ROHIT KHANNA vs ADTV COMMUNICATIONS PVT LTD

trHARERA # aJRUGRAM Complaint No.

1175 of 2021 and ors.

BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGMM Order reserved ont 12,01,2O23 Date of 07.04,2023 pronouncement: NAME OF THE BUILDER ffiuNlcArloN Pvr' LrD.

PROJECT NAME I AEZ ALOHA s.

No.

Case No.

Lnications Pvt.

Ltd. @unications Pvt.

Ltd. -S R Si,Uh V 1. cR/ tt7 s /2021 2. cR/LL83/ZOZL 3. cR/1260 lzOZL Roh Vi it KhfiiiFtr6$r,ffi$ffiffins pvt.

Ltd.& anr.

4.. cR/t4a5/2O2t \F $",{[',,&f.S&rd-;,i.atio ns pvt.

Ltd.

5. cR/1492 /2021 Rajeev Abhishr ur{rt $i vffrffir rr*"u*s p!t.

6. cR/ts19/2O2L 3k Gupta V/s ADTV Communications Pvt.

7. cR/L525/2O2t x.ist ikbElftff/s ADTV communications pvr. rr a ftfifi.tdl 8. cR/L546/202L Ashok Kumar Carg V/s ADTV Communicarion, Pvr.

Lro.

9. cR/rssL/2021 /Sushmflqfi &a8Y7q {QT[ Cgnmunications pvt.

10. cR/rs65/ZO2t g5"At& bJtt\B hStVti,,ii.uni.rtions pvt.

11. cR/L64O/2O2L Shiv Kumar Bhatia V/s ADTV Communications pvt.

72. cR/L645/2O2L Raiiv Bhatia V/s ADTV Communications Pvt.

13. cR/L649 /202L Yogesh Kumar V/s ADTV Communications Pvt.

14. cR/r6a3 /2O2t Dr.

Santosh Gupta V/s ADTV Communications Pvt.

15. cR/t69L/2027 Siddhartha Gogia V/s ADTV Communications pvt.

Ltd. t6. cR/1772/2021 Suresh Kapasia V/s ADTV Communications Pvt.

Page 1of31 HARERA Complaint No.

1175 of2021 and ors, GURUGRAM Proiect Name and Location "AEZ ALOHA" Sector-57, curugram.

Clause 70 "The possession of the said premises is likely to be delivered by the Compqny to the Allottee within 36 months rrom the dau of the start of the construction of the tower in which the said lat is located or Irom the execution oI this qgreement whichever is later, subject to Jorce mqjeure circumstancet & on receipt of all pqyments punctuolly as per ogreed terms and on receipt of complete sqle price and other charges due and payable up to the dote oI possession t Plan applicable to the Allottee.

The company will poy penalA to its cu i/- per sq.ft. per sq.ft. per month for honding over the flat beyond the committed period obove subject to punctuql poyment of installm ent the allottee, " (Emphasis supplied) m date of execution of ment as date of start of not available in the hles Due date ofPosses occupation certi DrcPricensedet@URU [i[YaGur orsu rowers Pvt. a\tzY.ds.rsso valid up to 20.03.20t5 Not registered RERA registration 4.

The unit related details ofeach complaint are as under: Page 3 of 31 s.

N. ***t&\/ tr I Details a, b.

Nor obta ined c. d. . lBHARERA $t euRuennvr Complaint No.

1175 of 2021 and ors. s. n o Complalnt no. & DOF Unit no. and area meaturing Date of execudon of agreemen t Due date of possessio n Handing over- taking over Basic sale Price (BSP)/ Amount paid by the complainan ts. (AP) of complainant NOT KNOWN 6. cR/1stg/2021 Dated 2+,03.2021 503-tower measuring 2244 sq. ft. lpc.

58 complaintl D5 of 10.10.2008 LprI 17.70.2073 lpg.

84 of complaintl BSPI <34,96,720 / - AP: <33,Zt,484 / - 7. cR/1S2Sl2O2t Dated 2+,03.2021 1001 84n 2970 lps. ru 31.10.2005 [pg.

59 of complaint] date of transfer 28.03.2075 lpg.

110 of complaintl 8SP: t56,38,000/- AP: <53,63,469 / - 8. cR/ts+6l2o2t Dated 24,03,2021 801- tower B5' ""'Gu 2970 complainant 16.03.2011 lpg.

