CHIRAG SHARMA AND ANR vs VATIKA LTD

$THARERA S-eunuonqM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM <l - -r - D-"-^-dcnr I j Respondeil ffi lc\t6t82t2o221 *, srurma I v/s I I v'r'\ "Lr ''u ritr," e .' I rd.Jl'apirr & ' Ho' ns l'n 'n e L'd DateofDecislor 2209.2023 VATIKALIIUITED U"-tiraa"l c;ptaii,"ra-T @ b4r1l2A22 r,r.,ir.aen',,n" I Iis R.l v''r' "'n'"' - I lR'2 PfumJrr'JPo& CORAM: -l EIE ARANCE: LcomprarnanlG) E olh'il"l9'o'1,',-,-rr-, EE-rsE-teqEEE4"'' I ResPoDdcDt ORDER 1. 'Ihis order shall dispose of all the 4 compiajnts titled as above filed before the authority under section 31 of the Real Estate {Regulation and Development) Act,2016 lhereinafter rer"red as the Act'] read withrule 28 ofthe Harvana RealEstate IRegulation and Development] Rules, 2017 lhereinafter referred as the rules') for violation of section 11 t4) (a) ofthe Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligatioDs' responsibilitres ComplaintNo 62 58 of 2022 & 3 otlE' *IAREIA S- cURUGRAI\,'I and iunctions to the ailottees as per ihe agreement for sale executed inter se betlveen Parties' 2.

The core issues emanating lrom them are similar in nature and the complainantls) in th€ above referred matters are allottees of the projecr namely TurDing Point" {Group HousinB Colo'v)' Sector ssB' curugram (Haryana) being developed bv the same respondent promoter i.e., Vatika Ltd' The terms and conditions of the builder buyer's agreements fulcrum of $e issue involved in all these cases pertains to failure on ihe part of the promoter to deliver tinrely possession of th€ units in question' seeking refund with interest and 3.'lhe details of the complaints' reply to status' unit no" date of allotment, date olagreemeDt, totalsale consi'ler:tion' amount paid up & relief sought are glven in rle table below: pUo*i.eCao.Yt ,.1 __l ,I e/il,/[' lk*d l;9tHl, li;.'Jil:l "*,*dlls.ihd,l-q!

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I I I ; - T*,ou*t Complaint No. plaint No.

6258 ot2022 &3 other *HA&ENA (S- GURUGRAI\/ -I --1- -1- - I l?*{i'.:,,, 1.,,,,,,. l,', 1,, 1n,',,.,, lo.*,*,,,' lrtt ' T.- Ted',,o" Tidd I 's':' l* I r'rxr lru'*ry'' l-* I I lq''l .- I |tu, |.'.Lod"& l.d v'E !!!+ I ::"i:"" ti,-,Bo :r"--l I I I I l 1"", IsI, l ::: : a rr*ltove_me,,tionea c"mplainls wer€ Irled under sedion 3l of the Act read with rule 28 of the rules by the complainant against the promoter M/s Vatika Limited on account oi violation of the builder buyer's agreement executed beMeen the parties inter se in respect of said units for not handing over thepossession by the due date which is an obligation on the part olthe promoter under section 11t41(al of the Act ibld apart from contractual obligaiions ln some of the complaints, issues other than refund in additionor independent issues have been raisedand consequential reliefshave been sought 5. lt has been decided to treat the said compLaints as an application for non-compliance of statutory obligations on the part ol th' pronroter/ responde.t in terms of section 34(f) of the Act wbich mandatcs the authority to ensure compliance of th€ obligations cast upon the promoters, the alloBees dnd the real estate agents under the Act' dre rules and the regulations madethereunder' 6.

The facts oi all the complaints flled bv the complainant/allottee are also similar.

However, out of the above'mentioned cases' the particulars of lead cases b eaing cRl625Al2OZ2' ri edasCobind Mtttal.

Sunita Mittal and Bharat Bhusan versls Vatika Ltd ate being taken into consideration ior determrning the rights of the A. unitand proiect related details pase 3 0rz6 Complaint No.6258 of2022 & 3 other complaints *HARERA $-cunironnr,t 7.

The paticulars of unit details, sale consideration' the amount paid by the complainant, date ofproposed handing over the possessioD delay p€rlod, lf any, have been detailed ln the followlng tabular form: as Gobind Mittal, Sunita Mittal and Bharat Ltd fa,A;.

Ltd fa,A;. f - - H;d; - r De'criPtion ffi:i:":-*" t-1@*._".-"*;---]*fi ffi ili.ffi *," 3.

LProiectarea I l. otcr ttcense no ti;-f 2oI3 dated 26.10 2013 talid upro q Name ollicelsce .trF!a+.*--*" -l cv625a/2o22, titled Bhusan versus Vatika [i.

I tl ature of the Proiect litotat sate consiaeration te,*,. p",,r oY ,r" Gibiaw,aretrousrng evt Ltd o o JPasc 24 otcomPlain0 '1h'r\ 6 RCRA R-Er"r 'rcd/;;i -n"gr"r"' 'a ''r'r ' , u t l-:l-1-t] ",|'l,u . :fij;?" -""- Ill,il,;f,#[:;;r**"' . sqm' varLu uPiv I " -''"- ' , ,nu '''' -lo5 lowq \'t/"i Lr'd I lJnitarea admeasu.inS ?a H#iiiill*tto l"sr""m*t I l.( lu.

