PRABHAT KUMAR vs IMPERIA WISHFIELD PRIVATE LIMITED

HARERA ffiGURUGRAN/ 1.

Complaint No.

97 of 2021 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.

97 of 2O2l Date of filing complaint: 27.ot.2027 Order Reserve On: 15.03.2 02 3 Order Pronounced On: 26.O4.2023 The present complaint has been filed by the complainant/allottee under Section 31 of the Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and Developmentl Rules,2017 (in short, the Rules) for violation of section 11(41(a) ofthe Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision ofthe Act or the rules Prabhat Kumar R/O: H. no.

39-AB, Tagore Garden, Ambala Cantt, Haryana-133001 Complainant Versus 1.

M/s Imperia Wishfield Pvt.

Ltd.

Regd. office: A-25, Mohan Cooperative Industrial Estate, New Delhi-110044 2.

M/s Prime IT Solutions Pvt.

Regd.

Office: B-2/3, KH no.

8/8, Chattarpur Extn, New Delhi-110074 Respondents CORAM: Shri Ashok Sangwan Member APPEARANCE: Sh.

Prabhat Kumar Complainant Sh.

Rishi Kapoor (Advocate) Respondent ORDER Pase t ot26 1V HARERA GURUGRA[/ Complaint No.

97 of 2021 and regulations made there under or to the allottee 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 complainant, date of proposed handing over the possession and delay period, if any, have been detailed in the following tabular form: S.

N.

Particulars Details 1.

Name and location of the project "Elvedor", at Sector 37 C, Gurugram 2.

Nature of the proiect Commercial Project 3.

Project area 2 acres 4.

DTCP Iicense no.

47 of 20L2 dated 1.2.05.20L2 valid upto 1 1.0 5.2 016 5.

Name of licensee Prime [T So]utions 6.

RERA Registered/ not registered Not registered 7.

Unit no.

E-117, 1st floor, Tower Evita (page no. (page no.

41 of complaint) Unit area admeasuring (super area) 157 sq. ft. (page no.

41 of complaint) 9.

Allotment letter 23.t0.2013 (page no.

20 of complaintl 10.

Date of builder buyer agreement 2t.02.201.4 (page no.

41 of complaint) Page 2 of26;1, HARERA GURUGRA[/ Complaint No.

97 of2021 11.

Possession clause 11 (a) Schedule for possession ofthe said unit The company based on its presentplans and est[mates and subject to all exceptions endeavors to complete construction of the said building/said unit wlthin a period of sixty (60) months from the date of this dgreement unless there shall be delay or failure due to department delay or due to qny circumstances beyond the power and control ol compqny or force majeure conditions including but not limited to reasons mentioned in clouse 11(b) and 11(c) or due to failure of the ollottee(s) to poy intime the totql price and other charges and dues/payments mentioned [n this Agreement or any failure on the part of the Allottee[s) to abide by all orany ofthe terms and conditions ofthis AgreemenL L2.

Due date of possession 2L.02.2079 (Calculated from the date of buyer's agreement] 13.

Total sale consideration Rs.

16,88,896/- [as per agreement on page no.

47 of complaintl 74.

Amount paid by the complainant Rs.

12,45,71.0 / - [as per receipts annexed as annexure C- 3 on page no.22-35 of complaintl 15.

Occupation certificate Not obtained 16.

Offer of possession Not obtained B.

Facts ofthe complaint: eage f otZe\ ffiHARERA #- arnuennnr 8.

4.

5.

6.

7.

97 of2021 3.

That the complainant purchased the shop no.

E-117 from the original allottees Mrs.

Shanti Dubey and Dr.

Narayan Dubey in the project named as "Elvedor" situated at Sector 37-C, Gurgaon, Haryana for a valuable consideration and through proper process the shop was transferred in his name vide assignments and endorsements letter d ated 77 .7 .2013.

That the complainant was informed by the respondent no. ondent no.

1 that the project will be completed within a period of 60 months from the date of original booking i.e.,03-09-201,2 and would handover possession ofthe shop in question in the said time period.

That the complainant was allotted shop no.

E-117 admeasuring 157 sq. ft. in Tower- Evita in the commercial project known by the name and style of Elvedor on land admeasuring 2.0 acres situated at village Gharouli Khurd, Sector -37C, Gurgaon, Haryana from the respondent no.1.

