VAARUN MUNJAL AND ISHA MADHAN vs VATIKA LIMITED

ffiHARERA ffi aiRriGRA[/ Complaint No.

986 of 2022 BEFORE THE HARYANA REAI ESTATE REGULATORY AUTHORITY, GURUGMM Complaint no.

9a6 ot 2022 Date of filine comDlaint: 30.03.2022 First date of hearins: 23.04.2022 Date ofdecision 15.o3.2023 CORAM: Shri Ashok Sangwan Member APPEARANCE: Sh.

Rajender Nath Dixit Complainants S/Sh.

Venket Rao & Pankaj Chandola Respondent ORDER 1.

The present complaint has been filed by the complainant/allottees under section 31 ofthe Real Estate (Regulation and Development] Act,2O16 (in short, the Act) read with rule 28 ofthe Haryana Real Estate (Regulation and Development) Rules, 20L7 (in short, the Rules) for violation of section 11[4)(aJ of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provisions of the Act or the rules and regulations made there under or to the allottees as per the agreement for sale executed inter se. l -- /Y Vaarun Munjal & Isha Madhan Bot RR/o: 1104, Lake City Tower, Cluster-D, I2T, Dubai UAE.

Complainants Versus M/s Vatika Limited address: A-002, lNxT City Centre, Cround FIoor, Block -A, Sector -83, Vatika India Next Gurugram, Haryana - 12201,2.

Respondent I Page 1 of17 HARERA GURUORAI/ Compiaint No.

986 of 2022 the Act or the rules and regulations made there under or to the allottees as per the agreement for sale executed inter se.

A.

Unit and proiect related details 2.

The particulars of the project, the details of sale consideration, the amount paid by the complainants, date of proposed handing over the possession and delay period, if any, have been detailed in the following tabular form: S.no Heads Information L, Project name and location .""Vatika Town Square" at sector 82, Vatika India Next, Gurgaon, :Haryana.

2.

Project area 1.60 acres 3.

Nature ofthe project Commercial complex 4.

DTCP License 113 0f 2008 dated 01.06.2008 valid upto 31.05.2018 71 0f 2010 dated 15.09.2010 valid upto 14.09.2018 62 of 2077 dated 02. dated 02.07.2011 valid 'tpto 0.07.2024 76 of 2011 dated 07.09.2077valid upto 06.09.2017 RERA Registered/ not registered 40 of 2027 dated 10.08.2021 valid 'tpto 31.03 .2022 6.

Unit no.

D-511, 5th floor lPage 16 of complaint) 7.

Unit area admeasuring 524 sq.ft.

B.

Date of application form 27.70.2074 (page 75 of complaint) 9.

Date of builder buyer agreement 15.05.2015 (Page 26 ofcomplaint) 10.

Due date ofpossession 15.05.2019 IDue date ofpossession calculated from the date of BBAI ffi ffi Page 2 of 17 HARERA MGURUGRAM Complaint No.

986 of 2022 11.

Total sale consideration Rs.

47 ,07 ,616/- as per S0A dated 22.77.2017 [page 56 of complaint) L2.

Amount paid by the complainants Rs.

19,34,612/- as per SOA dated 22.77.2017 (page 56 of complaint) 13.

0ccupation certificate Not obtained t4.

Intimation of possession 15.02.20L9 (page 58 of complaint) Involid os 0C has not been received till now.

Facts ofthe complaint: 3.

The complainants have made the following submissions in the complaint: a.

That the complainants booked a unit no.

D-511, level-S, Town Square, on 21..L0.20L4 by making a payment of Rs.

4,83,653/-.

Thereafter, an allotment letter dated was issued in favour of complainants and allotted a unit bearing no.

D-511, level-5, town Square, Sector 82-A for a total sale consideration of Rs.

47,07,676/- against which the complainants paid an amount of Rs.

19,34,672/-.

