RAJ PAL SINGH DUGGAL vs PAREENA INFRASTRUCTURE PVT LTD

HARERA GURUGRAl\,l lc*pl"t", N"r1ss "i;4 BEFORE THE HARYANA REAL ESTATE REGUUTTORY AUTHORITY, GURUGRAM k.--'l"i.t,* T4ts€ of ,or1- fiid"t" "rl*,.tns, f76,1!,orn TD"r" "rd*l'1"* f or"or2o-l alpal sinsh Dusgals/o sh. /o: HouseNo.

T/32, Roop ew D.lhi - 110 007 Daleep Slngh Nagar, 1 z 3 M/s Pareena Infrastructure Omcer C'7A, Second FlDo Sector'49, Sohna Road, Gur Indiabulls Housing !inance Ltd Officer l\.{ 52 & 63, First Floor, Conna NeNDelhi 110 001 NeNDelhi 110 001 Indiabulls Asset Iteconstruction Co.

Ltd office: l.dlrbulls Finance Centre.'louer I 9th Elphrnstone Road Floor, Senapati Bapat Marg, Elphinstone Road, NluDrbai 400013 Respondents ( ORAMI hriVilav Xumar Coyal hriSanieev Kumar Arora PPEARANCEI h.

Mohd.

Sharique Hussain fAdvocatel h.

Prashant Sheoran (Advocatel L C.Lrrav Dua fAdvoc,rel ORDIR 1 T D R f HARERA GURUGRA[/ Complarnt No 4158 of2021 e present complaint dated 12.10.2021 has been filed by mplainant/allottee under section 31 of the Real Estate (Regulahon velopment) Act,2016 [in shor! the Act] read with rule 28 ofthe Haryana al Estate fRegulation and Development) Rules,2017 (in short, the Rules) violation ofsection 11(4)[a) ofthe Actwherein it is inler alio prescribed it and proiect related detai ideratlon. the amount paid bY the e tbllowing I ; tlie'possession, del.rJr period, ir and at the promoter shall be r.'ponsible ror all obligations, responsibilities and functions under the provisions ofthe Act or tbe Rules and regulations ad€trere under or to the allottFffil the aSreement for sale executed 2. e Darticulars of unit de!6ll ln0,","r r,, 0",. ", Orlo? "Mr.asn , sertor 68,6urgaon Registered ride no.

99 of 2017 issued on 2A,0A.2017 up to 30.06.2022 HA GUR RERA Resistcred/ not 1403. tower 5, 146 floor fpase 43 of 1245 sq.It. ofsuper area 25.09 2015 fDaae 12 olcomplaint] 05.12.2017 tpase 37 of.omPla'n0 D.te of builder buyer Date ol Sta. te ol Sta.t of construction 5 IABEBA GURUGRAIV F*rr-t,t""r r"-l I MoU between the allottee and 15.03.2018 fpaBe 110 otcoiphint] T.ipartite Agreement between the parties to the complaint 01.05.2018 13.

Compledon of project lhot the Deeelopq sholl, under nomol .andkians, subject to lorce najeure, comPtete corstruction ofTawer / Buildins in whtch the soid Flat is ta be locoted withla 4 teors ofthe stort oI constructlon ot decution oI this dar.enena whichever ls loteL (Enphasis 1 I Duedareolpossessron'I] ) /nald consrruct on is not Siven n is calculated lron thc execulion.l BtsA e 05122017 + Srace penod due to Covid.l9J 87,43j0s/- [pa8e 65 oi.ompl n0 (Ba$. sale Pric. : Rs.

71,58,750/.1 16 t4ffiH;llbJ3"l,;!*:x' ;l;:l io,h 4d.

Un E N. or esponde.t no.1 hedltrclui,J*dn pavment ptant 11.

1B .,r(rt 19. complainant letters to R1 to ,"'m" p"y--{ggt Tl\ltl 1210 2020 ind 23 tZ 2020 3.

B.

Facts of the complalnt The complainant has made the following submissions in thecomplaintl l.

That ihe complaimnt came across an advertisement of respond€nt no.

1's wherein promoting its group housing society at sector 68, Gurugram claiming it to be a state ofart & promising all sorts of modern facilities fi I1, HARERA GURUGRAIV1 which may be times. complarnt No.4158 of 202I asprred tc' in a residential unit rn lhe contemPorary Thar the complainant applied lor the allotment of flat in ihe above proiect on 10.08.2015.

On basis of such application, a unit no T_5 / 140 3 was allotted to him on 25.09.2015 Thereafter, builder buyer's agreement dated 05.12.2017 was executed between the parties.

As per said agreement, the possession ofthe flat was promised to be delivered within 4 years from the date of alitment i-e.

10.08-2 01 5.

That total consideration ol thdlflat booked by complainant was Rs' 87,433,0s/- excludins taxesl4d€i!frrpla,nant dvdiled a loan ot Rs 70,00,000/-against t ondent no.

2 whereas amount of Rs.14,07,500/- s Y*.

00/- s Y*.\spondenr^uilder by II1, complainant at the time of booking from his hard earned moncv as IV After receiving the above_nentioned paymenf allotment letter dated 25 09.2015 was issued in respect ol the flat in question Thereafter, the eaecution of flat buyer's agreement was delaved for ncxt tw' years & the same lvas executed on 05 12 2017 because the offcr ol nrbv.ntron as p.omised by respondent no.

1 was not readillr available bct\!ct' 2015 to 2017 whirhrquld,h?YehBen gfrpried bylthe complarnant' For *...-,,**,-[;i !o'.1.r'n! li,":lJ'",F"+r"", orRs. r 4.07.s00/- paid by complainant, toan of Rs 70,00,000/- was sanctioned by respondent no.