That as per allotment letter dated 23.10.2023 the total sale consideration for the unit was Rs.

17,08,896/- inclusive of external development charges/ infrastructure development charges.

That till date a sum of Rs.

12,45,710/-, more than 700lo of the basic sale price and all charges towards PLC and development charges, stands paid by the complainant against the said unit.

That at the time of booking of the above said unit the respondent no.

1 received 2570 of BSP with service tax,i.e.,Rs.3,77 ,990 /- as total booking amount and also assured the complainant of executing the builder buyer's agreement in a very short span of time but practically after giving many reminders the BBA was executed on 21.02,.2014 after a gap of 1.5 years from the booking date of 03.09.2012 with ulterior motive to deprive him with delay compensation ofthis 1.5 years period against Page 4 of26v HARERA MGURUGRAM 11.

97 of 2021 9. the principles of natural justice.

The intention of the respondent from the very beginning was to cheat the complainant.

That the builder buyer's agreement was executed between the complainant and respondent no.

1 on 21,.02.2074 on a pre_defined format.

The said agreement provided by the respondent no.

1 consisted of several one-sided clauses signed under undue pressure by the complainant as no one would relinqulsh his rights generated earlier and as such pre-set clauses, which also includes with respect to possession, are illegal. e illegal.

That even after expiry of 7 years from the date of booking, till date only an undeveloped structure of one out of the several building forming part of the project has been erected on the project land incapable of possession and the project is still far from completion.

Additionally, there is no other.development on the project land from last four years and the construction activities have been stopped since 2016.

That after halt of the construction from last more than 3 years the complainant started making enquiries from the other allottees & he came to know ofsurprising facts that the respondent no.

1 neither have any right over the land, nor have requisite sanctions or approvals from the concerned competent authorities.

As such all the representations provided by the respondent no.

1 to the complainant were deceptive and false.

Further to confirm that fact the complainant moved some RTI applications with the competent authorities and shocked to know that the averments made above are true and these RTI replies which are par- se admissible. ^ V' 10.

PaEe S of 26 HARERA ffiGURUGI?AM Complaint No.97 of2021 12.

That further, the license no.47 of ZO1,Z expired on 11.05.2016 and no application till today was made for renewal of the license.

That important and essential fact was also actively concealed.

13.

That the complainant also issued a notice/ email on 1,4.02.2020 to the respondent no.

1 for refund of the amount paid till date along with interest @ 24 per annum, within 15 days, but to no avail.

As such, the complainant left with no other alternative or efficacious remedy available except to file this present complaint.

C.

Relief sought by the complainant: 14.

The complainant has sought following relief(s): (i) Refund the entire amount made to respondent no.

1 i.e., Rs.

L2,45,7 L0 / - along with interest @ 240/0 p.a.fromthedate of deposit ofthe amounts till date of its refund. (ii) Direct the respoiident to pay an amount of Rs. unt of Rs.

3,00,000/_ as compensation for harassment and mental agony to the complainant. fiii] Direct the respondent to pay compensation to the tune of Rs.

5,00,000/- on account offalse claims regarding marketin& developing & booking/selling rights and ownership rights for the project, and for duping the complainant. [iv) Direct the respondent to pay an amount of Rs.

1,00,000/_ to the complainant towards the cost of litigation.

D, Reply by respondent no.

1: The respondent no.

1 by way of written reply made following submissions: 15.

That unit no.

E-117, admeasuring 157 sq. ft. in tower_ Evita situated in the said commercial project, which had been allotted to the complainant by the respondent company for a total consideration amount of Rs.

I_ zl Page 6 of 26 HARERA ffiGURUGRAM 17,96,804/-, vide allotment letter/ retail buyer agreement dated 2L.02.2O\4 on lhe terms and conditions mutually agreed by the parties.

16.

The said project is a commercial prolect being developed on two acres of land situated at Sector 37-C, Gurugram, Haryana and comprises of retail and studio apartments.

The foundation of the said proiect vests on the joint venture agreement executed betvveen M/s Prime IT Solutions Pvt.

Ltd. and tmperia Structure Pvt.

Iying down the transaction structure for the project and for creation of SPV company, named and styled as "lmperia Wishfield Pvt.

Ltd ".