0n 15.05.2015, a buyer's agreement was executed between the parties and the due date of handing over of possession was 15.05.2019. b.

That the respondent issued a possession letter on ),5.02.201,9 and raised demand of final payment.

The possession letter was invalid as the respondent has not received the occupation certificate till now. c.

That despite lapse oflong time, no valid offer ofpossession has been made and the allottee now wishes to withdraw from the project and is seeking refund of the amount deposited with interest.

C, Relief sought by the complainants: Page 3 of17 /v I HARERA Complaint No. plaint No.

986 of 2022 ffiGURUGRAM 4.

The complainants have sought following relief(s): i.

Direct the respondent to refund the entire amount paid by the complainants.

D.

Reply by respondent: 5.

The respondent made the following submissions in its reply: (a) That the complaint under reply is a bundle of lies, proceeded on absurd grounds and isjlqd without any cause of action hence is liable to be ais1ffiffinas to failed to provide the correct/complete rr.,Wr. same are reproduced hereunder r". p.96fa5$16[fuqe present maner. she i, ."i.ing rrt."r(D,tr@d\sations asainst the irwfthintenffike*m*\ti (b) It is submittffi t th(.ffi i,$"ipq"|&f t rpp.o".n"a tn" Authority *}sl$[r,4h'$"lin{ fl&f*ed the rerevant .,t".u r".ts\$!$rfr[][dE$ff raint under repry is devoid of merita"Ilqe[T!:lPFrfred with cost. '' il::: "J::XXffiX&ffi ffiffi :TT:::1 titred as ,8trf*U@l*&{Vtd at sector 82, Gurugram and visited its office to know the details ofthe said project. (d) That after having dire interest in the commercial project constructed by the respondent, the complainants booked a unitvide application form dated 21.10.2014. the complainants were aware ofeach and every term of the aforesaid application k' PaEe 4 of 17 HARERA (D Al lDt taDA[/ Complaint No.

986 of 2022 and only after being fully satisfied agreed to sign without any protest any demur. (e] That on 21.10.2014; the respondent issued an allotment letter to the complainants and thereby allotted a unit bearing no.

D- 511, level 5 admeasuring to 524 Sq. ft. for a basic sale consideration of Rs.

46,63,600/- in the aforesaid project.

On 15.05.2015, a builder buyer agreement was executed between the parties for the said unit,-As per the agreement so signed and acknowledged the respondent herein provided and estimated time period a'48 ,:months for completing the construction of the proiect and the same was subject to various hindrances in midway ofconstiuction ofthe proiectwhich are purely beyond the control ofthe respondent. espondent. (0 That the complainants in the complaint under reply have evidently mentioned that the buyer's agreement was signed and executed on 15.05.2015 and as per the same it was bound to handover the possession of the unit subiect to any delay beyond its control. (g) That the complainants were well aware of every term of the said agreement and agreed to sign over the same after being satisfied with each and every term at free will and without any protest or demur.

As per the agreement the complainants were aware that the possession of the said unit was subject to timely payment of instalment and the same was essence of the contract. (hJ Despite, being aware of the payments schedule and the fact that timely payment is essence for completion of the project. ,10 Page 5 of 17 HARERA MGURUGI?AI/ Complaint No.

986 of2022 they have failed to make the requisite payment of the instalment as and when demanded by it in accordance with the payment schedule.

The complainants in the matter have merely paid an amount ofRs.