I Due date or PosresaPn t_ lr4. complainant IiE]oopationcenifi cate 16 1 0ft94!-p9:'l!!l9l -Fr.ts ofthe comPlaint 1s.03.2025 tTaken i.om Previous cases orsme -Trl--ll"fpn"Ed - 10.09.2018 lainlL -l Rs.86,95,590/' I Rs.39,07,360/- I lpase 16orcomDl.,ntl I Not obtained B, The compla ina nt submrtted rs trnder: Conplaint No.

62 58 oI2022 &3 oth€r HARERA GUl?UGRAI\,I 8.'lhat, in pursuant to the elaborate advertisements' assurances' representations and promises made by respondent no l in the brochure circulated by them about the timely completion of a premium project with impeccable lacilities and believing the same to be correct and true, our clients considered booking a Lr nit i'e' H SC _0 Z6_ !vest End 8_105 in the project"Turning Poinf'at the respondent Sector 888 Harsaru, Gurgaon, Haryana with a total consideration based on the carpet area is ol Rs.

86,9 5,590/-' 9. 'lhat thereafter the Builder Buyer Agreement dated 10'09'2018 was exccuted between both the parties, The Complainatrts has paid total amount of Rs.

3 8,77,704l- and the total loan 'mount disbursed bv the India Bulls Housing Fhance Limited is Rs 29'08'278/' That the total Loan Amount Sanctioned by India Bulls Housing Finance Limited was ofRs.54,00,000/' That, in pursuantto the Builder'Buyer Agrecment (llBAl dated 10.09. ted 10.09.2018, executed b€tween the parties wh ich included all the details of the proiect such as amenities promised' site plan' paymeDt schedule, Date ofcompletion etc'vide clause 5 ofthe Builder Buyer Agreement, the Respon'lent assured that the time is of the essence.

Moreover, it wa$ also assured and represented that ifdue to any reason the constructlon ofthe booked unitgets delaved' then the developer i.e.

Respondent, undertakes to pay the PRE-EMls onl)'to the buyer' It is also pertinent to mention that payment of the PRE_ Elvllt shall continue till the application for Occupancy Certiflcate including the actual possession, has been applied forbooked Flat/Unit is issued to the buyer.

10. 'that it is Pertinentto Form lo book a Unit nole that at the time of signing the Application in Respondent Project, the Complainants were *HABIBA EP- GURUGRA[,,1 11. informed that the possession of the Unit will be handed over in the month of September'2021, which is almost from 3 years from the date of signing the Builder_Buyer Agreement However' the Respondent never gave anything in writing aboutthe possession date in any of the docum.nis executed between Rcspondent and Complainants, despite several times enquircd by the Complainants That, Complainants anticipated and believed that the Respondent would commence the construclion oi proiect immediately aftcr the .li\bursement of first ffanche of loan amount on 1210'201u However, till date, Respondent has failcd to commence the .onstruction oiproiect. whln the Complainants recendy visited the site to check on the progress of the construction' they were completely shocked and appalled to see that no constructioD whatsoever had taken place and no construction work was even ongoing at the site.

Based on the construction work at Proiect site it appears tbat the Project has b€en miserably delaved and it irppears thatsite h:s been abandoned by rhe Respondent' 'l'hat the Complainants contacted the Respondent on several ... everal ...asions and was regularly in touch with the Respondent''lhe Respondent was Dever able to give satislactory response to the Conrplainant regarding the status of the conshuction and rental paymeflt as promised which was due since April 2020' It was utter shock for the Complainants that the Respondent has on its own' extended the date of th€ completion to the year 2026_27' which is absurd, arbitrary and unjust i' nature' Furthermo'e' due to the :hsurd terms and conditions imposed by the Respondent and lhrs Complaint No.6258 of2022 & 3 other LlAB GURU u RA E G complarnt No.6258 of2022 & 3 other RA[/ extension of deadline has rendered the Builder Buver Agrecnrent executed by and amongst the Complaina'ts and Respondent' nu ll and void.

That it is stated that the complainant wbo had taken a Loan of Rs 54,00,000/- from India Bulls Housing Finan'e Limited decided to loreclose the same, owing to the tact that thern was no construction at tbe project tite and the builderwas Dotgiving anv justification for delay in construction ltispertinent to m€ntionthatthe Complainant has also paid the Sum oi Rs' 8' 12'215 as PRI EMls which intact lvas liabilitY of the ResPoDdent 12. 'lhat thereafter in September 2022' Complainants decided to withdraw from the proiect as the RespondeDt failed to kcep thc constrltction ofthe proiect as per the const'uction plan and therc is no sign and hope ol Proiect getting completed and readv tor the possession till the next 4years as came out while inieractingwrth the "*ployu"" of Respondent lt is also important to notc that Respondent acknowl€dged theun-paid rentaland was readv pav the same along with the refundable amount The Respondent canre up with a pla. for refund to the ComplainaDts in which all the liabilities were forced on the Complainants as if they have committed any fault as per the Agre€ment lt is pertinent to note that it is Respondent N o I who i. o I who i. the first instance failed to perform the contraclual oblisations under the Builder BuyerAgreement and flrlfillthe ternrs and conditlons.

Conplainants vide E mails disagreed with the Relo nd amount as it was one sided and not as per the Builder Buycr Agreement.

That as per rhe Clause 7'5 of the Asreement' ihe Respondent is bound to Compensatethe Complainants on lailure on the part oiRespon'lent, in accordance with the terms and conditions HARERA Complarnr No.