2 under subvennon scheme and by accepting the flat booked by complainant as collateral by creatlng equitable mortgage against the said flat Out ofthe totalloan amount of Rs.

70,00,000/_, Rs 29,66,2621- aieady slands released to the developer from the financier as on october 2020, 2nd therefor€, the developer has already received u HARERA GI]RUGRA]V comDlaint No.

4158 of 2021 VI, VII ' against rhe flat ir u HARERA GURUGRAIV Complaint No. a 158 of202I subvention scheme qua tL'r under'construction property in respondent promised from the dat€ ofsigning the tripartite agreement which falls due on 01.05.2021.Ii is further stated in the said agreement that if the delivery is delayed beyond tl*r.s+&u_\ted date, then respondent no.

1 shall continue to pay the preffiffi*"rpona"n, no. z.

VII], no.

1's project.

That as per relevant clause of the tripa*ite agreement 3nd M0U, respondent no.

1, agreed and undertook to make payments ofpre'EMI till the stated delivery of the flat i.e. lor the period of 36 months !x.

That the above loan of Rs.

7 - extended by respondent no 2 was se(ured against f the subiect unit.

Theretore, any deiault in makingt Lent ofpre-EMIs by respondent no. aring on the above flat (/o r which canplatnont ,d ts dytl W,lnenr asainst the totol y respondent no. ondent no.

2 in terms ol the rrt from the credit score of the .'t/.tt e,. it would also be ayment plan vide which the loan entno. l by respondent no.2.

X Thatthe present lpan extended byrespondent no.2 also stands on the same prem,se wherei p.,'usal'ofclause 3 of the tripartite agreement makes it abundantly clear that the liability of borrower for making payment against the loan financed by respondent no.

2 shall commence after disbursalofthe loan amount is complete in the liSht ofsubvention payment plan.

Till that tlme, the llability against payment of pre-EMIs towards interest proponent shallvests upon respondent no.l who shall be making monthly payment to respondent no.

2 agaanst the interest HARERA GURUGRA[/ conplaint N o.

4158 of2021 accruing on the pe._tion of loan amount disbursed as per above subv€ntion payment plan in terms ofclause 2 & 7 ofM0U and clause 3 & 4 of the above tripartite ageemenl That as per the subvention paymentplan, respondent no 2 released Rs' 29,66,2621- to rcsponde t no 1, and as per the schedule of amount disbursement over the course of time, respond€nt-builder, right from the commencement of the loan till october 2020 has made Pavments to respondenl no.2 rgainsl lhe pr€ EMls viz interest accrutnq on Ihe amount so d,rbursed Howeve{,'subsequent to October 20ln lhe -,:,) respondent.builder for the m&t kno"" to it stopped making pay.rnent to responder6q:' the pre-EMIs.

This comes as a ffif the stipulated terms tin lw :oll )1 ri t rpl: t\ cl ir d in rd gr h€ rhe h isdr xr. d ;*,:i:[]:.?sffi; to the balance sheet filed with MCA wherein the amount of loans and ",,,."".,. "" 3rq?AJl tlJl7isfd.ly,t.474l- Referen(e ro this effect is also drawn to page no 7 of balance she€t wherein reference of advancing loan to its 5 subsidiary companies i'e'' l Monex InfrasEucture Pvt Ltd.;2.

Survir Inffastructure Pvt Ltd;3 llaharaja Bulldstate P!t.

Ltd.;4.

BeUevue Holldays Homes Plt Ltd'r 5' Pare€na Builders and Prcmotors Pvt Ltd. s Pvt Ltd. and 6 Par€ena Homes P\4 Ltd are categorically mentioned.

The fact that respondent no. t has given loans HARERA GI,]RUGRA[/ complaint No.

4158 of 2021 and advances from buyer's payments tantamount to diversion offunds and perpetuating fraud wl lch is causing delay in execurion of the project in question.

This is a matter that needs the attention ofthe Authority for taklng appropriate action against th€ respondents herein.

That atthe outse! the Authority may appreciate that under the facts and clrcumstances mentioned abov€, there appears a clear conn,vance on the part ofdeveloper and nnancier in subvention scheme whereby the bounden duty of respondent no.

1 to make payments against the monthly interest proponent hasbeen complpletely ignored by respondent aken against the complarnanr .o- 2 and action of NPA this loaD asset has bee enr no.2 to the respondent no. took over the fla?in quegigtt vriilh 6tands as secunty for lhe loan. therety, resultingkkJLLU [til.6r:Sdo] *hich was earrier paid bycomplainant (from his"wn resourcesand savings) to respondentno.

1as down payment while booking the flat.

The cumulative eflect ofthis taking over of flat by respondent no.

3 [under the circumstances mentionedabovel would be that this flat would subsequently be sold to a third party at auction on the then current markei value (much more than consideration amount decided in the year 2015 when the flat was exclusively without shoniirg iriy' e as to what actions have been )rming asset, and thereafter, rdien bv tne re,Dondenr no.

I asJln5l resnoro.nr-br.r.Jer lt r n.n' payment in terms of tripa rhte agreemen t.

It is pertinentto nrention that upon respondent-builaer's defaultin making payments against the pre EMls to respondentno.2, theloan has been recalled by respondent no Complaint No.4l58 of Z02l HARERA GURUGRA[/ booked by complainantl.

As such giving huge monetary benefits to the respondents collectively at the cost of complete loss caused to him. ed to him.

This is the precise intent of respoodents since the complainant was left to suffer for no fault at his end.Tbe liability to make payment against pre EMIS was ofrespondent no.

1 in which it defauhed, and th€ respondent no.

