MR JAYANT SOOD vs MS ANAND DIVINE DEVELOPERS PVT LTD

g HARERA # eunuonevr 1.

2.

CORAM: Shri Sanjeev Kumar Arora Complaint No.

4866 of 2020 and other BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision: 03.LL.2023 Member ORDER This order shall dispose of the 2 complaints titled above filed before this authority under section 31 of the Real Estate (Regulation and Development) Act,2016 (hereinafter referred as "the Act"J read with rule 28 of the Haryana Real Estate [Regulation and DevelopmentJ Rules, 201 7 Ihereinafter referred as "the rules") forviolation ofsection 11(4)(aJ of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

The core issues emanating from them are similar in nature and thc complainant[s) in the above referred matters are allottees of the pro,ect, namely, Triumph situated at Sector-104, Gurugram being developed by NAME OF THE BUILDER M/S ANAND DIVINE DEVELOPERS PRIVATE LIMITED PROJECT NAME TRIUMPH S.

No.

Case No.

Case title Appearance 1 cR/4866/2020 Varinder Singh Bedi V/s M/S Anand Divine Developers Private Limited Sh.

Rajan Cupta Sh.

M.K Dang 2 cR/ 4868 /2020 Jayant Sood V/s M/S Anand Divine Developers Private Limited Sh.

M.K Dang PaEe I ol29 ffi HARERA H eunuennvt the same respondent/promoter i.e., M/s Anand Diyine Developers private Limited.

The terms and conditions of the buyer's agreements fulcrum of the issue involved in all these cases pertains to failure on the part of the promoter seeking refund of the allotted unit.

3.

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: "Triumph" at sector 104, Gurgao[, Haryana.

14.093 acres 63 of2011 dated 16.07.2011valid upto 15.07.2019 10 of 2012 dated 03.02.2012 valid till 02.02. ill 02.02.2020 M/s Great Value HPL Infratech Pvt.

Lrd.

Not Registered (Planning Branch is directed to initiate suo moto roceedings.

Possession Clause: 18: Time of Handing Over Possession Barring unforeseen circumstances and Force Majeure events as stipulated hereunder, the possession of the said apartment is proposed to be offered by the Company by the Allottee within a period of 36 months with a grace period of 6 months from the date actual start of construction of a particular Tower Building in which the registration for allotment is made.

Such date shall herein after referred to as stipulated date, subject always to timely payment of all amounts including the Basic Sale Price, EDC/[DC, IFMS, Stamp Duty, registration Fees and other Charges as stipulated herein or as may be demanded by the Company from time to time in this regard.

Thedateofactual start ofconstruction shall be the date on which the foundation ofthe particular building in which the said apartment is allotted shall be laid as per certification by the company's architect/engineer-in-charge of the complex and the said certification shall be final and binding on the Allottee.

Occupation Certificate: 28.05.20 19 Complaint No.

4866 of2020 and other Project Name and Location Proiect area DTCP License No.

Name of Licensee RERA Registration Offer ofPossession | 07.06.201-9 Page 2 of 29 I HARERA GURUGRA[/ Complaint No.

4866 of 2020 and other Sr.

No Complain t No., Case Title, and Date of filing of complain t Date of apartme nt buyer agreeme nt Unit No.

Unit adme asurin Due date of Possessi on Total Sale Cooside ration / Total Amount paid by the complai nant Relief sought 1. cR/4866 /2020 Varinder Singh Bedi Anand Divine Develope rS Private Limited DOF: 22.72.20 20 Reply Statusi 03.09.20 2t 16.08.20 14 Booking date: 09.06.20 1,4 Allotmen t Letter: 15.08.20 L4 MOU: 16.08.20 l4 TriF€rtit e agreeme nt: 76.08.20 14 Email for buyback policy: 19.02.20 17, 20.06.20 1,9 4241, 24th Floor, Tower 4 2290 sq. ft.

76.02. ft.

76.02.20 1B Icalculat ed from the date of agreeme nt as date of commen cement of construct ion is not provided on record] TSC: - Rs.

2,10,23, 750 /- AP: - Rs.

2,07 ,92, 647 /- Refund PaEe 3 of 29 ffi HARERA #eunueRRll Complaint No.

4866 of 2020 and other 2. lcR/4868 /2020 I r,r,n, I Sood v /s I Anand I Diuin.

Develope rs Private Limited DOF: 22.12.20 20 Reply Status: 24.07.20 22 30.08.2 0 74 Booking date: 75.07.20 1,4 Allotmen t Letter: 30.08.20 1,4 MOU: 30.08.20 L4 Tripartit e agreeme nt: 30.08.20 1,4 Email for buyback I policy: 16.O1.20 1,7 , 22.03.20 1,7 ] 0s 10.20 i 2191,, lgth Floor, Tower 2 I a 2290 sq.ft.

I I 28.02.20 L7 Icalculat ed from the date of agreeme nt as date of commen cement of construct ion is not provided on record] at TSC: - Rs.

2,10,23, 7s0/.

AP: - Rs.

2,0a,22, 8s3/- Refund Noter ln the table ref€rred abovi certain_irrbrevr-a-dons ha're te.r, usea. rt-uy are "t.torat"a ". follows: Abbreviation Full form TSC Total Sale consideration AP Amounr pdid by the ajlotreetsJ 4.

It has been decided to rreat the said complaints as-nipplicition for non_ compliance of statutory obligations on the part of the promoter /respondent in terms of section 34(0 of the Act which mandates the PaEe 4 of 29 HARERA Complaint No.

