ANAND GUPTA ANOTHER vs ALM INFOTECH CITY PVT.LTD.

HARERA GURUGRA[/ BEFORE THE ComplaintNo.

380 of 2019 HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM 380 ot 2019 Dateof filingcomplaint: 21.02.2019 First date ofhearing: 07.\1.2079 06.01.2023 1.

The present complaint has been filed bv the complainants/allottees under Section 31 of the Real Estate (Regulation and Development) Acl 2016 (in short, the Acq read with rule 29 of the Haryana Real Estate (Regulation and Development) Rules,2017 (in short' th€ Rul€s) for violation ofsection 11(4)(a) olthe Actwherein it is inter alia prescribed Sh.

Anand Kumar GuptaS/o Sb.

OP Gupta Smt.

SonatKatoch W/o Sh Ang Kumar Gupta Both R/o: Eden A'513, Sanath Nagar, Hyderabad 500018 M/s ALM Infotech Regd. omcer B- Delhi 110065 shn vijay Kumar Go Shri Ashok Sangwan Shri Sanjeev Kumar Arora Complainanis Sh.

Nrrn laspal (Advoc Sh.

Venket Rao (Adv *HARERA S-eunuennM (omplarnt No.

380of 2019 that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the rules and regulations made there under or to the allottee as per tie agreement for sale executed inter se.

A, Unlt and prolect related detalls ?, The pdrlicutars of rhe Project. th€ detarls ot amount paid by the complainaBl possession and delay penod if* tabular form: "$ Late ot p.oposed nanorng over tne lave been detailed in the following 1 "lLD Grand', sector 37c, Gurgaon 2.

II P l RERA t0: red vide reg,stration no.38i, or ated 18,12.2017 ! t?,(W 41223.9s3 sqm.

4.

03I1.2010 118 of2011dated 26.12.2077 02-\7.2025 25.12.2024 M/s lubiliant Malls h^.

Ltd.

5 29.03.2072 [As alleEed by the respondent on page no.02 ofreplyl the GURUGRAI\4 5C on 5dflooroftowerB lAs per pase no.30 ofcomplairtl 1789 sq. ft. lAs per page no.2a ofcomplaintl Unit area admeasuring 13.02.201+ IAs per pase no.

23 of complaintl cuted betlveen original allottee rlKumarand resPonden0 Date of apartment buyer 62: Ma)e ute cn. unttance s o s ;en ond subkd .o onetYsront vols. perditsb .

NoCs. et. ina . et. ina .nnDlied \|ith all hE ablipottnhs .rll wtnnd @nttitions ol this l,/cl,\ild1 a oduri.o, a",e in default undet onr patt o[ this Agt*neht includirg but not linite.l to the rinelv pa!f,qt ol the totol Sole Considetution ond orhet chorses/fe6/taxes/tevies ond also stbi@r b the Allott@G) hatins codpli.d with oll lotnoliti* ot do.unentarion as Pe$ribed bt the Developer the Developq ptoPoses ro conplete rhe dnsrluction Ni!hjr---.a BA HARERA filpbil,N.rst"r,il] --l 6.

7.

8.

9.

10 3 GURUGRAtil dot .f etu.urion .t thls oo.eenent with turth'r oroce ryiotl ^!

1ao dovs u ndef notuol circufr .tonce.

13.08.2017 lcalculated from date of aBreement dared 13.02.20141 Crace p..lotl o, ,A0 daYs ls allowed, Due date ofpossession consiruLtron lnked PaYment Plan .57,8s,6s6l IBSP] ,63,841/-(TSC) no.24.25 ofcomPlatntl Total sale coDsideration 6A,A7 ,293.91 / 31.O5.2022 reply l r.

09 'rl rr/ {di s dispute w.r,t anount Poid bY aainaL Thut relionce hos ffi"iixr;;::,x 13, 26.10.2013, 28.01.2014, 27.02.2014, 25.02.2014, 07 -01.2011' 26-Os-2014. ta.12.2014 (As perpage no 26-33 ofrePly) Howqer, the.e is nothina on record to show that the MPoNknt has proc@ded with cancellation of subject Demand letteB & renin HARERA complain!No.380of 2019 77.

12.

74.

15.

Occupation ceniflcare 17.

B, THARERA S-GrrRrrcRA[/ Facts ofthe complalnt: That t}le complainants were in dire at Curusram which may have good Complarnt No.