6258 of 2022 & 3 oth€!

GURUGRAI\,I 'rhat. the Complainant was further aghastand shocked when it came to its notice $at Respondent & Respondenl No 2 have illegally and intentionallv colluded in an illegal act to disburse and collect buge amount ot money lrom rhe Complarnanr evPn $ nPn lhe ' onstrrcl'or of proiect has not started' The statement ol account issued bv nespondent are misleadingand intentiollallv obfuscatine the facts' 13.'lhat, by the act and conduct ot the Respondent ' it's been unambiguously lucid that the Respondent from the verv beginning lua ^rtufia" itt"ntlon to cheat and defraud the Complainants' That' even at the time ot the eaecution ot'tlle Builder_Buyer Agreement the Respondent had represented to the Complainant that thev are in poss€ssion of the necessary approvals from the DTCP Haryana to commence wrth the corstruction work of the Residential Proiect' However, tiildateno 'onstructionwhatsoever has taken place at the site. only, some excavationwork hasbeen done ai the site and since then thesite & fte project have be€n abandoned bv the Respondent ' It is also submittedtha!itaPpearsto be thatthe Respofldent does not 1,"* *.""rrty,ppro*r" fiom the DTCP lor the present project and this amounts to fraud being committed towards the ComplainrDi 14. lhat the Hon'ble Authority vide its order 'lated 12 08 2022' in the case titled as "Avush Vardhan Aggarwal v Vatika Limited' ordered an enquiry into the proiect and appointed an enquirv oficer 10 determine the status of the proiect' The enq t' The enquiry officer in his preliminary report has submitted that the project has been abandoned and there is no construction whatsoever at the project Pats! a o126 *HABERA db- eunuGneu site.

That, the Respondents are not only guilty of deficiency in services by not fulfillinC their promises in due course oftheir services rcwards their helpless consumers but also for mental harassment to the Complainants by nisguiding and misrepresentation of facts whicb amounts to lraudulent and unfair trade Practices' 15. lhat the Respondent is guilty of deficiency in service within the purview of provisio's oi the Real Estate [Regulation and Developmentl Act' 2016 (CenrralAct 16 of2016) and the provisions ol Haryana Real Estate [Regulation and Development] Ruies' 2017' 'lhe Complainanthas suffered on account of deticiency in service by the Respondent and as such the Respondent is fully liable to cure the deficiency as per the provisions of the Real Estate IRegulation and Development) AcL 2016 (CentralAct 16 o12016) and the provisions ofHaryaDa Real Estate (Regulation and D€veloPment) Rules' 2017' r{r'lhatrheComplainantshereinareconslraineddndlelt$rtnno'prr'n butto cancel the allotment of the said Unit ie' 105admeasurrng {l99.22Sq.Ft.,atHSG 026_WestEnd_sinvatikalndiaNext2'Sector {188, G u rugram Further, the comPlainanls ar€ seeking and entitled to full refund ofthe amount includingbutno!limited to allthe payments made i.lieu ofthe said Ltnit/flat' as per the terms and conditions oI the Builder'buyer agreement executed by the Respondent and even otherwise are eDtitled to the same' Furfter' the Complainants herein reserve their right(sl ro add/supplement/amend/chanee/alter 3n) submissio.ts) madeherein in the complaint and further' rescNe d1e right to produce additional docu ment(sl or submissio ns as an d whe n necessary or directed by this Hon'ble Authority That the present Complaint sets outthe various deficiencies in services' unfan nnd/or {THARERA $- crn[oneu restrictive trad ctive trade practices adopted by the Respondent The modus operandi adopted by the Respondent' from the Respondent s point ol view may be unique and innovative but fronr the Allottee's ponrt of view,thestrategiesusedtoachieveitsobiective'invariablybearsthe ir.efutable stamp of iDrpu'ity and total lack of accountabilitv and lransparency, as well as breach of contract and duping of the Allottees by raising illegal demands without giving any heed to ihc construction linked payment plan attached to the Builder Buver's Agreement and Tri_Pailite Agreement The Complainant aftcr losing all the bope f.om the Respondents companv' after bein8 mentally tortured and also losing considerable amount' is constrained to approach this Hon'ble Authority for redressalofhis srievance' Ihat' the Conrplainant furlher declares that the nratter regarding which this complainthas been made is not pendingbefore any court of law or any otberauthorily orany otherAuthority C.

Reliefsought by the complainant: 17. 'lhe complainant has sought foUowing reliefG): (il Direct the respondent to refund the total amouDt paid bv the comPlainant with interest at the prescribed rate of interest from the daie ofPaYment. (iil Direct the respondent to pav rental amount till the disposal of the present comPlair't 18.

0n the date of bearing' the authority explained to the respondent/promoter about the contraventions as alleged to have been committed in relation to section 11(41 (al of the Act to plead guilty or notto Plead SuiltY' Complarnt No.6258of2022&3 other I Compla,nts '.] *HARERA S- eunuonetvt Complaint No.6258 oi2022 & 3 other D.

Reply by the respondent The respondenthas contested the complairlton the lollowing grounds: lg.

Ihat the presentcomplaintis an abuseoithe process olthis authority and is not maintainable. ntainable.

The complainant is trying to supprcss material lacts relevant to the nrafter' They are raisi'g false misleading, trivolous, base)ess and unsubstantiated allegations against it with malicious 'ntent and sole purpose of extracting unlawful gains from it' 20. liis further provided thatthe complainant made severalvisits to the olfice of respondent to know whereabouts of the project 1'urning Poinf'.