2 & 3 are taking action agaiNt this default of respondent no.

1 against the complainant (who is reflected as borrower), and iherefore, the entire down payment arnou\toiRs.

14,07,500/_ paid byhim against rhe flat rs ifl real threat o' t6inli65t9d.

Therelore, by way ol present complaint, the complainant i.ffii#ecorery ot n" 14,07,500/ (alonc with appiicable ,,"r5iqf.dfu*$X s dctua y pard ro rhe resDondent no. l) fd.Irfeip6ndbdttld f w'lt} no liabilitv towards loan ."p"y-"n, ,o ."'/$I', no. z/rll"e b'lf&,'\d ,pon him because defaultin makingt6p+irrlt df pte-EM ls under t6e subvention s.heme r'* u*" *,,,ilfily'["rt"&"{ "& ifahJnot the comptarnanr herein. \+"i* I rl | .. rhat the developer ftXf&rp:pliist 0r't(e ,"".on" t.st t no*n to it stonned Davins the asreed dnthlv Dre_EMls asarnst the loan, and ;; ; ;,+[x&[&s t]nnl].,;, *.,n" *o,,," paying the contrr€EihllyrbindiDs-VFpM|S blt the developer, lhe nnancrer (Respo[d?, J,lJ lrJ ( ;'lf.fri"lV',ni.ated sARFAEsT proceedings against the complainant, though the liability ofpaying pre_ EMIS solely vests with the developer and therefore, ieopardizing the interests ofthe complainant who already had invested his hard earned money towards paying down-payment of R5.

14,07,500/', and for rest, availed loan from respondent no.

2, and also, the credit hisiory (ClBlL) of complainant is hugely dented at the hands of developer who XIV, compLaLnt No 4158 of2021 HARERA GURUGRA[,4 deliberately defaulted in paylng monthly pre'EMls ro the financier, and as on date a total outstanding of Rs.

42,62,753.05/_ is escalated by the respondent nos.

2 and 3 against complainant vide notice dated 13.02.2023 under section 13(2) SARFAESI on account of the default committed by the respondent no. ondent no.

1, but since complainant is the borrower, he is facing heat of the defaults commilted by respondent no.

1, and he ls being chased by respondent nos.

2 and 3 to repay the loan outstandlng of tu.

42,62,7 S3 0s-/fiwl,ch is 'ndusive ol rnrerests, penaltv and the principal amount orftd#h&262l-disburs€d Lo respondent nos.

I from resDondent l$ffitdierefore, the credit record of .ornpr"in,nt i, hug"ry6J,Jfu6}),n" a.r,,," committed bv llllllllll : l,#Pd,@w.t"*h,v pre'EM,s,o,he nrat upon recerrlq lne 'fd{N{t4 rf,oz}qll to the notice dated 22.0s.2021 issuedwtkqha*rt iio.

I u,iaer sesuon r:(2) or SARFAESI ,tt trre respondenlid) $,,h1["] #"8i,th,esar action asarnst \" ^ \Jl,-!- t their illegal acl, **1 ry." dated 22.0s.2021 vide its ;l'jJil::T::'$l'ffift ffi {tu1aoss".",.n a na,n r,c, the construction arp.ared'fallfroFi.onpletioo tlU the dme the present complant was RlekvU firld'J.k t\6t Atdrired bv the developer.

That under the garbofthesubventioo finance facility, the developerwas given a maior chunk of loan amount (Rs.

29,66,262l_ out of total loan amount of Rs.

70,00,000/-) from the ffnancier without tollowing schedule of payment and the developer successfully diverted those fu nds and the fu nds of other such home buyers to lts differcnt subsidiary companies as lending (as co, be nonced fron Developet's company XVI, XVII HARERA GURUGRAN,I Complaint No 4158 of 2021 xvt1l.

Rolance Sheet filed ot poge 136 in which liobility towards subsidiary conpanies is huge), andthe completion of the subject project and timely offer ofpossesslon of the ttat was ignored by the developer.

The respondent no.

1 to justiry $eir action ofstopplng payment of the monthly pre-EMIs from october2020 relies on letters dated 12 10.2020 and 28.12.2020, which were written by complainant and exclusively addressed to the respondent no.

2. ent no.

2.

However, the respondent no 1 in process oftaking tlls detence-?n\ot evade its contradual ltability of payins rhe monrhly pre-EMts, fiiiiener was wrinen in a conlexl lhat from November 2020 onw"rWervrr. *"r" inskucled to be paid bv the comDlalnant in AqdihlespOniqt no. l. rhe compldinant "ra",r.,r,r"n*a,,"(*-!?-f@6ffii1!,i*)"uniraterarinstructions *r,r.r' i" i" .r""y'5[1fr"0,ry 9,fE* t4Y 4 ot the tripartite aereement, and t[46re, ii'elcddpl$nCnt was raquesting respondent "".,*,,"'*,",$\d"["lr"h{,fl*1t,",dd,rion,bvcitrns certaln unavoidabl\d$,t {.t':p' io ri.itai"a .onstralnts in tener a","a rz.ro.zozo, *"X@r6u)ffild/."spondent no.2 to cancel the loan, however.unlsss d;Erd$-not arcepted, the respondent no r .-no, "u"alrd/[rn*6r16["tr,u pre-EMis (o rne respondent no.

2/b.c4u$-t$ppFds4 9q, I.in#ed has received Rs. zs,oe,zozr. out oA#fiolr,,1tJ"\ts1n1.tildd.'obo/. r'"m respondent no.

Funher, the 1blequent letter dated 28.12.2020 written by complainant to respondent no.2 (Financier) is more clear to this effect ln which he speclfl.ally communi.ated to the respondent no 2 not to release more funds (against loan) to respondentno l because theyare not meetlng their commltments of construcdon progress.