380 of 2019 sion of the individual denCs representation, onpla,nants applied amenities for residing therein ir familv members for better fu tur€ prospectus of their childii 4.

That on respondent's re rsonation that it wou)d provide state.of-the-a ic facil,t,es/amenities 3. need of a residential accommodation infrasructure and all basic facilities/ Gurugram, Haryana id project would be in his residential ap and further assured completed and it wo xn s hv the end ol20l That believing" for allotment oiunit in the project oIthe respondent.

6.

That a builder buyer agreemeni dated 13.02. ted 13.02.2014 was €xecuted between the original allottee and the respondent for 3BR unit bearing no.

5C on Sth floor of tow€r/block 81, having super area of 1789 sq ft ll bas .-37( r1d delive 15. q 7.

THARERA -&-r,rrnrrr,nml compLa nrNo 180 or20rc That the complainants paid all the installment in time to the respond€nt as and when demanded by it but has failed to handover the physical possession ofthe said unittill today 8.

That the complainants till date have already paid an amount of Rs 72,09,911/- to the respondent and the same was duly acknowledged bv itvide various receipts.

The last paym€ntwas made by the complainants on 14.01.2015 through HDFC .heque no.

529564 But it has failed to communicate about th on otthe said unit as prom,sed at the trme ofbookrng.

T een living on rent due to delay rn possessron of 9.

That the complaina soins at the project erbally promised all by 19.09.2019.8ut the buvers that the lookrng at the pace of wor t does not look like that,t .09.2019.

The respondent r"'"" r,".',", ",a dlJr-{QJ.Kd{+rAMdent have caused a lot of physical harassment, mental agony and huge financial loss to the C.

Relief soughtby the complainantsl sited the site severa I0 The complarnants have iought tollowing relieffl): D.

ComplarnrNo.380ol20l9 i.

Direct the respondent to refund the aforesaid amount of Rs.

72,09,911/- to complainants along with an interest as prescribed by the authority since the booking olthe apartment till its full and final realization, as the respondent has violated or contravened the provision! of the act, rules or regulations made thereunder or aforesaid application or ageement dated 13 02.2014 and failed to complete the construction of th€ aforesald project and to handover the physical possess,on said apartment / flat to the complainants wrthin thr rr.m the date of aforesaid nt buyer's agreement dated vio , 06.10.2022 and *HARERA d!- crnLrennu 06.01. nnu 06.01.2023, the resp However, despite nr reply in the registry of the tailed to file written the course of proceedings dated 06.01.2023, the respondent submitted the copv ot writtcn reply and to avoid any further delay, the samewas taken on rero.d.

The respondent by way ofwritten.eply made iollow,ng submissions 11.

That the complainants are making false, misleading, frivolous, baseless, unsubstantiated allegations against the respondent with malicious intent and sole purpose of €xtracting unlawfulgains ftom the respondent. *HARERA S-eunucnArr/ Compla'nrNo.

380oI2019 12.

That in year 2011, the original allottee i.e Mr.

Anil Kumar approach€d the respondentand made inquiryaboutthe specifications and veracity of the projecL The complainants were satisfied with the with every proposal deemed necessary for the development ofthe project and vide application dated 23.11.2021 applied for allotment in the project ofthe respondent and paid booking amount of RS.

3,00,000/-.

13.

That the respondent subse 29.03.2012, to the onsinal admeasunng I7a9 sq. fL ed allotment lefter dated herein unit bearing no.5C i r.tal sale consideration ted 13.02.2014 was Gupta & Mrs.

Sonal .Pived the 'swAMlH of Rs.

69,63,841/- That as Katoch on 23.02.201 Investment Fund" on 29. '14. by the respondent.

It is to be noted that they have not paid the total sale consideratlon amount that is why it is quite hard for the respondent to handover the possession ofthe unit within tlme bound and the same is evident thrcugh bare reading of statement of account that they have failed to comply with the schedule of payments issued by ihe respondent within the said BBA.

15 15.

Complainr No.

180 of2019 That the respondent was committed to complete the development ofthe project.

However, the d€velopmental work of the said proiect was slightly delayed due to the reasons which w€re beyond its the control. e control.

That the pro,ect was hindered majo y due to lack of infrastruclure in the said area as the twenty-four-meter sedor road was not completed on time.

Dueto non-construction ofthe sector road, it faced manyhurdles to complete the proiect.