Thus, the complainant enquired about the veracity of the proiect and was satisfied with every approval deemed necessary tor the purpose ofthe alevelopment ofthe subject proiect ofrespondent' He had imnense and deep interest in the project develop€d by it and booked a unit.

After nuch pursuance on 1009'2018' a buver's agreementwas executed b€rween the parti's in the said pro)ect lor a total sale consideration of Rs' 86'95'590/ 21. lt is submitte.l that sinqe starting the respondent was committed to complete the pro,ect and has alwavs tried the level best to adhere with the ternrs as provided ln theagreement and complete the prolccl .s Per the milestoDe However' the same was obstructed eithe' due to non_payment of the instalment by various allottee(s) includingthe complainants and due to hindrances in between which were purelv beyond the control of the respondent' 22. lt is submitt€d that the complaint is p'emature' There is no cause of action arising in favour of the complainants' As per claLrse 5 oi the *HARERA *,cunrcnnv agreement the possessio n oftheunit in the question was proposed to be completed as perthe date provided at the time ofthe registration of the project. lt is to note, that as per the registration csrtilicatc the project in question is proposed to be completed withrn 90 rnonths tiom the date ol registration ie, 15.09.2017' It is submitted that present project is a registered proj€ct under RDRA as per which the construction of the phase of the project should be completed by 15 03.2025.

Therefore, the present compla'nt is prenlature 23. lature 23.'lhat the complainants are trying to mislead the Authoritv by concealing facts which are detrimental to this conrplaint at hand' However, it is submitted thattheconcemed project is registered $'ith HRERA, Gurugram and tbeAuthority has granred registration no' 21:l of 2017: daied 15.09.2017. ln accordance with the registration certificate granted by the Authoriry, the due date ofcompletion ofthe project should be on or before 15'03 2025, and the sanre wns dulv communicated to the complainant.

As per clause 5 of (he agrccnrcnL the possession of the unit in the question was proposed to be completed as per the date provided at the time ofthe re8istration ol the project lt is to note, that as per the registration certificate the proiect in question is proposed to be completed within 90 rnonths from the date of registration i.e., 15.09'2017' lherefore' the dtre dat' ofthe possession olthe unit in question comes out to be 15 03'2025 24. 'lherefore, there arises no occasion of delaved possession and drus this cortplaint at hand is devoid ofany cause ofaction The onlyvalid rnference that can be drawn out of the futile nttempt ot the complainant by filing thjs complaint is that the complainants is an investor and seeks speculative gains' With huge slunrp in the Real *HARERA S-crnuennl,r Estate sector the project and claim complaint is liable 25. lt is submitted that present proiectis a registered project under RERA as per which the construction olthe phase ol the project should be completed by 1503.2015Therefore, the compliant is premature and is pdt ay'ocie liable to bedismissed 26.

It is submitted thatthe complaint filed by complainant is on baseless aDd absurd ground.lt is pertinentto note, that in the agreement' the respondent had inter alia represented that the perlormance bv !he company olits obLigationt underthe agreenentwas contingent upon approvalofthe unitPlans ofthesaid complex by the DTCP II'rryanr' Chandigarh and ahy subsequent amendment jn the unitplan e unitplans ds rnay be made from time to time bv the company & approved bv the TCP' Haryana, Chandigarh from time to lime' 27. lhat the respondent is committed to complete thc developnrenl ol the project and deliver theunitsto the allottees as per the terBs and conditions ofthe buvert agreem€nt.lt is pertinent to apprise ofthe Authority that the development work oithe said project was slighdv decelerated due to the reasons beyondthe contrololthe resPondcnt due to the impact of Cood and Services Act, 2017 which came into force aiter the effect oidemonetization in lasi quarter of 2016 which strctched its adverse eftect in various indust'ial' construction' business area.

Even in the vear 2019 the respondent also had to undergo huge obstacle due to effect of demonetization and implenrentation oithe CST. complainant now seeks to exit the conc€rned the amount invested by him.

Therefore, this to be dismissed at the very outset *HARERA $-eLrnuennu 28. ln past few years the construction activities have also beeD hit by repeated bans by the courts/tribunals/Authorities to curb pollution in DelhrNCR region tn the recent past the Environmental Pollution IPrevention and Control) Authoritv, NCR (EPCA) vide its notification bearins no.

EPCA_R/2019/L_49 dated 25'10 2019 btrnned construction activities in NCR during night hours frorn 26'10 2019 to 30.10.2019 which was later on converted into complete ban kom 01.11.2019 to 05.11.2019 by EPCA v'de its notiflcation bearing no R/2019/L-s3 dated 01.11.2019, 29.

Ihe hoD'ble Supreme Court oflndia vide rts order dated 0411'2019 passed iD writ petitron bearing no,13029/1985 titled as "MC Mehta vs Union ol lndio" complete)y banned all 'onstruction activrties nr Delhi NCR which restriction was partly modified vide order date'l 09.12.2019 and was completelv lifted bv the Hon'ble Supreme Court vide its o. ide its o.der dated 1t'02'2020 Those bans forced the migratrt labour to relurn to therr nlive towns/stdr"\/!il'g' r cr" 'l'nP I acute shortage ollabour in the NCR region' Due to the snid shortnSe the construction acnvities could not resume at full th rottle even after the lifting ofban bYthe hPex Court' 30.

