PRATEEK KAUSHAL vs VATIKA LTD

ffiHp,LEIA Q,GURUGRA]V CohplaintNo,6155 ot2O2z BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM R/o: .

B-31 l!,lalviya Nagrr. t.muna ,heet cotony, Ahhbash, Lucknow 5hI Sahteev KumarArora AI'PEARANCE: Sh.

Venkat Rao Advo.ate 1.

ORDER The present complaint has been nled by the comptainant/altotree under section 31 olthe Reat Estare (Regutarion and Devejopment] Act, 2016 (in short, the Act) read with rule 2g oithe Haryana Real Estate [Regulation and Deve]opmenrl Rutes, 2017 (in short, rhe Rules) forviolation olsectjon 11tal(al ofthe Act rvherein it is inrer alia prescribed that the promoter shall be responsibte for a obligations, responsibilities and tunctions under the provisions of ComDlaint no.

I Date of ntine comDtaint: 14,o9.2022 73,O1.2021 08.09.2023 6155 of 2022 Addressr Vatika tiangle, 4rh Phase-1, Block A, Mehraufi" Curup.am.122002 Sh.

Hehant Phogat Adocate HARERA P-GURUGRAIT/ ComDlaint No 6155of 2022 the Act or the rules and regulations made there under or to the allottees as perthe agreement for sale executed interse.

A.

Unltand proiectrelaied details 2.

The particulars ofthe project, the detarls olsale consideralion, rhe amount pa,d by the complainant, date olproposed handingoverthe possess,on and delay pedod, if any, have been detailed in the followins tabular iorm rrdrF Jrd lorJr'on of rhp l "Tuming Pornr \eno- 88-8. v I age Ha-\.ru, L rr-fldn H '-yrnJ 2.

I Natureofthe project lGroupholsins l 91 oa 2013 dated 26.10.2013 valid upto25.10.2017 5 M/sVaibhav narehousrnE I'vt l,td & R;sstered vid;;o.ll3 ot 2017 d ed 15.09.2017 ar€a admeasurinB 93588 sqm. valid up to 15.03 2023 242 6. t2.14 20t7 22.05.20t4 Date of boilde. buyer 15 03 2025 T.tal sale.onsider:tion Rs.85,59,980/ 12.

Anount paid by the Rs.38,{9,370/' ./ Occupation ce.tihcate HARERA GURUGRA[/ B, Facts ofthe complaintl The complainant has made the tollowing submissjons in rhe complaint: Thatthecomplainantpaid abookingamountof Rs.

3,00,000/- vide cheque No.

000116 dated 12.10. ted 12.10.2017 in respect ot the flat booked by him in the aioresaid project ofthe respondenr.lte has paid torat amount of Rs.

38,49,370/ .

The respondent lurther execured the ag.eement for sale /builder buyer agreemenr dated 22.o5.Zotain his favour. lt is pertinent to mention here that the builder buyer agreement is also in gross v,olation of rhe RERA Acr, as the developer with the int€ntion ro cheat the complainant has not mentioned the date oi possess,on in the burlder buyer agreement/agreement lor sa1e.

It is iurther mention that th€ respondenr has violated the prov,sions of RERA by not mentioning the date otpossession in the agreement which is a clear violarion of the REP\A Rules and Provisions.

That the respondent has also completely faited to deliver the project as the project never started and there is no construction from th€ very beginning when he signed rhe builder The respondent ru rther has denied ro develop rhe prolecr when the he tried to contact the respondenr th.ough his visit ro the oftice of respondent where he was asked and pressurized ro shift ro another projectas he was informed by the respondent, thar the respondent is notdeveloping the p.oject in the currenrscenario and rhere is no poss,b,lity ofthe projectto be completed in nearby furure.

Complajnt No 6155 oi 2022 4.

5.

I}HARERA S- eunuennu C!mpa nrNo 6155 ot 2022 c.

7.

6.

It is furthermention that theabove said unirwasbooked underthe consiruction Unk plan whereby hewas under legalobligarion to pay to the respondent upon reachrng of consrruction on certain mile stoneswhich is as per "schedule D" ofthe burlder buye. agreementl whereas the respondent has iUegally and in violation ofthe builder buyer agreenent has collected rhe sum o1Rs.38,49,370/ withour even starting ofthe consr.udion.

That, by not deliv€ring the possession ol the aforesaid Unit/tilat, the respondent has violated the terms and conditions ol the flat buyer's ag. uyer's ag.eement and promises made ar the time ot booking of said flatand the complainanthas faced mentaland flnancialagony a.d pain, hence, the respondent is liable to refund amount paid by him along with interest as dcfiDed and provjded by the proviso of Sect,on 18 olthe RERA Act, 2016.