This communication again does not quafiry respondent no.

I to stop paying xtx HARERA GURUGRAIV comp a nrNo 4158 ol2021 pre-EM Is to respondent no.

2 because the fact remains that they already have been disbursed with Rs.

29,66,262/_ out oftotal loan amount For which respondent no. t h;i to continue paying the interest in the form ofpre-EMIs.

The respondent no.2 has already conveyed the asset ofpresent loan to respondent no.

3 which is an asset reconstruction company for takinS adverseactions qua the loan account in question llef sought by the complalnant: e complainant has soudht fol C, Dir€ci the responde 14,07,500/- along with in -. with in -.1 ; To pass appro credit score of thecompla IlL Direct the rate oi 24% tirecdon that no liabiliS, may be fastened upon a loan asainst flat in question whi.h has been /3, and as su.h respondent account without impacting Rs.

2,00,000/- to the conPlainant lowards lihgatigtrB.Pe4se. r/ a ._' \-?,_, i( i.,/ \- . , 5.

On the date of hearin& the Authority explained to the respondert/promoter aboutthe contraventions as alleged to have been committed in relation to section 11(4) (a) of the act to plead guilty or not to plead guilty.

D.

R€ply by the respondert no, 1 The respondent no.l has contested the complainton rhe followinggrounds. a.

Thattbe present.omplaintis out ofpurview ofthe provisions ofRERA.

It ts submitted that by way of present complaint, complainant has 6.

HARERA GURUGRA[/ Compla ntNo 4I58olZ02L challenged notices issued byrespondent no 2 & 3 under th€ provisions ofSARFASI ACT, which is beyond the scope of RERA.

The complainant is also seeking direclions against respondent no.

2 & 3 i-e. financial iNtitutions, which is also b€yond the puruiew RERA.

Even the date oi possession as per agreement is yet to arriveand tentativelythe date ot possession is in year 2023.

That the construchon ofthe said proiect is at advanced stage and the construction of various towqrs has already been completed and renaining work would be (omplgted as soon as possible Th. proicct is near complenon and .vi short span of time it will be completed and thereafter, the posrssion shall be ofiered. il entitled Jl er obL,rr ng oL'Lp,n,v \prtillc..re l6gSaeed i Y{N"o '" builder buyer's That quite.onveniently, the certain facts have been conc.al.d b)' thr llrl -J I I il ;1 ..'.-l complainant.

The concealment has been done with a motive ofdtriving undue benefit by RIing the pre $! d.

That the respondent coDtinues to bonafidely develop the proiect despite lhere Derrig var ious inst"nce. inst"nce. of non_oayment\ of r1n" I',"rir ' frivolous petitionr such as the present one seriously hampered the capabllity of the respondent to deliver the project on time.

The amounts which were realized from the allottees have already been spent in the development work oithe proposed project.

On the other hand, the respondentis stillreadyto deliver the uniton duecompl€tion bv varlous allott cr.

Thii.l6arl\rslow6 wl${averinq (ommitment on *" 0"., o, *"koUlSlJ"kJrl/,JNlo,*ct. yer. various HARERA GURUGRA[/ Complarnr No 4158 of 2021 to the complainanl ofcourse, subject to payment ofdue installments and charges, That as per apartment bLryert agreemenr, the due date ofdeUvery of possession was notabsolute and was subject to terms and conditions of agreement ltself Admittedly, it was written in clause 13, rhe company shall endeavour to complete the construction within period offour years ftom start ofconstruction or execution ofthis agreemenr, wh,chever is later but said tim of four years was not absolure and was subject to fu.ther of s,x months.

However, said period offour years and six ;s also subtect to severalreasons beyond the control oire!)o by the complainant that if the p.oject gets delayed due to force majcure cLrcunrst<r.ces then rhe said period consunied during cor]lgrned eitcumstances shal] stand extended.

Thaltln $e Dresent case.asroemd zT\ lri ;:::i:1;H\qta::r);$:tr'frffi :H;':i":,":; 05.12.2017 and final date or possession sha I be calculat.d rrtcr considering all th€ r"levant cir.unrstances impeded the ability and even the intention of the respondent to continue with the development and construction work of the said proiect.

It will be detailed hereinafter that on account oF various notifications and judicial orders the development and construction workofthe said projeci was impeded, stopped and delayed. d delayed.

I HARERA Gi]RUGRA[/ comDlaintNo 4158oi2021 Thatthe complainant himself has admitted the fact that an addendum was executed between the parties in the year 2016.

Even in the said addendum, the complainantduly acknowledged and admitted the lact that on happening oi events in force majeure clause, the respondent would beentitled to exte;sion ofdateoldelivery ofpossession.

He has now nled the present complaint in breach ofbuilder buyeragreement and addendum as well.

Thus, he has no r,ght to seekany sort ofrelief.

There is no such provision und€Jary lawthatonlyone party is bound by the agreement.

Since, the coDplainant also agreed with the terms a.d conditio.s of builde agreement and thereafter to addendum, so he is: D.

That compleho tor completion olpro 2021. pped due to rnY renson erthcr arately of NC& it created a hurdle in pace ofconstruct,on and ch period was over, it requir€d considerable period oftime to construction activity. whenever construction activity remains ance for a longer period of time, then the time required to resources and to re-commence construction; also became which further wasted conslderable time.

That long€r the and s€p in abey gather longer, saDie,Thus, as per terms ofsaid ff$\r< retrna or trre entrre HARERA GURUGRAN/ Complarnr No.4l58 of 202I construction remains in abeyance due to circumstances discussed hercin, longer the time period r€quired to start again That above stated orders are absolute and beyond the control ofdevelopers That there are several oth€r orders and notificat,ons wh,ch causes delay in the construction ofproje"t and are beyond its control.