19,34,612/- against the total sale consideration of Rs.47 ,07,616/ - and, still a substantial amount ofmoney is due and payable on account ofthe complaint since the year 2014. (i) That the complainants in the complaint have merely paid a partial amount againsffffiffiffile consideration and have failed to adhere to ffi*edule which was well known to ttre coqd&ai*i ltN qphut of place to mention *,.t *'" nroi"7,(f$@t@tcted due to non- paym e nt or fS/stat mem u5q,"r\frAree i ncl ud i ng the comptainan$.:p I :-il ',1 l-i{l [) rhat *,e sailtkefle"i rli ,ii" [,14] in quesrion was signed by."\&N.afujb!!&7r{5, and as per rhe agreement so si9lQgl$r{Sed the complainants ;::ffi :ffi.r&& ffi xiffi '[o handove*he (k) rhat inspirc@{:S}{a5:G rc&Adent as and when due in respect to the unit in question the respondent had completed the construction of the prolect. e prolect. it had already offered the possession of the unit and had granted final opportunity to the complainants to come ahead and take the possession of the said unit post clearing the amount due and payable on account ofthe complainants.

Page 6 of17 HARERA ffi GURUGRAI/ Complaint No.

986 0f2022 (lJ That the agreement, the respondent had inter alia represented that the performance by the company of its obligations under the agreement was contingent upon approval ofthe unit plans of the said complex by the DTCP, Haryana and any subsequent amendment in the unit plans as may be made from time to time by the company & approved by the DTCP, Haryana from time to time.

Subsequent to the booking and the signing of the agreement, the company was facing umpteen roadblocks in construction and development works in projects in its licensed lands comprised of the towirship owing to the initiation of the GAIL corridor which passes through the same.

The concomitant cascading' effects of such a colossal change necessitated realignment of the entire layout of the various projects, including plotted/ group housing/ commercial/ institutional in the entire township.

This was further compounded with the non-removal or shifting of the defunct high-tension lines p'assing through these lands, which also contributed to the inevitable change in the layout plans. [mJ Unfortunately, owing to significant subsequent events and due to a host of extraneous reasons beyond the control of the company, it was unable to execute and carry out all the necessary work for the completion of the said project.

These subsequent developments have repeatedly marred and adversely impacted the progress of the company's project. to further add to the woes of the company, in addition to the reasons stated above, non-acquisition ofsector roads by HUDA to enable accessibility to the various corners of the projects, forceful unauthorised occupation of certain parcels by some Page 7 of 17 4 HARERA ffiGURUGRAM Complain M Complaint No.

986 of 2022 farmers coupled with other regular obstructions and impediments beyond the control of the company has resulted in the company being unable to deliver. [n) That, apart from the above, the progress of the construction of the project was also affected due to various other underseen circumstances such as re-routing of high-tension lines passing through the lands resulting in inevitable change in the layout plans. -,J.{.i l1;,'i',lr'' (o) That th" ."rnond"nffi?rifted to complete the development of the-p{flfffiI( deliver the units of the arottees * ,.76i9pr$iS@ons or the buyer's asreemenlltf ffdnete{g{5ilseYqYuthoritythatthe aevelonmenf 6f< "r,1..,:1nf,nffl\" u!!\ptrttr aeceteratea due to the'{*t, o:fi,#}" p"h"l fFo,l respondent due to the impacfop\i{l}o{[ '1pi$ft;/,to force after the effect or a"'n\@i$fufuiiql@r or 2016 which stretched its adveN@!9:ry"dustrial, construction. business arel eyan in z{pt Tlq rfryonSnt had to undergo r,uee oustatelEd.ltG& t(rton".i,,tion anci implementaB6i'of thFEgT; 7orJ- ; i', \7t-ri\,v.-7i\:-\ ., [p) That even after not receiving the entire sale consideration and facing various hindrances in mind-way of the construction of the proiect, the respondent herein had managed to complete the construction ofthe said unit within the proposed timelines and had offered the possession on L5.02.2079. (qJ That, it is evident that the entire case of the complainants is nothing but a web oflies, false and frivolous allegations made ,k- Page B of 17 HARERA ffiGURUGRAI\/ against the respondent.

The complainants have not approached the Authority with clean hands.

Hence, the present complaint deserves to be dismissed with healy costs.

