GAGAN BHATIA vs RAMPRASTHA PROMOTERS

ffi HARERT. # eunueRRvr Complaint No.

109 0F 2019 and others BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision: 29-07.2022 NAME OII THE BUILDER PROJECT NAME S.

No.

Case No.

RAMPRASTHA PROMOTERS AND DEVELOPERS PRIVATE LIMITED cR/709 /2019 The Risc Case title Cagan Bhatia V/S M/s Ramprastha Promoter & Developers Private Limited Naveen Saxena V/S M/s Ramprastha Promoter & Developers Private Limited Nitin Aggarwal and Yuvika Aggarwal V/S M/s Ramprastha Promoter & Developers Private Limited Shri Sushil Yadav Shri Dheeraj Kapoor APPEARANCE ShrL Nrl,)Lnnl shy.rnr Shri Dheeral Kap,,o Shri Sushil Yaclav Shri I)hecral Kapoor CORAM: Dr.

K.K.

Khandelwal Shri Vi,ay Kumar Coyal Cha irma n Mcmber ORDER 1. 'fhis order shall dispose of all the 3 complaints titled as above liled bcforc this authority in form CRA under section :.] 1 of thc Real Estate IRegulation and Development] Act, 2016 [hereinafter refcrred as "the Acf') rcad with rule 28 of the Haryana lleal Estate (Regulation and DevelopmentJ RLllcs, 2 0.17 (hereinafter referred as "the rules") for violation of section 1 1 (4.)(a ) of the Act wherein it is inter alia prcscribed that the promoter shall l;c cR/766/2019 cR/9s9 /2079 l'agc 1 ol :14 & HARER:]. #- eunuennvr 2.

3.

Complaint No.

109 OF 2019 and others 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(s) in the above referred matters are allottees of the project, namely, The Rise at Ramprastha City (group housing complex) being developed by the same respondent/promoter i.e., M/s Ramprastha Promoter & Developers Private Limited.

The terms and conditions of the buyer's agreements fulcrum ofthe issue involved in all these cases pertains to failure on the part oF the promoter to deliver timely possession of the units in question, seeking award of Refund the entire amount re amount along with intertest and the compensation.

The details of the complaints, reply status, unit no., date of agreement, possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given in the table below: Proiect Namc and Location Ramprastha Promoters and Developers Limited " l he Rise" Sector-37D, Village cadauli Kalan, curugram.

Possession Clause: - 15. (a) Time of handing over the possession "Subject to terms of this clquse ctnd subject to the Allottee having complied wtth a the terms and condition of this Agreement and the Applicotion, and not being in defoult under any of the provisions of this Agreement ond complionce with all provisions, formolities, documentqtlon etc., as prescribed by MMpMSTHA.

MMPRASTHA proposed to hqnd over the possession of the Apartment by September 2015 the Allottee agrees ond understands thqt MMqRASTHA shqll be entitled to a groce period of hundred and twenty days (120) days, for applying ond obtaining the occupotion certificate in respect ofthe Group Housing Complex.,, IEmphasis suDDlie d) Occupation certifi cate: - ; OC rcccived datcd to 13'h floor.

1,3."12.201,7 for towers/block- U, V, W, X, Y, Z for ground Page 2 of34 HARE!i GURUGRAM Complaint No.

109 O others .

2019 aod OC rcccived dated 13.02.2 to 19th floor and basemen OC received dated 13.02.i and 19th floor and conveni 1B for tower/block- I, l, K, 1,, M fi 1 [73568.049 sq. meter.J )20 for towers/block- H, N, 0 fc nt shopping centre [block-B) an Sround flool ground floor basement- B Note: Grace period is not includ while computing due date of p ssesslon.

Sr.

No Complaint No., Case Title, and Date of filing of complaint Reply status tJni No Date of apartmcnt buyer agreement Duc datc of possession T Con ti T pa i con at ,n/ )tal ount dbv he plain t(s) Relir Sout Reh thc cnt i entc a lon witl inte rf !hr d 1. cR/109 / 2079 Gagan Bhatia V/S M/s Ramprastha Promoter & Developers Private Limited Date of Filing of complaint 15. plaint 15.01.2019 Reply Received on 20.09.20 19 D-20 2d floor towe /blo( D IPag( no, 18A t the coml aint) 01.08.2 01 2 (Page no 16 ofthc cornplair)t ) 30 09.2015 [As per menfioned in the buycr's agreenrcntl TSC: Rs.8 1e /- Rs.6 49/ ,2 ,93,0 2. cR/166/ 2019 Naveen Saxena V/S M/s Ramprastha Promoter & Developers Private Limited Date of Filing of complaint 15.01.2019 Reply Received on 20.09.20 19 D.

1803 lBth floor /b1o( .D (Pag no, 204 the coml aintJ I 04.06.2012 [Page no.

1B ofthe complaintl 30.09.2 01 5 [As per mentioned rn the buy..r's agrc(]nrcn!] ,].SC Rs.8 2s/ API Rs.6 061 1,39,5 ;,05.5 Rcf[ the enti aloa witl inte nd I)age 3 o IER GRAI.I l;",rr-t"-*t,o,,."J I otne.s I B. l)ate of cnvironment clearances 1.01.2010 \s per information obtained by lanning branchl 9.

RERA llegistered/ not registered egistered vide no.

278 of 2017 dated ).70.2017 10.

RERA registration valid up to J.06.2019 11.

HARERA extension certificate no.

3 of 2020 1_2.

Extension certificate detail ate Validitv t principal rproval on 7.06.2019 30.1-2.2020 13.

Allotment letter 5.04.20L2 )age no.

12 ofthe reply) 14.

Date of booking application form ).1.1.201L 'age no.

36 of the reply) 15. _t Date of execution of apartment buyer agreement 1.0a.2072 'age no.

16 ofthe complaintl 16.

Unit no. '201,2,d floor, tower/block- D rage no.

18A of the complaintl 17.