Thatthecomplainanthad persuaded and requested the respondent to reiund his amount as the.e is no possibility of gettin8 the possession ofhis unitbut the respondenthas completely denied the just and genuine request oathe complainant.

The cause ol action accrued in favour of him and against the respondent, when he had booked the said flat and it furrher arose when respondent failed to develop the said project and provide possession ofthe flat/unitto the complainant.

The cause ofaction h continuingand is stillsubsisting on day-to-day basis.

Reliefsoughl by th€ complalmnt: The cornplainant has sousht iollowins reliei(sl: l0 Direct the respondent to refund the entire amount paid by the complainant to the resPondent.

D.

Replyby respondent: 11.

Therespondent made the following submissions in its replvl (a) That tbe present complaint has been preferred bv the complainant befo re the Authority, Curugram Lrnder sectjon 31 ofthe Ac!

2016 present its scurrilous allegations without anv concrete or credible contentions and hence liable to be dismissed as it is filed without any cause ofaction. (b) That the contents of lhe complaint, deliberatelv failed to meDtion the correct/complete facts and the same are reproduced hereunder for proper adiudication ofthe present matt€r.

The complainant is.aising false, frivolous, misleadinC and baseless allegations againstthe respondent with intent to acquire unlawtulgains. (cl That the complainanthave notapproached the Authorirvwith clean hands and has suppressed/concealed the relevant facts with the intent to mislead the Authority through the representat,on of the one_sided facts The complaint under reply is devoid of merits and the same should be dismissed dismissed [d] That in around 2016, the complainant, learned about project "Turning Poinf'and repeatedly app roached the respondentto know the details ofthe said project.

The complainant further inquired about the specification and veracity otthe proiect and lrHARERA -ds- cunuennu complarnr No. b155 o12022 *& HARERA GURUGRAN4 was satisfied with every proposal developmentolthe project. (e) That after havinC keen interest in the above said pro)ect i.e., ''Turning Point'launched by the respondent, the complainant upon its own examination and investigation desired to purchase a unit in the year 2017, and approached the .espondent a.d on 06.09.2017 booked a unit in the said (f) Though the agreement was not executed between the parties, but as per RERA registration oi the project, the respondent was under an obugation to handover the possession to the complainant as per the timelines as disclosed at the time ol registratio. olthe project.

As per the project registration no.

213of 20lTtherespondentwastocompletetheprojectwrthin 90 months from the date ot grant of RERA registration ie., 15.09.2017 as per which the due date of possession comes out to be 15.03.2025. (gl It is pertinentto bring to the knowledge ofthis authonty that as per the agreement so signed and acknowledged by the respondent provided and estimated time period of 90 months forcompletingof theconstruct,on fortheproject i.e.,"Turning point", and the same could not be proceeded lurther and was stopped in the mid-way due to various hjndrances rn construction of the projert and which were unavoidable and purely beyond the conkol of it Further, it is pertinent to mention that the project could not be completed and developed on time due to various hindrance surh as aomnlaint No 5155 of 2022 deemed ne(essary for the ttHARERA $-arttrlcn,Anl complajnr No 6155 or2022 govern ment notifications from time to time and force majeure conditions, breakdown of Covid 19 pandemic, lay,ng of CAIL pipe line, acquisition ol secto. ol secto. road land parcels in the township and other such reasons stated above and which miserably affected the conskuction and development of rhe above said projectas per the proposed plans and layout plans, which were unavoidable and beyond the controlofir. [h) Thatthe respondentafterfailure to complete the project as p€r theproposed planand layoutplandue ro theaioresard reasons elaborately, filed a proposal bearing ln Re: Regd.

No.

213 ol 2017 dated 15.09.2017, for rhe De-ReSistratron ofrhe Proi€cr "Turnlng point', and settlement with existing allottees before the registry ofth,s authority on 30.09.2022.

The intention of the respondent is bonolde and theabove sa,d proposalforde- registration oa the project was filed in rhe interest of the allottees of the project as it could not be delivered due to various reasons beyond the control of the .espo ndent as stated (i) That the complainant has $ppressed the above stated facts and has raised this complaint under reply upon baseless, vague, wrong grounds and has mislead the Authority, for the reasons stated above 1t is submitted that none ofthe reliefs as prayed fo. by the complainant is sustainable before the Authority and in the interest oi justice. (jl Hence, the prese nt co mplaint underreply is liable tobetagged along with the deregistratron proposal filed before the ffL1ARERA €!- eunLrcnnv Complarnr No.