For com d, the respondent was totally dependent upon the Covt.

Depa chinery. {}HARERA S-GURUGRATt/ absolutely beyond clause 9 (7) of th That the project was mentioned above a.

17. orders dated 16-07.20 Court of Punjab & Harya es in.ludes interih 2 of the Hon'ble High 2/2008 whereby sround ;::: ;,:.

J. "h{ffi }f 'ffi } tr"K',":",:"::i:::l affected the progress of the prolect.

18.

That the construction at the project site was again hampered due to orders dated 10.11.2016, 09.71-2077 and 1A.72.2017 tn yordhaman Kaushlk vs Unlon oI lndlo & Oru.

That due to the impact of the Goods and Services Acl 2017 (herein referred to as "CST") which came into the month or Aprl, Gtdi?&,Gi{4444016. rhis adversery r ln CWP No.

200: THARERA $-GURUGRAM was staved due to 25.10.2019, bearin a.tivities in NCR Complarnt No.

380 of 201c force after the effect of demonetisation in the last quarter of2016, whi€h left long lasting effect on various real estate and development sector even in 2019. lt is a matter of fact that the respondent has to undergo huge obstacl€ due to adverse effect of demonetisation and implementation of GST.

19.

That in the recent years, construchon activities in the real estate seclor Courts/Tribunals/Authorities t pertinen( to mention, th Control) Authority, N levied by various in Delhl-NCR region. lt is ronment (Pollution and its nohfication dated ro 6100 AM) from vlde iLs notification 26.10.2019 to 30.10. bearing no.

R/2019/L-s nverted the same into a 20.

RAr"iLsorderdated "MC Mehta vs, Unlon ol lndro" has complet€ly banned all construction activities in Delhl-NCR which restriction was pardy modified vide order dated 09.12.2019 and were completely lifted by the Hon'bl€ Court vide its ord.r dated 14.02.2020.

04.11.

20.

04.11.2019 passed in wrlt petition bearing ao.

13029/7985 titled as rine nioht hours r6:00 PM *HARERA S,aLnuennv comDlaintNo 380 of2019 21.

That due to the ban lei,led by the mmpetent authoritiet the mlgrant labourers werc forced to retum to thelr native towns/states/villages creahng an acute shortage of labourers in the NCR Region.

Ev€n after lifting of ban by the Hon'ble Court the construction activities could not resume at full throtde due to such acute shortaee.

22.

That despite, such obstacles on the construction activityin the real€state sector and before the normalcy could resume, the entire nation was hit by the worldwide Covid'19 pa erefore, it is safely concluded rhrt the said delav in th f the project was due to genuine rorce majeu iod shall be excluded while computing the 23.

That the current Co .ious challenges for the respondent w,th tr..tor. etc. for the constructjon of the prote 0, the Ministry of Home Atrairs, COI vide noti 'DM-l (Al recognised com pleted lockdown in the €ntire country for an initial period of 2 1 days which started on 25.03.2020.

Subsequently, the Mlnistry ofHome Affairs extended the lockdown from time to dme and till date the s3me continues in some or the other form to curb the pandemic lt is to be noted that various state governmenq including the Govemment of Haryana have also imposed strict measures to prevent the pandemic 24.

That after above stated second wave otCovid ffHARERA {!- eLrnuenntt considering the wi was yet aga,n hit by the mple(e curfew.

That , each and every activity complarnt No 380 of2019 including imposing curfew, lockdowo stopping all commercial activibes, stopping all consEuction activities.

Pursuant to the issuance ofadvisory by the col vide office memorandum dated 13.05.2020 regarding extension ofregistrations ofreal €state projects under the provisions of the Act of 2016 due to "Force Majeure", the Authority has slso ext€nded the registration and completion date by 5 months for all real estate projects e projects whose regisFation ion date expired and or was supposed to expire on or after 2 ain all rmpoted followed by during the period from 1 halted in the state due to the 25.

That despite after litting the restrictions the respondent was bound to resume with the construction activity in a hybrid mode tu., only with th€ labours available within the reglon and nearby to the conslruchon site And, due to such acute shortage of labour the prcject was deemed to be delayed, due to above said circumstances which were neither in control of the respondent nor complainant *HARERA S- GuRUGRAM ComplaintNo.

380 of 2019 25 27.