84 of complaintl 'fl13.207t :RA RAIV 02.0L.20t6 lpg.

104 of complaintl BSP: {53,47,000/- AP: <s7 ,s1. ,43s / - 9. cRltssuzozr Dated 24.03.2021 101-tower measuring 2231sq.ft. lps. s9 complaintl D5 of 27.02.2006 lpg. s7 of complaintl date of transfer of unit in name 27.02.2009 16.o9.2074 lpe.

92 of complaintl BSPI <45,83 ,125 / - AP: 138,19,309/- Page 5 of31 7? .06.201_1_ s. n o Complalnt no, & DOF Unit no. and area measurlng Date of execution of agrreemen t Due date of possesslo n Handing over- taking over Basic sale Price (BsP)/ Amount pald by the complainan ts. (AP) of complainant 10.11.2010 lpg.

87 of complaintl 74. cR/fia3/2021 Dated 12.O1.2027 801-tower measuring 2231sq. ft. lps.

60A complaintl of 04.05.2009 L KPII 75.07,2073 lps. ,2073 lps.

85 of complaintl BSP: 144,15,800/' AP: \4t,95,010 / - 15. cRlt69u2021 Dated 12,04,2021 ffi# w 07.07.20t3 lpg.

95 of complaintl BSP: <4A,A2,07 9 / - AP: <46,37,975/- 16. cRlt7t2l2o2 Dated 12.04.2021 601-tower 83 "".,GU 27.06.2006 lp8.

62 of ,9.td4.20t2 :RA a1 | t i\..--',{ .' 06.08.2013 BSP: 153,20,000/' APr t50,29,000/- [tr\r ffir6 complainant 09.04.2012 lpg.

91 of complaintl 17. cR/2t9512021 Dated 22.04.202L 1001-Tower 83 measuring 2910 sq. ft. lp9 62 ot complaintl 06.05.2006 lpg.

60 of complaintl 06.05.2009 29.04.2073 lps.

99 of complaintl BSP: <83,47,390 / - API <7 9,24,327 / - {SHARERA # aJRuGRAM Complaint No.

Page 7 of 3l 14.10.2005 [pg.

56 of compliinil date of transfer of unit in name of conrplainant 27 .11.2010 [pg.

83 ol 27.71.2010 / \, ,l*HARERA ffiGuRTJGRAIr/ Complaint No.

1175 of2021 and ors.

CR/1175/2021 B R Slngh V/s ADTV Communlcations PvL Ltd. are being taken into consideration for determining the rights ofthe allottee(s).

Facts ofthe complaint The complainant has made the following submissions in the complaint: - a.

That in October 2006, Mrs Uma Gupta booked an apartment unit in an upcoming high rise residential proiect named "ALOHA" in Sector - 57, Ltd. b.

That it is pertinent to that M/s S.M.

Towers Pvt.

Ltd. along with several was merged into transferee company called Feb 2008 by Hon'ble petition no.

73/2007 High Court of with co-a e of amalgamation and demerger. c.

That it is bro ourt, that this company name "AEZ In er changed to "ADTV Communications Pvt." bf registrar of companies, New A.

8. , ff I' ;T",IHH;R"HM"m the resoondent i e bunder/prom@URUGRAA/" - ,r, ADrv Communications Pvt.

Ltd. [formerly known as AEZ Infratech private Limited) having it's registered office at 8-B, Basement Floor, Jangpura, Main Mathura Road, New Delhi - 110014 and on Mr.

Sanjeev Aeren, promoter/beneficiary r/o Aeren Estate Church Road, Near Birdsong Cottage, Sector D, Vasant Kunj, South West Delhi, New Delhi.

New Delhi.

Page 9 of 31 Gurugram, launched in 2005 by company called M/s S.M.

Itr HARERA ffi aIRUGRAM Complaint No.

Taking 0ver" wherein it mentioned that the complainant had no further claims, disputes etc. i.

That it may kindly be noted that out of the above final payment of 1 75,66,540/- made by the complainant, out of which amount of 17,64,225/- waslunjustly charged under the head "Revised Area".

The respondent at the time of handing over possession declared that the super area of the said unit by 77o/o i.e., from 29L0 sq. feet to 3230 sq. feet. us increase of 320 sq. feet, the respondent claimed { 7 absurd and sudden increase in super area not backed by any proof or approval.

That further, i n'ble Court that there have been ADTV Communication Pw.