6155 ot20l2 u. l3 \2.

Authorityand rhe same may not be disposed oitiltthe time the same comes to f,naliry.

Copies oiallthe relevant documents have been tiled and placed on record.

Their authenricjty is not in dispure.

Hence, the complaint can be decided on the basjs ot those undisputed documents and submissions made by the pa.rics.

Jurlsdiction of the authority: The authority observes thar ir has territoriat matter jurisdiction to adjudicate rhe prcsent reasons given below.

E.I Territorialiurisdtctton 14.

As per notificarjon no. t/92/20t7 tTCp dated 14l2. ated 14l2.2017issued by Town and Counrry Planning Departmenr, the jurisdictjon otReal Estate Regulatory Aurhority, Curugram sha be ennre Gurusram District for all purpose with omces situared in Gurugram.

In the present case, the projectin question js situated within rheplanning area of Curugram disrricr.

Theretore, rhis authorty has complete territorialiurisdictionrodealw,ththepresentcomptainr.

E.ll subiect ma ner iu risd iction 15.

Section 11[4)(a) ofrhe Acr,2016 provides that the promorer shalt be responsible ro the atlortees as per agreement fo. sate.

Section 11(a)ta) is reproduced as hereunder: Section 11(4)(a) THARERA db- crnrrcnrtt Be rcs poneble lor all abligo tioh s, rcsPan e b t I ti e s a n d lu n ctions u nd et rhe provkions ol this Act or the rules ond regulations mode thereundet at to the ollotteesos perthe agreenentlatnle,or ta the asaciotton of ollottees, as the.ase na! be, till the.onveyance al oll th e o Do.tn e n ts, plots a t b und ins 5, a s Ih e a se nay be, ta the o t I otteet or the cannon oreos ta the ossociatioh olallotteesatthe canPetent outhoriry,os the coe o! be) Sectlon 34-Functions ol ,he Authority: 34A al the Act pto des ta ehsure..nPlnn.e ol the obtiqotions.ast upoh the pronote$, the ollottees uhd the teol estote nsentt uhder this Act o nd the rules ond regLlattons node thereunder 16.

So, in view ofthe provisions ofthe Actquoted above, the authority has complete jurisdiction to decide the complaint rcga.ding non_ compliance ol obligations by the promoter leaving aside compensation which is to be decided by the adjudicat,ng officer if pursued by the cornplainantat a later stagc. c.

Iindingon theobiection mised by the resPondent G.l Obiection ralsed by the respondent rega.ding force maieure 17- lt is contended on behalf of the respondent/builder that due to various circumstances beyond its conrrol, itcould not speed up the construction of the project, resulting in its delay such as various orde. ious orde.s passed by NGT hon'ble Supreme court, introduction ofnew highway being NH-352W, transferring the land acqui.ed for iI by HUDA to CMDA, then handing over to NHAI, re routin8 of high tension lines passingthrough the land ofthe project, impact on the project due to policy or NIPL and ToD issued on 09.02.2016 and outbreak ofcovid-19 etc. tsut all the pleas advanced in this regard are devoid ol merit.

The passing oi various orders to control pollution in the NCR r.gion during the month ol November is an *HARERA 9E eunuennl anmnl,rnt N.

6l<5.r2022 annual leature and the respondent should have taken the sameinto consideration before fixing the due date.

Secondly, the various orders passed byotherauthoriticswcrcnotall olasuddcn.'lhjrdly, due to covid-19 there may be a delay but the same has been set off by the govt. as well as author,ty whrle granting extension in registration of the projects, the validity of which expired from March 2020 ior a period ol6 months.

18.

The due date ofpossession in the present case as per clause 7.1 is 15.03.2025,So, anysituation orcircumstances which could have an efiect on the due date should have beiore fixing a due d:te.

Mor€over, the circumstances detailed earlierdid notarise at alland could have been taken into account while completing the p.oject and benefit ofindefinite period in this rcgard cannot be given to the respondent/bu,lder.

C.

Findings on the reliefsought by th€ complainantl C.1 Direc-t the respondent to retund th€ paid entlre amount pald by the complainant 19.

On the basis oilicense no.

91ot2013 dated 26.10.2013 issued by DTCP, Ha.yana, a residential grou p housing colony by the name of "TurniDg Point'was to be developed by the respond.ntlbuilder over land admeasuring 18.80 acres situated in Sector 88'8, Curugram.

This project was later on registered vide regist.ation certificate No.

213 of 2017 with the authority. authority.