Later, collaboration agreement dated 06.72.2012 as executed between M/s Prime IT Solutions Private Limited (on one part) and M/s Imperia Wishfield Pvt.

Ltd. (on the second part).

In terms ofthe said collaboration agreement, the second party i.e., Imperia Wishfield Pvt.

Ltd was legally liable to undertake construction and development ofthe proiect at its own costs, expenses and resources in the manner it deems fit and proper without any obstruction and interference from any other party. her party.

The referred collaboration agreement has been signed by representative of M/s Prime IT Solutions Private Limited and Imperia Wishfield Pvt.

It is suffice to mention here that on the relevant date i.e., 06.12.201-2 on which the collaboration agreement was signed.

There were common directors in both these companies i.e., in M/s Prime lT Solutions Private Limited and M/s Imperia Wishfield Pvt.

L7.

That a clear reference of the said collaboration agreement has been given in the said allotment letter/ retail buyer agreement executed between the complainant and the respondent.

In the said agreement it is distinctly mentioned that "Prime IT Solutions Private Limited", a company incorporated under the provisions of Companies Act, having its registered office at B-33, First Floor, Shivalik Colony (Near Malviya Complaint No.

97 of2021 Page 7 of26 HARERA P*GURUGRAM NagarJ, New Delhi-l10017, has been granted licence No.47 /2012 by the Director General, Town and Country Planning, Haryana in respect of project land and the respondent company is undertaking implementation of project based on the basis of said collaboration agreement.

That in the above collaboration agreement, M/s Prime IT Solutions Private Limited represented and confirmed to the lmperia Wishfield Pvt.

Ltd. that it has already obtained Letter of Intent ("LOI") from the Department ofTown and Country Planning, Government ofHaryana on 24.05.20Ll and subsequent license from the Department of Town and Country Planning, Government of Haryana as necessary for setting up a commercial project ol the land admeasuring 2.00 acres in the revenue estate of Village Gadoli Khurd, Sector 37 C, Gurugram on 12.05.2072 along with the Zoning Plan. (License No.

47 of 2012, dated 1,2.05.2072).

The building plans of the said project being developed under above mentioned license no.

47 of 2072 were approved on 25.06.2013.

5.06.2013.

It is pertinent to mention here that even before the execution date of above referred collaboration agreement betlveen M/s Prime IT Solutions Private Limited aiid Imperia Wishfield Pvt.

Ltd., both these companies were under the same management and directors.

Further it is also relevant to mention here that in terms of compromise dared 12.01.2076, both M/s Imperia Wishfield pvt.

Ltd. and M/s prime lT Solutions PvL Ltd. apart from other points, agreed to take collective decision for the implementation of the project and all expenses related to the proiect were to iointly incurred by both the parties from the dedicated project account which will be in the name of "M/s lmperia Wishfield Limited Elvedor Account." )'tr Complaint No.

97 of 2021 18.

19.

Page 8 of26 HARERA ffi.

GU;?UGRAM Complaint No.

97 of2021 20.

That the said project suffered a setback on account of non-cooperation by aforesaid JV Partner i.e.

Prime IT Solutions private Limited as major part of the collections received from the allottees of this proiect have been taken away by said fV Partner namely prime IT Solutions private Limited.

21.

That it is also agreed between both M/s Imperia Wishfield pvt.

Ltd. and M/s Prime IT Solutions Pvt.

Ltd. that regardless of execution of Collaboration Agreement dated 06.1 Z.Z0lZ,M / s prime IT Solutions pvt.

Ltd. shallremain actively involved in the implementation of project.

The Respondent has filed an execution petition against the said prime IT Solutions for compliance of their part and responsibiliry in regard to said project Elvedor, which is pending adiudication before the Civil Court at Gurugram and lastly listed for hearing on 2 5.08.2022. pertinent to mention that, in the said execution, the answering respondent has prayed for recovery of Rs.24.27 Crores towards balance construction cost ofthe project.

22. oject.

22.

That in view ofabove background and the factual position, the present complaint against the respondent is not maintainable on account non-ioinder of necessary party, in absence of which adjudication present matter will be against the settled principles of law as well principles of natural justice.

That for the proper adjudication of the present complaint, it is necessary that M/s Prime IT Solutions pvt.

Ltd. be arrayed as a necessary party.

Any coercive order passed without hearing the said necessary party is clearly cause grave prejudice to the answering respondent's rights and same is also in contrary to admitted understanding between the parties as contained in the decree dated of of as 23.