Unit area admeasuring )25 sq. ft. 'age no.

18A of the complaint) Page 6 rf 34 IARER..

GURUGRAI,I over the clause and having terms and ment and being in provisions mpliancc b rmalitie s, prcscribcd PITASTHA ovet the Allottee ds that entitled to dred ond days, for ing the in respect supplied) plaint) e buyer's Complaint No.

109 others 2079 and Possession clause 15.

POSSESSION (a) Time of handing Possession Subject to terms of this subject to the Allo complied with all the condition of this Agre the Application, and n default under any of of this Agreement and with all provisions, documentation etc., as by RAMPttAS'l'HA. ttAS'l'HA.

RA proposed to hand possession of the September 2015 agrees and un RAMPRASTHA shall a grdce period of twenty days (120) applying ond ob occupation certificote of the Group Housing fPage no.23A ofthe co 3 0.09.2 0 r 5 JAs per men tio ncd in agreement I Rs.86,34,2"19 /- Due date of possession Total sale consideratio I']agc 7 ol:l B. u.

HA ER GRA[/ Complaint No.

109 OF 2019 and others The I. of the complaint ainant has made the foll ng submissions in the complaint. - the respondent advertisement in various leading coming project named Ramprastha mising various advantages, like world ewspapers about their fo Rise" in Sector 37, Gurgaon p lass amenitics and timely plction/execution of the project ctc. elying on the promises and dertakings given by the respondent in plainant booked an apartment/flat dmeasuring 1825 sq.ft. i.e., i resaid project of the respondent for 6,34,2L9/- which includes BSP, car aforementioned the co per schedule of payment page 3rlA the complaintJ Amount paid by the complainant 69,93,049 /- s per receipt information pagc 50 of Payment plan nstruction I-inked payment plan e no.

30A of the complaintl Occupation certificate /Completion certificate 0ffer of possession Delay in handing over the possession till date of filing complaint i.e., 75.01..2079 years 3 months and 16 days tal sale consideration of l'agc I of :J+ 23.

Not offered HARER GURUGRA[/ II, parking, IFMS, club membership, PLC etc.

He made payment of Rs.69,93,049/- to the respondent vide different cheques on differenr dates.

That as per apartment buyer's agreement, the respondent allotted a unit/flat bearing no D-201 on znd floor in Tower-D having super area of 1825 sq. ft. to the complainant. 'Ihat as per clause no.

15(a), the respondent agreed to deliver the possession of thc unit latest by September 2015 as per the date of signing of the apartment buyer's agreement dated 01.0A.2012 with an extended period of4 months. f4 months.

That complainant regularly visited the site but was surprised to scc that construction work was not in progress and no one was present at the site to address his queries.

It appears that respondent has played fraud upon the complainant.

The only intention of the respondent was to take payments for the tower without completing the work.

The respondent with mala-fide and dishonest motives cheated and defrauded the complainant.

That despite receiving of 85-90%r approximately payment of all the demands raised by the respondent for the said unit and repeated requests and reminders over phone calls and personal visits of the complainant, the respondent failed to deliver the possession of the allotted unit to him within stipulated period.

That it could be seen that the construction of the block in which thc complainant unit was booked with a promise by the respondent to deliver the unit by September 2015 but was not completed within time for the reasons best known and which clearly shows the ulterior I II, Complaint No.

109 0ll 2019 and others IV. l'agc 9 ol34 ffi HARER *&. eunuennvr motive of the respondent was to extract money from the innocent people fraudulently.

V. ]'hat due to this omission on the part of the respondent, the complainant has been suffering from disruption in li,ring arrangements, mental torture, agony and also continue to incur severe financial losses.

This could be avoided if the respondent had given possession of the unit on time.

That as per clause 17 (a) of the apartment buyer's agreement dated 01.08.2012 it was agreed by the respondent that in case of any delay, it would pay to the complainants a compensation @ Rs.s/- per sq.ft. per month of the super area of the apartment/unit.

It is, however, pertinent to mention here that a cluruse of compensation at a such of nominal rate of Rs.5/- per sq. ft. er sq. ft. per month for the period of delay is unjust and the respondent has exploited the complainant by not providing the possession of the unit even after a delay of such a long period from the agreed posses:;ion plan.

The respondent cannot escape the liability merely by mentioning a compensation clause in the agreement.

It could be seen here that the respondent has incorporated the clause in one sidecl buyer's agreement and offered to pay a sum of Rs.S/- per sq. ft. for every month of delay.

If we calculate the amount in terms of finarLcial charges, it comes to approximately @70/o per annum rate of interest whereas the respondent charges 18% per annum interest on delayed payment.

That on the ground of parity and equiry, the respondent alsc be subjected to pay the same rate of interest.

Hence, the respondent is Complaint No.

109 0F 2019 and others VI.

Page 10 of 34 ffi uRRrn' ffi. eunuenaHr lr.

C.

9.

10.

109 OF 2019 and others VII. liable to pay interest on the amount paid by the complainant @ 1B%r per annum to be compounded from the promised date of possession.

That the complainant requested several times by making telephonic calls and also personally visiting the office of the respondent either to deliver possession of the unit in question or to reFund the amount along with interest @ 18% per annum on the amount deposited by him, but respondent has flatly refused to do so. 'lhus, the respondent in a pre-planned manner defrauded the complainant with his hard- earned amount and wrongfully gained itself and caused wrongful loss to him.

Relief sought by the complainant: - 'l hr-' complainant has sought following re lief(sl: I.

Direct the respondent to refund the amount of Rs.69,93,049/- along with prescribed rate of intercst per annum on compoundcd ratr: front the date of booking from the flat in question. ll.

Any other relief which this hon'ble authority deems fit and propcr may also be granted in favour the complainants. plainants.

On the date of hearing, the authority explained to thc rcspondent/ promoter about the contraventions as alleged to have been committcd rn relation to section 11(4) [a) ofthe act to plead guilty or not to p lcad Suilty.