4866 of 2020 and other ffi- GURUGRAM authority to ensure compliance ofthe obligations cast upon the promoters, the allottee[s) and the real estate agents under the Act, the rules and the regulations made thereunder.

5.

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

Out of the above-mentioned case, the particulars of lead case CR/4866/2020 Varinder Singh Bedi V/s M/s Anand Divine Developers Private Limited are being taken into consideration for determining the rights of the allottee(s).

A.

Proiect and unit related details 6. details 6.

The particulars ofthe projecl the details ofsale consideration, the amount paid by the complainant(s), date ofproposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: CR/4866/2020 Vartnder Singh Bedl V/s M/s Anond Divine Developers Private Limited s.

N.

Particulars Details 1.

Name ofthe project "Triumph" at sector 104, Gurgaon, Haryana 2.

Nature ofthe project Group Housing Colony 3.

Project area 14.093 acres +.

DTCP license no. and validity status 63 of 2011 dated 16.07.2011 valid till 1.5.07 .201,9 10 of 201,2 dated 03.02.2012 valid till 02.02.2020 Name oflicensee M/s Great Value HPL lnfratech Private Limited Page 5 of 29 ffiHARIY #- ounuenav Complaint No.

4866 of 2020 and other I M/s Kanha Infrastructure private Limited 6.

RERA Registered/ not registered Not Registered (Planning Branch is directed to initiate suo moto proceedings) +241,, 24th Floor, Tower 4 (as per BBA on page no.

12 ofcomplaintl 2290 sq. ft. (as per BBA on page no.

12 ofcomplaint) 8.

7.

Unit no.

Unit area admeasuring 9.

10.

Date of booking 09.06.2014 (page no.

10 of complaintJ Date of allotment letter 1,6.08.2014 [page no.

2B of replyJ 11.

Date of builder buyer agreement 1.6.08.2074 (page no.9 of complaintl 1,6.08.2014 (page no.

34 of complaint) 76.08.2074 (Page no.

53 of reply) 19.O2.2017 fpage no.

41 of complaint) 18: Time of Handing Over possession Barring unforeseen circumstances and Force Majeure events as stipulatcd hereunder, the possession of the said glgltmg1 rs llglesed to be offered by 12.

MOU dated 13.

Tripartite agreement 74.

Email sent by complainant for exercising buy back option 15.

Possession Clause Page 6 ol29 HARERA GURUGRAM complaint No.

4866 of2O20 and other .on I-l the Company by the Allottee within a period of 36 months with a grace period of 6 months from the date actual start of construction of a particular Tower Building in which the registration for allotment is made. t is made.

Such date shall herein after referred to as stipulated date, subiect always to timely payment of all amounts including thc Basic Sale Price, EDC/IDC, IFMS, Stamp Duty, registration Fees and other Charges as stipulated herein or as may be demanded by the Company from time to time in this regard.

The date of actual start of construction shall be the date on which the foundation of the particular building in which the said apartment is allotted shall be laid as per certification by the company's architect/engineer-in- charge of the complex and the said certification shall be final and binding on the Allottee 16.

Date of commencement of construction Not provided on record 77.

Due date ofpossession 1,6.02.20L8 [calculated from the date of agreement i,e., 16.08.2014 as date ofcommencement of construction of tower is not provided on record] Rs.

2,10,23,7 50 / - (as per payment plan on page no.

32 of complaintl BSP- Rs.

2,00,65,000/- 18.

Total sale consideration PaEe 7 ol29 I SHARERA ffieunuennu (as per payment plan on page no.

32 of complaintl 19.

Amount paid by the complainant Rs.2,07,92,647 /- [as alleged by complainant o page no.

04 ofcomplaint) 20.

Occupation certificate 28.05.201,9 (page no.

107 ofreply) 27.

Offer of possession 07.06.2079 (page no.

102 ofreplf) 20.06.2019 (Page no.

43 of complaint) I 22.

Reminder Email sent by complainant after offer of possession wherein reference of request dated 19.02.2017 was reitcrated B.

Facts ofthe complaint The complainant has made the following submissions in the complaint: - 7.

That respondent had laLrnched group housing project known as,,A.l.S Triumph" in sector-104, Gurugram-Haryana in the year 2011.

8.

That the respondent company had spent a huge amount of money for the Iaunch ofthe above project and assured the interested buyers that it will be a dream project for the investors. investors.

The complainant, being simple person, believed thc promise of the respondent company and became inclined towards the project, invested all his life savings in the above project.

9.

That complainant booked a residential apartment in above mentioned project vide application Nn.

293 dated 09.06.2014 and on dated 16rh August Complaint No.

4866 of 2020 and other Page I of 29 ffi HARERA #- ounuennr,r Complaint No.

4866 of 2020 and other 2014 a buyer's agreement was entered between complainant and respondent company.

1 0.

That vide ab ove buyer,s agreement th e respo nden t allotted one a pa rtmen t bearing no.

4241 on 24rh floor in tower no.4, super area admeasuring 2290 Sq. ft. along with two no. of car parking,s for a basic sale price of Rs.

2,00,65000/- in ATS Triumph, sector-104, Gurugram, Haryana.

The complainant also paid booking amount of Rs.

2g,90,553/_ at the time of entering into builder's agreement.

11.

That as per clause 18 of the buyer,s agreement the offer of the possession of the said unit was to be given in 36 months with grace period of 6 months i.e. by 15.01.2018 from the date of execution of buyer,s agreement but respondent failed to delivcr the possession as promised.

12.

That on the same day i.e. the day on which the buyer,s agreement was entered between the parties, the parties also enter into one memorandum of understanding (MOU) dated L6.0A.2014.