Even beiore the normalcy could resume' the world was hit by the covid_19 pandemic' Therefore' it is saf€ly concluded that the said delay in the seamless execution oi the Project was due to genunre lorce majeure circumsiances and the said period would notbe added i!hile comPuting tbe delaY 3l. lhat the currentcovid_lg pandemic resulted in serious challeDges to th€ project with no available labour' conkactors etc' for th' construction of the proiect The Ministry of Home Affairs' G0l vLd' HARERA GURUGRAI/ notification dated March 24,2020 bea.ing no.

40-3l2020-DM I(Al recognised that Indla was threatened with the spread of Covid-19 pandemic and ordered a completed lockdown in the entire country ibr an initial period ol21 days which started on March 2s,2020' Bv virtue of various subsequent notifl.ations, the I'linistry of Home Affairs, GOI iurther ext.nded the lockdown from tinre to timc and till date, the same continued in some or the other form to curb the pandemic.

Various State Governments, including the governmen! of llaryana have also enforced various strict rneasurcs to prevcnt Lhc pandemic including rnrposing curfew, lockdown, stoPping all commercial activities, stoppjng all construction activities' Pursuant to the,ssuance ofadvisorybythe GOI vide office memorandunr dated May 13, 2020 regardlng extension of regist"tions of real estrtc projects under the provisions of tbe RERA Act, 2016 due to "Force Majeure", the Authority has also extended the registration and completion date by 6 months for all real estate projects whos' rcgistration or complet'on date expired 3nd or was supposed to cxpire on or alter March 25,2020. h 25,2020.It is io be noted thatvarioLrs state Governments, includi[g the Governnent of Haryana imposed st'ict measures to preveDt the pandemic including imposing curfet!' lockdown,stoppingall commercial andconstrtr'tlon activities' 32. lhat despite, after above stated measurestaken and obstructions the nation was yet agaiD hit by the second wave of covid'19 pandemi' and gain all the activities in the real estate sector n'ere tbrced to stop 1t is pertinent to mention, tha! considering the wide spread ofcovkl 19, firstly night curfew was imposed follolved bv weekend curiiw and then complete curfew.

The period during from 12'04'2021 to ComplaintNo.

6258 of 2022 & 3 oth€. nled and Place All other averments mnde in the complaintwere Copies of all the relevant documents have been record.

Their authenticity is not in dispute Henc bc decided on the basis of those undisput submissions [wr,tten) made bv the parties' lt. *HARERA #- eLnuenervt 24.07.2021. each and every activity jDcluding the construction activities were banned in the state 33.

It is a matter of fac! that the complainant has nrerely paid a partial amount of money a.d still a substantial amount towards the agreed sale consideration is due to him lnspite of being aware that the payment was to be rnade as per the stage wise development the complainant has only paid an amount ofRs 39'07'360/ ' 34. 'lhat it is evident tbat the entire case ol the compl'tinant rs nothing bui a web of lies, false and frivolous allegations made against ihe respondent.TbecomplainanthasnotapprotrchedtheAuthoritvwith clean hands.

I{ence, the present complaint deserves to be dismissed with hea!)r costs lt is brought to the knowledge of th e Auth oritv thal the complainantis guilty ofplac'nguntrue lacts and is attempting to hide his true intentions.

35.

36.

Iurisdiction of the authorlty The authority observes that it has territorial as well as subject matter jurisdiction to adiudicatethe pres€nt complaint forthe reasons siven below' E. below' E.

I Territorlal iurisdlction 37.

As per notiflcation no |/92/2017'1TCP t'^ted l4'12 2017 issued by Town and Country Planning Department' th€ iurisdiction oi Real Estate Regulatory Authority, Gurugram shall be entire Curugram Page 16 of26 *HARERA #- cunuc-netr,t District for all purpose with offices situated in Gurugram ln th' present case, the proiect in question is situated within the planning area ol Gurugram District' Therefore' the authority has complete territorial jurisdiction to dealwith the present complaint' E.ll sublect matter iurisdlction F.

Findingsonthe obiectlons rais€d bythe respond€nt t.l Obi€ction regarding entitlement ot r€fund on ground of complainants being inv€stors' 40.

The respondent has taken astandthatthe complainantis aninvestor and not consumer' therelore' is not entitled to the protection of the Pag!

17 ol26 38. section 11(4)[a) oithe Act,2016 Provides that the promoter shall be responsible to the allottee as per agreement for sale Sect'on 11(41(a) is reproduced a$ hereunder: sectionll(4)(o) Bp te\Danrbt. lo, atl ubtgnla$ espoaebtltt a ord rrntt'n' ')ii'"i"* ,: ",.:':ii ,i,n,: q", o, ne ;uk' and , ' auouon' aolt' ii:'i'|,')).,i ", ,i a,kr.u*"s per the oar"ened to ot t"a ', )..'^", " q a,,'*' o' the'oeno\ be tt t a"\tt!"' :;.i,' ;;;;";;,, ;";;-,i",. ", "l,d.rs.. o. he, a\e n"! b? t o, h" Zt;;;;:';;:he.o;^o.,'eo: @ tt)e ono 'otion o{attatt'e' at $" ' .nnetent outhoriq ostheLosenor be- <.tian 3 4-Fudctions ol the Authority: ;:;;;;i;;;",ie: rc en'ure tuiPtio''' ot the ob'sot "1 .'i '.i., i,,:","" .'n""tto ?e' ond tte tP-tatot' !o.at' ',i")"",',,,.)i,[,i ,n" *i., .d , , qutouar rode t r' 'Pt"d- 39.