Reply by the respondent 'l.he respondcnt has filed an application for rcicction of complaint on thc ground ofjurisdiction along with reply.

Thc rcspondent has contested tllc complaint on the following grounds.

11.

Page 11 oi34 & HARER ffi eunrcnnvi IV.

Il.

109 0F 2019 and others I.

That the complaint filed by the complainant is not maintainable and the authority has no jurisdiction whatsoever to entertain the present complaint.

The respondent has also separately filed an application for rejection of the complaint on the ground of jurisdiction and the reply is without preiudice to the rights and contentions contained in the said application.

That the complaints pertaining to compensation and interest for grievances under section 1,2, 14, 78 and 19 of the Act, 2016 are required to be filed before the adjudicating officer under rule-29 of the rules, 2017 read with section 31 and section 71 of the said Act and not before this authority under rule-28.

The complaint pertains to the alleged delay in delivery of possession for which the complainant has filed the present complaint and is seeking the relief of refund, interest, and compensation u/s 1tJ of the said Act.

Therefore, even though the pro,ect of the respondent i.e., "Rise" Ramprastha City, SectDr-37D, Gurgaon is covered under the definition of "ongoing projects" and registered with this authority, the complaint, if any, is still required to be filed before the adjudicating officer under rule 29 of the said rules and not belbre this authority under rule 28 as this authority has no iurisdiction whatsoever to entertain such complaint and is liable to be rejected. rejected. 'Ihat without prejudice to the above, the position is further substantiated by the proviso to section 71 which clearly states 1.hat even in a case where a complaint is withdrawn from a Consumer Forum/Commission/NCDRC for the purpose of filing of an III, Page 12 of 34 ARER URUGRAI'l Complaint No.

109 0F 2019 and others application under the said Act and the said rules, the application, il any, can on)y be filed beforc the adludicating officer and not bcforc the authority.

That the complaint is not supportcd by any propcr affidavit with a proper verification. ln the absence of a proper vcrificd and attestcd affidavit supporting thc complaint, the complaint is liable to l)c rejected. 'l'hat the complainant is an investor and not consumcr and nolvhcrc in thc complaint, the complainant pleaded as to how thc complainant is consumer as defined in the Consumer Protection Act, 1986 qua the respondent, 'l'he complainant has deliberately not pleaded the purposc for rvhich the complainant has entercd into an agreement with the respondcnt to purchasc the apartment llr question. 'l he complainant, who is already the owner and rcsidcnt of 31, Sahyog Apartment, Near Rani llagh, Sant Nagar, PitampLlra, Dclhi- 110034 [address mentioned in the booking irpplication [orrr, apartment buyer's agreement and in the prcsent complaintJ is investor, who never had any intention to buy the apartment for or^ n personal use and kept on avoiding the performance of contractual obligations ofexecuting the apartment buyer agreement and lrakll rA timely payments and have now fllcd thc prcscnt conrplaint on falsc and frivolous grounds. l'hat this authority has no jurisdiction to entertain the prcsent complaint as the complainants havc not come this authority \,vith clean hands and has concealed the matcrial fact that he. is dcfatrlte.r, VI, VII.

Pagc 13 ol34 & HARER #* eunuennv VIII.

Complaint No. plaint No.

109 OF 2019 and others having deliberately failed to make the payment of installments within the time prescribed, with delay payment charges, as reflected in the statement of account.

Despite several adversities, the respondent continued with the construction and is in the process of completing the project and should be able to apply the occupation certificate for the apartment in question by 30.06.2019 (as mentioned at the time of registration of the project with this authority).

However, the complainant is only short term and speculative investor, and is not interested in taking over the possession of the said apartment.

Moreover, due to slump in the real estate market, the complainant failed to make the payments in time.

It is apparent that the complainant had the motive and intention to make quick profit from sale of the said apartment through the process of allotment.

Having failed to resell the said apartment due to general recession, the complainant has developed an intention to raise false and frivolous issues to engage the respondent in unnecessary, protracted, and frivolous litigation. 'l'he alleged gricvance of the complainants has the origin and motive in sluggish real estate market.

That this authority is deprived of the jurisdiction to go into the interpretation ol or rights ofthe parties inter-se in accordance with the apartment buyer's agreement signed by the complainant /allotment offered to him.

That the proposed estimated time of handing over the possession of the said apartment i.e., September 2015 plus 120 days, comes to IX, X, Page 14 of 34 & HARER. #, eunuenAr,r XI.

109 0F 2019 and others 37.07.2016, and is applicable only subject to force majeure and rhe complainant having complied with all the terms and conditions and not being in default of any the terms and conditions of the apartment buyer agreement, including but not limited to the payment of instalments. stalments.

In case of any default/delay in payment, the date of handing over of possession was to be extended accordingly solely at the respondent's discretion, till the payment of all outstanding amounts and at the same time in case ofany default, the complainant would not be entitled to any compensation whatsoever in terms of clause L5 and clause 17 ofthe apartment buyer agreement.

That section 19(3J of the Act provides that the allottee shall be entitled to claim the possession of the apartment, plot, or building, as the case may be, as per the declaration given by the promoter under section a[2)(l)(CJ.

The entitlement to claim the possession or refund would only arise once the possession has not been handed over as per the declaration given by the promoter under section 4(2)(D(C).

In the present case, the respondent had made a declaration in terms ofsection 4(2J0)(CJ that it would complete the project by 31.06.2019.

Thus, no cause of action can be said to have arisen to the complainant in any event to claim possession or rcfund, along with interest and compensation, as sought to be claimed by them.

The projects in respect of which the respondent has obtained thc occupation certificate are described as hereundcr: - XII.

Page 15 ot 34 GU 72.

Co d eci by 'Ih e bein 13. whe er the authority should p Page 16 of 34 ER, RA[I Complaint No.

