens Developers Pvt.

Ltd. i.e. respondent no.3, situated in the revenue estate of village Hayatpur, Tehsil Gurgaon and Village Badha, Tehsil Manesar, District Gurgaon at Sector g9 & 90 under the master plan of Gurgaon, where he allured the complainant with special characteristics of project and other amenities.

The complainant after getting convinced by the respondent no.2 moved an application dated 24-09-2015 to book a residential apartment in the above said project and also got the allotment in the said project vide letter dated Z7-IO-ZOIS of an independent floor in the plotted colony having booking id; 210219, ref no.; WR0286, unit no: B-49, first floor, plot area [approx.) 183 sq. yd., super area (approx.)1090 sq. ft.

That the complainant and the respondent/builder had entered into buyer's agreement dated ZO.O1,.Z0!6 for the purchase of the said apartment for a total sale consideration of Rs.g2,00,457/_.

The complainant and the bank were required to pay to the respondent as per the subvention payment plan for the said apartment.

That the complainant vide receipt no.

2100000737 and 2100000738, dared 29.10.2015, paid the initial booking amounr III.

Page 5 of24 HARERA MGURUGRAN/ IV. of Rs.8,36,401. .8,36,401.70l- (which includes Rs.

8,066/_ as TDSI to the respondents.

Thereafter a tripartite agreement dated 74.03.2076 was executed between the complainant, builder ancl the Housing Development Finance Corporation Ltd. (HDFCJ and wherein former two had jointly approached the HDFC for sanction of a loan of Rs.55,00,000/_ against the above said apartment.

The complainant had paid Rs.10,000+0.50lo towards service tax to HDFC as loan processing fee respectively.

That the HDFC Bank as per the said tripartite agreemenr, disbursed the loan amount of Rs.8,45,533/- on 22.04.201_6 out of total due amount of Rs.55,00,000/_ to the respondent/builder.

Even at the time of disbursement of the said loan amount, the respondent/builder had not carried out the basic construction work at the site and the HDFC Bank started deducting a pre_EMI interest of around Rs.7000/- every month commencing from 01.05.2016 from the complainant,s bank account.

The total outstanding amount till date needs to be reimbursed by the respondent/builder to the complainant against the deductions ofthe said pre-EMIs is approx.

Rs.2,18,015/_.

That the complainant further visited the project site and found that there is an exorbitant delay in the construction of said apartment and raised his grievance before the respondent no.1 to which made false promises about its early deliverance.

1654 of 2019 Page 6 of 24 HARERA ffiGURUGRAI/ VII.

VIII.

Complaint No. t654 of 2019 VI.

That the complainant visited the site of the said proiect numerous times, but no satisfactorily explanation has been given about the final delivery of possession due to which the complainant suffered huge mental agony, torture, and harassment on the hands ofthe respondents.

That the complainant is aggrieved by the respondents on account of non-fulfillment of an obligation under the Act of 201.6 and violating the "c 24.09.2015 and "Clause 5.1 of buyer,s agreement,, dated 20,07. ted 20,07.201,6 for not delivering the possession of the flat in the E said project by the due dare i.e. on 29.L0.20L8 (which is 36 months from the allotment dated 29.10.2015) and if the grace period of 6 months is also added in the above 36 months as per the said clause, then the due date goes to 29.04.2019.

As per the said clause, the respondent/builder was unable to handover the said unit to the complainant within stipulated time.

Therefore, he is claiming the refund of his amount along with the prescribed rate of interest.

That the complainant served a legal notice on 05.01.2019 to the respondent/builder to cancel the booking of the said apartment and to refund the booking amount along with the interest.

As the promoter has failed to fulfil his obligation under section 11, the promoter is liable under section 1g(1J proviso to E IX.

Page 7 of24 HARERA ffiGURUGRAI/ pay interest to the complainant, at the prescribed rate, for everv month of delay.

X.

That the possession is delayed for many years.

Thus, on account of facing serious financial and emotional hardship on account of the delay, the complainant wishes to withdraw from the project and is seeking refund with interest as prescribed under the Act.

He has complied with all the terms and conditions of the buyer's agreement, but the respondent/builder has failed to meet up with his part of the contractual obligations and thus liable for refund with interest from date of respective payment till date of realization.

Relief sought by the complainant: The complainant has sought following relief(sJ: L To refund the entire amount of Rs.18,08,947/- (Rupees Eighteen Lakh Eight Thousand Nine Hundred and Forty-Seven only) along with prescribed rate of interest.