That even the Hon'ble Apex Court has already held that notice, order, rules, not1fi cation otthe Covernment and/or other pubUc or competent authorit, lncluding any prohibitory order of any court against olthe force mateure evenr. payment of last rjre:EMI, in ;he month of oct 2020, the complainant ,f oct 2020, th That the complaluant concealed iew importan. documenc th. cumenc th.t after development or properry come.!-under lorce md eur" dnd perrod for handins over ofthe possessi extended du.ing the prevalence l. directed the respondent no 2 lo stop disbursernent ol any lurthcr amount rn ldvour or r.\pondenl no I dnd 1r mJIed rhP \inrr IJ respondent no 1 as we1l.

That as per statemenL of Lort eccount, repayment of loan in sbape ol EMI shall start f.om 05 05 20lU till 05.10.2025.

That lo. th. reason best known to complarnant and respondent no.2, said period was delayed till Nov 2020 and in the month ol Nov 2026!

Respondenlno. + demanded starl of repayment rrom novemter korGtir.'16S*"'. .o.pla,nunr rerused to repry the loan amount to the respond€nt no 2 and also directed the respondent no 2 not to disburse any amount to respondent no 1 as well.

That the complaimntalso sent a written request in this regard to the respordent no.

That ude lefter dated 12.10.2020 complainant cancelled the tripartite agreement and requested respondent no 2 to do the same aod further HARERA requestedthe respondent no 2 to recover the amount disbursed trom respondent no 1 only.

It is submitted that it is the duty ofcomplainant to repay the loan and respondent no 1 was only liable to pay Pre-Emi in form of interest on amount disbursed by r€spondent no 2 to respondent no 1.

Howev:t a dispute arose betlveen respondent no 2 and the complainant over repayment of loan in Oct 2020 and he retused to repay the loan and demanded recovery of loan from GURUGRA[/ complainant even directe amount to respondent no r no 2 hot to disb!.se env apartment buyer ag"eement ire agr€ement, both [lOUs dated all the respondents.

That as the lrom $,iihdrawing tionr thc prole.t much prior ro th?d.4 ofpgfeftioe and wrthout therebeingany fault or responaent. tnlTJbJ,l[,h+[.zrs !;ntria,il."ncel the aIorment and forfeit the earnest money as per RERA alongwlth other taxes and charges as per agreement and only liable to return the amountwhich was received from respondent no 2 as per tripa per tripartite agreement.

That as per tripartite agreeme,rt, in the event ol cancelation ofunit, builder can forfeit earnest money after returning of amount received from bank without interesl Complarnr No.

4r58of 202t e said act was d,rect breach of re\pondenr no l. $ilhour Ihere b"rnB dnv r.Ch ro do 'o 'lh,l 1s.03.201s, thus complain"rt ly li, "'"(S\ (8\sentftled hlmselr rrom getting benefit of subvention scheme and for the srme reason respondent stopped paying pre-EI\41lrom the month oiNov 2020 That legally the.espondent no.2 has a rightto recoverthc loan amount disbursed in favour ofrespondent no.

1 from conrplainant by following due course of law.

Ho\&tly.-S&r.fi&Cnt complaint. complainant is trying to defeat the leqai co,nntatnant cte{rliffo complaintNo.,llSSof 2021 I *uRnpRR S-blR]J'cRAl\i F pr"il"f'""rs8"u0" nl fhus, keeping in vtew ofabovestated fadsand circumstances it is clear I thatthe presentcomplaint is tust an abuse ofprocess of law in orderto I defeatthevaluabte riehts of all the respondents Itis therefore prayed I that present complalnt may ldndly be dismissed in the interesr of I i*t'* (eply by the respondcnt no.2 & 3. rfre resnondent no. z a : have contested the complainl on lhe follow,ng cfounds. "I7I^ al That, at the outset h ls su$ffts het rhe present compiainl rs noi I matntarnable in the ey", orffi",n" ur,r,ority as the complaint I H:ff :i;: :'mmts#:;:::;il":* H ao,n p"y.",t f$/r+,or 7a5"a\ft,\*" premise rhai the .espona"nt no.l E ''e uon&l6r&"arv ia telms memoranaum ot una",.t,naing "\ffifr,{,rp"5"4 *tral" *, rhe pre-EMr to , Hl";'"":;H:w,""X".ar ^g no".a"ri"".v ofDossesslon ofthe Lnit wlfrfi-Et6 timesnoulated tn the builder buver "o*.-,,*7f'f ,11il&E"fl./+*"" orunit in te;ms E.

7.

I of the Act, 2016 as amended This Autho.ity ofAct, 2016 has no jurisdiction to deaL lvith any of sections 12 and{ t_ under the provisibm< That the respondent no. ? and 3 ar€ neither developers/promoter of the prcjecl nor real estate. al estate.

Th€refore, the present complaint is not issue regarding non- payment ofloan amount and/or any other issue in respect of loan facuity.

Thus, the present complaint is l,able to be dismissed on this ground alone.

HARERA GURUGRAN/ ComplarntNo 4158 of 2021 maintainable and is liable to be dismissed under the provisions of Act of2016.

That the present complaint is an example ofclever drafti.g and mala ffde intertions of the complainant, who falsely implicated the respondent no.

2 and 3 without any reason and laull.

That the main dispute is betlveen the complainant and respondent no.

1 regarding non- payment ofpre-EMI's by the respondent no.1 to the respondent no.2 in terms of the tripartite agreement.

