BHUPESH BHUMBHANI vs VATIKA LTD

ffiHARERA HaIRUGRAI/ Complaint No.

5546 of 2022 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGMM Complaint no.

5546 of 2022 Date of fi lins comDlaint: 70.08.2022 First date ofhearinq: 10.tl.2022 Date ofdecision 15.03.2 02 3 CORAM: Shri Ashok Sangwan Member APPEARANCE: Sh.

Sanjeev Sharma (AdvocateJ Complainant Respondent ORDER 1. rhe present c",,&*Ap**,ki*i(1Qlrinant/anonees under section St gf.tlrg \ga\ $sge(npgulltign 9pd Development] I-itlJtt.'i''' Act"2016 (in sholtJ6Mdt).ftrd\ftt fulelbbrtne Haryana Reat Estate (Regulation and Development) Rules, 2017 (in short, the Rules) for violation ofsection 11(4J [a) 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.

A.

Unit and proiect related details Bhupesh Bhambhani R/o: H.no: B, 2nd floor, North Avenue Road, Punjabi Bagh, West Delhi.

Complainant M/s Vatika Limited address: Flat No.621a 6th Floor Nehru Placc New tas Delhi 110019 Respondent ,\.

Page 1of14 S/Sh.

Venket Rao & Pankai Chandola (Advocatel 2.

MHARERA ffi eunueRRvr Complaint No.

5546 of 2022 The particulars of the project the details of sale consideration, the amount paid by the complainant, date ofproposed handing over the possession and delay period, if any, have been detailed in the following tabular form: Heads Information 1.

Project name and location "Tranquil Heights Ph.-1" at Sector B2A, Gurgaon, Haryana.

2.

Project area 11.218 acres 3.

Nature ofthe project Group Housing Colony 4.

DTCP License ({r xq r011 dated 24.03.2011 valid 3.03.2019 5.

Name of the li M/s Stanway Developers Pvt.

Limited & 3 others 6.

DFDA D 359 of 2017 for area 293 sqm.

Valid admeasuri upto 30.04.2 registered 7.

Unit no.

230i 19o 23.d floor, building E [page :omplaintJ 8.

Unit area admeasurit rg 226! sq. ft.

6! sq. ft. [super area] Date of builder buyer agreement com 9.2015 (page 16 of )laint) 10.

Due date ofpossession 07 .09.201,9 LL, Possession clause 13.

SCHEDULE FOR POSSESSION OF THE SAID APARTMENT oper based on its present estimates ond subject to 0ll just exceptions, contemplates to complete construction of the soid building/said Ap.rrtment within o period of 48 (Forty Eight) months from the dqte oI execution of this Agreement unless there shall be delay or there shall be foilure due to reasons mentioned in other Clouses 14 to 17 & 37 or due tofoilure ofAllottee(s) to pay in time the price of the said qportment Page Z of 14 ^.- I{ARERA ffiGURUGRAM B.

Facts ofthe co 3.

The complainant complaint: a.

That the co agreement Complaint No.

5546 of 2022 bmissions in the ted buyers' omplainant was r-82, admeasuring parking no.

TBA for a 1,185/- along with other allotted unit 2265 sq. ft. as the total consideration of paid an amo date. charges as specified in the buyers' agreement against which he Nfitember 2013 till That the possession was to be handed over within 4 years from the date of execution of the buyer's agreement i.e., by 07.09.2019 but the same has not happened till today.

Since the respondent had failed to offer possession ofthe unit in question, the complainant while exercising their rights has approached the Authority seeking refund oftheir monies along with interest ^,- Page 3 of 14 unt o along with all other charges and dues in accordance with the schedule of paymentsgiven inAnnexure -Ior os per the demonds raised by the developer from time to time oy any failure on the part ofthe Allottee(s) to abide by any of the terms or conditions oJf this ag reem ent.

Emphqsis s upplie d Total sale consideration Rs.l,52,4l,1.95 /- as per SOA dated 28.02.2022, page 50 of complaint.

Rs.53,13,359/- as per SOA dated 22, page 50 of complaint.

Amount paid by the complainant Occupation certificate Offer ofpossession plainar ated C ro. ated C ro.23( rrdqr*{ E{A HARERA MGURUGRATM Complaint No.

5546 of 2022 as all the requests made by the complainant have gone to the deaf ears of the respondent.

C.

Relief sought by the complainant: 4.

The complainant has sought following relief(s): i.

Direct the respondent to refund the entire amount paid by the complainant along with prescribed rate of interest from the date of respective deposits till its actual realisation in accordance with the nro4ffiffile Act. ii.

Direct the respona"nt tffi-0,000/- as litigation costs.

5.

D.