So, in view of lhe provisions oithe A't quoted above' the authority has complete iurisdiction to decid€ the complaint regarding non_ compliance of obligations bv the p'omoter leaving aside comPensation which is to be decided by the adiudicating ofticer il pursuedbythe complainant ata later stage' conplaintNo 6258 o12022 &3 other HARERA GURU ARERA GURUGRA[,4 Act and to file the complaint under seciion 31 of the Act lhe respondent also submitted that the preamble of the Act states that the Act is enacted to protect the interestofconsLimer ofthe realestaie se.tor- The authoritv observes that the respondent is correct in stat,ng that the Act is enacted to protect the interest ofconsumers ol the real estate sector, lt is settle'l principle of interpretation that preamble is an introduction of a statute and states main aims & objects of enacting a statute but at the same time' preamble cannot be used to defeat the enacting provisions of the Act' Iiurthermorc' it is pertinent to note that aoy aggrleved person can file a conlplaint against the promoter if it contravenes or violates any provisions of theActorrulesorregulationsmadethereunder' Upon careful perus'1 olallthe terms and conditions ofthe apartment buyels agreement' it is revealed thatthe complaiDantis a buyerand paid to thepromoter towa.ds Purchase of an apartment in its project At this stage' it is important to stress upon the definitionoiterm 'llottee under the Act' the same is reproduced belowfor readv reference: ,,tt n -tc. ir,"tot,aaLoa."ate.otepoRtTeo+tn Det -ar '" ,"*)"-.'tii ",*'.*totbn dins o'tteca- ao\ a"'tta. 'i."' 1a.iii 'ia L haher a' fi"enot't ot t\d''\'td) ot ", * i-.iii,' ',; t, '' p'oaotPt ' in nrL't 'tt' pPt "r i;; .:;;;;;;;;;i, "' c" ' . ,p so d otlo,n" L " .'o" ot l,)i', i iii.^* u, a"^ aot n tud" a pa aF a r\aa '-iin',p.,"'*-n' 41. ln vicw of above-mentioned definition of "allottee ' as lvell as all the terms and conditions of the apartment buyer's ngreenrent exscutcd between promoter and complainant' it is crvstal clear that the complarnant is allottee(sl as the subject unir was allotted to him bv the promoter.

The concept oi investor is not defiDed or refcrred !n the Act.

As per the definition given under se'tion 2 olthe Act' thcre Pa8. thcre Pa8.la oI26 lfrHARERA S-eunuonnM will be "promoter" and "allottee" and there cannot be a parry having a status of 'inv€stor'' The Maharashtra Real tittate Appellate 'lribunal in its order dated 29'01'2019 1n appeal no' 0006000000010557 titled as M/s Srushti Songam Developers PvL Ltd. vs.

So.napriva Ledsing (P) LTS And Anr-hasalso held thal the concept of investor is not defined or referred in the Aci Thus' the coniention olpromoter that tbe alloltee being rnvestor is not entitled to protection olthis Act also stands reject'd F.ll obiection ralscd bvthe respoDdeDt regardins for'c mricurc cotrdition: 42.

It is contended on behalf of the respondent/builder that due to various circumstances beyond its control' it could not speed up the construction of the proiect' resulting in its delay such as various orde.s passed by NGl hon'ble Supreme court introduction of ncw hiehway benrg NH'352W' transferring the land acquired for it bv IIUDA to GMDA, then handing over to NHAI' re-routing of, high tension lines passing through the land oftbe project' impact on the project due to policy of NIPL and TOD issued on 09'02 2016 nnd outbreak olcovid_19 etc' But allthe pleas advanced in this regard are devo id of merit The passing of various ord€ rs to control pollution r n the NCR region during the month of November is an annual i'can're and the respondent should have taken the sanre into considcratiof before fixing the due date' Secondlv' the various orders passed bv other authorities were not all ofa sudden"lhirdlv' due to covid'19 there may be a delaybut the same has been set off by the govt' as lvell as authority while granting extension in registratioD oflhe proiects the vali.litv ol which expired lrom M'rch 2020 for a period of 6 Comptaint No.6258 of2022 &3 other *HARERA S-cunuemu 43.

Ihe due date ol possession in the present case as per clause 7 1 is 15.03. is 15.03.2025, So, anv situation or circumstances which could have an effect on the due date should havebelore fixing a due date Moreover' the circumstances detailed earlier did not arise atalland could have been laken into account while complerrng Ihe proie(r and benerrt o' indefinite Period in this regard canDot be g'ven to the respondent/builder.

G.

Flndings onthe reliefsought by th€ complalnant' Relief soughi by the complainant: The complainant has so!8ht Lh' tbllowins relief(s): total amount paid by the complainant ofinterest from the datc of paynrent license No.

91 of 2013 dated 26.10 2013 issued bv a residential group housing colony by the name of was to be developed by the respondent/buildcr over land admeasuring 18.80 acres situated in Sedor 88 B' Gurugrrm 'lhis proiect was later on registered vide registration certific'rte No 213 of 2017 with the authority After its launch by the respondent/builder, units in the same were allotted to different persons on vide dates and tbat too for various sale considerations' 'lhough, the due datc for complet'on of the proiect and olfer o1 possession of the auotted units was mentioned as validitv of regjstration certificate being 1503.2025 but after expirv of morc than 4 years lrom the booking, there is no phvslcal work prosress at thesite except for some digging work Even the promoter failed to file quarterlyprogressreportsgivingthestatusof proiectrequired under se.tio.