109 OF 2019 and others No. of Apartments OC received OC received Edge 'l'ower I, J, K, L, M Tower H, N 'l ower-O IN omenclature-P) (Tower A, B, C, D, E, F Gl 400 160 BO 640 OC received OC received OC received OC to bc applied OC reccived OC to be applied s of all the rclcvant docu ts have been filed and placed on the dispute.

Hence, the complaint can be .'fhcir authenticitv is not ed on the basis of these un ted documents and submission made parties. pplication filed in the form O with the adjudicating officcr and on transferred to the authority view of the judgement lw/s Newtech ond Developers Pvt Versus Stdte of U.P. ond Ors. . ond Ors. r) No(s).

3717-s715 OF 021), the issue before authority is further without seeking fresh S.

No 1.

2.

3. ,r lcws -]sr+ 5.

Skyz 684 o. lnrsr,-- lnz ARER...

109 OF 2019 and others URUGRAI,I application in the form CRA for cases of refund along with prescribed interest in case allottee wishes to withdraw from the project on failure of the promoter to give possession as per agreement for sale.

It has been deliberated in the proceeding$ dated 10.5.2022 in CR No.

3688/2021 titled Harish Goel Versus Adani M2K Projects LLP and was observed that there is no material difference in the contents of the forms and the different headings whether it is filed before the adjudicating officer or the authority.

14..

Keeping in view the judgement of Hon'ble Supreme Court in case titled as M/s Newtech Promoters and Developers Pvt Ltd Versus Stdte of U.P, ond Ors, (Supra) the authority is proceeding further in the matter wherc allottee wishes to withdraw from the project and the promoter has failed to give possession of the unit as per agreement for sale irrespective of thc fact whether application has been made in form CAo/CRA.

Both the parties want to proceed further in the matter accordingly.

The Hon'ble Supreme Court in case of ydrun Pahwav,/s Renu Choudhary, Civil appeal no,2431 of 2079 decided on 07.03.2079 has ruled that procedures are hand made in the administration of justice and a party should not suffer injustice merely due to some mistake or negligence or technicalities.

Accordingly, the authority is proceeding further to decide the matter based on the pleading and submissions made by both the parties during thc proceedings. furisdiction of the authority The application of the respondent regarding reiection of complaint on ground of jurisdiction stands rejected.

The authority observes that it has [.

15.

Page 17 oi 34 ffi HARER I. & eunuennu Complaint No. plaint No.

109 0F 2019 and others territorial as well as subiect matter iurisdiction to adiudicate the present complaint for the reasons given below.

E.

I Territorial ,urisdiction 16.

As per notification no.1l92 /2017-1TCP dated 14.12.2017 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 Curugram.

In the present case, thc proiect in question is situated within the planning area of Gurugram District. 'l'herefore, this authority has complete territorial jurisdiction to deal with the prcsent complaint.

E. ll Subiect matter iurisdiction 17.

Scction 11(a)(aJ of the Act, 2016 provides that the promoter shall bc responsible to the allottee as per agreement for sale.

Section 11(4ltal is rcproduced as hereu nder: Section 11 (4)'l'he promoLet shall- [o) be responsible Jor all obligations, responsibilities ond functions under the provisions of this Act or the rules ond regulotions m(tde thereunder or to the ollottees os per the ogreement for sqle, or Lo the association ol allottees, as Lhe cose moy be, till Lhe conveyonce ofall the oportnents, plots or buildings, as the cose may be, La the ollottees, or the conlmon oreos to the association ofallottees ot the competent authority, as the case may be; Section 34-Functions of the Authority: 340, of the Act provides to ensure complionce of the obligotions cost upon the promoLers, the allottees and the real esLote ogents under this Act on(l lhe rules and reoulotio s mode thereun(ler.

Page 18 oi 34 ffi HARER.. &eunuennu 18.

So, in view of the provisions of complete lurisdiction to decide Complaint No.

109 OI:201r) and others Act quoted above, the authority has complaint regarding non-compliance of obligations by the promoter leaving asidc compensation which is to be. decided by the adjudicating officer if pursued by the complainants ar ,r later stage.

19. stage.

19.

Irurthcr, thc authority has no hitch in proceeding with thc complaint anil the thc to grant a relief of refund in the present matter in view of thc judgcment passed by the Hon'ble Apex Court in Newtech Promoters and Developers Private Limited Vs State of U.P. and Ors. (Supro) and reiteroted in cosc of M/s Sana Realtors Private Limited & other Vs Union of India & others SLP (Civil) No.

1 3005 of 2020 decided on 12,05,2022whcrcin it has bccr] laid down as under: "86. f'rom the scheme of the Act of which a detoiled reference hos been made and taking note oI power of adjudicotion delineoted with Lhe regulatory authority andodjudicoting offrcer, whot frnolly culls out is thoL qlthough the Act indicates the distinct expressions like'refund','interest', 'penalty' and 'compensation', a conjoint reading of Sections 18 and 19 cleorly mqnifests that when [t comes to refund ofthe amount, ond interest on the tefund omounL or directing poyment of interest for cleloyed delivery ofpossession, or penolty qnd interest thereon, it is the regulatory authority which has the powet to examine ond deLermine the outcome ol a complaint.

At the some time, when it comes to o question ofseeking the relief of odjudging compensqtion ond interest thereon under Sections 12, 14, 18 and 19, the odjudicoting olficer exclusively hos the power to determine, keeping in view the collective reoding of Section 71 rqad with Section 72 ofthe Act. if the adjuclication under Sections 12, 14, 1E ond 19 other than compensotion qs envisoged, if extended to the odjudicoting ofjicer os proyed thot, in our view, moy intencl to expond the qnbit and scope ofthe powers ond functions ofthe adjudicating officer under SecLion 71 ond that would be ogainst the mqndate of the Act 2016." Page 19 of34 Complaint No.

109 0F'2019 and others 20. & HARER #-eunuennn,l F.

27. n,l F.

27.

Hence, in view ofthe authoritative pronouncement ofthe Hon'ble Supreme Court in the cases mentioned above, the authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

Findings on the obiections raised by the respondent F.