It is brought to the knowledge of the Authority that she is guilty of placing untrue facts and are attempting to hide the true colour ofher intention. intention. [r] That the complainants, has suppressed 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.

It iS&-fthlr submitted that none of the reliefs as prayed for by the complainantd are sustainable before the Authority and in the interest of iustice.

6.

Copies ofall the releiant documents have been filed and placed on record.

Their authenticity is not in dispute.

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

The written submissions made by both the parties along with documents have also been perused by the authority.

E.

Jurisdiction ofthe authority: 7.

The authority observes th;t it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

I Territorial iurisdiction 8.

As per notification no. l/92/20L7-ITCP dated 74.12.20L7 issued by Town and Country Planning Department, the jurisdiction ofReal Estate Regulatory Authority, Gurugram shall be entire Gurugram { Complaint No.

986 of 2022 PaEe 9 of 17 9.

HARERA ffiGURUGRAM Complaint No.

985 of 2022 District for all purpose with offices situated in Gurugram. [n the present case, the project in question is situated within the planning area of Gurugram district.

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

II Subiect matter iurisdiction Section 11[4)(aJ ofthe Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 11[aJ[a) is reproduced as hereunder: Section 11(4)(o) B e resp o n sib I e for oll oblig atio ns, re spon sibi I ities a n d fun ction s u n d er the provisions of this Act 6t the rules qnd regulotions made thereunder or b the ollottees qs per the ogreementfor sale, or to the association of allottees, as the case moy be, till the conveyonce ofall the aportment aportments, plots or buildings, os the cqse moy be, to the allottees, or the common areas to the association ofallottees or the competent authoriry, as the case may be; Section 34-Functions of the Authority: 34A of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees qnd the real estate agents under this Act and the rules ond regilotioris made thereunder.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non- compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a later stage.

Further, the authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the Hon'ble Apex Court in -\- 10.

11.

Page 10 of17 HARERA MGURUGRAI\/ Complaint No.

986 of 2022 Newtech Promoters and Developers Private Limited Vs Stote of U.P. and Ors." SCC Online SC 7044 decided on 11.11.2021 wherein it has been laid down as under: "86.

From the scheme of the Act of which o detailed reference has been made and taking note of power of adjudication delineoted with the regulotory authority and odjudicating officer, whatlnally culls out is that olthough the Act indicotes the distinct expressions like'refund" 'interest', 'penqlty' ond 'compensation', a conioint reading ofsections 1B and 19 cleorly monifests that when it comes to refund of the amount, qnd interest on the refund amoun| or directing poyment of )nterest for delayed delivery of possession, or penolty..f/!..interest thereon' it is the regulatory authority whicflhis:the power to examine ond determine the outcome of a comploint At the sqme time, when it comes. it comes. to q'duqstign -,ol seeking the relief of adjudging coiiipensatioi andl interest thereon under Sections 72, 14, 18 and 19, the adiudicating officer exclusivelyhos the power to determine, keeping in view the collective reqding ofsection 71 reod u,/ith Section 72 ofthe AcL if the adiudication under Sections 12, 14, 19 ond 19 other than compensation os envisaged, if extended to the adjudicoting ofrcer as prayed that,in our view, may intend to expand the ombit ond scope of the powers ond functions of the odiudicating ollicer under Section 71 ond thotwould be ogoinst the mondote of the Act 2076;' 12.

Hence, in view of the authoritative pronouncement of the Hon'ble Supreme Court in the matter of Mf s Newtech Promoters and Developers Priva;te Limited Vs State of U.P. and Ors. (supra), the authority has the jurisdiction to entertain a complaint seeking refund of the amount paid by allottee along with interest at the prescribed rate.

F.

Findings on the obiections raised by the respondent: F.l Obiection w,r.t. force maieure.

Page l! of 17 HARERA ffiGURUGRAM Complaint No.

986 of 2022 13.