That as per clause ,,E,, & ,,F,, in the said MOU respondent gave assurance to the complainant to buy back the said apartment at premium of Rs.

1500/_ per sq. ft. after the expiry of 36 months from the date of booking.

That said sections of the MOU are reproduced hereunder for readv reference: "8.

The Owner/Developer has offered on aportment No.

4241 in the said Project for o Basic Selting price of Rs. gS00/- per sq. ft. on the sale on guoranteed buy bock bosis to the purchaser/lnvestor.

F. vestor.

F.

Thot relying on the representotion ond assurance of the Owner/Developer, the purchaser/lnvestor hos agreed to invest in the sqid Project, subject to the Owner/Developer assuring him the guaranteed buy back premium of Rs.

1500/- per sq. ft for the PaEe 9 of 29 HARERA Complaint No.

4866 of 2020 and other P*GURUGRAI/ Aportment Beoring No.

4241 in the said project after the expiry ot' 36 months." 13.

That further in the said MOU housing loan arrangement has been made by the respondent under subvention scheme for the said apartment and accordingly the complainant was eligible for sanction of home loan under the subvention scheme.

The complainant applied for home loan on the said apartment.

14.

That complainant has already made a payment of Rs.2,07,92,647 /_ rill dare i.e. more than the basic price but respondent failed to deliver the possession in time.

That complainant also suffered huge losses because of not delivering the possession in time, as the complainant has been forcecl to deposit interest ofapproximate Rs.

1,11,000/_ every month to the lender bank and till today have already paid an amount of Rs.Z3,4gI,3gZ /_ towards interest on the home loan on the said apartment.

15.

That complainant having gone through immense mental agony, stress and harassment has constantly raising the issue of huge delay with respondent, but unfortunately no satisfactory response or any concrete information or the reasons of this huge dclay has come forth from respondent,s end.

16.

That on dated 1,9.02.2017 the complainant sent an email to the respondent and informed him that contplainant wants to exercise his buy back option for the said apartment.

However, no steps have been taken by the respondent company to refund the amount paid by the complainant.

The complainant kept in touch with the respondent,s officers and asked them to refund the money paid by the complainant but only assurance has been given by the officers to buy back the said apartment once approval receivecl f eceivecl from the top officials.

Page 10 of 29 HARERA ffi GURUGRAI/ 17.

That instead of buy back the said apartment the respondent company sent an email dated 20.06.2019 to the complainant regarding offer of possession.

However, vide email dated ZO.06.2019 & 20.12.2019 the complainant refused to accept the offer of possession and asked to refund the amount paid by the complainant.

18.

That since the respondent failed to fulfil its promise to deliver the project in time i.e.

15.01.2018 as per the term of buyer,s agreement, the complainant is entitle for refund ofamount along with interest and further complainant also entitle for refund ofamount as per buy back option given to the complainant at thc time of signing of MOU, the complainant is no more interested in the project and wants refund of his money invested in the above project along with interest @ 24 o/o per annum from the date of payment till realization and respondent/opposite party also directecl to pay guaranteed buy back premium of Rs.

1500/_ per sq.ft.

C.

Relief sought by the complainant: - Complaint No.

4866 of2O20 and other 19.

The complainant has sought following relief(s): II.

I.

Direct the respondent to return the money paid by the complainant r.e., Rs.2,07,92,647/- along with inrerest@ Z4o/o p.a. from rhe date of payment till realization.

Direct the respondent to pay an amount of Rs.

34, 3 5,000/_ as assured buy back premium along with interest @ 24Vo p.a. from the date of due till realization.

20.

On 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(a) (a) ofthe act to plead guilty or not to plead guilty.

Page 7l of 29 HARERA Complaint No.

4866 of 2020 and other #, GURUGRAM D.

Reply by the respondent The respondent has contested the complaint on the following grounds.

21 That the complaint is neither maintainabre nor tenable and is liabre to be out-rightly dismissed.

22. issed.

22.

That there is no cause ofaction to file the present complaint.

23.

That the present comp laint is bad for non-jo inder of necessary pa rties.

ICICI bank has not been accrued as a parfy in the present complaint.

24.

That the complainant has no locus standi to lile the present complaint.

25.

That the complainant is estopped from filing the present complaint by his acts, omissions, admissions, acquiescence,s and laches.

26.

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 39 ofthe buyer's agreement.

27.

That the complainant has not approached this Hon,ble Forum with clean hands and has intentionally suppressed and concealed the material facts in the present complaint. 'l.he present complaint has been filed by him maliciously with an ulterior motive and it is nothing but a sheer abuse ofthe process of law.

The true and correct facts are as follows: 28.

That the respondent is a reputed real estate company having immense goodwill, comprised oflaw abiding and peace loving persons and has always believed in satisfaction of its customers. .l.he respondent has developed and delivered several prestigious projects in and around NCR region such as ATS Creens-1, ATS Greens-ll, 41'S Village, ATS paradiso, ATS Advantage phase-l & Phase-ll, A'l'S One Hamlet, ATS pristine, ATS prelude & ATS Dolce and in these projects large number of families have alreacly shifted after having PaEe 12 of 29 HARERA ffi GURUGRAM taken possession and Resident Welfare Associations have been formed which are taking care of the day to day needs of the alrottees of the respective proiects.

29.

That the complainant, after checking the veracity ofthe proiect namely, ,ATS Triumph', sector 1. sector 1.04, Gurugram had applied for allotment of a residential unit and agreed to be bound by the terms and conditions of the documents executed by the parties to the compraint.