Thal it is evident that the entir€ cas€ of th€ complainant is nothlng but a web oflies, false and frivolous allegations made against the respondenL They have not approached the Authority with clean hands and suppressed the above stated facts and has raised this complaint und€r reply upon baseless, vague, wrong grounds to mislead the Authority.

28 Hence, the present complaint under reply ,s liable cost for wasting the precious trme and resour.es thus, rs an utter abuse ol the Dro.ess of lai!, 29.

Copies of all ihe re de.ided on the basi made by the parties.

E. lurisdiction ofthe authori to be dismissed with of the Authority and and deserues to be filed and placed on 30. lhe plea otthe respondent regarding reiection ofcomplaint on ground ol iurisdiction stands rqicdqd.rThf pqthoil9{bIFrxe$hal lt has tenlrorial * *", * *0i".,',"\,?LJ,ldH"k*ffiilyie presenr comprainr for the rcasons given below.

8.I TeEltorlal,u.lsdlctotr As per notiflcation no.

1/92/2O17-ITCP dated 14.12.2017 issued by Town and Country Planning Department, the ,urisdlctlon of Real Estete Regulatory Authorlty, Gurugmm shall be entire Gurugram District for all hs rrEsrt) {}HARERA S- eunuennvr purpose with omces situated in Gurugram.

In the present case, the proiect in question is situated within the planning area of Gurugram district. district.

Thereforg thls authority has complete territorial jurisdiction to deal witb the present complalnt E, II Subl€cthatt€r,urlsdlcdon Section 11(4Xa) of the Acl responsible to the allottee as reproduced as hereu.de( 2076 that the promoter shall be tor sale.

Section 11(4Xa) is ComplaintNo 380 of2019 nd under th6 A.r ond the rulesand resulonons node the So, in view ol the provisions ol the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance ofobligations by the promoter leaving aside compensation which is to be decided by the adjudicating oftcer if pursued by the complainants at a 31.

Further, the authorityhas no hitch in proceeding with the complaiot and to grant a relief ofretund in the present matter in view ofthe iudgement passed by the Hon'ble Apex Court in iveytecrr Ptumoters dnd ll.tee ot the bhnoh. oLthotlN. osthe ena 1rHARERA $-eunucnnu 32 ofthe amount and,nterest on the amount paid by him F.

Findings on the oblectlons ralsed by th€ respondent: F.l objection regarding ,urlsdictlon ofauthority wLL buyer's agreGment executed prlo. to .oming into force ofthe AcL Another contention of the respondent is that authority is depriv€d of the iurisdiction to go into the interpretation oi or rights ofthe parties inter- Supr.me Cou( in the matter al M/s Newte.h Pronoters and Developers Private Limited ys State oI U.P. and Ors. and M/s Sana the authoriry has rhe ComplaintNo.

380 of 2019 Developers Prlvate Limited Vs Stute of U,P, dnil Ors." SCC Onllne SC 1044 declded on 11.71.2021 dnd lo owed in M/s Sono Realtors Prlvate Limited & othefs V/s Unlon ol tndla & others SLP (Clvll) No.

13005 ol2020 decded on 12.05.2022 whercin ithas been laid down as "36 F.on the schene .f the Aci of whi.h o detai led rel.ft hce hos been node ond tukins note oJ pow ol odjudico.ian detinnted with the resutatory A.r tadt.ores the dktn.t expt nd'. intea*.'penoltt' ond '@nper tion, o @njoin*eodi .nd t e . teorl! ndni?s6 thot when n . t when n .on4 b refund oJ the o b6t on the tufund onoutL ot directin! poynenr ol inteft{ fo ol p6ssion, ot pendltr ohd interest theteon, it b the r Hen€e, in view ot the a ncemeDt of the Hon'ble Ithe.diud.onan rnd{ s *HARERA S-(,unuGRA[/ ComplaintNo.380ot2019 se in accordance with the buyer's agreement executed between the parti€s and no agreement for sale as referr€d to under the provisions of theActorthe said rules has been executed inter!e parties.

The authority is of the view that the Act nowhere provider nor can be so construed, that all previous agreements will b€ re-w tten after coming into force of the AcL Therefore, the provisions ofthe Act, rules and agreement have to be read and interyrcted harmoniously.

However, if the Act has provrded for dealing with certain specific/particular manner then a..ordance with the Act an provisions/situation in a tDation will be deah with in e date ofcoming into force s of the Act save the vers and sell€rs.