0n the date of hearing, the authority explained to the respondent/promoter about the contraventions as alleged to have been committed in relation to section 11( l (a) of the Act to plead guilty or not to plead guilty.

Reply by the respondent/builder. t/builder.

The respondent contested the complaint by filing reply dated 13.01..2020 on the following grounds:- complaint No.

1654 of 20t9 C.

D.

6.

Page B of 24 ffilARTlA #-eunueRRll Complaint No.

L654 of 2019 (i) That the complaint is neither maintainable nor tenable and is liable to be out-rightly dismissed.

The buyer,s agreement was executed betvveen the complainant and the respondent prior to the enactment ofthe Act of 2016 and the provisions laid down in the said Act cannot be applied retrospectively. (ii) That there is no cause ofaction to file the present complaint. (iii) That the complainant has no locus standi to file the present complaint. (iv) That, according to the booking application form and the buyer,s agreement, the time period for offering the possession of the unit to the complainant has not yet elapsed and the complaint has been filed pre-maturely by him. (v)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 13.2 of the buyer,s agreement. (vi) That the complainant has concealed true and material facts from this Hon'ble Forum.

The true and correct facts are that the complainant had approached the respondent for allotment ol' dwelling unit in "Woodview Residency" project at Sector g9 & 90.

He submitted an application form along-with an amount of Rs.2,00,000/-.

It is pertinent to mention here that at the time of' Page 9 of24 HARERA P*GURUGRAI./ submitting the application, the applicant was provisionally allotted B-49 dwelling unit, FF, at the basic sale price of Rs.78,48,000/- plus EDC, IDC charges plus club members fee plus interest free maintenance security totalling to Rs.82,00,457 /- as mentioned in application form duly signed by the complainant. mplainant.

The said allotment was done through golden touch investment and' Mr, Piyush Bhatia had given an undertaking for makingjT4ymerrt on behalf of the complainant :d 05.10.2015.

The complainant was said flat vide allotment letter dated 29.10.2015.

The complainant had opted for construction linked plan and the detailed payment plan in respect of the dwelling unit was sent to the him along-with allotment letter. (vii)That as per the agreed payment plan, the complainant was to pay the instalment within the agreed period.

The respondent issued a demand note on 18.01.2016 for payment of the next instalment which became due.

But the complainant failed to make the payment of said instalment, Even then, the respondent showing his bonafide sent the buyer's agreement of the above said allotted unit to the complainant vide Ietter dated 10.01..20L6, calling upon him to complete the formalities and submit the buyer's agreement duly signed with the respondent.

The respondent on non-receipt of amount issued the reminder Complaint No.

1654 of 2019 Page lO of 24 ffiHARERA *s- eunuenaHrr Complaint No.

1654 of2019 to the above said demand note vide letter dated LZ.OZ.2O76 again showing its bonafide sent the duly signed agreement along-with letter dated 15.02.2016, The complainant even after repeated demands failed to make the payment and a letter dated 03.03.2016 was sent as a second reminder and the respondent informed the complainant that it has to arrange funds vide letter dated 09.03.2016 for start ofconstruction. (viii) That the compla pproached the respondent for permission to mortgage the property to avail loan and the same rthep was given vide letter dated 11.03.2016 and a tripartitr.

E agreement was entered on 14.03-201,6 between the complainant, respondent and HDFC Ltd. (ixJ That the complainant always remained negligent and never fulfilled his part of contract nor paid the instalment as per the agreed payment plan. ment plan.

It is the complainant who is at fault who has not paid the instalments in time because of which the construction of the project was delayed. [x)That it is submitted that the complainant is a real estate investor who had booked the unit in question with a view to earn quick profit in a short period.

However, it appears that his calculations have gone wrong on account of severe slump in the real estate market and the complainant now want to somehow get out of the concluded contract made by him on highly flimsy and Page ll of 24 ffilARElA S- euRuenRvr Complaint No.

1654 of 2019 baseless grounds.

Such malafide tactics of cannot be allowed to succeed.

Copies ofall the relevant documents have been filed record.

Their authenticity is not in dispute.

Hence, be decided on the basis of these undisputed submission made by the parties. the complainant E.

Jurisdiction of the authority The respondents have raised a preliminary submission/objection that the authority has no jurisdiction to entertain the present complaint.

The objection of the respondent regarding rejection of complaint on ground of jurisdiction stands rejected.