The respondent-promoter alleged that grace period on account of force majeure conditions be allowed to it. [t raised the contention that the construction of the prolect was delayed due to force majeure conditions such as shortage of labour, various orders passed by NGT and weather conditions in Gurugram and non- payment of instalment by different allottees of the project but all the pleas advanced in this regard are devoid of merit.

The flat buyer's agreement was.e-xerutgd between the parties on 15.05.2015 and as per terms.iihdro'4ditions of the said agreement the due date of handing gvet.o.lrggssession comes out to be 15.05.2019.

The events such as and Vdrious orders by NGT in view of weather condition of Delhi NCR region, were for a shorter duration of time and were not continuous as there is a delay of more than three years and even some happening after due date of handing over of ng over of possession.

There is nothing on record that the respondent has even made an application for grant of occupation certificate.

Hence, in view of aforesaid circumstances, no period grace period can be allowed to the respondent- builder.

Though some allottees may not be regular in paying the amount due but whether the interest of all the stakeholders concerned with the said project be put on hold due to fault of some of the allottees.

Thus, the promoter-respondent cannot be given any lenienry on based of aforesaid reasons.

It is well settled principle ,t that a person cannot take benefit ofhis own wrongs.

PaEe 12 of 17 HARERA ffi GURUGRAI/ Complaint No.

986 of 2022 14.

As far as delay in construction due to concerned, Hon'ble Delhi High Court Halliburton Offshore Services lnc.

V/S Vedanta Ltd. & Anr. bearing no.

O.M.P 0 (Comm.) no.88/ 2020 and I.As 3696- 3697/2020 dated 29.05.2020 has observed that- "69, The past non-performqnce of the Contractor connot be condoned due to the COVID-19 lockdown in March 2020 in India.

The Contractor wos in breach since September 2019.

Opportunities were given to the Contractor to cure the some repeatedly.

Despite the .some,.-the Contractor could not complete the nropct. fhe Oiibriak of a pondemic connot be used as on excuse for non- perfo'rmance of a contrdct for which the deadlines were much befol:e the outbreak itself." The respondent was liable to iomplete the construction of the project and the possession of the said unit was to be handed over by 15.05.2019 and is claimingbenefit of lockdown which came into effect on 23.03.2020 whereas the due date of handing over of possession was much prior to the event of outbreak of Covid-19 pandemic.

Therefore, the authority is ofthe view that outbreak ofa pandemic cannot be used as an excuse for non- performance of a contract for which the deadlines were much before the outbreak itself and for the said reason, the said time period is not excluded while calcula le calculating the delay in handing over possession.

Direct the respondent to refund the entire amount paid by the complainants, The complainants booked a unit, bearing no D-511, 5th floor, and having a super area of 524 sq. ft., in the said project.

On 15.05.2 015, a builder buyer agreement was executed between the parties wherein it was concurred that the said unit would be bought for a outbreak of Covid-19 is in case titled as M/s 15.

F.I 16.

Page 13 of17 k 1,7.

HARERA Gru al tDr tcDA[/ Complaint No.

986 of 2022 sale consideration of Rs.

47,07,616l-.

Further, it was promised to the complainant's that the possession of the said flat would be provided within 48 months and same was also consolidated in the said builder buyer's agreement.

The complainants paid the rest of the consideration i.e., Rs.

19,34,672/- transactions. through different The respondent stated in reply that the complainants being the habitual defaulter in terms of payment has failed to adhere to the payment plan and violated the.tgrr_ns and conditions of agreement.

It is to be noted that the comptafuiarits merely paid an amount of Rs.

19,34,612/- towards the total aliie4 sate consideration and still a substantial amount ofrlioney is due and payable.

Keeping in view the fact that the allottee/complainants wishes to withdraw from the project and demanding return of the amount received by the promoter in respect of the unit with interest on failure of the promoter to complete or inability to give possession of the unit in accordance with the terms of agreement for sale or duly completed by the date specified therein, the matter is covered under section 18(1) of the Act of 2 016.