2L.01..2076.

Page 9 of 26 HARERA ffi GURUGRAM The respondent company had intended to complete the construction of the allotted unit on time.

It is pertinent to mention that the respondent company had successfully completed the civil work of the said tower/proiect, and the finishing work, MEp work remaining of these towers, is going on and the respondent company is willing to complete the same within next six to twelve months of period.

However, the delay in handing over the project has occurred due to certain force majeure circumstance, inter alia includes the covid-19.

That the respondent company requested for grant of 12 months, time to complete the said project enabling us to initiate possession related activities within thatextended period ofone year.

In the meanwhile, the respondent company requests you to not pass any coercive monetary orders, so that it could devote cent percent of its resources in this project.

2 6.

That, several allottees have withheld the remaining payments, severally affecting the financial health of the respondent company and due to the force majeure conditions and circumstances/reasons, beyond its control.

Both the parties i.e. rties i.e. the complainant as well as the respondent company had contemplated at the very initial stage while signing the allotment letter/agreement that some delay might occur in future and that is why under the force majeure clause as mentioned in the allotment letter, it was duly agreed by them that the respondent shall not be liable to perform any or all of its obligations during the subsistence of any force majeure circumstances and the time period required for performance of its obligations shall inevitably stand extended.

It is unequivocally agreed betlveen them that the respondent company is entitled to extension of time for delivery of the said unit on account of force majeure circumstances beyond the control of the )- page 1O of26 Complaint No.

97 of 2021 24. ,< HARERA MGURUGRAN/ respondent company and inter-alia, some ofthem are mentioned herein below: (i) That, the respondent company started construction over the said project land after obtaining all necessary sanctions/approvals/ clearances from different state/central agencies/authorities and after getting building plan approved from the authority fall in the name of prime it) and named the project as ',Elvedor Retail.,, It had received applications for booking ofapartments in the said project by various customers and on their requests, the respondent company allotted the under-construction apartments/ units to them. (ii) It is a well-known fact ihat there is extreme shortage of water in State of Haryaia and the construction was directly affected by the shortage of i^raIer.

Further the Hon'ble Punjab and Haryana High Court vide an Order dated L6.07 .2072 in CWp No.

ZOO32 of ZOO, directed to use only treated water from available Sewerage Treatment Plants (hereinafter referred to as ,,STp,,).

As the availability of STP, basic infrastructure and availability of water from STP was very limited in comparison to the requirement of water in the ongoing constructions activities in Gurgaon District, it was beco t was becoming difficult to timely schedule the construction activities.

The availability of treated water to be used at construction site was thus very limited and against the total requirement of water, only 10-15% of required quantity was available at construction sites. (iii] That, owing to unprecedented air pollution levels in Delhi NCR, the Hon'ble Supreme Court ordered a ban on construction activities in the region from November 4, 2019, onwards, which was a blow to I vuge rr or zi Y Complaint No.

97 of2021 HARERA ffiGURUGRAM realty developers in the city.

The Air Quality Index (AQIJ at the time was running above 900, which is considered severely unsafe for the city dwellers.

Following the Central Pollution Control Board (CPCB) declaring the AQI levels as not severe, the SC lifted the ban conditionally on December 9, 2019 allowing construction activities to be carried out between 6 am and 6 pm, and the complete ban was lifted by the Hon'ble Supreme Court on 14th February, 2020. (iv) Moreover, it is also pertinent to mention here that every year the construction work was stopped / banned / stayed due to serious air pollution during winter session by the Hon'ble National Green Tribunal [NGT), and after banned / stayed the material, manpower and flow of the work has been disturbed / distressed.

Every year the respondent company had to manage and rearrange for the same and it alhost multiplied the time of banned / stayed period to achieve the previous workflow. (v) Tha! when the complete ban was Iifted on 14th February 2020 by the Hon'ble Supreme Court, the Government of India imposed National Lockdown on 24th of March, 2020 due to pandemic COVID-1.9, and conditionally unlocked it in 3rd May, 2020, However, that has left the great impact on the procurement of material and Labour. nd Labour.

The 40-day lockdown in effect since March 24, further extended up to May 3 and subsequently to May 17, Ied to a reverse migration with workers leaving cities to return back to their villages.