The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.l Territorialiurisdiction 8.

As per notification no. t/92/20f7-LTCp dated 14.72.201,7 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

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

Therefore, this authority has complete territorial jurisdiction to deal with the present complaint. and placed on the the complaint can documents and Page 12 of 24 HARERA ffiGURUGI?AI/ 9.

7654 of 2079 E. of 2079 E.Il Subiect matter iurisdiction Section 11[4)(aJ of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)(aJ is reproduced as hereunder: Section 71 'lq rhe promoter snalL (a) be responsible for all obtigations, responsibilities and ta) be responsible for all obligations, responsibilities and functions under the provisions af this Act or the rules and regulations mode thereunde*.or to the allottees as per the qgreement for sale, or to.t tion of qtlottees, os the case may be, till the conveyance c the apartments, plots or buildings, as the case may be, to the qllottees, or the common areqs to the association of allottees or the competent authoriqt, as the Section 34-Functions of the Authority: 34(fl of the Act provides to ensure compliance of the obligotions cast upon the promoters, the allottees and the real estqte ogents under this Act and the rules qnd regulations made thereunder.

10.

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

11.

Further, the authoiity has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the iudgement passed by the Hon'ble Apex Court in Newtech promoters and Developers private Limited Vs State of ll.p. and Ors, 20Zl- 2022(1) RCR(C), 357 and reiterated in cose of M/s Sana Realtors Private Limited & other Vs llnion of India & others SLp (Civil) No.

Page 13 of 24 ffiIAREBA ffi eunuenavr Complaint No.

1654 of2019 13005 of 2020 decided on 7Z.0S.2022wherein it has been laid down as under: "86. nder: "86.

From the scheme of the Act of which a detoiled rekrence hqs been made ond taking note ofpower ofadjudication deli;eatud with the regulatory authoriqt and odiudiciting officer, whor linally cu s out is thqt although the Act indicates tie distinct expressio'ns like 'refund', ,interest,, ,penqlty, ond ,compensation,, o conjoint reading ofSections 1g ond 19 cleorly monifests that when it comes to reyund of the amount, ond interest on the refund amount, or ;irecting payment of interest for delaled.detivery of possession, or penalty and interest thereon, it is. t!.te regulatory ;uthority wiich'has the power to examine and determine the outcome ofo comploinL At the some time, when it comes to -a..guestion of seeking the retief of adjudging compensotion ohdiiierbtt thereo; under;ections 12, 14, 18 qnd 19, the adjd'dicotiili glficer exclusively has the power to determine, keeping in view th; celtElive readiig of Section 71 read trith Section Z2 of the AcL iltie adjildicqtion uidir Sections 12, 14, 18 and 19 other than comitensotion as envisoged if extended to the odjudicating officer os prayed thag in our-vie,ti, may intend to expand the ambit and scope oI the powers and fun; ons of the odjudicoting ofiicer under Section Z1 qnd thot wou'ld be against the mandate ofthe Act 2016.,, 12.

Hence, in view of the authoritative pronouncement of the Hon,ble Supreme Court in the cases mentioned above, the authority has the iurisdiction 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 Obiection regarding iurisdiction of authority w.r.L booking application form executed prior to coming into force ofthe AcL 14.

Another contention of the respondent is that authority is deprived of the jurisdiction to go into the interpretation of or rights of the parties inter-se in accordance with the booking application form executed between the parties and no agreement for sale as referred to un rred to under the Page 14 of24 HARERA ffiGURUGRAN/ Complaint No.

1654 of 2019 provisions of the Act or the said rules has been executed inter se parties.

The authority is of the view that the Act nowhere provides, nor can be so construed, that all previous agreements will be re-written after coming into force of the Act.

Therefore, the provisions of the Act, rules and agreement have to be read and interpreted harmoniously.

However, if the Act has provided for dealing with certain specific provisions/situation in a specific/particular manner, then that save the provisions of the agreements made between the buyers and sellers, The said cont( : said contention has been upheld in _, the landmark judgment of Neelkamal Realtors Suburban pvt.

Vs.

UOI and others. (W.P 2737 of 2017) decided on 06.12.20L7 which provides as under: 3,,Y-,. "179.

Under the provisions of Section 18, the detay in handing over the possession would be counted lrom the date mentioned in the agreement for sale entired into by the promoter and the ollottee prior to iti registration'under REM. llnder the provisions of REPy., the promoter is given a faciliy b revise the dote of completion of proiect and declare the some under Section 4.