11o1Act,2016.

So, keeping in view allthese iacts' some ofthe i. llirectthe respondentto refuud !he lrith inierest at the prescribed rate D1CP, ilaryana, Complaint No,6258 012022 & 3 other #IABEBA $-cuntnnanr :llottees of that project approached the authoriry by way of comploint bearlng no.

173 oJ 2027 anil 27 others title.l os Ashish Kumar Agganral vs Vatika Ltd. seeking refund ol the pakl-up amount besides compensation by taking a plea that the project has been abandoned and there is no progress ol the projecr at the site. the site.

The version of respondent/builder in those complaints was otherwise and who took a plea that thecomplaints being pre-mature were not maintainable.

Secondly, the project had not been abandoned and there was delay in completi on oithe same due to rhe reasons beyond its control, Thirdly, the allotment was made under subvention schemeand the respondent/builder hdd been paying Irre UMI interest as committed.

5. iludng the proceedings held ot\ 12-oa-2022, in those cas.s, the authority observed & directed as under: lnrc.ihRElaAPanchkulaissuedaresLstrationcertificatcfortheaboveprcre.tb.rnB developed by M/s vatika Limited inthelorm REP'UI prEscflbed i. the Haryana lteaL Estate (ReBulatron and Developnentl Rules,20tTvidere8istranon no 213 of2017 on 15.09.2017 lalid up to 15.09.2025 undersection 5 ofthe Act jbid Buti.spiteot lapse oimo.e than 4 years sincegrant ofregistranon, lt was alle8ed by the counsoL of compllrnant thar there is no physial work p.oBress at sLte except ior sorn. diggin8workand appea.stobeabandonedprojed.

Noquart€ny prosre$ reporl s bein8 filed by the prcmoter Eiving the sulus of work progrc$ r.qutr.d u.d.r scctioo 11 oithc/tct, 2016, The License no.91 of 2013 granted byDTCPhasexpired on 26.10.2017and thesame is not yet renewed/revived, whlle BBA has bee. sisned de.laring the !alidity ot li.cnse.lt becomes amplyclear thatthe promoter k not onlydelauhng/omrttrns D discharse ol its oblisations under the Real Estate (Resulanon and Developm0nt) 4.t,2016 bu!a! thc sam. timc,v'olar'oBth. provisions ofdrc HarynnJ Dcv.lupm.trt !nd IteEulation ol Urban Area, Act 1975also.

1hc iuthonty di.ected the respondent to furnish the detaLls oibdnk account llong wth the statements ofall the accounls associated with these p.omoters ln order to safesua.d the rnte.cst ofthe allottees and keeprns in view rhc ahovc hcts, the authorjry exercising irs power und.r s.ction 36 of thc ,\ct, dir..ts tho promoteas M/5 Vatikalimitcd to stop operations fronr hrnka. onr hrnka.countsoltheabov0 proiect namely l'u.nins Pornt *HARERA S-ounuonntr or2022 &3 orh;;l e.

Therefo.e, the banks aredirecred to i.eeze the a.counrs assocrated wirh rtro abovo nen,ioned p-omole6 r- ojder ro rr,jrrl rhe oroTor"r,roT ru..te- wr..

Jrd\ j rrom rhe Jccounh tLit fudher orde.

46.

It was also obserued rhat work ar the site was standstill tor many years.

So, the authority decided to appoint Shr.

Ramesh Xumar DSp [Retd.) as an enqu,ry otficer ro enquire into the affairs of the p romoter regarding the project. tt was atso directed that the enquiry office. would report about rhe compliance oi rhe obligations by the promorer regarding the project and more specincally having regard to 70% of the totat amount collected from the allottees otthe proiect m,nus the proportionate land cost and consrrucoon cost whether deposited in the separate RERA account as per rhe requrremcnts of the Act of2016 and Rutes 2017.

Hewas furrher d,rected to submir a report on the above-mentioned issues besides gjving a direclion to th. promoterro make ava,labte books oa accoun rs and othcr retevanr documents required fo r enquiry to rhe Enquiry omcer in the office oi the authority.

The company secretary ard rhe chietfinanci officer as w€llas the olfi cer responsible forday-to dayaffairs of the project lvere also directed to appear before the enqurry otRcer.

They were lurther d irected to bring a tong with them the record oaa otmenrand status olrhe proiecL 47.

In pursuance to above-mentioned directions passed bythe aurhoriry and coDveyed to thepromorer, the enquiry ofticer su b mitred a reporr on 18.10.2022.

It is evident from a perusal of the .eport rhat there was no construdion ofthe projectexcept some excavation workand pucca labour quarters built at rhe site.

Some raw material such as steel, dust, other materjaland a dieselset we.e tying rhe.e.

It lvas submitted that despite issuance of a number of norjces iref u HARERA GURUGRAIV 17.0A.2022 to 18.70.2022 to Mr.

022 to Mr.

Surender Singh director of the project, non-turned up to join the enquiry and file the requisite intbnnation as d,rected by the authoriqT.

Thus, it shows that despite specific directions ofthe authority as well as of the enqujry officer, the promoter failed to place on record the requisit. information as directed v,de its order dated 72.08.2022.