Ltd. in failed to secure an occupation from DTCP (Directorate of Town & Co requirement oI ;Hffi,ffiit till date which is a basic ons. proiect brochure, the promoters had offered a Hawaiian lifestyle with finest architecture and finish along with top class amenifles like - Bar-be-que, multi- cuisine restaurants, Srm. with latest equipment etc.

What has actually been delivered to the buyers is in sharp contrast to it.

As such the promoter has failed to fulfil these promises specified in the brochure and has tried to befool and dodge people into investing in this project with clear malafide intention.

Page 11 of 31 lrHARERA fficuRuGRAM Complaint No.

1175 of2021 and ors. .

Service tax The present complaint has been filed on 16.03.2021 and the reply on behalfofthe respondent has not been received till date.

As the notice could not be served on the registered address ofthe respondent, the counsel for the complainant on hearing dated l0.O5,ZOZZ, requested the authority to issue a public notice against the respondent for its appearance on the next newspaper "Dainik Jagran" "The Tribune" fEnglish) on 26.05.2022.

6.05.2022.

Despite proper s tice the respondent failed to file the written reply and the authority.

Accordingly, the respondent is p struck off. ce ofthe respondent is 77.

Copies of all the and placed on the record.

Their auth the complaint can be and submission made by the parties.

Iurisdiction of the a The application of of complaint on ground of i observes that it has territorial as well udicate the present complaint for the reasons given below.

D.I Territorialiurlsdiction 13.

As per notificationno.l/92/2017-1TCp dated 14.12.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire curugram District for all purpose with offices situated in Gurugram.

In the present case, the project 10. decided on the basis c. t2.

Page 13 of 31 I*HARERA ffiGuRuGRAM Complaint No.

1175 of 2021 and ors. thereafter, the unit was transferred in name of the complainant on 24.07 .2014.

As per clause 10 of the buyer's agreement, the possession of the subject unit was to be offered nl 24.07.2074.

And accordingly, the subiect unit was handed over to the complainant well in time i.e., on ?4.07 .2014.

Although, the possession of the subiect unit was handed over to the comDlainant on 24.07.2074 i.e.. before comins into force of the Act.

But thereafter the RWA associa ached CM Window, Gurugram and also to DTP, Gurugram in 015 for intervening in the matter as the respondent thout obtaining OC with an rncrease ln super on or justification for the lncrease.

A approached Joint Commissioner IV, tax owing to wrong calculations.

Th vigilant of their mplainants remained avail their rights.

18.

In order to avoid any disp initation of the said complaints the authority here t matters it can be seen that there is recu mitation if any, would accrue to the com the complainant last filed before Joint Commissioner IV, MCG for revising property tax. perty tax.

The present complaint seeking refund of miscellaneous charges under different heads was filed on 16.03,2021i.e., within three years w.e.f.

June 2020.

77. ents since 2015 to Page 15 of31 *HARERA H arRucRAM Complaint No.

E.l.

Direct the respondent to get OC from the competent authority.

21.

Since, the respondent has already handed over the possession to the allottees without obtaining OC from the competent authority.

The respondent is obligated to obtain the OC from the competent authority accordingly the respondent is directed to get the OC from the competent authority after finishing all the pre-requisite for its application.

E.II.

Direct the respondent to execute the conveyance deed in favour of the complalnant 22.

The respondent is under o conveyance deed execu respondent is dire complainants authorities, if any. per section 17 of Act to get the mplainants.

Accordingly, the ce deed in favour of the from the competent charges at prescribed E.III.

Direct the rate ofinterest 23, In the present com delayed possession charges as provided n 18(1) oftheAct.

Sec.

18(1J "Section ensation 18(1). rf unable to give possession Provided thatwhere an allottee does not intend to withdraw from the project" he shall be paid, by the promoter, interest Ior every month ofdeloy, till the handing over ofthe possessiotl at such rote as may be prescribed." 24.

Clause 10 of the flat buyer agreement (in short, agreement) provides for handing over of possession and is reproduced below: - ,, 10 SCHEDULE FOR POSSESSION OF THE SAID PREMISES: Page 17 of31 T HARERA S aTRUGRAM Complaint No.

26.