It is subm,tted that the respondent no.2 and 3 i#:IC*tlP to recover the loan amount granted/disbursed to the co and hrswlfe (deceased) in terms of the loan agreemen te a$€emeDt signed and entered mtarily.

However, thecomplainant without any ede totallv lalse. sham and frivolous allesations by rhecomplarna against them an ,pla'int is iiot maintainabie qua the answerrng That the presen al institution registe.ed under the provision nal Housing Bank Act, 1987 and of India and goycmed ,br,thg pmvtsions of the S€curitisation and R€construction df-Financial Assets and Enforcement of Securities InterestAc!

2002.It is submitted thattheAuthority has no iurisdiction to deal with any matter in respect of financial institutions and asset reconstruction companies.

Thus, the present complaint is liable to be dismissed on this ground alone qua the respondent no.

2 and 3.

That the complainant hai approa€hed the respondent no.2 ior grant of loan against mortgage of residetttial unit in question Consequendy, HARERA GURUGRA[I complainr No.

4158 ol202r based upon the representations made by the complainant and documents furnished, it sanctioned the loan oi Rs. oan oi Rs.

70,00,000/- vide loan agreement against the mortgage ofproperty being residenrial flat no-1403, 14d' floor, tower's, Micasa, Sector-68. curugram-122001, Haryana, as security for the aforesaid loan laciliry based upon rhe terms and conditions as mennoned v,de the loan agreement and tripartite agreement executed by the parties respectively.

That, admihedly compla,nan t. re{pon de nr no.

I and respondent 2 entered into a tflpartite agreoliiilt whereby ir has been agreed rhal there would be no repaym olloan amount tor any reason whatsoever includin betlveen rhe compldi a[y concern/issues by and {i}.tt is rurtrrer agreea that "tl oan shall be distinct and rL .e ol whatsoever nature the complarnan g".ion h.

The(omplarnanr their choice, and the e builder's capability for opted by them.

It was undertook by him that he shall solely be responsible and continue to repaythe loan amounr in lerms ofrhe toan agreement irrespectlve of the stage ofconstruction/delay or failure to develop/ construct the said proje.t by builder within the stipulated period. nrm HARERA GURUGRAN/ aompllnt No 4158 ui2021 That the respondent no.

2 has recalled the loan and turther declared his account as NPA following due process of law Further the respondent no.2 has assigned allits legalrights in respect ofth€ loan account to the respondent no.

3 vide assignment deed dated 31.03.202 0.

Therefore, sin€e the respondent no.

2 has already assigned all its rights in resp.ct ofthe loan account oi the complainant and his wife to respondentno.3, rhe respondent no.

Z ought to be deleted from thearrayofthe parties in the facts and circumstances ofthe case. k Thatthe respondent the debt being a sec its lawful dues and recovery by no# interest.

Furtherj(i within rhe rour l; p".ti* t"r,"rd, [E That the complain\ from its oblisations and tripartite iFi complainant ardhl no.2 beingir non-banking lnanci.L institutjon and ured debt, respondent no 2 is .ntitlcd io rc.olcr n'erc( .r an) dt per 's. lr r. arrl. r r. arrl.' '! 'r' 'l anking financial institunons is ot IiLrnrount re, t]: answe.ing rcspondents h.ve bcen r.trng rer. of the loJn "greenier.t e\..Lred h, rr' '. .l , lawlul recovery oitheirdLrcs..s pcr law. rtbyrvayof presentcomplaint is trying to obvrte as undertak€n by him undcr thc loan rgr..nr.nt rement.

Thus the prayem es so!8ht by thc 'tally misconceived and h.n.e is liable lo be 8.

9. olh lhe parties also filed writlen submissions lo sub5lrnliale lheir €rments made in the pleadings as wellas in the documents and the same ere (aken on record and have been perLrsed. opies of all the relevant doorments h:ve been filed and placed on the cord.

Their authenticity is not in dispute.

Hence, the complaint can be Bc Co de 10. ecided based on these undisputed documents. t. dismissed on thisground alone Allotheravermentsmad6 in ihe romplaint were denreo rn totdl GURUGRAI\/ lurlsdlctlon of the authorlty e authority has complete territorial and subject matter jurisdiction ro thority has complete territorial jurisdidion to deal with the pr.sent Vo\ HARERA .II Subiect-matter ection 11t4)tal of lott G) me prcnotzrdh( Complarnt No.

4l58of 2021 11.

I T E R d '12. iudkate the present complaint for rhe redsons I ven below.

Territorialiu sdiction per notification no.

1/9212017'1TCP dated 14.12.2017 issued by Town d Country Plannlng D3partment Haryana, the jurisdiction of Haryana al Estate Regulatory Authority, curugram shall be enti.e Cu.ugram strict for all purposes.

In the present case, rhe projecr in question is :uated within the planning area ol curugram district.

Therefore, rhis l3 14.