So, its shows thai the project has been abandoned by the promoter. tjven a letter dated 30.09.2022 filed by the promoter containing a proposal for de_ registration oi the project "Turning Poinf' aod settlement with dr. existing allottees therein has been receiv.d by the authority and wherein following pray€r hasbeen.madeby it: i.

Allow the p.esent proposayapplication ri.

Pass an ordcr to de register the proiect turnjng Ponrt" registerod vidr registration certincate bearinE no.213 of2017 dared 15 09 2017 iii,Allow the proposalfor settlement olallottees proposed in the prcsent iv.

To pass an order to club all the pending complaints/dai8r e'ith respect to the project "turniq Point" befo.e the ld.

Autho.itv in th. prescnt matter and to decide the same rn the nranner as th. ld Authority will approve under the present proposal v.

To pass any other reliefin the favour olthe applicar)t companv in thc interest ofjustice.

48. 'lhus, in view olthe proposal given by the promote. to the authoritv an 30-09.2022 and corroborated by the report of enquiry otlic€r dated 18.10.2022, it was observed that the prolect namely l urning Point" was not be,ng developed and had been abandoned bv the promoter.

Even he applied for de{egistration of the project registered vide certificate no.

213 of 2017 drted 15.09.2017.rDd was fiUng a proposal for settlement w,th the allottees in the project b! h,ay ofre-allotment or by refund ofmoDies Paid by them.

So, in v'ew BHARERA S-eunuennur ofthe stand taken by the developer while submitting proposal with authority on 30.09. on 30.09.2022 and the reportofthe Enquiry Omcer, itwas observed that the projecthas been abandoned.Thus, the allotte€s in thosecases were held entided to refund ofthe amount paid by them to the promoter against the allotment of the unit as prescribed under section 18(1)(b) oftheAct,2016 providing for refund ofthe pald-up amount with interest at the prescribed rate kom the date of each payment till the date of actual realization lt4thin the timeline as pr€s(ribed under rule l6 of theR les,20I7.Arelerencetoseclron 18(1)tb) ofthe Act is neceslaryi&fvidins as under: 13. fiE ptonotet loib to conplete or is unoble to give possesion alan oponnent, plot ot buitding, : (a)... . . (b) due to discontinuon.e ol his business as o develapetan occaunt olelspenstd or.evocdtoh olthere96totion undet thi: A.t ot jat ony other reqson, he sholl be ltdble oh denand to the ollottees, in cose the ollottec wishes to \9ithdraw lloth the p.otec| without preludice to ohy other rcnedy ovailable,totetrrn the anounr received by hnn nl rcspect ol that apannen. plot, building, as the cose noy be with ntcrcst dt such rate asno! beptesctibe.l inthisbehallin.ludntlt o pcnsutnn i h t he n o n n e r o s ptovi aed und e. th is Act 49.

It is proved from the facts detailed above and not rebutted by the developer that the project has already been abandoned and there is no progress at the spot.

The developer used the monies olthe allotte. ior a number ofyears without initiatjng any work at the projcct sitc and continued to receive payments against the allotted unit.Though whils liling .eply, the developer took a plea that the proiect is taking up, butwhich is otherwise false and against the lacts on record.

So in such situation besides refund of the paid-up amount given by the complainant to the developer with interest at the prescribed rate of Complaint No,6258 oI2022 & 3 other interest i.e., 10.75% P.A., he may nle complaint separately seeking {3 s_ HARERA Complaint No. plaint No.6258 ot2022 & 3 other GURUGRAN,4 compensation before the adjudicating officer having powers under section 71 of the Actof 2016.

S0.

However, while paying sale consideration against the allotted units, the allottee raised loans from the nnancial instittrtion under the subvention facilities.

While reiunding the amount deposited by the allottee[s] who has raised loans against the allotted units, the promoter shall clear such of the loan amounts up to date with that l,nancial institlttion and the balance amount shall be paid to the allotteewithin a per,od of90 days from the datc oforder' 2, neither ofthe parties have pressed Lrpon it durints no dire.tion in this regard can be givcn.

Directions of the authorlty 52. llence, the authorty hereby passes this order and issues the iollowing directions und€r section 37 ofthe Act to ensure comPliance of obligations cast upol the promoter as per the lu.ction €ntrusted to the authority undersection 34(0: i.

1'he respondent_builder is directed to refund the paid_up amount received irom the allott€€ deposited by him against thc allotted unit alongwith interestat the presc.ibed rate of 10.75q' per annum from the date ofeach payment tiu the date olactual realization within the timelines as prescribed under rule 16 ol the Rules,2017. ii.

While paying against the allotted unit, the allottee raised 10:n from the nnancial lnstitution and that amount was to be paid back to it.

So, while refunding the amount depos,ted by allottee who raised loans against the allotted unit, the Promoter is 51. w'r.t relief no. proceedlng.So, I II, *HARERA ($- ernuomtt,r financial intuition This decision shall mu para 3 ofthis order. 'lhe complaints stand di be placed in the case nl f,les be consigned to re 53.

54.

55. ch of the loan amount up to date with that d the balance amount be paid to the allottee 0 days. tis mutandis apply to cases mentioned in osed oi True certified copies ofthis order CoDplaint No. plaint No.

6258 ol?022 &3 otler 22-O9-2023 , Gumgram H G RERA tJGRAt\/ a ?\ \q! tilf€, le neoe7