Reply by respondent: (a) That the complainants have not approached the authority with clean hands and have suppressed/concealed the relevant facts with the intent to mislead this authority through the representation of the one-sided facts.

It is submitted that the complaint under reply is devoid of merit and the same should be dismissed with cost. (bJ That in around 2013, the complainants learnt about project and repeatedly approached the respondent to know the details of the said project.

They further inquired about the specification and veracitlz of the project and were satisfied with every proposal deemed necessary for the development of the project.

After having keen interest in the above said project launched by it i.e., "Tranquil Heights", the complainants upon its own examination and investigation desired to purchase a unit and approached it and booked a unit bearing no2302, 1,/l- Page 4 of14 ffi ffi HARERA GURUORAI/ Complaint No.

5545 of 2022 block E, admeasuring 1315 sq.ft. for a total sale consideration of Rs.

1,52,41,185/-. (cJ The buyer's agreement dated 07.09.2015 was executed between the parties for the unit bearing no.

2302, admeasuring super area 2650 Sq.

Ft for a total sale consideration of Rs.

1,52,41,185/- against which the complainant paid an amount ofRs.

Rs. ofRs.

Rs.53,13,359/- (dJ It is pertinent to bring in edge ofthis authority that as per the agreement and acknowledged by the respondent provided time period of 48 months for completing r the project i.e., "Tranquil H not be proceeded further and hindrances due to various which were unavoidable of it.

Further, it is not be completed pertinent to m and developed us hindrance such as government notifications from time to time and force majeure conditions, breakdown of Covid-19 pandemic, laying of GAIL pipe line, acquisition of sector road land parcels in the township and other such reasons stated above and which miserably affected the construction and development of the above said project as per the proposed plans and layout plans, which were unavoidable and beyond the control of it. (e) That the respondent after failure to complete the project as per the proposed plan and layout plan due to the aforesaid reasons elaborately, filed a proposal bearing "tn Re: Regd.

No.

359 of \\// Page 5 of14 ffiHARERA S- arRucRA[/ be directed application "Tranquil authority.

H be dismissed.

6.

Copies of all the rel een filed and placed on record.

Their aut E.

Jurisdiction ofth 7.

The authority observ it subiect for the matter ,urisdiction to adjudicate the present complaint reasons given below.

E.

I Territorial iurisdiction 8.

As per notification no.

7 /92/2017-LTCP dated L4.L2.2017 issued by Town and Country Planning Department, the iurisdiction ofReal Estate Regulatory Authority, Gurugram shall be entire Gurugram ,,!

Complaint No.

5546 of 2022 2077 dated,77.11.2077, for the De-Registration of the Proiect "Tranquil Heights", and settlement with existing allottees before the registry of this authority on 30.09.2022.

The intention of the respondent is bonafrde and the above said proposal for de-registration of the proiect is filed in the interest of the allottees of the project as it could not be delivered due to various reasons beyond the control of the respondent as stated above. ted above. i0 The complaint under to be dismissed with cost for wasting the precio resources of the authoritv.

The complaint i process of law, and hence d complainants may as and when the of the project finality by this has territorial as well as es that Page 6 of 14 ffiHARERA H aIRTJGRAI/ Complaint No.

5546 of 2022 District for all purpose with offices situated in Gurugram.

In 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.

E, U Sub,ect matter iurisdiction 9.

Section 11(4)(a) of the Acg 2016 provides that the promoter shall be responsible to the allott 11(4)[aJ is reproduced as h Section 77(4)(a) Be responsible the provisions thereunder or ossociation of theopartmen or the comm quthority, qs Section 34-Fun 344 ofthe Act provide. agreement for sale.

Section functions under ulotions made sale, or to the veyance ofoll the allottees, the competent ofthe obligotions cast I estqte agents under 10. upon the promoters, the this ect ond thdfu$arL So, in view of the provisions ofthe 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 adiudicating 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 ,f- 11.

Page 7 of 14 t tl,i, G.

G.1 ffiHARERA ffi aiRTJGRA[i Complaint No.

5546 of 2022 Newtech Promoters and Developers Private Limited Vs State of U.P. and Ors." SCC Online SC 7044 decided on 11.11.2021 wherein it has been laid down as under: "86. nder: "86.

From the scheme of the Act of which a detoiled rekrence hos been made and toking note of power of odjudication delineated with the regulatory outhority and odjudicating officer, whatfinally culls out is that olthough the Act indicates the distinct expressions like 'refund', 'interest', 'penqlty' and 'compensation', o conjoint reading ofSections 18 ond 19 cleorbt manifests thot when it comes to refund oI the omount, ond inlerest on the reluncl amount, or directing payment. of:inlterest for delqyed delivery of possessio4 or penalql aid interest thereon, it is the regulatory auLhority whtch has the power Lo examine ond determine the outcome of a comploinL At the some time, when iL comes to o question of seeking Lhe retief of adjudging compensatiei at.td interest thereon under Sections 12, 14.