The REP.A does n;t contemplote rewriting of contract between the flat putchaser and the promoter..,, 122.

We hove olready discussed that above stoted provisions ofthe REF./. are not retrospective in nature, They moy to some extent be hqving a retrooctive or quasi retroactive elfect but then on that ground the volidity of the provisions of REP./ cannot be chattinged, The Parliament is competent enough to legislqte law having retrospective or retroactive elfect.

A law can be even framed to offect subsisting / existing contractual rights between the parties in the larger public interest. interest.

We do not have anv doubt [n our mind thot he REPa hds been fromed in the lorger jublic interest ot'ter o thorough study and discussion made ot the highest levet by the Page 15 of 24 HARERA M GURUGRAM complaint No.

1654 of2O19 Standing Committee and Select Committee, which submitted its detailed reports." 15.

Then, in appeal no.

173 of 2019 titled as Magic Eye Developer pvt.

Ishwer Singh Dahiya, vide order dated, t7.72.201.g, the Haryana Real Estate Appellate Tribunal also observed as under_ "34, Thus, keep.ing in view our aforesaid discussion, we are of the considered opinion that the provisions of the Act are'quasi retrooctive to some extent in operation and will be applicable to the nsoction are still in the.process of delay in the offer/delivery of po.tsession as per the conditions of the agreement for sole the allottee shall be the interest/delayed possession charges.on the reasonable rate of interest as provided in Rule 15 of the rules ond one sided, uiyair and unreasonoble rote o1 compensotion mentioned in the agreement for sale is liable to be ignored." 16.

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

Further, it is noted that the builder-buyer 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 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 of any other Act, rules, statutes, instructions, directions issued thereunder and are not unreasonable or exorbitant in nature.

PaEe 16 of24 HARERA ffiGURUGRAI/ F.

RUGRAI/ F.

II Obiection regarding agreement contains an arbitration clause which refers to the dispute resolution system mentioned in agreement.

17.The buyer's agreement entered into between the two sides on 08.02.2016 contains a clause 13.2 relating to dispute resolution between the parties.

The clause reads as under: - "All or any disputes arising out or touching upon or in relation to this Agreement including the interpretation and validity ofthe terms thereof and the respective rights qnd obligqtions of the porties, shall be settled: am which the same s Complaint No.

1654 of 2019 mutual discussion, failing through arbitrqtion.

The a r b i tro ti on p r o ce e d ing be governed by the Arbltrotion and Conciliotion Act, 1996 ol :ony stqtutory amendments/ moclifications thereoffor the time being in force.

The qrbitration proceedings shall be held qt qn qppropriate location in Gurgoon by a sole orbitrator mutuolly appointed by the porties and whose decision sholl be lnal and binding upon the pqrties. ln event of clisagreement in the name of the sole Arbitrator, the qggrieved porty may approoch the Court of competent jurisdiction with regard to the appointment ofsole arbitrator." 18.

The respondent contended that as per the terms & conditions of the application form duly executed between the parties, it was specifically agreed that in the eventuality of any dispute if any with respect to the provisional booked unit by the complainant, the same shall be adjudicated through arbitration mechanism.The authority is of the opinion that the jurisdiction of the authority cannot be fettered by the existence of an arbitration clause in the buyer's agreement as it may be noted that section 79 of the Act bars the jurisdiction of civil courts about 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. be clear.

Also, section 88 of the Act says that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law PaEe 17 of24 HARERA MGURUGRAM for the time being in force.

Further, the authority puts reliance on Complaint No.

1654 of 2019 in National Seeds Corporation Limited v, M.

Madhusudhan 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 if the agreement between the. parties had an arbitration clause.

Similarly, in A|tab Singh and Ors. v.

Emaor McF Land Ltd and Ors., Consumer case no, 701 of .2015 decided on 73.07.2077, the National Consumer Disputes Redressal Commission, New Delhi (NCDRC) has held that the arbitration clause in agreements between the complainant and builder could not circumscribe the jurisdiction ofa consumer forum, 19.

While consideringthe issue of maintainability of a complaint before a consumer forum/commission in the face of an existing arbitration clause in the builder buyer agreement, the Hon,ble Supreme Court in case titled as I /s Emaar McF Land Ltd, V, Aftab Singh in revision petition no.

2629-50/2019 in civit appeat no.

235t2_23575 of 2077 decided on 10.12.2018 has upheld the aforesaid judgement of NCDRC and as provided in Article 141 of the Constitution of India, the law 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 para of the judgement passed by the Supreme Court is reproduced below: "25.