Admissibility of delay possession charges at prescribed rate of interest: Proviso to section 18 provides that where an allottee does not intend to withdraw from the proiect, he shall be paid, by the promoters, interest for every month of delay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 1 der rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 75, Prescribed rate of interest- [Proviso to section 12, section 78 and sub subsection (7) ofsection 791 (1) For the purpose ,tion 72; section 78; and sub- 9, the "interest at the rate sections (4) ond (7) prescribed" sholl be the Indio highest mqrginql cost of lending rote +20,6.: Provided thst ia morginol cost of lending rate replqced by such benchmark lndia may fix from time to 27.

The legislature in provision of rule interest.

The rate of and ifthe said rule is legislation under the the prescribed rate of legislature, is reasonable it will ensure uniform ,, il:ilffi},[ffio1(|1nR$ffiai"i.", h,,p.,//,u, "o,n marginal cost of lending rate +2yo i.e.,70.70o/o.

29.

The definition of term 'interesC as defined under section 2fzal of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: Page 19 of31 i.e., be ing to the gener\l pu *HARERA S aJRUGRAM Complaint No.

1175 of 2021 and ors. and before the coming into force of the Act, the subsequent allottee shall be entitled to delayed possession charges w.e.f. the date of entering into the shoes oforiginal allottee i.e. nomination letter or date ofendorsement on the builder buyer's agreemen! whichever is earlier.

Accordingly, the allottee is entitled for delay possession charges w.e.f. the date of transfer letter i,e., 24.07.2014.It is a very interesting situation where allottee on amenities and then offer p n in the name of legally valid physical possession wh ready taken over the physical possession on 26.07. by the counsel for the complainants alth ssion. lth ssion.

The allottee is certainly entitled 18 (1) of the Act he has taken physical property for which he possession and all has invested with e promoter has given physical possession ysical possession on the basis ofoffer for fit-out pos y not be the legally valid offer ofpossession te.

Both the promoter and the allottee haG proviso to section convenience.

The possession without obtaining OC and allottee cannot be allowed to.take benefit of delay possession charges beyond the time he has taken physical possession.

Accordingly, it is the failure of the respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

Accordingly, the non- compliance of the mandate contained in section 11(4)(a) read with -as deFTh'e-soiiiEoflfaw but as Der their own UG IRA$#I ror offering physicar PaEe 2l of 31 one side is demanding completion of all requisite infrastructure and ffHARERA SGuRuGRAM E.IV in sr Con res! of tl iusti bya the area is tentativ view ofthe above, Complaint No.

1175 of 2021 and ors. e is mentioned.

In 34. on account "r i*GJ.il[a complainants is legal being as per provisions ofthe agreement but subiect to condition that before raising such demand, details have to be given to the allottee and without justification ofincrease in super area, any demand raised is quashed.

Also, this remain subject to the conditions that the flats and other components of the super area on the project have been constructed in accordance with the plans approved by the competent haTtE?lefiand for extra Davment RAN/" promoter from the 12, cR/t64s/2021 Not entitled for DPC as the due date of possession according to the BBA comes out to be 25.03.2016 and the handoyer was made to the complainant on 18.03.2016 i.e., Drior to due date ofpossession 13. cR/L649 t2021 10.11.2010 30.09.2013 L4. cR/L6A3 /2021 04.05.2009 !5.07.2013 15. cRlL69L/2021 27.77.20t0 01.07.2073 16, cR/L7t2l20zt 09.04.20t2 06.08.2013 t7.

8.2013 t7. cRlztgsl202L 06.05.2009 29.08.2073 18. cR/27sL/202L Not entitled for DPC since the complainant is second subsequent allottee who came in existence in 2017 :;6M;r-was taken bY the subsequent 19. cR/35O2/2O2t I Noti acco ,G ,t60 $i.

DPC as the due date of possession f,e BBAcomes outto be 14.08.2021and \made to the complainant on rn ftiorh due date of oossession Direct the rhrroorl fnr inmaa n super area al( )onsidering the (-\ tuthr rity observes that the ad\ pe :r of posse 3230 sq. f l",l ',1ssli;l) ::::::::::.s\r5 rd ir eased the super area ,r urc rraL uuur aTlr ustification.

In othr ry almost 1170.

Hor Ly Prror lnumallon ano :rw Arev( 0ros, rr, th lrtJfid unit has been increased (s mention"d in the BBA that Page 23 of31 *HARERA S- aJRUGRAM complaint No.

1175 of2021 and ors, prescribed in the agreement or where the AMC has been demanded for more than a year 37.

The authority is ofthe view that the respondent has demanded an amount of 1 48,450/- towards advance maintenance charges.