1B ond 19, the odjudicating o[Jicer exclusively has the power to determine, keeping in view the collective reading ofSection Tl reod with Section 72 ofthe Act. if the adjudicqtion under Sections 12, 74, 18 and 19 other than compensation as envisoged, if extended to the adjudicqtiig omcer as prayed that, in ourview, may intend to expond the qmbit ond scope of the powers and functions ofthe adjudicoting offlcer under Section 71 qnd thatwould be ogoinst the mondote of the Act2076:' Findings on the relief sought by the complainants: Direct the respondent to refund the paid entire amount paid by the complainants.

The complainants booked.a unit bearing no.

2302, 23d floor, building E admeasuring 2265 sq. ft in the above-mentioned project of respondent and the same led to execution of buyers' agreement on 07.09.2015.

They paid a sum of Rs.

53,13,359/- to the respondent against the total sale consideration of Rs.

1,,52,47,185 /- but due to misrepresentations w.r.t. the project, they did not pay the remaining amount and are seeking refund of the paid-up\ 1.2.

Page 8 of14 MHARERA #eunuenRH,l Complaint No.

5546 of 2022 amount besides interest from the respondent.

Section 1.

Section 1.8[1J of the Act is reproduced below for ready reference: " Section 78: - Return of amount and compensation 1B(1).

Ifthe pronoter fails to complete or is unable to give possession ofan aportment, plot, or building.- (a)in occordonce with the terms of the agreement for sale or, os the case may be, duly completed by the date specified therein; or (b)due to discontinuance of his business os a developer on account of suspension or revocation of the registrotion under this Act or for any other reoson, he shall be liable on demand to the allottees, in case the allottee wishes to W.lutgg the proiect, without preiudice to any other available, to return the omount received by plot, building, ds the of that opartment, with interest at such rate as may be prescribed in this beholf including compensation in the manner qs provided under this Act: Provided that where on allottee does not intend to withdraw from om the project, hee shatl b9 paid, by the promoter, interest for every month ofdelay, till the honding over of the possession, at such rqte as may be prescribed." (Emphasis supplied) 13.

Clause 13 ofthe buyer's agreement dated 07.09.2015 provides for schedulef orposs.rri{ffi {iio.f,irffi{$disreproducedbelow for the reference: X.:::;"': n. scafufirlfoi{&Gte$ sfurut sen APARTME'I,I.

J L.!.rl-, l' iL; f The Developer based on its present plans qnd estimates and subject to all just exceptions, contemplates to complete construction ofthe sqid building/soid Apqrtment within q period of 4B (Forty Eight) months from the date of execution of this Agreement unless there shall be delay or there sholl be foilure due to reasons mentioned in other Clauses 14 to 17 & 37 or due to failure ofAllottee(s) to pay in time the price ofthe sqid aportment along with all other charges and dues in accordonce with the schedule of payments given in Annexure -l or os per the demands roised by the developerfrom time to time oy ony failure on the part ofthe Allottee(s) to abide by any of the te of the terms or conditions off this agreemenL Emphasis supplied PaBe 9 of 14 )- HARERA ffi GURUGRAI/ Complaint No.

5546 of 2022 74.

Entitlement ofthe complainants for refund: The respondent has proposed to hand over the possession of the apartment within a period of 48 months from date of execution of builder buyer's agreement.

The builder buyer's agreement was executed inter se parties on 07.09.2075 and therefore, the due date of possession comes out to be 07.09.20'L9.

It is not disputed that the complainants are allottees of the respondent havingbeen allotted a unitno.2302,23d floor, building E admeasuring 2265 sq. fl of the project known as Tranquil Heights, Phase I, Sector_ffiffirugram for a total sale consideration orR'21@Mifo$lSdent in the reply has admitted *at ttrey'5H7d,@pfu}}d$$\ed due to various reasons and it na/$y'a n.olosA$,*""\tf "n of the project in question. ^'"tHt, {f,*ql4f","ct at the site. rhus, the comnta\p\]rf .Tfn!l" P'ToFt4-ry from the proiect and seeking retund\p(Qfuioaff-ti ailo*ltt4ftdes interest as the promoter tr. rrit"aH@ffiDdper the schedule of construction despite demai?S'tEldraised from them and the prolect being abafi"A R E R4 16.

Further in the iu$Anpnf ffi"|lqlPsAhryq court of India in the cases of tvewte)/ Nr)"lil",rv"a'oiieiopirtr rrivate rimitea Vs State of U.P. and Ors, fsupra) reiterated in case of M/s Sana Realtors Private Llmlted & other Vs Unlon of lndia & others SLP (Civil) No.