I Obiection regarding the complaint not signed and proper verified.

The counsel for the respondent has raised a contention that the complaint is neither signed nor supported by any proper affidavit with a propcr verification.

The authority observes that the complaint is signed by the complainant and his counsel, and the affidavit is attested by the Notary, Government of India vide Regn.

6150 Gurugram on 07.01.2019.

So, the plea of the respondent is liable to be dismissed.

F. ll Obiection regarding handing over possession as per declaration given under section a(2)(l)(C) ofRERAAct The counsel for thc respondent has stated that the entitlement to claim possession or refund would arise once the possession has not been handed over as per declaration given by the promoter under section 4(2)01(C). 'l'herefore, next question of determination is whether the respondent is cntitled to avail the time given to him by the authority at the time of registering the project under section 3 & 4 of the Act.

23.

It is now settled law that the proviEions of the Act and the rules are also applicable to ongoing proiect and the term ongoing project has been 22.

PaBe 20 of 34 ffi HARER.:. sih. eunuennu Complaint No.

109 0F 2019 and others defined in rule 2(1)(o) ofthe rufes.

The new as well as the ongoing project are required to be registered under section 3 and section 4 of the Act.

24.

Section 4(2)(l)(C) of the Act requires that while applying for registrarion of the real estate proiect, the promoter has to file a declaration under section 4[2)[)(C) ofthe Act an4 the same is reproduced as under: - Section 4: - Application for registration ofreolestate projects (2) The promoter sholl enclase th enclase the following documents olong with applicqtion referred to in sub-section (1), nomely: -.......,....................... (l): -o declqration, supported by an qffrdovit, which shall be signed by promoter or ony person authorised by the promoter, stotingl Lhe (C) the time period t ithin which he undertqkes to complete the project or phose thercol;as Lhe case ney be...." 25. 'Ihe time period for handing over the possession is committed by thc builder as per the relevant clause of apartment buyer agreement and tlrc commitment ofthe promoter regarding handing ovcr ofposscssion of thc LLnit is taken accordingly. 'l'he new timeline indicated in respect ofonfloing project by the promoter while making an application for registration ol'the project does not changc thc comnlitment ofthe promoter to hand ovcr thc possession by the due date as per the apartment buycr agreement.'fhc ncw timelinc as indicated by the promoter in the declaration under scction 4(21(l)(C) is now the ncw timeline as indicated by him for the completion of the project.

Although, penal proceedings shall not be initiated against the builder for not meeting the committed due date of possession but now, if the promoter fails to complete the project in declared timeline, then hc the PaEe 21 of 34 HARER , GURUGRAI.,4 Complaint No.

109 0F 2019 and others is liable for penal proccedings. 'l'he due date of possession as pcr thc agreement remains unchanged and promotcr is liable for the consequences and obligations arising out of failure in handing over possession by the due date as committed by him in the apartment buyer agreement and he is liable for the delayed possession charges as provided in proviso to section 1U(11 of the Act.

The same issue has been dealt by hon'ble Bombay High Court in case titled as Neelkomal Realtors Suburhan Pvt.

Ltd. and anr. vs Union of India and ors.W.P 2737 of2017 decided on 06,72.2017 and observed as under: "119. der: "119.

Under the provisions ofSection 18, the delay in honding over the possession woulcl be counted from the dote mentioned in the ogreement for sole entered into by the promoter and the ollottee prior to its registration under REP./-.

Under the provisions of REM, the promoter is given a focility to revise the date ofcompletion of project ond declare the same under Section 4.

The RERA does not contemplqte rewriting of contract between the llat purchoser und the promoter..,t' F.

Ul Obiections regarding the cotnplainant being investor, 26. 'Ihe respondent has taken a stand that the complainant is an investor and not consumer, and therefore, is not entitled to the protection ofthe Act and thereby not entitled to file the complaint under section 31 of the Act.

The respondcnt also submitted that the preamble ofthe Act states that the Act is enacted to protect the interest ofconsumers ofthe 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 real estate sector.

It is settled principle of interpretation that the preamble is an introduction of a statute and states main aims & objects of enacting a statute but at the Page 22 of 34 HARER,I..

H" GURUGRAI\/ same time the preamble cannot be used to defeat the enacting provisiolls of the Act.

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

Upon careful perusal of all the terms and conditions of the apartment buycr's agreement, it is revealed that the complainant is a buycr and paid total price of Rs.69,93,049/- to the promoter towards purchase ol an apartmcnt in thc projcct of thc promotcr. promotcr.

At this stagc, it is important to stress upon the definition of term allottee undcr the Act, the sanre rs reproduced below for ready reference: "2(cl) "allottee" in relation ta q reul estate projecL meons the person to whotn u plot, apqrtment or bui|ling, os the cose mqy be, has been alloLted, soltl [whether as freehold ot leosehold) or otherwise tronsferretl by lhe promoter, qnd includes the person who subsequently qcquires the s0id ollotment through sqle, trqnsfer ot otherwise but daes nat include u person to whom such plot, opartment or builcling, as lhe cose moy be, is given on rcnt;" ln view of abovc-mentioned definition of "allottecs" as well as all the ternrs and conditions ofthe apartment application for allotment, it is crystal clL'ar that the complainant is an allottee as the subject unit was allotted to ltim by the promoter. 'l'he concept of investor is not defined or referred in tho Act.

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

The Maharashtra Real Estate Appellate'fribunal in its ordcr dated 29.01.2019 in appeal no.

00060000000105 57 titled as M/s Srushti Sangam Developers Pvt.

Ltd.

Vs.

Sorvapriya Leosing (P) Lts.

And onr.

109 OF 2019 and others Pagc 23 ot:14 & HARER .

M GURUGRAIV] has also held that the concept of investor is not defined or referred in the Act.

Thus, the contention of promoter that the allottee being an investor is not entitled to protection of this Act also stands rejected.