S authority has arding , in view of the provisions of tlle mplete iurisdiction to decide the co RE "M,i#:ii: 2076 p qa\ b,.t,ltLnecanreto".eatoltth oDoth" plo, rbtJo.t t o. t hp o' c'naj be, to tl e olto!*", ot t hp t an nr o -po, a r- dstocioti@ ololbtt@s ot the cohpetent outhatit!, os the case noy section 34-fwcrlons ol the Atthotlty: 344 oI the Acr prcvides to ersurc conplian@ al the obtoa the obtoanons cast rpon the pfonotea, the ollottees ond the al estate agenrs uMlq this Act oid the rules and requldtions node theteundeL mplaint reg rhe ComplaintNo,4l5Sof 2O2t I IHARERA +GllRUm |i*,"il',fi"trrssd,ox olligadons by the promoter teavin8 asjde compensarion which is to be dlcided by the adiudicating officer ifpursued by rhe comptainant at a tarer stl8e, Flrtler, theauthoriryhas no htrch in proceedingwth rhe comptajnt and ro Srfnt a rellef of refund in the presenr ma(er in vjew of rhe iudgemenl ptsed by rhe Hon'ble Ape x Couft in Newtech promotels on.t Devetopel hyote Ltntted ys stotc oJ u,p. ahd on.2o2t-2022 (1) RCR (Ctv ), 317 and rciterated in case oIM/s Sgna,Reoltors prtvote Ltrnlted & other i:)::::;:!::::,:,i:n:,Tffi:.,",,,",:.'2o2.dec,.'cd.n 1,ru.,",*",",.4ffsgad;- rehreneho,b.en I ?tiiyffi{,W##lli,fr r;w i!'fi:rffiffi,Wffiirri, ff f ; ::: :i,ruffi !

W,ffi#t: ltrXZx:W ":; rhe pove6 dntffnedoB oI th. adNdtcoting ofEet und..

Sectan ?; 15. aNl thot |'oul.t be agoinst the nandatE of the Act 2016,,, 16.

Herce in view ofthe authoritative pronouncement ofthe Hon,bje Supreme cou|t in the cases mendoned above, the authority has the iurisdiction to entSrtain a complaint seekinS refund of the amount and interesr on rhe r€irhd amounL E, Flndlng on obrectlons I aised by the respondent Objection rega rding force maleure conditions: E.t nnmDlaintNn 4153of 2021 17. comes to 05.06.2022 fthough rnadvertendy the due date for complet)on oi project and oiier olpossession has been mentjoned as05 t2.2A21).

Flndlngs otr the rcllef sought by tte complalnant 8.1 Dlrec-t the respondent to retund of thG endre amoud i.e.

Rs.

1407,500/. along *lth lnter€st at the rate of 24% recclved from the Smplalnantby the rBpondent ho.

1. qonslderlng $e abovementioned facts, ih€ complainant along with his wife Smt SarabJit Kaur (slnce d.reased) was allotted the subiect unit vide allotment letter dated 25.09.2015 on the basis of application dated PaCe Zl otZq 18 c.n.laintNo. n.laintNo.4158oI2021 HARERA GURUGRA[/ 25108.2015, for a total sale consideration of Rs.

87,433,05/' A buver's agteement was executed between the parties on 05.12.2017 detatUng the teims and condldons ofallotmen! the dimenslons ofthe allotted unit, the pafment schedule and the due clate ofpossession.

As per sald agreemenl th+ due date of handing over of possession was fixed as 05.12.2021 i.€., wihin I years fom tle aate ofexecution otthat documenl lt ls also evident tlft tle atnee naid a sum of Rs.

I4,07,500/- ro the respondent/bu ilder at thf time of booUng as down p?Iqrqnt For the remaining sum of Rs. zdoo,oooT-. , to"n ,,"" t r." tfiffiffi., ,r," .ortgase or the dtloned u,lit r.o. .",pona"nt ro.

2/ .l&tKlmnstituh on l"tndtobutls Housine F/lonce Ltd ").

It is also n".6Jil&,ht.r"ndent no.

2 released a ,,,i,, *". rr,uu,rurr-f$dffiffilqnt pran on the basjs or t'b".tit" "g'e"ment dilor.oSztit #rea\rib\etween the pa ies. lt ol"*" "ro*, *" [6{,"jdflf.|L l,{ l*Fd into berween the i:tHill*:1'ffi.sf :T:lirHr&%;lx;T:,:,'""J or]o"*tion ort'"t ao.uHQfrftf,ryI/"r,",t" a,te oroffer or pqssession, whichevelislarlieE6rsr 7 of Mou.lt sas atso agreed 0".,"*" ,n"," ,n", qff&,Rfifrt t+y .n" ","oun, o; r, a!,sz,+az/- t".,zS%,filv Pt\of thrallotted unirtlowever, in this case before the aue aate roktdlfott lt*J [fGa f ya[r"r or possession or thle alotted unit exptred, the complainint withdrew from the proj€ct vide lefter dated 12.10.2020 written to respondent no.

2 and also flled a clmplaint seelsnC retund of the paid-up amount be6ides lnterest lt is an e'lentuality where provlslon ofrection 18(l) does not apply.

Thus, it a clear cL ofsurrender.

I II Pase 25or29 I ComplarntNo.

4158of 202r I *HARERA #-ciffiM F"'Pr"*'r"r*s"r'?o" Clause 7 of the BBA dated 0:,,12.2017 is relevanr tor the purposes of the laner concerned which provides for forfeiture ot earnest money on the flllure ofthe allottee to pay the amount due along with rnterest wrthin 50 a[ys ana in that eventuality, the unit could h it could have been cancelled.

The pfyments against the allotted unit was made by respondent no. zllndiobulls Houstns Ftno,.e Lld') under the subvenrion paymenr plan afa a sum of Rs.

7,70.138/. has already been paid by the r+spondenr^uilder to the financid institurion rill October 2020.