It is estimated that around 6 lakh workers walked to their villages, and around 10 lakh workers were stuck in relief camps.

The aftermath of lockdown or post }ockdown periods left great impact and scars on the sector for resuming the fast-paced construction for achieving the timely delivery as agreed under the,_..,.V PaEe 12 of 26 Complaint No.

97 0f2021 ffiI]ABEIA #- eunuenRv Complaint No.

97 of2021 "allotment letter." That initially, after obtaining the requisite sanctions and approvals from the concerned Authorities, the respondent company had commenced construction work and arranged for the necessary infrastructure including labour, plants and machinery etc.

However, since the construction work was halted and could not be carried on in the planned manner due to the force majeure circumstances detailed above, the said infrastructure could not be utilized and the labour also left idle resulting in mounting expenses, without there being any progress in the construction work.

Further, most of the construction material, which was purchased in advance, got wasted/deteriorated causing huge monetary losses.

Even the plants and machineries; which were arranged for the timely completion of the construction work, got degenerated, resulting into losses to the respondent company running into crores of rupees. (viJ The real estate sector so far remained the worst hit by the demonetization as most ofthe transactions that take place happen via cash.

The sudden ban on Rs 500 and Rs 1000 currency notes has resulted in a situation of limited or no cash in the market to be parked in real estate assets.

This has subsequently translated into an abrupt fall in housing demand across all budget categories. ategories.

Owing to its uniqueness as an economic event, demonetization brought a lot ofconfusion, uncertainty and, most ofall, - especially when it came to the realty sector.

No doubt, everyone was affected by this radical measure, and initially all possible economic activities slowed down to a large extent, which also affected the respondent company to a great extent, be it daily wage .l,,Y Page 13 of 26 HARERA ffiGURUGRAM Complaint No.

97 of2021 disbursement to procuring funds for daily construction, and day_ to-day activities, since construction involves a lot of cash payment/transactions at site for several activities.

27.

That, owing to the above said force majeure circumstances and reasons beyond the control of the respondent company, it was extremely necessary to extend the intended date ofoffer ofpossession mentioned in the allotment letter.

E.

Reply by respondent no.

Z: 28.

That the above noted complaint filed by the complaint pertains to commercial unit/shop bearing no.

E-117 located in the commercial project namely "Elvedor" situated in sector 37C, Gurugram measuring 157 square feet.

The said booking had been made by the predecessor in interest of the complainant with respondent no.

1.

All payments in respect of said shop had been made by the complainant to respondent no.

The complainant never had any privity of contract with respondent no.

2.

29.

Thatthe answering respondent has beenwrongfully impleaded as party to the present litigation.

Actually, the respondent number 2 has got nothing to do with the commercial project namely ,,Elvedor,, situated in sector 37C, Gurugram, The complainant is conscious and aware of the fact that judgement and decree dated Z1.t of January 2016 had been passed by Mr.

Sanjeev Kajla, the then Civil fudge Gurgaon in suit for declaration with consequential relief or permanent injunction titled "M/s Prime IT Solutions private Limited Versus Mr.

Versus Mr.

Devi Ram and another" ln terms of which the construction/development/promotion/marketing and sale of the + Page 14 of 26 HARERA ffiGURUORAN/ aforesaid commercial project was to be undertaken by respondent number 1.

That respondent number 1 on its part has deliberately failed to fulfil its obligations as set out in compromise which forms the foundation of judgment and decree dated 21$ of lanuary 2016".

The compromise referred to above is an integral part ofthe decree sheet prepared by the honourable court.

The terms and conditions incorporated in the compromise are binding upon respondent number 1 with full force and effect and are part of the decree drawn up by the honourable court.

That it needs to be highlighted that the entire amount in respect of the said shop has been received from the complainant by respondent number L and had been realised and utilised by it alone.

It needs to be highlighted that reSpondent number 1 is the exclusive developer ofthe aforesaid commercial project.

The respondent number 2 has not received or utilised.any money/consideration claimed to have been paid by the complainant or for that matter any other allottee of the aforesaid commercial project.

That more than 20 complaints relating to the same commercial project namely "Elvedor" have been earlier instituted before this honourable Authority.

In none of these complaints, the respondent number 2 had been impleaded as party. lt needs to be highlighted that the complainant, of the aforesaid complaints were fully conscious and aware of the fact that the development of the above-mentioned commercial proiect was being exclusively undertaken by respondent number 1.