F. lV Obiection regarding iurisdiction of authority w.r.t. booking application form executed prior to coming into force ofthe Act 27.

Another contention of the respondent is that authority is deprived of thc jurisdiction to go into thc interpretation of, or rights ofthe parties inter-se in accordance with the booking application form executed between the parties and no agreement for sale as referred to under the provisions of th ions of the Act or the said rules has been e5(ecuted inter se parties.

The authority is of the view that the Act nowhere provides, nor can be so construed, that all previous agreements would be re-written after coming into fbrce 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 provi$ions/situation in a specific/particular manner, then that situation will be dealt with in accordance with the Act and the rules after the date of coming into force oF the Act ancl the rules.

Numerous provisions of the Act save the provisions of the agreements made between the buyers and sellers.

The said contention has been upheld in the landmark judgment of lveelr{a mal Realtors Suburban pvt, Ltd.

Vs, UOI und others. (Supra.) which provides as under: "119.

Under the provisions of Section 18, the deloy in handing over the possession would be counted from the date mentioned in the qgreement for sole entered into by the promoter qncl the allottee priot to its Complaint No.

109 0F 2019 and Page 24 of 34 HARER.

W" GURUGRAII Complaint No.

109 0F 2019 and others registration under REP'1-.

Under the provisions of RERA, the prcmoter ts given o facility to revise the dote ofcompletion ofproject ond declore the some under Section 4- The REp.1, does not contemplqte rewriting of controct between the flat purchaser and the promoter....

122.

We hqve alreody discussed that above stoted provisions of the RERA ore not retrospective in noture.

They may to some extent be having o retroqctive or quasi retroactive effect but then on thot ground the validity of the provisions of RERA connot be challenged. 'l'he Pqrlioment is competent enough to legislote law hoving retrospective or retroactive effect.

A low can be even frgmed to affect subsisLing / existing controctuol rights between the parties in the lorger public interest.

We do not hove any doubt in our mind thqa the REP. a the REP.1- hos been frqmed in the lqrger public interest ofter a thorough $tudy qnd discussion mqde at the highest level by the Standing Committee ond Select Committee, which submitted iLs detoiled reports." 28.

Also, in appeal no.

1 73 of 2019 titled as Mag ic Eye Developer Pvt.

Vs. lshwer Singh Dah,/a, in order dat ed 17 .1,2.201,9 the I Iaryana Ileal llsrarc Appellate Tribunal has observed- "34.

Thus, keeping in view our aforesaid discussion, we ore of the Lonsidercd opinion that the provisions of Lhe Act ore quasi retrooctive to some extenL in operoLian ond will be applicoble to Lhe Sgrce.tAg\Ltflr\qkelrlercllLtla even prior to coming into operotion oflhC}lLLyhclctLbLttelsetctiotl .1Le still in the process oi cotnpleLion- Hente in cqse of deloy in Lhe ofJer/delivery of possession qs per the terms qnd conditions ol the ogreement for sole the ollottee sholl be entitled to the interesl/deloyatl possession charges on the reasonolJle rute ol tnterest ds provided in Rule 15 of the rules and one sided, unf(lir and unreqsonoble rote ol compensotion mentioned in the agreement for sole is lioble ta be ignored." 29.

The agreements are sacrosanct save and except for the provisions which have been abrogated by the Act itseli lrurther, it is notcd that the bu ilde r buyer agreements have been executed in the manner that there is no scopc left to the allottee to negotiate any of the clauses containcd thcrcin. 'fherefore, the authority is of the view that the charges payablc undcr various heads shall be payable as per the agreed terms and conditions of the agreement subject to the condition that thc samc arc in accordance Page 25 of 34 & HARER . # ounrcnnul with the plans/permissions approved /competent authorities and are not in rules, statutes, instructions, directions unreasonable or exorbitant in natufe.

G, Findings on thc relief sought by the complainants G.

I Direct the respondent to reftind the amount of Rs. unt of Rs.69,93,049/- along with prescribed rate of interest per annum on compounded rate from the date ofbooking from the flat in question.

30. ln the present complaint, the complainant intends to withdraw from the project and is seeking return of the amount paid by him in respect of subject unit along with interest at the prescribed rate as provided under section 18( 1) of the Act.

Sec.

18(1) of the Act is reproduced below for ready reference. "Section 78: - Return of amount aid compensation 1B(1). lfthe promoter fails to complete or is unable to give possession of an apartment, plot, or building.- (o ) in accordance with the terms of the agreement for sale or, os the case may be, duly completed by the date srycilied therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registrotion under this Act or for any other reoson, he sholl be liable on demand to the allottees, in cqse the qllottee wishes to withclraw from the project, without prejudice to any other remedy ovailable, to return the amount received by him in respect of that apartment, plot, building, ds the cqse may be, wlth interest at such rqte as may be prescribed in this beholfincluding compensqtion in the manner as provided under this Act: Provided that where on allottee does not intend to withdrow from the project, he shall be poid, by the pronour, interest for every month ofdelay, tilIthe handing over ofthe possession, ot such rate as moy be prescribed." Complaint No.

109 0F 2019 and others by the respective depart ments contravention of any other Act, issued thcreunder and are not (Emph0sis supplied) PaEe 26 of 34 W HARER- *&, eunuennnt Complaint No.

109 0F 2019 and others 31.

Clause 15(aJ of the apartment buyer agreement (in short, agreement) provides for handing over of pqssession and is reproduced below; "15.

POSSESSION (a).

SSION (a).

Time ol honding over the possession Subject to terms ofthis clous4 and subject to the AIlottee hoving complied with oll the terms and condiLion of this Agreement ond the Application, qnd not being in defoult under qny of the provisions of th is Agreement ond complionce with oll proviiions, formalities, documentotion etc., us prescribed by MMPMSTHA, MMPMS'IHA proposed to hond over the possession of the Apartment by September 2015 the Allottee agrees qnd understonds that MMPRASVHA sholl be entitled to o groce period of hundred ond twenty dqys (120) dqys, for applying ond obtaining the occupotion certifcate in resqect ofthe Group Housing Complex." The authority has gone through the possession clause and observes that this is a matter very rare in nature where builder has specifically mentioned the date of handing over possession rather than specifying perlod from some specific happening of an event such as signing ol apartment buycr agreement, commencement of construction, approval of building plan etc.