The .P 2737 ol2017) nors dnd Lhe alloiee briot of th€ Act and the provisions of the asr which provides as un osreen t lot le entered tN ting of cohttucr betweq theJlot pur.hatur ond the pronotq. . .

122- ttle have al/edy di$uted thotabove nated provinons of the REPa ore not retrospective in nature.

Thet noy to ene qtent be hoving o rctroactiee or quasi retmactive ellect but then on thot ground the wliditr ol ke provkions of REM cdnnot be chollenged. fhe Porlionent is competent enough to legklote law having rctrospectite ot retrooctive ellecL A taw can be even Irohed to olIect subsisting / existing controctual rights between the Parties th the lorget pLblic intetesLWe da not hove onydoubtin our nind thot the REF, hos been Iraned in the la.se. public interest of.er d thotoush study and dncusion node ot the hithen level by the Stonding cohhidee ond select connittee. which subni$ed its detoiled pheld in t *HARERA SarnrLennnr CompLaLntNo 380 oI201c 33.

Also, in appeal no.

173 o12019 titled as n ogic Eye Developer h4: Ltd. vs. : Ltd. vs. lshwer slryh Dahbo, in order dated 17.12.2019 the Haryana Real Estate Appellate Tribunal has observed- "i4, Thus, keeping in view out oloreeid dka$ion, we ate ol the consideted opinion thor the provisions ofthe Act ore quon rctrcoctive to sone etbnt in opqation ond ei be applicoble to th" ogtu aL. fnr sole entered into ewn prior ta conin! into onPtorinh nt the A.t whete the tronsoction ote still in rhe pnc"\. nr.nhhteri.n.

Hence in cose ol deloy in the o\fet/delivery of p$sestion as per the tems and conditions ol the oercenent lot sote tto ee sholl be titled ta the i n re rest/de layed po*ssion rcoenoble rate olinter$t as prolided tn Rule 15 olthe. tded- unlon and unreosonable rot of conpdsotion nentio 34.

The agreeme.ts are sac have been abrogated scope left to the allo Therefore. the autho various heads shall be the agr€ement subjec( to o. the provis,ons which oted that the builder' arges payable und€r other Act, rules, statutes, instructions, directlons issued the.eunder and are not unreasonable or exo.bitant in nature.

F.II Obiedlon r€gardlnS force na,eu.e condldons: 35.

The respondent-promoter has raised the co,rtention that the construction ofthe project was delayed due to reasons beyond its control such as delay in project due to lack ofconstruction of24'meter road by the Government Authorities, stay on construction ilde orders of NCT & it is r *HARERA {!- eunuennl,,t complaintNo,380of 2019 EPCA, implementation of GsT and Covid-lg outbreak The respondent rcquested that the delay was due to uncertain circumstances which were beyond its the control and sam€ cannot be made liable for such delay.

36.

The Authority is of considered view that the plea w.r.t d€lay in construction of proiect due to its dependency on consFuction of 24 meter road is devoid of merits as the fact that such road is under construction or is golng to be consFucted was alreadv known to the resDondent-builder while launching the said proiect and it would have ' -..rE,k_ 37. .rE,k_ 37. been considered the same while providing date ofcompletion ofproject.

The respondent also contended that the pace olwork at proiect site was .

711, -.&fr,-'re[ {, \ hamoered due stav on construction vide orders ot NCT & EPCA and imDlementation ofCST.

The olea wr.t ban on construction vide orders of ' ,-1l-\ I l- I NGT & EPCA is not tenable as the same were for shoner period oftlme. tal t r lr rr [\, -l Moreover, the Dlea that $e construction at proiect site was hampered r 0 r,ra, due to introduction of CST, it is observed that the due date of handing \ O'r \.I I u, (r'-, over of Droiect was 13.08.2017 and lhe 65T was lntroduced on 01.07.2017. therefore, by that tlme the proiect would have been r! rlr . comDleted. but the same was not done. lt is a well settled principle that one cannot iakeadvantace othis own wmng and thus no leniency ln this ."e".a can t"eiu.n io *rl*.r;,lall,zl{AlVl As far as plea w.r.t.

COVID-19Is concerned, lockdown due to outbreak of such pandemic and shoriage of labour on this account The authority put reliance judgment of Hon'ble Delhi HiSh Court ln case tided as rttls Hatltbfiton Whorc servkes tnc- v/S vedantt Ltd' & Anr' beorhry no, o.M.P (t) (Conn.) no. a8/ 2o2o and t.As 3596'3697/2020 dated J8, 29.05.2020 which has observed that- *HARERA {s- eunuennt,t ComplarntNo.