It is submitted that based on the application ofthe complainant, unit no.

4241, Tower no.4 was arotted to the complainant by the respondent vide allotment letter dated 16.08.2014.

30 That the buyer's agreement was executed on 16.0g.201,4.l'he Real Estate (Regulation and Development) Act, 2016 was not in force when the agreement was entered into between the complainant and the responclent.

The provisions of the Real Flstate (Regulation and Development ) Act, 2016 thus cannot be enforced retrospectively.

31.

That it was agreed that as per clause 4 of the buyer,s agreement, the salc consideration of Rs.

2,00,65,000/_ was exclusive of other costs, charges including but not limited to maintenance, stamp duty and registration charges, service tax, proportionate taxes and proportionate charges for provision oF any other itcms/facilities.

As per clause 12 of the buver,s agreement, timely payment by the complainants of the basic sale price and other charges as stipurated in the payment pran was to be the essence ofthe agreement.

32 That for making the payment towards the sare consideration, the complainant opted for loan to purchase the said apartment and entered into a tripartite agreement dated 16.08.2014 with ICICI Bank and rhe respondent.

It was agreed vide several clauses of the tripartite agreement Complaint No.

4866 of 2020 and other Page 13 of 29 HARERA *@*GURUGRAN,,I that without the prior consent ofthe ICICI Bank, the complainant would not mortgage/charge/transfer/sell/assign or part with 33.

That the implementation of the said proiect was hampered due to non- payment of instalments by allottees on time and also due to the events and conditions which were beyond the control of the respondent and which have affected the materially affected the construction and progress of the project. e project.

Some ofthe Force Maieure events/conditions which were beyond the control of the respondent and affected the implementation of the project and are as under: 34.

Inabiliqv to undertake the construction for approx.

7-g months due to IOnly happened second time in 71 years of independence hence beyond control and could not be foreseenl.

The respondent had awarded the construction ofthe project to one ofthe leading construction companies oflndia.

The said contractor/ company could not implement the entire project for approx.

7_ 8 months w.e.f from 9-10 November 2016 the day when the Central Government issued notification with regard to demonetization.

During this period, the contractor could not make payment to the labour in cash and as majority ofcasuar rabour force engaged in construction activities in India do not have bank accounts and are paid in cash on a daily basis.

During Demonetization the cash withdrawal limit for companies was capped at Rs.

24,000 per week initially whereas cash payments to labour on a site of the magnitude ofthe project in question are Rs.

3_4 lakhs per day and the work at site got almost halted for 7-g months as bulk of the labour being unpaid went to their hometowns, which resulted into shortage oflabour.

Hence the implementation of the proiect in question got delayed due on account of Complaint No.

4866 of 2020 and other Page 14 ol29 Complaint No.

4866 of 2020 and other issues faced by contractor due to the said notification of central Government, 35.

Further there are studies of Reserve Bank of India and independent studies undertaken by scholars of different institutes/universities and also newspaper reports of Reuters of the relevant pe riod of 2016_17 on the said issue of impact of demonetization on real estate industry and construction Iabour.

36.

The Reserve Bank of India has published reports on impact of Demonetization. etization.

In the report- Macroeconomic Impact of Demonetization, it has been observed and mentioned by Reserve Bank of India at page no.

10 and 42 of the said report that the construction industry was in negative during Q3 and Q4 of ?0L6-77 and, started showing improvement only in April2077 .

37.

Furthermore, there have b cen several studies on the said sub,ect matter and all the studies record the conclusion that during the period of demonetization the migrant labour went to their native places due to shortage of cash payments and construction and real estate jndustry suffered a lot and the pace of construction came to halt/ or became very slow due to non availability oflabour.

Some newspaper/print media reports by Reuters etc. also reported the negative impact of demonetization on real estate and construction sector.

38.

That in view of the above studies and reports, the said event of demonetization was beyond the control of the respondent, hence the time period for offer of possession shourd deemed to be extended for 6 months on account of the above.

11 G RA RAM l]E UG A UR Page 15 of 29 HARERA ffi.

GURUGRAM Complaint No.

4866 of 2020 and other 39. : In last four successive years i.e.

20L5-2016-2017 -2018, Hon,ble National Green Tribunal has been passing orders to protect the environment of the country and especially the NCR region.

The Hon'ble NGT had passed orders governing the entry and exit of vehicles in NCR region.

Also the Hon,ble NGT has passed orders with regard to phasing out the 10 year oid diesel vehicles from NCR.

The pollution levels of NCR region have been quite high for couple ofyears at the time ofchange in weather in November every year.

The Contractor of Respondent could not undertake construction for 3-4 months in compliance of the orders of Hon'ble National Green Tribunal.

Tribunal.

Due to following, there was a delay of 3_4 months as labour went back to their hometowns, which resulted in shortage of labour in April -May 2015, November- December 2016 and November_ December 2017.

The district administration issued the requisite directions in this regard.

40.

In view ofthe above, construction work remained very badly affected for 6- 12 months due to the above stated major events and conditions which were beyond the control of the respondent and the said period is also required to be added for calculating the delivery date of possession. l Several other allottees were in default of the agreed payment plan, and the payment of construction linked instalments was delayed or not made resulting in badly impacting and delaying the implementation of the entire project.

We viz.

Gurugram: Due to heavy rainfall in Curugram in the year 2016 and unfavorable weather conditions, all the construction activities were badly affected as the whole town was waterlogged and gridlocked as a result of which the implementation of the 41.

Non-Pavment her Condition Page 76 of 29 HARERA Complaint No.