It is precisely for this reason that the respondent number 2 was not impleaded as party to the aforesaid complaints.

Moreover, the complainant, of the aforesaid complaints realised that payments had been made by them to respondent number 1 and even documents of -,i, Complaint No.97 of2021 30.

31.

21 30.

PaEe 15 of 26 I{ARERA MOURUGRAI/ allotment/agreements pertaining to the commercial units/shops forming part of the commercial project had been issued/executed by respondent number 1 in their favour.

That as per compromise dated 1zth of lanuary 2016 filed in the suit titled "M/s Prime IT Solutions Private Limited Versus Mr.

Devi Ram and another" in terms of which judgment and decree dated 21st ofJanuary 2016 had been passed by Mr.

Sanjeev Kajla, the then Civil Judge Gurgaon, all payments from purchasers in whose favour sale ofareas in the project had already been made by respondent number 1 were to be deposited in a dedicated bank account.

The mode of opening and operation ofthe aforesaid dedicated bank account was mentioned in the compromise referred to above and the same was maliciously flouted, ignored and disregarded by respondent no.

That it needs to, bei'rentioned that not a single inch ofsanctioned space in the aforesaid coilimercial proiect has been sold by the respondent number 2.

The payments contributed by purchasers of duly constructed commercial space in the aforesaid commercial project from respondent number 1 as well as payments made by the respondent number 2 have been siphoned off/ diverted and mis utilised by respondent number 1.

Moreover, respondent number t has made every conceivable effort to push the gross illegalities, diversion, siphoning and mis utilisation of funds under the carpet.

Respondent number t has also caused loss of revenues/funds to the concerned governmental authorities.

That it is pertinent to mention here that the Director Town and Country Plannin& Haryana had also granted approval for change of developer relating to License No.47 of 2012 d ated 12.05.20212 vide Memo No.

LC- 257 t /lE(S') /2022 / 16293 dated 0e.06.2022. k Complaint No, 97 of 2021 35.

Page 16 of 26 HARERA S*GURUGRAM Complaint No.

97 of 2021 36.

That respondent no. ondent no.2 has already complied with its share of requirements emanating from memo dated 9th of June 2022.

Although, the respondent number 2 was not required to remind respondent number 1 of its obligations arising out of dispatch of Memo dated 9th of June 20ZZ by Directorate of Town & Country Planning Haryana, Chandigarh, yet by way of abundant caution letter dated 13.07.2022 had been dispatched by it to respondent number 1to fulfil its obligations.

37.

That thus, from the facts established that no financial narrated above, it is comprehensively or contractual liability of any nature is required to be discharged towards the complainant by respondent number 2.

It is rgiterated that the answering respondent has not received any amourit whatsoever from the complainant.

It needs to be appreciated that no promise or representation of any nature with regard to period of delivery/completion ofthe project.

38.

That it has already been demonstrated above that respondent no.1 had indulged in large-scale bungling and siphoning of funds and had even failed to deposit.the amounts received from the allottees in the dedicated bank account as directed by virtue of judgment and decree referred to above.

The respondent no.2 had brought the illegalities committed by respondent no.

1 to the attention of the concerned law- enforcement agencies by filing complaints to Economic Offences Win& Gurugram and Economic Offences Wing, Delhi along with proof of money collected by respondent number 1 after passing of judgement and decree dated 21,* of January 20!6.

39.

That cumulatively considering the facts circumstances of the present case, it is evident that the answering respondent has been wrongly and illegally impleaded as party to the present litigation.

The entire liabiliW ,[ Page 17 of 26 HARERA ffiGURUGIAI\/ (if any) financial as well as contractual is to be discharged by F. respondent no.

1 exclusively.

No liability of any nature can be fastened on respondent no.2. dent no.2.

The frivolous, vexatious, baseless and unfounded complaint preferred by the complainant is bereft of logic and devoid of merit and deserves to be dismissed against answering respondent.

Copies of all the relevant 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.

Jurisdiction of the authority: The authority has territorial as well as subiect matter jurisdiction to adiudicate the preselrt complaint for the reasons given below.

F.

I Territorial iurisdiction 42.

As per notificatio! no.

L/92/2017-tTCp dated L4.72.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the proiect 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 43.