13005 ol 2020 decided on 72.05.2022, observed as under: "25.The unquolified rightofthe allottee to seekrefund referred llnder Section 1B(1)(a) ond Section 1g(4) of A.' the Act is not dependent on ony contingencies or stipulotions thereof. lt appears that the legislature has Page 10 of 14 HARERA M GURUGRAI/ consciously provided this right of refund on demond as an unconditional absolute right to the allottee, if the promoter fails to give possession ofthe apartmenC plot or building within the time stipuloted under the terms of the ogreement regardl nt regardless of unforeseen events or stoy orders of the Court/Tribunal, which is in either way not attributable to the qllottee/home buyer, the promoter is under an obligation to refund the qmount on demand with interest at the rote prescribed by the State Government including compensation in the manner provided under the Act with the proviso that if the allottee does not wish to withdraw from the project, he shall be entitled for interest for the period of deloy till handi at the rote Complaint No.

5546 of 2022 tions, responsibilities, and of 2016, or the rules and as per agreement for ter has failed to 77.

The promoter is responsible functions under the p regulations made sale under sectio a) complete or una glve with the terms o specified therein. it in accordance ompleted by the date le to the allottee, out prejudice to any "Rule 75, Prescribed rate of intetest- lProviso to section 72, section 78 and sub-section (4) and subsection (7) oJ section 791 t received by them in as they wish to with ,, :"i:",:l,T;,;ffiffi ffiaxffi:i" ;:":: Section 18 orthe@19[Q{d@F?Ad'dis provide that in case the allottee intends to withdraw from the project, the respondent shall refund of the amount paid by the allottee in respect of the subject unit with interest at prescribed rate as provided under rule 15 ofthe rules.

Rule 15 has been reproduced as under: Page 11 of 14 HARERA ffiGURUGRAI/ (1) For the purpose ofproviso to section 12; section 18; snd sub-sections (4) ond (7) ofsection 19, the "interest at the rate prescribed" sholl be the State Bank of Indio highest marginql cost of lending rote +2%.: Provided that in case the Stste Bonk oflndia marginal cost oJ lending rate (MCLR) is notin use, it sholl be reploced by such benchmark lending rotes which the State Bank of lndia moy lx from time to time for lending to the general public. al public." The legislature in its wisdom in the subordinate legislation under the provision ofrule 15 ofthe rules, has determined the prescribed rate of interest.

The rate ol..inlerest so determined by the legislature, is reasonable rule is followed to award ce in all the cases. the interest, it will ensure un 20.

Consequently, as Bank of India i.e., https://sbi.co.in. as on date i.e., 1 rate of interest 10.7 0o/o. (in short, MCLR) , the prescribed rate +20/o i.e., return the amount 15 ofthe Haryana Real Estate (Regulation and Development) Rules, 2017 from the date of each payment till the actual date of refund of the amount within the timelines provided in rule 16 of the rules ibid.

G.ll Litigation expenses & compensation 22.

The complainants are also seeking reliefw.r.t.

Iitigation expenses & compensation.

Hon'ble Supreme Court of India in civil appeal nos. ).- Complaint No.

5546 of 2022 19.

2L. ter to v,-/ received by him i.e., Rs.

10.70% (the Sta rate (MCLR) app ith interest at the rate of I cost of lending rlbed under rule 023 is 8.70 Page 12 of14 ffiHARERA ffi aJRtiGRA[,r Complaint No.

5545 of 2022 67 45-67 49 of 2027 titled as M/s Newtech Promoters and Developers PvL Ltd.

V/s State oI Up & Ors. [supra), has held that an allottee is entitled to claim compensation & litigation charges under sections lz,l4,l8 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation & litigation expense shall be adjudged by the section 72.

The adjudicati deal with the complaints exclusive jurisdiction to of compensation & legal expenses.

Therefore, ised to approach the adjudicating on expenses. b- H.

Directions ofthe Authority: 23.

Hence, the Auth r and issue the following directio e Act to ensure compliance of obliga t upon promoters as per the The respondent/promoter is di promoter is directed to refund the entire amount of Rs.

53,73,359 /- paid by the complainants along with prescribed rate of interest @ L0.70o/o p.a.

70o/o p.a. as prescribed under rule 15 of the rules from the date of each payment till the actual date of refund of the amount. ii.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which consequences would follow, legalL functions entrusted to the A of 20'1.6: Page 13 of 14 1rHARERA # GuRuGRAI/ 24.

Complaint stands disposed of.

25.

File be consigned to the registry.

5546 of 2022 Ashok Mem Haryana Real Estate Regulatory thority, Gurugram Dated: 15.03.2023 HARERA GURUGRAM dffi *lrll H 1..,r5 eGH, q-s& q{i Page 14 of 14