In the present complaint the respondent has charged the AMC for 6 months accordingly the complainant is liable to pay the charges. .

Maintenance security 38.

This issue has already been CR/4031/2019 titled os Vt wrlerern it is held reasonable amount the authority di collected under that account proiect requires th of IFMS amount and provide details to the IFMS/lBMS, no it is liable to i thority in complaint bearing no.

Vs.

Emaar MGF Land Limited be allowed to collect a head "IFMS".

However, ays keep the amount t and shall maintain .

Ifany allottee ofthe garding the availability the promoter must r clarified that out of this ter for the expenditure ligations as per the provisionsof secti@JQ 39.

The aforesaid findings of the authority are completely applicable in the present matters as clause 21(b) of the BBA clearly mentions the amount of { 1,45,500/- to be paid as a maintenance security @ { 50/- per sq. ft. of the super area and as per the letter dated 22.01. ted 22.01.2014 issued by the respondent, the complainant is liable to pay { 1,45,500/- only.

Accordingly, the respondent is right in demanding the maintenance Page 25 of 31 lffHARERA # aJRTJGRAM Complaint No.

1175 of 2021 and ors. summary ofdues annexed with the buyer's agreement.

While deciding the issue of club membership charges in CR/3203/2020 tltled as Vijay Kumar Jadhav Vs, frl/s BPTP Ltmitedandanr. decided on26.04.2022,the authority has observed as under: "79.

The outhority concurs with the recommendation mode by the committee snd holds thot the club membership charges (CMC) shall be optionql.

The respondent shall refund the CMC if any request is received from the allotue.

Provided that if on ollottee opts out to avail this facility and lqter approaches the respondent Ior of the club, then he shqll pay the club membership charges as the respondent (lnd shqll not invoke the terms of Ilat buyer'i t limits CMC to k.1,00,000/-." at the club membership charges 45.

In view ofthe above, the autho [CMC) shall be optio I refund the CMC if any request is received e.

Provided that if thev opt out to avail the respondent for membership charges invoke the terms of membership of as may be decided buyer's agreement Administrative 46.

This issue has already been ority in complaint bearing no. cR/4037/2079 MGF Land Limited n of property at the wfterein it is held registration office e conveyance fsale) deed between the developers (seller) and the homebuyer (purchaser).

Besides the stamp duty, homebuyers also pay for execution of the conveyance/sale deed.

This amount, which is given to developers in the name ofregistration charges, is significant and the amount can be as steep as { 25,000 to { 80,000.

In a circular issued on 02.04.2018, the DTP'S office fixed the registration charges per flat at { 15,000 in furtherance to several PaEe 27 ofSl *HARERA #GuRUGRAM Complaint No. plaint No.

1175 of 2021 and ors, adjudicating officer has exclusive jurisdiction to deal with the complaints in respect of compensation.

Therefore, the complainant may approach the adjudicating officer for seeking the relief of compensation.

G.

Directions ofthe autlorlty 50.

Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(fJ: i.

Increase in sale area tion of buyer's agreement- the authoriw holds th payment on account of increase in the s om the complainants is legal being as p ut subiect to condition that before allottee and demand raised to be given to the in super area, any ect to the conditions that the flats and super area on the project have been constructed with the plans approved by the competent *ffARERA of above detals and iustification of-lnTr6asE ifr 5u'EEF TieE-inTerms of anoroval by competent,,GilIRUGI}A,N,{ to pay ror increase in the area ofthe subiect unit. ii.

Club membershlp charges- The respondent shall refund the CMC if any request is received ftom the complainants-allottee.

Provided that iftJleyoptoutto avail this facility and later approaches the respondent for membership of the club, then t}tey shall pay tlte club membership charges as may be decided by the respondent and shall not invoke the Page 29 of31 *HARERA # aJRUGRAM Complaint No.

Firelighting charges- The complainants are liable to pay the firefighting charges as firefighting system is installed at the proiect site and in respect of the same, NOC has been granted by the concerned competent authority.

The respondent shall not charge anything from the complainants which is not the part of the buyer's agreement.

51.

This decision shall mutatis mutandis apply to cases mentioned in para 4 ofthis order.

52.

53. r.

53.

The complaints stand dispo certified copies of this order be placed on the case file of Files be consigned to l)ri,#-**, Member Haryana ', Gurugram Dated:07.04.2023 HARERA GURUGRAM lx.

Member m {r€i-c q{d Page 31 of 31 Arora)