This Court in the series of judgments as noticed obove considered the provisions of Consumer protection Act, 19g6 os catena of iudgments of the Hon,ble Supreme Court, particularly PaEe lB of 24 ffiIABERA #* eunueRnru well as Arbitrotion Act 1996 and laid down thqt compl thqt complaintunder Consumer Protection Acl being o speciol remedy, despite there b-etng an orbitrotion ogreement the proceedings before C^onsumer Forum have to go on and no error coimittei by Consumer Forum on rejecting the qpplication.

There is reoson fir not interjecting proceedings under Consumer protection Act on the strength qn arbitrotion agreement by Act, 7996.

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

The compla|nt means any allegation in writing mode by s comploinant hos olso been explained in Secdo; 2G) of thi lct The remedy under the Consumer protection ect is- cinfined m complaint by consumer as...delined under the Act for defect or provisions of the Act, the authority is of the view that complainant is well within the right to seek a speiial remedy available in a beneticial Act such as the Consumer protection Act and RERA Act, 2016 instead complaint No.

1654 of 2019 ancl purpose ofthe Act 20.

Therefore, in view of the abgyg judgements and considering the that this authority has the requisite jurisdiction to entertain the complaint and that the dispute does not require to be referred to arbitration necessarily. ^ _ F.lU Obiection regarding the complainant being investor.

21.The respondent has taken a stand that thJ complainant is the investor and not consumer, therefore, he is not ;ntitled to the protection of the Act and rhereby 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 consumer of the fual estate sector. te 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 the preamble cannot ie used to defeat the enacting provisions of the Act.

Furthermore, it is pertinent to note that any aggrieved person can file a complaint againsi the promoter if he contravenes or violates any provisions oithe Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions ofthe apartment buyer,s ,gr"ement, it is revealed that of going in for an arlrbitration.

Hence, we have no hesitation in holding Page 19 of 24 MHARERA ffieunuennH,l the complainant is a buyer.and paid total price of Rs.63,99,956/_ to the promoter towards purchase of an apariment in tt " p.o;".t of ti," promot€r.

At this stage, it is important to stress upon the definition of term allottee under the Act, the same is reproduied below for ready reference: "2(d) "ollottee,,in relotion to o reol estate project means the person to whom a plot, opqrtment or building, os ih, ,or" .ry bi,'ior'0"", allotted, sotd (whether as freehold or tear"noUl' or 'o,ii"r_ire tra.nsferred by the promoter, ond includes the person who subsequently acquires the said ollotment througn iate,iranger or otherwise but does not include o person to'*no. ,iri ptoC aportment or building, as th9.c6se may be, b given on rent;,, 22. ln view of above-mentioned,dqfi4ition of ,,allottee,,as well as all the terms and conditions of the apartment application for allotment, it is crystal.clear that the compiainant is allotiee as the subiect unlt was allotted to him by the promoter.

The concept of investor rs not defined or referred in the Act.

As per the d;finition giu"n rna". section 2 of the Act, there will be ,,promoter,, and ,,allotte"e,, and there cannot be a party having a status oi,,investor,,.

The Maharashtra Real Estate Appellate Tribunal in its order dated 29,01.2019 in appeal no. appeal no.

00060000000105 57 titted as M/s Srushti Sangam oeiilopers evt.

Sa^rvapriya Leasing (p) Lts.

And Anr.\as also heid that the concept of investor is not defined or referred in the Act.

Thus, the contention of promoter that t}le allottee being an investor js not entitled to protection ofthis Act also stands releJted.

G.

Findings on the reliefsought by the complainant. c.t To refund the entire alnount of RsJA,Oa,g47 /_ paid by the complainantwlth prescribed rate of lnteresL 23.The complainant was allotted unit no.

B_49 on first floor, in the project "Woodview Residencies,,, Sector g9 & 90, Gururgram, Haryana by the respondent/builder for a total consideration of Rs.82,00,457 /-.

Though the complainant paid part of the sale consideration against the allotted unit to the tune of Rs.g,36,401/_ and an amount of Rs.7,54,531/_ was disbursed by the HDFC bank to Complaint No.

1654 of 2019 Page 20 of 24 HARERA ffiGURUGRAI/ Complaint No.

1654 of 2O7g the respondent/builder.