After its launch by the respondent/builder, units in the same were allotted todifferent persons on vide dates and that too for va.ious sale considerations Though, the due date tor completion ol the proiect and offer of possession oi the allotled units was mentioned as validity ot registration certificate being 15.03 2025 but afte. expiry ol more than 4 years irom the booking, there is no physical work progress at the site except lor some diggingwork.

Even the promoter failed to nle quarterly progress reports gjving the sratus of projecr requned undersection 11 ofAct,2015.

So, keeping in view allthese facts, some ofthe allottees ofthat project approached the authority by way ofcomplolntbeoring no.173 ol2OZl and 27 otherc title.! as Ashish Kumot Aggarwal vs yatika Ltd. seekinl retund of the paid-up amount besides compensation by taking a plea that the project has been abandoned and there is no progress ofthe protect at the site.

The version of respondent/builder in those complaints was otheMise and who took a plea that the complaints berng pre mature were not maintainable. secondly, the prolect had not been abandoned and there was delay in completion of the same due to the reasons beyond its control.

Thirdl, the allotment was made under subventioD scheme and the respondent/builder had bee; paying Pre-EI\41 interest ds commiued.

20.

Dur,ng the proceedings held oo 12.08.202 2, the authoriry observed & directed as under: u HARERA GURUGRA[/ aomplaint No 6155 of 2022 lnte.im RERA Panchkula issued a regisration ceftificate ro. rhe above projea beins deleloped by M/s v.tika Limited in the forn REPJII prescribed in the Haryana Real Estate (Regulation and Developmeno Rul*,2017 vide rcgistration no.213 of 2017 on 15.09.2017va1id up to 15.09.2025 undersection 5 ofthe A.t ibid.

But in spite of lapse of more than 4 yearo since grant oi regisrralion, lt was alleged by the counsel of complainant that the.e is . the.e is .o physical work progress at site except lor some digSinS work and appeaB to be abandoned proje.L No qu.nerly progress report is beinS liled by the proooter Sivingthe status ofwork progress requir€d under secnon 11 Theli.ense no.91o12013 granred by DTCP has expired on 26.10.2017 end the same is not yet renewed/revived, whrle BBA has been siSned declaring th€ validrty of license.

It b€comes amDly cl€ar ftai the u HARERA GURUGRAI\,I pronoter is not oily defrultrrrs/onnrtrnB rn djscharge ol irs obligarlons underthe RealEstate (Resulatron and Developmen0 Act,2016 burat the same time, violatins the provNions ol rhe Haryana Development and Regulation ofUrban Area, Act 1975 rho c.

The authority dir.cted the respondent to furnish the derar s of bdnk account alonE with the staternenls ofdl the a.counts assocrated with thesepromoters. d. ln ordertosateguard the rnterest ofrhe allottees and keeping in view the above lacts, the authorjiy exercising its power under section 36 of the Act, directs the promoters M/S Vatika limrted to $op operatjons irom bank accounts ofthe above p.oJect namely Turnjng PorDa' e.

Thereforc,the banksaredirecred b rr..rcthc ac.ounts assocrated w th f the above mentioned promot.rs Ln ordcr to restrict the promoter riom tu.therwithdrawal rrom !he accoun!s till furtherorder 21.

It was also observed that work at the site is standstiu for many years.

So, the authority decided to appoint Shr.

Ramesh Kumar DSP [Retd.) as an enquiry otficer to enquire into the alfairs of the promoter reSardirg the proiect. it was also directed that the enquiry oficer shall report about the compliance ofthe obligations by the promoter w'th regard the project and mo.e specifically having regard to 70yo of the total amount collected from the allottee(sl of the project minus the p.oportionate land cost and construct,on cost whether deposited in the separatc RERA account as per the requirements ofthe Act of 2016 and Rules 2017. ules 2017.

He was furtherdirected to submita reporton the above-mentioned issues besides giving a direction to the promoter to mak. available books ofaccounts and other relevant documents required tb. enquiry to the enquiry officer in the office of the authority The company secretary a.d the chief financial officer as weu as the officer responsible ior day-to-day affairs oithe prolect were also drrected to appear before the enquiry officer.

They were further directed to bring along with them the re.ord oi allotment and status of the ComDlaint No 6155 of 2022 Prgu 12 oi16 *HARER,. $-eunuoqAM CumplaLnr No 6r5t ot2022 22.

In pursuance to above-mentioned directions passed by rhe authority and conveyed to the promoter, the enquiry officer submitted a report on 18.10.2022.It is evidenrfrom a perusalofthe report that there is no construction of the project excepr some excavat,on work and pucca labour quarters buitt at the site.

Some raw mater,al such as steel, dust, other material and a diesel set were lying there.