The due date of possession as per agreement for sale as mentioned in the table above is 15.05.2019 and there is delay of 2 year l0 months 15 days on the date of filing ofthe complaint. complaint.

The occupation certificate/completion certificate of the project where the unit is situated has still not been obtained by the respondent/promoter.

The authority is ofthe view that the allottee 18.

19.

20.

PaEe 14 of 17 ,v HARERA ffiGURUGRAM Complaint No.

986 of 2022 cannot be expected to wait endlessly for taking possession of the allotted unit and as observed by Hon'ble Supreme Court of India in Ireo Grace Realtech PvL Ltd, Vs, Abhishek Khanna & Ors., civil appeal no.

5785 of 2079, decided on 11.07.2027: "....

The occupation certificate is not ovailoble even as on date, which clearly amounts to deficiency of service.

The allottees cannot be made to wqit indefinitely for possession of the apartments qllotted to them, nor con they be bound to take the apqrtments in Phose 1 ofthe project......." 21.

Further in the judgement of !he.

Hon'ble Supreme Court of India in the cases of Newtech Promoters and Developers Private Limited Vs Stote of U.P. and ORS.

2027-2022, RCR (c), 357 and reiterated in case of M/s Sana Realtors Priva,t Li^it"d & oth"r Vs ,tnion of td India & others SLP (Civil) No.

13005 of 2020 decided on 1 2,0 5,2 0 2 2. lt was observed that: "25.

The unqualified right of the allottee to seek refund referred Under Section 1B(1)(o) ond Section 19(4) of the Act is not dependent on ony contingencies or stipulations thereof. ltappears that the legislqture has consciously provided this right of refund on demand ason unconditionql absolute rightto the qllottee, iI the promoterlqils to give possession ofthe apartment, plot or building within the time stipulated under the terms of the agreement regardless of unforeseen events or stay orders of the Court/Tribunal, which is in either woy not attributable to the allottee/home buyer, the promoter is under an obligation to refund the amount on demand with interest atthe rote prescribed by the State Government including compensation in the monner provided under the Act with the proviso that if the allottee does ttee does not wish to withdrqw from the project, he shall be entitled for interest for the period of delay till handing over possession at the rate prescribed." 22.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunder or to the allottee as per agreement for/li Page 15 of 17 23.

986 of 2022 sale under section 11(4)(aJ.

The promoter has failed to complete or unable to give possession of the unit in accordance with the terms of agreement for sale or duly completed by the date specified therein.

Accordingly, the promoter is liable to the allottees as they wish to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of the unit with interest at such rate as may be prescribed.

The authority hereby directs the promoter to return to the '. .1r1 complainants the amount received i.e.Rs.19,34,672/- with interest at the rate of 10.70% fthe State Bank of India highest marginal cost of lending rate (MCLR) applicable as on date +2%) as prescribed under rule 15 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017 from the date of each payment till the actual date of refund of the amount within the timelines provided in rule 16 ofthe Haryana Rules 2017 ibid.

Directions of the Authority: 24.

Hence, the Authority hereby passes 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 functions entrusted to the Authority under Section 34(0 of the Act of 20t6: i.

The respondent/promoter is directed to return the amount received i.e., Rs.

19,34,672/- to the complainants with interest at the rate of 10. ate of 10.700lo (the state Bank of lndia highest marginal cost oflending rate (MCLR) applicable as on date +2%l as prescribed under rule 15 of the Haryana Real Estate [Regulation and ,tr Page 16 of 17 H. ffiHARERA #-anucRAM Complaint No.

986 of 2022 ii.

A period of90 days is given to the respondents to comply with the directions given in this order and failing which legal consequences would follow.

25.

Complaint stands disposed of.

26.

File be consigned to the registry.

Haryana Real Estate ority, Gurugram HARERA GURUGRAM PaEe 17 of 17