4866 of 2020 and other P*GURUGRAI/ prorect in question was derayed for many weeks.

Even various institutions were ordered to be shut down/closed for many days during that year due to adverse/severe weather conditions.

The said period is also required to be added to the timeline for offering possession by the respondent.

43.

That the respondent after completing the construction of the unit in question, applied for the grant of the occupation certificate on 03.10.2016 and the same was granted by the concerned authorities on 2g.05.2019.

The respondent offered the possession ofthe unit to the complainant vide letter dated 07.06.2019.

The complainant was intimated to remit the outstanding amount on the failure of which the delay penalty amount would accrue..fhe complainant is not coming forward to take the possession of the unit after remitting the due amount. ue amount.'Ihe complainant is bound to take the physical possession of the unit after making payment towards the due amount along with interest and holding charges.

44.

That the complainant is a real estate investor who has invested his money in the proiect of the respondent with an intention to make profit in a short span of time.

However, his calculations have gone wrong on account of slump in the real estate market and they are now deliberately trying to unnecessarily harass, pressurize and blackmail the respondent to submit to their unreasonable deman ds.

45.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission made by the parties.

E. furisdiction ofthe authority PaEe 17 ot 29 HARERA Complaint No.

4866 of 2OZ0 and other ffiGURUGRAM 46, 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 47.

As per notificationno.

1/92 /2077_7TCp dated 14.72.2077 issued, by T own and Country planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situatcd in Gurugram.

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

Therefore, this authority has complete territorial iurisdiction to deal with the present complaint.

E.lI Subiect matter iurisdiction 48.

Section 11[a)(a] of the Act, 2016 provides rhat the promorer shall be responsible to the allottee as per agreement for sale.

Section 11(al(aJ is reproduced as hereunder: Section 17 (4) The promoter shall- (a) be responsible fot oll obligatrcns, responsibtlitrcs ond lunctions under the provisions of ths Act or the riles ond regulotiins mode thereunder or to the qllottees as per the ogreement fo'r sole, or to the or to the association ofallottees, os the cose may be, tilt the coiveyonce ofoll the opartments, plots or buildings, as the case may he, to the ollottees, or the common oreqs to the os\ociation ofallottees or the com petent outhority, qs the cose may be; Section J4-Functions of the Authority: 344 of the Act provitles to ensure complionce of the obligattons cost upon the promoters, the ollottees ond the real estate agen;s under this Act and the rules ond rcgulotians mode thereunder.

49.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non_compliance of obligations by the promoter leaving aside compensation which is to be PaEe 18 of 29 HARERA ffiGURUGRAM decided by the adiudicating officer if pursued by the complainants at a later stage.

Findings on the obiection raised by respondent F.I Obiection regarding iurisdiction of the complaint w.r.t the apartment buyer's agreement executed prior to coming into force ofthe Act.

50.

The respondent submitted that the complaint is neither maintainable nor tenable and is liable to be outrightly dismissed as the apartment buyer,s agreement was executed betlveen the parties prior to the enactment of the Act and the provision ofthe said Act cannot be applied retrospectively.

51.

The authority is of the view that the provisions of the Act are quasi retroactive to some extent in operation and would be applicable to the agreements for sale entered into even prior to coming into operation ofthe Act where the transa€tion are still in the process of completion.

The Act nowhere provides, nor can be so construed, that all previous agreements would 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. moniously.

However, if the Act has provided for dealing with certain specific provisions/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 ofthe Act and 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 Neelkamal Realtors Suburbon pvL Ltd.

Vs, llol and others. (W,p 2737 of2077) decided on 06.12.2017 and which provides as under: "119.

Under the provisions of Section 18, the deloy in honding over the possession would be counted from the dote mentioned tn theTgreement for sale entered into by the promoter ond the o ottee prior to its complaint No.

4866 of 2020 and other Page 19 of 29 HARERA Compiaint No.

4866 of2020 and other GURUGRAI\{ registration under REM. lJndet the provi\tons of RERA, the promoter is given a facility to revise the dote of completion of propct oni declqre the same under Section 4.

The REM does not contemplate rewriting of contract between the llot purchaser ond the promoter...

122.

We have olready discussed that qbove stqted provisions of the REM qre not retrospective in noture.

They may to some extent be hoving o retroactive or quast retroactive effect but then on thqtground the vohai6/ of the provisions of REM connot be challenged. \he partiqment is competent enough to legislote law having retrospective or retroactive effect A law can be even fromed to offect subsisting / existing contractuol rights between the porties in the lorger public i;terest.

W; do not have any doubt in our mind that the RERA has been framed in the lorger public i.nterest after a thorough study and discussion made ot the highest level by the Standing Committee ond Select Comnittee, whtch submitted its detailed reports.,, 52.

Also, in appeal no.

173 of 2019 titled as Magic Eye Developer pvt.

Ltd.

Vs. .

Vs.

Ishwer Singh Dahiya, in order dated 17 .L2.201,9 the Haryana Real Estate Appellate Tribunal has observed- "34.

Thus, keeping in view our aforesoid discussion, we ore of the considere(l opinion that the provisions of the Act are quasi retrooc ;e b some extent in operation and will be applicoble to the agreements for sole entered into even prior to coming into operotion ofthe Act where the transoction are still in tlrc4lgeess lLtomoletion.

Hence in cose of deloy in the offer/delivery of possession os per the terms ond conditions of the ogreenent for sdle the ollottee sholl be entitled to the interest/deloyed possession charges on the reasonable rate ofinterest as provided in Rule 15 of the rules and one sided, unfoir ond unreoionable rote of compensotion mentioned in the agreement for sale is lioble to be ignoted." 53.