This is a welcome step, and the authority appreciatcs such firm commitment by the promoter regarding handing over ol possession but subject to observations of the authority given below.

33.

At the outsct, it is relevant to commcnt on the preset posscssion clausc of the agreement wherein the possession has been subjected to all kinds oi terms and conditions of this agrcemcnt and application, and thc complainants not being in default under any provisions of thesc agrcements and compliance wjth all provisions, formalities and documentation as prescribed by the promoter.

The drafting of this clause and incorporation ofsuch conditions are not only vaguc and unccrtain l)ut 32.

Page ?7 ol 3+ ffi HARER;, & eunuennt,t Complaint No.

109 0F 2019 and others so heavily loaded in favour of the promoter and against the allotteo that even a single default by the allottee in fulfilling formalitics and documcntations ctc. tions ctc. as prescribed by the promoter may mal(e thc possession clause irrelevant for the purpose of allottccs and the conrmitmcnt datc fbr handing over possession loses its meaning.

The incorporation of such clause in the buyer's agreement by the promoter is lust to cvadc thc liability towards timely delivery of subject unit and to deprive the allottee of his right accruing after delay in possession. 'Ihis is just to comment as to how the builder has misused his dominant position and drafted such mischievous clause in the agreement and the allottec is lcft with no option but to sign on the dotted lines.

34.

Due date of handing over possession and admissibility of grace period: The promoter has proposed to hand over the possession of thc apartmcnt by Scptembcr 2015 and further providcd in agrcement that promotcr shall be entitled to a grace period of 120 days for applying and obtaining occupation certificate in respect ofgroup housing complex..As a matter of fact, the promoter has not applied for occupation certificatc within the time limit prcscribed by the promoter in the apartment buyer's agreement.

As pcr the settled law, one cannot be allowed to take advantage of his own wrong.

Accordingly, this grace period of 120 days cannot be allowcd to the promoter at this stage.

Page 28 of34 &HA #- eun Admissibility of refund along with prescribed rate of interest: .lh0 complainant is seeking refund thc amount paid by them at the prescribed rate ofinterest.

However, the allottee intcnd to withdraw From thc project and is seeking refund of the amount paid by hint in respect of thc subjcct unit with interest at prescribcd rate as provided under rulc 1 5 of thc rult s.

Rule 15 has been reproduced as under: Rule 15, Prescrihed rote oI interest- [proviso to section 12, section lB ond sub-section (4) and subsection (7) of section 1gl (1) Ibr the purpose oJ proviso to section 12; section IU; and sub. ; and sub.seclions (4 ) and [7) of sectiotl 19, the "interest ot the rate prescribed shrtlt bethc Stote Bank of Inclio highest mqrginol cost of lending rate +2a/0.: Provided thot in case the Stqte Bonk of Indio marginol cast al' lending rute (MC|,R) is not in use, it sholl be replacetl by such henchmark lending rates whlch the .\tate llonk of lnclio moy Jix fntn tinte b time far lending to the generol public. 'Ihe legislature in its wisdom in the subordinate legislation undor the provision of rule 15 of the rules, has determined the prescribed rate ol interest. 'l'he rate of interest so detcrmined by thc legislaturc, is reasonablc and if the said rule is followed to award thc intcrcst, it lvill ensure uniform practice in all the cases.

Consequently, as per website of thc State flank of India i.c., https://sbi.co.in, the marginal cost of lending ratc (in short, MCLIII as on date i.e.,29.07 .2022 is 7 .80o/o.

Accord ingly, the prescribed rate of interesr will be marginal cost of lending ra re +2a/o i.e.,9.8oo/o. 'lhe definition of term 'intercst' as defined under section 2(za) of thc Acr provides that thc rate of interest chargcablc from the allottcc by thc promoter, in case ofdefault, shall be equal to the rate ofinterest wltich the RER UGRAI\I 35.

36.

109 OF 2019 and others 38.

Page 29 ot 3+ ,&h HARER S elnlGnR',i Complaint No.

109 0F 2019 and others promoter shall be liable to pay the allottee, in case of default.

The relevant scctior is rcprod uced below: "(zo) "interesL" meons the rdtes of interest poyable by the promotet or Lhe 0llattee,0s the cctse mey he.

F,;xplonotion.

For the purpose oJ this clause- (i) the rote of interest chatgeoble from the alloLtee by the promoler, tn cose al deloult, sholl be equol to the rate ofinterest \,\,hich the promoter shall be hdble Lo poy the olbLLee, in &se ofdefoult; (ii) the tnLerest pal,oble by the promoter to the qllottee shqll be tom the dote the prornoter received the ctmount ot ony port thereoftill the dot ll the dote the omaunt or port thereoJ and interest therean is refunclecl, ond Lhe interest poyoble by the allattee to the ptomotet sholl be ftom the date the ollottee defoults in paynent to Lhe promoter till the dote it is paid;" :.19.

On consideration of the documents available on record and submissions nrado by both the partics regarding contravention of provisions of tho Act, the authority is satisfied that the rcspondent is in contravention of thc section 1 1 [4] [a] of the Act by not handing over possession by the due date as per the agreement.

By virtue of clause 15 (a) of the agreement executcd between the parties on 0L.08.2072, the possession of the subject apartment was to be delivered within stipulated time i.e., by Septcmber 2015.

As far as grace period is concerned, the same is disallowed for the rt:asons quotcd above.'l'herefore, the due date ofhanding over posscs:iion is 30.09.2 015.

40.