It was also submitred that despire issu.rnce ota number oanotices w e.t 17.08 2022 to 18.10.2022 to Mr.

Surender Singh dire€tor olthe projecr, non-turned up to join the enquiry and file the requisite information as directed by the authority.

Thus, it shows that despite specifi. drrections of rhe aurhoriry as wellas ot the enquiry olficer, the promoter failed to place on reco.d rhe requisite information as d,rected vide its order dated 12.0a.2022 So, its shows thatthe project hasbeen abandoned by rhe promoter Even a letter dated 30.09.2022, filed by the promoter containing a proposal for de'registration of the projsct "Turning point" and settlement with the existing allortee(s) therein has been received by the authorityand wherein following prayer has been made by ir: i.

Allow the presenr proposal/applicalon ii, Pass a. order to de .egister th. pro)ecr 'tu.nrng Pornf' regrsrered vide re8rstration.ertificate bearing no 213 ot 2017 dated t5.49. ted t5.49.2411 AUow the proposal for settlement of allonees p.oposed in th€ To pass an order to club aU the pendinS complaints/claims with respecttothe protect "turning Point'before the ld.

Authority in the present matter and to decide the same in the manner as rhe td, Authority will approve under the present proposal.

To pass any other relief in the lavour ofthe appticant company In the interest of justice, THARERA $-eunuennr,r 23.

Thus, in view of the proposal g,ven by the promoter ro the authoriry on 30.09.2022 and cor.oborated by the report of enquiry officer dated 18.10.2022, itwas observed rhatthe prolect namety ,Turning Point" was not being developed and had been abandon€d by the p.omoter.

Even he applied for de reBistrarion of rhe prolect registered vide cerrificate no.

213 of 2017 dared 15.09.2017 and was filing a proposal for settle ment wirh the allotrees in the projecr by way ofre allotment or by refund olmonies paid by them.

So, in v,ew oithe stand taken by thedeveloper while subnritting p.oposat with author,ty on 30.09.2022 and the reporr ofrhe Enquiry Officer it was observed that the project has been abandoned.

Thus, rhc allottees in those cases were held enritled to refund ofrhe amount paid by them to the promote. aga,nst rhe allotment otthe unit as prescribed under section 18(1)[bJ of rhe Act, 2016 providrng tor refund ofthe paid-up amount with interest at the prescflbed rare from the date of each Fyment rill the date of actual realizarion within the timeline as prescribed under rule 16 of rhe Rules, 2017.

A reference to section 18(1)[b] ofrhe Act is necessary providins as 18. lf the p@otet faih to conplet otkunabletbgNe po&sion olan opafth.n1 plot or buildlng, (a)..................... (b) due to discontinuon@ oI hB business ot o devetoper on atount olNspension ot . nsion ot .evocoti@ ol the rcgistrution undet thb Act ot hr ont other reosh, he sholl be lioble on denond to the ollottees, in @e the allonee vishes to withtltow lron rhe prcject, withour prejudice to ony other renedv oeailoble, to rctum the ahount [email protected] br hi in rcspect ol thot oportnent, ploa building, as the c6e nay be wirh i^tqest qt such rab as not be prcytibed ir this beholl inctudins ITHARERA S-eunuennnr ComplaintNo.6l55 of 2022 21. conpenntion in the nonnet os provide.l unde. th s A .

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 of the allottee lor a number of years without initiating any work at the project site and continued to receive payments against the allotted unit.

Though, while filing reply, the developer took a plea that the project is taking up, but which is otherwise false and against the lacts on record.

So, in such situanon besides relund of the paid-up amount i-e., Rs.

39,49,370/-Eive^ by the complainant to the developer with interest at the prescrib€d rate oi interest i.e., 10.750lo p.a.

Dlrectlons of the Authority: H, 25.

Hence, the Authority hereby passes this order and issue thc following directio.s under sectron 37 of the Act to ensure compliance of obligations cast upon the promoters as per the lunctions entrusted to th e Authority under Section 34(0 ofthe Act nl2016: The respondent-bu ilder is directed to refund the paid upamount i.e., Rs.

3a,49,370/' received from the allonee deposited by it againstthesubjectuntalongwith inte.est atthe p.escribed rcte of 10.75olo per annum from the date ofeach payment till the date of actual realization.

A period of90 days is given to the respondents to comply with the d,rections given in this order and failing which legal consequenceswould follow. ffLIARERA 9E eunucnnrr,l 26.

Comptainrstands 27.

Filebeconsigned dlsposed of. to the registry.

Compiainr No. piainr No.

6155 oI2022 Gurugram Haryana RealEstate Regutarory Au th o riry, Datedr 08.09.2023