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 respective Page20 ot 29 the plans/permissions approved by ffi HARERA #, ounuonnrvr Complaint No.

4866 of 2020 and other departments/competent authorities and are not in contravention of any other Act, rules and regurations made thereunder and are not unreasonabre or exorbitant in nature.

Hence, in the light of above_mentioned reasons, the contention ofthe respondent w.r.t. jurisdiction stands rejected.

F.ll Obiection regarding complainant is in breach of agreement for non_ lnvocatlon ot arbitration 54. ration 54.

The respondent submitted 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 and the same is reproduced below for the readv reference: "39, Dispute Resolution by Arbitrqtion "All or any disputes arising out or touching upon in relotion to the terms ol this Agreement or its terminotion including the interpretotion ond volidity of the terms thereof ond the respective rights and obligations of the pqrties sholl be settled amicobry by mutuur discussions foiling which the some sha, be settred throuqh arbitration.

The orbitration proceedings shall be governed by the Arbitrotion and Conciliotion Act, j996 as ctmended up to darc.1 sob Arbitrator, who sholl be nominated by the Boord of the Directors oI the Company, shall hold the orbitration proceedings at the oflice of the Conpany at Noido. .fhe Allottee hereby conlirms thot he shall hove no oblections to this appotntmenL, more particuIorly on the []round thot the Sole Arbitrotor, being appointed by the Board of Directors af the Company likely to be biosed ln fovor oJ the Company.

The Courts at NOIDA, Uttor pradesh shollto the specifc exclusion of all other courts, qlone have the exclusive jurisdiction in all matrrrc or,r,ng uu, of/touching ond/or concerning this Agreement, regardless of the ploce ol execution or subject moLter of this Agreement.

Both the parties in equol proportion shall pay the Iee oJthe .,Arbitrotor,,.

55.

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 ofthe Act bars the jurisdiction of civil courts about any matter which falls within the purview of this authority, or the Real Estate Appellate Tribunar.

Thus, the intention to Page 21 o(29 HARERA Complaint No. plaint No.

4866 of 2020 and other ffi"GURUGRAI/ render such disputes as non-arbitrable seems to be clear.

Also, section gg ofthe Act says that the provisions ofthis Act sha[ be in addition to and not in derogation ofthe provisions ofany other law for the time being in force.

Further, the authority puts reliance on catena ofjudgments ofthe Hon,ble Supreme Court, particularly in National Seeds Corporation Limited v.

M.

Madhusudhan Reddy & Anr, (2012) Z 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.

56.

Further, in Afiab Singh and ors. v, Emaor MGF Land Lttt and ors., Consumer case no.70l of 2075 decided on 7j.07.2017, the National Consumer Disputes Redressal Commission, New Delhi (NCDRC) has held that the arbitration clause in agreements between the complainants and builder could not circumscribe the jurisdiction of a consumer.

The relevant paras are reproduced below: "49.

Support to the above view is olso lent by Section 79 olthe recently enocted Reol Estqte (Regulationond Development) Act,2016 (for'short,,the ieal Estote Act").

Section 79 of the soid Act reods asfollows:- "79.

Bqr ofjurisdiction - No civil court shqll have jurisdiction to entertain ony suit or proceeding in respect of any m;fter which the Authority or the odjudicoting ollicer or thi lfpellau Tribunol is empowered by or under this Act to determine and no injunction sholl be gronted by any court or other outhority in respeit of any action taken or to be token in pursuance ofany power conferied iy or under this Act_" Itcan thus, be seen thotthe soid provision expressly ousts the jurisdiction ol the Civil . he Civil .Court in respect ofony matter which the Real'Estate Regilotory Authoriry, established under Sub-section (1) of Secuon ZO or tne liiudtcoiing Olficer, appointe.d under Sub-section (1) oI Section 7j or the Rea'l Estote ippe ont Tribunal established under Section 43 oI the Reol Estote Act, is empowered to determine.

Hence, in view of the binding dictum oI the Hon,ile iu;p;ne Court in A. _Ayyaswqmy 6upra), the matters/disputes, wiich the Authoriiiei unaer tne Reol Estote Act are empowered to decide, are non-orbitoble, noiitirrorairg Page 22 of 29 ffi HARERA S-GuRUGRAN,I an Arbitration Agreement between the parties to such mqtters, which, to o large extenc are similor to the dispuies folling for ,"riiriir"rra", tn" Consumer Act.

5e. ,Consequentty, we unhesitotingly reject the arguments on beholf of the Builder and hold thqt an Arb.itration Clouse in the osore_sitea' fiia oy Agreements between the comptainonts ana tne eriu", ianiii'iirir^rrrin" thejurisdiction ofq Consumer Foro, notwithstanding the otneandments made to Section I ofthe Arbitration Act,' 57.

While considering the issue of maintainability of a complaint before a consumer forum/commission in the fact ofan existing arbitration clause in the builder buyer agreement, the Hon,ble Supreme Court in case titled as M/s Emaar MGF Land Ltd.

V.

Aftab Singh in revision petition no.

2629_ 3O/?OLB in ctvit appeal no.

Z3SLZ-23513 of ZOLZ decided on 10.12.2018 has upheld the aforesaid.judgement ofNCDRC and as provided in Article 141 of the Constjtution 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 os noticed obove considered the provisions of Consumer protection AcC 1986 as well os Arbitrqtion Act, 1996 and lq.