The above_said unit was booked under subvention scheme and as per terms agreed between the parties, the respondent/builder was under an obligation to make payment of pre_ EMI till offer of possession.

As per record, bank deducted pre_EMIs amounting to Rs.4,29,445 / - from the complainant,s account till October 2020, against which the respondent/builder has repaid Rs.2,L1,430 /- and an amount of Rs.

2,18,015 is left to be repaid to the complainant.

The possession of the unit was to be offered within 36 months plus (6) months grace period from the date of the issuance of allotment letter of the unii.

Thereiore, the due date of possession comes out to be 29.04.2079'i1t is, observed that the complainant requested the respondent even before filing of the complaint for withdrawal from the proiect.

The complainant vide legal notice dated 03.01.20L9 dispatched on 05.01.20j.

05.01.20j.9, requested the respondent to cancel the booking and refund the amount paid as the construction work of the project was not even started due to shortage of funds.

24.

Clause 4.6 of the buyer's agreement talks about the deduction of 10% of the basic sale price of the dwelling unit in case of withdrawal of the allotment.

Clause 4.6 of the said buyer,s agreement reiterated as under: - "lt is agreed betvreen the parties that, 10% of the Bqsic Sales Price.ofthe Dwelling Ilnit shqll constitute as thi ,,Earnest Money,, which is liabte to be withheld/ deducted by the Company in cose of defqult/ breach by the Buyer of any tirms and ioniitions oS this Agreement and on concellalion of booking/ allotment tor any reason wha5oever.

The Buyer ogrees ond aiknowledges titat the .Eornest Money shall, qt all times, be a non_refundabl;deposit and constitute o genuine pre-estimote of the doioge accruiig to the Company, in the event of the Iaiture of the Biyer to coipty with its obligotions for the booking/ ' oltotmint/ poyni:nt.

Pursuant to such concellotion/ wtthdr;wal of the Ailo;m;nC the Page 2l of24 ffiIA&ENA M, GURUGRAM Buyer shall have no right title, lien, cloims or demands whotsoever qgolnst the Dwelling Unit and/ or the Company and the Company shqll hove all the rights to deal vrith the Dwelting Unit in whatever monner os it moy deem lit.', 25.

Further, the Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builderJ Regulations, 11(5J of 2018, states that- "5.

AMOUNT OF EARNEST MONEY Scenario prior to the Real Estote (Regulations and Development) Act, 2016 was differelL,liq\tds,were corried outwithout qny fear as there was no low fbi. th_els:dne.but now, in view of the above facts ond taking into coiiiddi.ition the judgements of Hon,ble Notional Consumer Diipites Redressol Commission ond the Hon'ble Supreme Court. eme Court.of lndiot the authority is of the view that the forfeiture omouniof the eornest money shqll not exceed more than TOyo oI the conslderqtion omount oI the reol estate i,e, opqrtment /plot /bnilding os the case may be in all coses where the cancellation of the flat/init/plot is made by the builder in a utilateral manner or the buyer intends to withdraw from the project and any agreeient cghtaining any clause contrary to the oforesoid regulotions shall be void ond not binding on the buyer," 26.

Thus, keeping in view the aforesaid .factual and legal provisions, the respondent cannot retain the amount paid by the complainant against the allotted unit and are directed to refund the paid-up amount of Rs.18,08,947/- after deducting 100/o of the basic sale consideration of Rs.78,48,000/- being earnest money along with an interest @ 10.700/o p.a. [the State Bank of India highest marginal cost of lending rate (MCLRJ applicable as on date +Zo/o) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Rules,2017 on the refundable amount, from the date of surrender i.e., 05.01.2019 till date of actual date of refund of the Complaint No.

1654 of 2019 Page 22 of 24 ffiEAREEA ffi, eunuennu Complaint No.

1654 of 2Ot9 amount within the timelines provided in rule 16 of the Haryana Rules 2077 ibid.

H.

Directions ofthe authority 27.

Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under i.

Therespondent/build of Rs.18,08,947 consideratio an interest date of sur ii.

Out of total /payee be directions given in this ord consequences would follow.

Complaint stands disposed of.

File be consigned to the registry. !arryng n9f A11ate Regutatory Authority, Gurugram to refund the paid-up amount l0o/o of the basic sale est money along with le amount, from the al refund. al refund. unt paid by the bank bank and the balance amount along with interest will be refunded to the complainant. iii.

A period of 90 days is given to the respondent to comply with the er and failing which legal 28.

29, Datedt 24.03.2023 Page 23 of 24