380of 2019 "69.

The p6c non.pefomon e oJ the Contu.rn cannot b2.ondoned due to the CovlD-19 b.kdown in Mat.h 2020 in ltulla.

The contrcrtDl wos in b@eh since septenbet 2079.

Opportuaities were qlwn to the Conrroctot to eure the sone rep@Edly.

Ddpite the sone, th. conttuct .oukl nor conplete rhe PrcjecL The outbreak olo p dmic @nnot be usd os on qcuse ht ron- pe4bmonce oId @ntoct lor vhi.h rhe deodlin$ wrc nuch behrc the outbrcak itten" In th€ present complaintalso, the respondent was liable to complete the construcEon of the project in questlo! and handover the possession of the said unit by 13.08.2017. fie respondent rs clalmlng benefit of *1 ,}}r6th.

1 ,}}r6th. ' lockdown which came into erect on 23.03.2020 wherear the due date of -,{i2rrK handing over of possession was much p.io. to the event of outbreak of Covid-19 pandemic.

Thereiore, the authority is oithe view that outbreak of a pandemic cannot be used as an excuse for non perlormance ol a contract for which the deadlines vrere much before the outbreak itself 'r?.\r t.

I ll ll I Ual and for the said reason the said rime Deriod rs not excluded while \\'o\ ll lt ll 2s7 .al.ulatinEthedelavinhandineoverDossession' \.:SRr_yz G.

Findings on relietsoughl by lhe complainants: G.l Direct the responde to complalnants along with an intercst as prescribed by the authority since the bookitrg oftte apartment till its tuU and flDal r.allation, as the respondent has violated or contravened the provisiors of the ac! rules or regulatioDs n.de the.eund€r or aforesald applicatioD or agreement dared 13.02.2014 and failed to complete the consruction of the aforesaid proiect and to handover the physi.al possession of the aforesaid apartment / 0.t to the complainants wlthln three years from the date of .foresaid applicatiotr as well as aforesaid apartment buyer's ageement itated 73.02.2(J14,, t ot Rs.

72.09,9r1l- 39.

The proiect detailed above was launched by the respondent as group housin8 complex and predecessor-in-lnterest of the complainant l{as allotted the subject unit Mde allotment letter dated 29.03.2012 for a total sale consideration of Rs.

69,63,841/-.

It led to execution of apartment buye/s agreement between the them on 13.02.2014, detailing the terms and conditions ofallotmenl total sale consideratloD ofthe allotted unit, its dimensions, due date of pos;;sion, etc The subiect unit was *HARERA S-eunuenrM Complarnt No 380 of20lc endorsed in favour of the .omDlainants vide memorandum of understandinq dated 13.02.2014.

As per aqreement dated 13.02.2014, a - ./.{. j*i&erQ.\ period oi 36 months with a grace period oi 180 days i.

80 days i.om date ol execution oiagreement, for completion oa the project was allowed to the respondent and that period has admittedly expired on 05.08.2015. lt has come on record that against the total sale consideration of Rs 69,63,841/- the complainants have pajd a sum ol Rs.64,47,294t to the respondent.

Despite payment ol more than 98.90% oi total consideration, the respondent-builder has iailed to h:ndover the possession of the allotted unit and thus, the complainants-allottees wishes to withdraw irom the project.

Keeping in view the aact that the allottees-complainaDts wish to withdraw lrom the project and are demanding return olth€ amount received by the promoter in respect of the unit with interest on failure ofthe promoter to complete or inability to give possession olthe unit in accordance with the terms ofagreement (E' THARERA S-cLrnLnnlvr Despite aforesaid the project on the compLarnrNo 180 oI201c 40.

The due date ofpossession as per agreement for sale as mentioned in the for sale or duly completed by the date specified therein, the matter is covered under secuon 18[1) ofthe Act of2016. the date of ffling of the complaint Le.

21.02.2079.

The occupation certiffcate of the prcject where the unit ls situated has still not b€en obtarned by the respondenl-promoter.

Vide proceedings dated -ia8s{,f.