96 and lq.id down thot complaint under Consumer protection Act beiig o speciot remedy, despite there being an arbitrotion qgreement the proceedings tefore Consumer Forum hove to go on ond no erroi committed by Coriii", forr. on rejecting the applicotion.

There is reason for not intur;ecting proceedings under Consumer protection Act on the strength an orbitiotion"ofreement by Act, 1996.

The remedy under Consumer prot;c on Act is o remed] ptrovided to q consumer when there is o delect in any goods or services.

Thi comptoint meons ony allegotion in writing mode by a complainqnt hos also been explained in Section 2(c) olthe Act.

The remidy under'the Consumer protection A,ct_is.confrned to comploint by consumer as iefined under the Act for depct or dejiciencies caused by o service provider, the cheqp ond o quiii iemeay nas been provided to the consumer which is the object and purpiri of*" e"t o, noticed above-" 58.

Therefore, in view ofthe above iudgements and considering the provisions ofthe Act, the authority is ofthe view that complainant is well within right to seek a special remedy availabre in a beneficial Act such as the consumer Complaint No.

4856 of 2020 and other Page 23 of 29 complaint No.

4866 of 2020 and other G.

59.

HARERA S.

GURUGRAM Protection Act and RERA Act,201,6 instead of going in for an arbitration, Hence, we have no hesitation in holding that this authority has the requisite jurisdiction to entertain the complaint and that the dispute does not requjre to be referred to arbitration mandatorily.

In the light of the above_ mentioned reasons, the authority is of the view that the objection of the respondent stands re,ected.

Findings on the relief sought by the complainant I.

Direct the respondent to return the money paid by the complainant i.e., Rs.2,07 ,92,647/- along with interest @ Z4o/o p.a, from the date of payment till realization.

II.

Direct the respondent to pay an amount of Rs. unt of Rs.

34, 35,000/_ as assured buy back premium along with interest @ Z4o/a p.a. from the date of due till realization.

In the present complaint, the complainant intends to withdraw from the project and is seeking return of the amount paid by them in respect of subject unit along with interest as per section 1g[1) of the Act and the same is reproduced below for ready reference: "Section 78: - Return ofqmount and compensqtion 18(1). lf the promoter t'o ils to complete or is unable to give possession of on oportmenL plot, or build;ng. (a)in accordance with the terms of the ogreement for sale or, as the cose moy be, duly completed by the dote specified therein; or (b)due to discontinuance of his business os a developer on occount of suspension or revocotton of the registration under this Act or for any other reqson, he shall be liable on demand to the allottees, in case the allottee wishes to w.ithdrow from the ptoject, without prejudice to ony other rernedy availoble, to return the amount received by him in'respect of thit dpartment, plot, building, as the case moy be, with interest ai such rqte ds may be prescribed in this behalf including compensotion in the monner as provided under this Act: Page 24 of 29 HARERA SP* GURUGRAII Provided thot where an ollottee does not intend to withdrqw from the pr,oject_he shall be poid, by the promoter, interestfor every mond ofdeloy, till the handing over ofthe possession, ot srrn ,oti o, ,oi oii,riiriiua.,, 60. clause 18 of rhe buyer,s agreemen, o.r"li3Jlf,'"",#'illioo or n"na,ng over possession and the same is reproduced below: 18t Time of Handing Over possession Barring unforeseen clrcumstances ond Force Mqjeure events os stip.ulqted hereunder, the possessrcn ofthe soia opariment is oroioia to be olfered by the Company by the A otee witnin a perfiiia months with a grace period oI6 monthsVon tneaate actiitiin of construction of q particular Towir Building t, ;;i;;-;;" registration for allotment is made, Such date Ja herein o a herein oii, referred to as stipulated date, subject olwoy, ,o n."t, por.irt olf-itt omounts inctuding the Basic Sole price, EDC/tDC, tFMi. ito.p tiuty, registration Fees ond other Charges as stipuloted herein or as'mav 6e demanded by the Company from time to time in this regora. iniiie of-actuolsulrt ofconstruction shall be thedot" or.niri *" foir,ioii, ofthe porticutor buitding in which the soid oport.ent is iititt"i-iiott be laid as p.er certifcotion by the company,s *rnirc"t)"rjir"ir-ir- chorge of the complex ond the soid cirtificotion ,nal'U"jnii ora binding on the Alloxee.,, Complaint No.

4866 of 202O and other 61.

The complainant had booked the unit in the project of the respondent company namely ATS Triumph, situated at sector 104, Gurugram for a total sale consideration of Rs.

2,10,23,750/^ out of which the complainant has made a paymentof Rs.2,07,92,647/-.

The unit no .4241, on 24th Floor in Tower 4 was allotted to the complainant vide allotment letter dateri 1,6.08.2014.

Similarly, on rhe same day i.e., 16.08.2014 buyer,s agreement was executed between the parties, MOU was executed between the parties and tripartite agreement was also executed on the same day.

As per possession clause 18 of the buyer,s agreement, the possession of the unit was to be handed over within 36 months with a grace period of 6 months from the date ofactual start ofconstruction ofa particular tower. .l.he date Page 25 ol29 HARERA Complaint No.

4866 of 2020 and other P-GURUGRAN,I of actual start of construction is not provided on record therefore, the due date is calculated from the date ofagreement i.e., 16.08.2014 which comes out to be 16.02.2018 including the grace period.

62. lt is pleaded on behalf of the complainant that as per clause E, F and 8 of the MOU dated 16.08.2014 the respondent has guaranteed the complainant to buyback the said unit.

The said clauses are reproduced below for ready reference: E. erence: E.