Kecping in view the fact that the allottee/complainant wish to withdraw from the project and is demanding return of the amount receivcd by the promoter in respect of the unit with interest on failure of the promot€ r to complete or inability to give possession of the unit in accordance with the Page 30 of 34 ffi HARER.-, *d&- eunuennlr Complaint No.

109 OF 2019 and others terms of agreement for sale pr duly completed by the date specified therein, the matter is covered utnder section 18( 1) of the Act of 2016.

41.

The due date of possession as per agreement for sale as mentioned in the table above is 42.

The occupation certificate/comFletion certificate of the proiect where the unit is situated has still not befn obtained by the respondent/promoter. l The authority is of the view th4t the allottees cannot be expected to wait endlessly for taking possessioq of the allotted unit and for which he has paid a considerable amount towards the sale consideration and as observed by tlon'ble Supreme Court of India in lreo Grace Realtech pvt.

Abhishek Khanna & Ors. nna & Ors., civil appeal no.

5785 of 2019, decided on 77.07,2021 "....7'he occLtpotion certif;cate is not ovailable even os on dote, which cleorll' otnounts ta deliciency of service.

The ollottees connat be tnode Lo woit indefinitely for possession of the aportmenLs alloLLed to then, nor cctn Lhe)/ be bound to take the apqrtments in Phose 1 olthe project.......' 4ll.

Irurther, thc Hon'ble Supreme Court of lndia in the cases o/ Newtech Promoters and Developers Private Limited Vs State of ll.p. and Ors. (supra) reiteroted in cose of M/s Sono Realtors Privote Limited & other Vs Union of India & others SLP (Civil) No.

13005 of 2020 decidcd on 12.05.2022. observed as under; - 25. lhe unqudliliecl righL ol Lhe olbtLee b \eek rclund reJerreLl LJndar Sec|ion 1B(1)[o) and Section 19(4) of the AcL is not t)epenclent on anl Page 31 of 34 &HARER S eunrcnnl,r Complaint No.

109 OF 2019 and others contingencies or sLipulotions thereoJ- lt appears that the legislature hos consciously provtded this right of refund on demand as on uncon.litional obsolLlte righL Lo Llle ollottee, t the promoter fails to gtve passession oJ the opaftnrcnL, plot or building \\tithin the Ltme stipulated under the terms of the agreement regordless of unJoreseen events or stay orclers of the Court/Tribunal, which is in either \\)t1y not ottributable to tlle allottee/home buyer, the pramoter is under an obligation to refund the ontaLlnt on demond wtth interest ot the rate prescribed by the SLoLe (;overnmenL including compensotion in the monner provided under Lhe Act with the ptoviso that ilthe ollottee does not wish Lo withdraw from the prolect, he shallbe entitled for interestfor the period ofdelay tillhonding over possession ot Lhe raLe prescribed." 44. 'fhe promotcr is rcsponsiblc for all obligations, responsibilities, and Iunctions under the provisions of the Act of 2016, or the rules and regulations made thereunder or to the allottees as per agreement for sale under section 11(a)(al.

11(a)(al.'Ihe promoter has failed to complete or unable to give possession of the unit in accordance with the terms of agrecment fol' salc or duly completed by the date specified therein.

Accordingly, the promoter is liable to the allottee, as he wishes to withdraw from the project, lvithout prejudice to any other remedy available, to return thc amount rcceivcd by him in respect ofthe unit with interest at such rate;ls may be prcscribcd.

45.

Accordingly, the non-compliance o[ the mandate contained in section 11(4J(al rcad with section 1t](11 of the Act on the part of thc rcspondent is cstablished.

As such, the complainant is entitled to refund of the cntirc amount paid by them at the prescribed rate of interest i.e., @ 9.80% p.a. lthe State Uank of lndia highest marginal cost of lending rate (MCLIIJ Page 32 of 3+ t{*P HARER.-. #*eunuennnl 46. applicable as on date +2%o) as Real Estate (Regulation and each payment till the actual timelines provided in rule 16 o G.

II Compensation The complainant is seeking ab Hon'ble Supreme Court of Ind titled as M/s Newtech Promo Up & Ors. (supra.), has hcl compensation & litigation cha which is to be decided by the a quantum of compensation & li ad,udicating officer having due 72.

1'he adjudicating officer complaints in respect of comp complainant is advised to app relief of litigation expenses.

Directions of the authority Hence, the authority hereby p directions under section 37 of H, 47. under section 34(0: Page 33 ol34 Complaint No.

109 0F 2019 and others prescribed under rule 15 of thc Ilarvana Iopment) Rules,2017 from the date ol te of refund of the amount within the the Llaryana Rules 2 017 ibid, ve mentioned relief w.r.t. compensation. a in civil appeal nos.

6745-6749 of 2021 and Developers Pvt.

V/s State of that an allottee is entitled to claim under sections 12,14,18 and section 19 udicating officer as per section 71 and thc gation expense shall be adjudged by the egard to thc factors mentioned in scction exclusive exclusive jurisdiction to deal with the on & legal expenses.

Thereforc, thc ach the ad,udicating officer for sccking the sses this order and issues the following e Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority 4t3.

49.

50.

ER,.

GRANI e respondent/promoter is it from the complainant .a. as prescribed under Regulation and Developm avment till the actual date o period of 90 days is given irections given in this orde ould follow.

Th is this The decision shall mutatis mu rder. mplaints stand disposed p on the case file of each ma ind dual cases. be consigned to registry. !. (vi Member Haryana Real Estate Re : 29.07 .2022 -umar Goyal) Complaint No.

109 OF 2019 others rected to refund the amount rec ved ng with interest at the rate of 80% e 15 of the Haryana Real tate ) Rules.

2017 from the ddte ol each fund of the deposited amount. the respondent to comply wi the and failing which legal conscqu II CCS apply to cases mentioned in p 3 of True certified copies of this o 'be s in .'fhere shall be separate decr (Dr.

Khande Chairman ory Authority, Gurugram Pagc I ll