06.0r.2023. the resDondent throush its counsel confirmed that the ' _/liit't\ occupation cenificate has yet not applied aor as the construction work is still jncomplete and it has recently been granted financial assistance under SWAMIH fund to complete the project.

It was lurther submitted that as per timeline given under SWAMIH iund, the proje.t would be completed by Dec€mber 2023. \brl ra 41. circumstances, the complainants during the course of .\_-_._.::-., 06.01.2023, shows their willinsness to wilhdraw from l{ lt !J }r 12 fr ground that th€re is delay of more than frve years in completingand handing over the possession ofthe allotted unit.

42. unit.

42.

The authority is ofthe view that the allottees cannot be expected to wait endlessly for taking possession of the allotted unit and for which they have paid a considerable amount towards the sal€ consideration and as observed by Hor'ble Suprcme Court ol Indlo in lreo Cmce Reoltech " ....

The o.cupation certilcate is not ovailoble even os on dote, which deorly anountt to defcierc! ol seruice.

The ollottee connot be ftade to woit indelhiDlf Iot poession of the oportnqts ollotted to then, 3or cah th.y be bound ro roke the dportnerB in Phos 1 ofthe pmjet......." 43.

Further in the judgement of the Hon'ble Supreme Coun of IDdia in the *HARERA S-cuRUcRAM ol U.P. and Ors, (Suptu) teiter Pvt Ltd, Vs Abhlshek Khanna & Ors., clvll oppeal no, 5785 ol2019, decided on 11.01.2021: - Limited & other Vs Union o ComplaintNo.

380 of 2019 of M/s Sana Realtors Hvote Supra) obs€rued as under: c..es ol Newtech Promoters ond opers Private Limited vs State oblisatior to refund the an with int.ftu at the rcte p.escnbea br the Stote Covetuneht nlohhet ptavided under the Act witl does not wish ta wthdro\r f.an the uding conpehsotion in the p.oisa thot tf the otottee ect, he sholl be entitted lor interest lor the penod of deloy 44.

The promoter is responsible for all obligations, responsibllltles, and functions under the provisioN of the Act of 2016, or the rules and regulations made thereunder or to the allottees as per agreement for sale undersection 1l(axa).The promoter has failed to complete orunable to give possession ofthe unit in accordance with the terms of agreement for PaEe 22 of 24 *HARERA $-cunuc,nnnr ComplaintNo.380of 2019 sale or duly completed by th€ date specified therein.

Accordingly, the promoter ls liable to the allottees, as they wish to withdraw fiom the projecl without preiudice to any other remedy available, to retum the amounr received by him in respect of ihe unit with interest at such rate 45. as may be prescribed. rescribed.

This is without prejudice ,ncluding compensation ad judsins compensation to any other remedy available to th€ allottees & 72 readwith section 3 The authorrry h.rcby by h,m i.e., Rs.

68,8 Bank of India highes on date +20lol as pre (Resulation and Develo may file an application for atins officer under sections 71 the amount received f 10.60% the state MCLRI applicable as Haruana Real Estate from the date of each with pa),nrent till the actual date of relund of the amount $ithin th. rimclincs providcd in rulc 16 ofthe Haryana Rules 2017 ibid.

H.

Dn'ections ofthe Authority: 46.

Hence, the authority hereby pass€s this order and issue the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoters as per the functlons entrusted to the Authority under Section 34(0 ofthe A.t of2016: il The respondent /promoter is directed to refund the amount i.e.

Rs.

68,87,294/- rcceived by him fiom the complainants along with lent) Rules,2017 HARERA GURUGRAM Haryana Real complaintNo.

380 of 2019 rateof 10.60% p.a. as pres€ribed under rule 15 ofthe Estate (Regulation and Development) Rules, 2017 of each paym€nt till the actual date of refund of the ii) A period of 90 days is given to the respondent to comply with the directions Siven in this order and hilinS whlch leSal consequences iii) The resDondenr ls funher dir;cted nol ro create any third_pany rishts asalnst the subi€ct unit g;J;ore tull realization of paid-up amoun!alonswith interest thereon to the complalnants, and even if, l,l l!\ , \ anv Fansfer is initiated with resDect to subiect unlt, the receivable r.

L.:j 'r. \ ar-\ shall be first utilized for clearing dues ofallo!!e€s-complainants E 48.

Complaint stands di File be consigned to (san \.\ - >-2 wllay Kumar coyal) , Gurugram Dated: 06.01.20 23 (Ashok