The Owner/Devetoper has olJered dn oportment beoring no 424l in the soid Project for o Basic Selling Price of Rs.

8500/' per sq ft' on sale on guoranteed hu! bock bosis to the Purchaser/lnvestor' F.

That relying on the representotion ond assuronces oI the Owner/Developer, the Purchqser/lnvestor has ogreed to invest in the Soid Project, subject to the owner/Developet qssuring him the guotanteed buy bock premium of Rs.

1500/' per sq. ft. lbr the Apattment beoring no.

4241 in the Said Proiect ofter expitt ofthe j6 months from the date of booking, on the terms contoined hereinofter.

B. lt is hereby ogreed by the porties that the Purchaser/lnvestor, within o time frame oJ 33 months fram date oLbqqLllg !,9-3.6 months Irom the date of booking sholl be entitled to coll upon the Owner/Developer in vnriting, to purchose the aforesoid oportment ot a premium of k.

1500/' per sq. ft. and in such o cose the Owner/Developer sholl repurchose the sqid Apartment within 30 dqys ofexpiry of 36 mot)ths from the dote of booking.

63.

As per the clause 8 of the MOU dated 16.08.2014, the complainant has to write to the developer for repurchasing of unit within a time frame of 33 months to 36 months from the date of booking The date of booking is 09.06.201,4 (page no.

10 of complaintJ.

As per the clause 8 the 33 months was ended on 09.03.2017 and 36 months ended on 09.06.2017' The Page 26 of 29 HARERA ffiGURUGRAM complainant has a right to exercise its option of buyback policy from 09.03.20L7 rill 09.06.201 7.

64.

In the present complaint, complainant has exercise his option of buyback policy by sending an email on 19.02.2017 i.e., before the time frame of 33 months to 36 months as per clause 8 ofthe MOU dated 16.08.2014.

65.

Thus in the face of above mentioned terms and conditions of buyer agreement w.r.t. due date for completion of the project, offer of possession and as per buy back policy dated 16.08. ted 16.08.2014 the request made by the complainant for withdrawal for the project and seeking refund vide letter dated 19.02.2017 was premature and was rightly rejected by the respondent builder.

The occupation certificate for the project was received on 28.05.2019 and thereafter offer has also been made by the respondent/builder to the complainant/allottee.

Further after receiving the offer of possession the complainant again sent an email regarding buy back policy.

But the questjon for consideration arises as to whether in the facts and circumstances detailed above, the builder-respondent can force the complainant to take possession of the allotted unit and pay the remaining amount though they withdrew from the project on 19.02.2017.

Though it is contended on behalf of respondent builder that the allottees are bound to take possession of the unit after paying the amount due but there plea advanced in this regard is devoid of merit.

66.

As the allottees have already withdrawn from the project prematurely, they are entitle to refund of paid up amount after deduction of 100/o of the basic sale price of the unit as settled by the Hon'ble Apex Court in number of cases and even leading to framing of Regulation 11 in the year 2018 by the authority.

Complaint No.

4866 of 2020 and other PaEe 27 of Zq # HARERA ffi ounuennH,r Complaint No.

4866 of2020 and other 67.

The deduction should be made as per the Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builder) Ilegulations, 11(5J of 2018, which states that_ "5.

AMOUNT OF EARNEST MONEY Scenario prior to the Rea[ Estote (Regulations ond Development) Act, 2016 wqs dilferent Frouds were corried out without any fear as there wos no low for the some but now, in view of the above focts antt toking into consideration the judgements of Hon,ble Naiional Ccrnsumer Disputes Redressol Commission ond the Hon,ble Supreme Court oJ lndio, the outhority is of the view that the forfeiture omount of the eor of the eornest money sholl not exceed more than 10a,6 of the considerotion amount oJ the reol estote i.e. aportment/plot/buitding as the cose mqy be in oll coses where the cancellotion of the Itat/unit/plot is mode by the builder in u uniloteral manner or the b uny agreement ,onro,r,ut"' 'nt"'dt to withdrow from the proiect ond resutotions shoil be v", ,::, ,z'i,::i:;2,,:;":ff;",.,: the oforesoid 68. ln view of aforesaid circumstances, the respondent is directed to refund the paid-up amount after deducting 10% of the sale consideration of the unit being earnest money within 90 days along with an interest @ 10.75 % p.a. on the refundable amount, from the date of withdr awa) i.e.,79.02.2017 till the date of its paymenl H.

Directions of the authority 69 Hence, the authority hereby passes this order and issues the forowing directions under section 37 ofthe Act to ensure compliance ofobligations cast upon the promoter as per the function entrusted to the authority under section 34[f): i.

The respondent is directed to refund the amount of Rs.

2,07,92,647 /- and Rs.

2,08,22,853 /- respectively after deducting 107o of the sale consideration of the unit being earnest PaBe 28 ol 29 S HARERA #ounuennlrr ll. iii.

Out of the total amount so assessed, the amount paid by the bank/payee be refunded first in the account of the bank and the balance amount along with interest if any, be refunded to the compiainant-allottees.

70.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order.

71.

The complaints stand disposed ol 72.

F'iles be consigned to registry. money as per regulation Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builder) Regulations, 2018 along with an interest @10.75 o/o p.a. on the refundabie amount, from the date of withdrawal i.e., lg.O2.ZO.1,7 and 76.07.20t7 in both the cases respectively till the date of payment. f payment.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences would follow. 'a/n Haryana Real Estate Regulatory Authority, Gurugram Member Dated: 03.11.2023 Complainr No.

4866 of 2020 and other Page 29 of 29