The ainount recervea againstth""tlm&fu.43,73,762l'. out or which an a[nount equivatent to ns. t +.07,1$ffiffipatd by ttre comptainant-ationee r{om rr own "-.-",f.*#Iful&s paid by the Rnanciar i sriturion. rhoush th?fuir61q4gbrn6( U{hk untt was cancelted ofr account of *"-ffi{"t o? m-q[l! yai e responaent no. r. ,1,""e*"."nnr,ffi {":ffid;{"hll*+rd ro respond€n, no 3 by respondent no.?rtltJveler{it has,rbeen Joirgtrt on re(ord thar rhe Jroaee rnrormea,r'" \$$[${zggn"rs dated r 2. r 0 20 20 (rnnexure R4) and 28.12.2C(I$frEBIP requestins r to cancel the !floarrite acreement and to rhtft#-a-ount advanced apai.sr rhe "rr",,"a *ilno,,*"f[A'R fiF*l+ in trrose r.ners trat dopr mvutct nxy FaaTHER AMO\)++I ?ATH E BU&DER and rhe r ortee wourd not be .""r.[af+$.,!ra; Sf,a,[V t,.,"g rhe course or +oceedinSs dated 09.02.2023, it vras broughton record byrhecouns€lfor +spondent/builder that no cancellation has been initiated aga,nst the sfbject unit and ifthe complainantwas stillinteresied in the unlt. rl is re/dy tf considerthe same sublect to payment ofoutstandtng dues.

19. espite aforesaid circumstances, the complainant vide proceedings of ev€n te opted to withdraw from rhe project and further .equested ior 20.

HARERA GURUGRAI/ justrnent ofaccount with tl,e financiai institurion. .l.hus, keeping in view th factual position detailed above,the allotteewjshes to withdrawfrom fie p ject before the due date of conpteiion of the project.

So, in view of uest made vide tetters date d 12.10.2020 &2a.12.2O20, by the allonee to pondentno.2, rhe respondent/buitdershould have retunded the amount d by the complainanr after necessary deducrions as per bujtder buyer eemenl and also shc.. also shc..rtd have return€d the amount of toan received insttheattotteduniftorhefinancialinst,tute.Butthesamehasnorbeen e, which means that rhe respolg!$;blirderhas been utrlizj.g the funds e attottee as we, as the roan W".";,";";;;;,:;";;; 27- ** ^* 1' **"li{ffiT,:\ dated 0s 12 2017 a,d 'T **' l"::* T*ti*11!9.9 P'++ "-reiture orearnesr ag Ha eybythe builder] Regutarions.

20 j 8, whjctijs provides as under- t.t a --*-*'' "s AMouN.r oF 9/.4!tgsa,yo!.,]| [li i r.*t xeno. o pnot to the Rtut Est te .{R.guladors ond Devetopncnt) Act.

2a 16 i;"ff :;::,:,:::.i:-:";;';':fl.:;"i:i:,:;::i,t:i:;::;::.:::,:::: tne tudgc.nenE ol tlon ble NononolConsLnet Dirputa Red.e$ot Codns,on oid.the H@ bb Supre@ Co-un oLlntna, he aulhonry B oJ the vAw thot the tvrc ure o_hount al_the etre$ hoaE shal not etAiaoQ hon t a% oJ the :::d:roion on@il ot the @l estot ie. apolh?nuptot/buttdtns ot.h. cose noy be n ot coses ahte Lhe concettotbn ot the lat)unt/ptot ts nadp b, ne 0 _u- dil h a @ilotzrct nd@ t &e bry; h@nds ro wnhdruv troh t he e:^?:::-:r:d:,n::!*nn:onton,ns ony ftau\e con,tury ro he ato.e,oid resutotions shall be votd and n* taais o, A" buy"," 22.

The respondent/buitder is directed to refund rhe paid up amount after the unit being earnest 1oyo of the basic sale consideration of per regularion Haryana Real Estate ReSularory Authorjty am fForfeirure ofe-amest money by the builder) Regutarions, 2018 90 days toorn rhe date ;i this orrler atong with an inr€rest @ 10.60010 deducting Gur with CofrDlaintNo.4154612021 23. rther,although therehasbeen provision ot pre- EM I inrerest to be paid by p. ri I HARERA GURUGRAM on the refundable amount, from the date of surrender i.e..

12.10.2020 the date ofrealizatlon ofpaymenL Out ofamountso assessed, amount of ancer/banker shall be retumed first.

G.

24. thebuilderbut nothing relevant in this regard such as amount paid fo. p.e- EMIbythe respondent-builder, etc. hasbeen broughr on reco.d by eitherof theparties.

Therefo. .

Therefo.e, inthese circumstances, it is tu(her directed that our oiamount so assessed, the amount paid bythe bank/payec be retLrnded in the account oibank and the l 3lance amounr along (,ith interest, itany be refunded to the complaina. r th e reafter.

Dlrections of the authority Hence, the authority hereby passes this orde. and issues rhe fo owing directjons under section 37 olthe Act to ensure compliance of obligations cast upon the promoteras per rhe tunction enrrusted to the authorirv under sect,on 34(0; i.

The respondent/promoter isdiitaiid ro refund the paid-up amount of Rs.14,07,500/, to coriplainant-allottee after deducnng t0% as earnesr money of, the basic sale consideration of Rs.

71,58,750/. with tnrerest at the prescribed rate i.e., 10.60% on such bala.ce amounr. f.om the date ofsurrender i.e., 12.10.2020 rillthe date otrealizarion ii.

The respondent-builder is furrher direcred rhat out of amount so assessed, the amount outstanding rowards the bank/payec i.e. respondent no.

2 be refunded in the accounr of bank and the bntance amount along with interest be refunded to thecomptainant th.reafrer 25.

26.

The respondent-builder is furth€r entitled ro dedud amount paid by jt towards Pre-EMI's as per Tripartite agreement dated 01.05.2010.

A period of90 days is given to the respondent-builder to compty with thedirections Siven in this orderand faitingwhich legat consequences wouldfollow mplaint stands disposFd of. e be consigned to registry.

HARERA GURUGRAIV Haryana Re Compla'nrNo 4t58ot Z02r iay Kumar coyal) Member L-. / fViir!

Kurnirc,,r; 9, A \