Section 11( l[a) of the Act,2076 provides rhat the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4) (al is reproduced as hereunder: 40.

97 of2021 41. & Section 11(4)(a) Page 18 of26 HARERA M GURUGRAM Complaint No.

97 of 2021 Be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulotions made thereunder or to the allottees as per the agreement for sale, or to the associotion ofollottees, as the cose moy be, till the conveyance ofall the apartments, plots or buildings, as the cose may be, to the allottees, or the common qreas to the association ofallottees or the competent outhority, os the case may be; Se ctio n 3 4 - Functions of th e A u th o r i ty : 34(f) ofthe Actprovides to ensure complionce ofthe obligations cast upon the promoters, the allottees allottees and the real estate qgents under this Act and the rules and regulotions made thereunder.

44.

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

G.

Findings on the obiections raised by the respondent no, 1: G.I Obiection regarding liability ofM/s prime IT Solutions pvt.

While filing written reply on L3.09.2022, a specific plea was taken by the respondent no.

1 with regard to of M/s prime IT Solutions pvt.

Ltd. as a necessary party in the complaint.

It is pleaded by the respondent that there was joint venture agreement executed between it and M/s prime IT Solutions Pvt.

Ltd., leading to collaboration agreement dated 06.12.2012 between them.

0n the basis of that agreement, the respondent undertook to proceed with the construction and development of the project at its own cost.

Moreover, even on the date of collaboration agreement, the directors of both the companies were common.

So, in view of these facts, the presence of M/s prime IT Solutions Pvt.

Ltd. as a respondent before the authority is must for effective adjudication ofthe dispute between the parties.

However, the plea advanced in this regard is devoid of meriL No doubt, there is.f Page 19 of 26 HARERA ffiGURUGRAM Complaint No.

97 0f2021 mention to that collaboration agreement in the buyer,s agreement but the complainant-allottee is neither a party to that document executed on 06.L2.2012 nor has any concern with the same.

In fact, a perusal of buyers agreement dated 27.02.2074 shows mention to that collaboration agreement betlveen the answering respondent and M/s Prime IT Solutions Pvt.

Ltd. but the complainant is not a privy to that collaboration agreement. agreement.

It is further evident that the buyer,s agreement was executed betlveen the answering respondent and the complainant with regard to the subject unit and all the payments in pursuant to the same were received by the former from the later.

G.ll Obiection regarding force maieure conditions: 45.

The respondent-promoter has raised the contention that the construction of the tower in which the unit of the complainant is situated, has been delayed due to force majeure circumstances such as orders ofthe NGT, High Court and Supreme Court, demonetisation, govt. schemes and non-payment of instalment by different allottee of the project but all the pleas advanced in this regard are devoid of merit.

First of all, the possession of the unit in question was to be offered by 21,.02-201,9.

Hence, events alleged by the respondent do not have any impact on the proiect being developed by it.

Moreover, some of the events mentioned above are of routine in nature happening annually and the promoter was required to take the same into consideration while launching the proiect.

Thus, the promoter respondent cannot be given any leniency based on aforesaid reasons.

It is well settled principle that a person cannot take benefit of his own wrongs.

H.

Entitlement of the complainant for refund: 4.-- Page 20 of26 && H.I HARERA GURUGRAM Complaint No.

97 of2021 Refund the entire amount made to respondent no.

1 i.e., Rs. tZ,45,7lO/- along with interest @ Z4o/o p.a. from the date of deposit ofthe amounts till date of its refund.

46.

In the present complaint, the complainant intends to withdraw from the proiect and is seeking return of the amount paid by him in respect of subject unit along with interest as per section 18(1) of the Act and the same is reproduced below for ready reference: "Section 78: - Return of amount qnd compensqtion 1B(1).

Ifthe promoter fails to complete or is unable to give possession ofan opartment, plot, or building. building.- (o)in occordance with the terms of the agreement for sqle or, os the case may be, duly completed by the dote specilied therein; or (b)due to discontinuance of his business as a developer on account of suspens[on or revocation of the registration under this Act or for ony other reasbn, he shall be liable on demand to the allottees, in case the allottee wishes to withdrsw from the project, without prejudice to any other remedy ovailoble, to return the omount received by him in respect ofth.rt apartment plot, building, qs the case mqy be, with interest at such rate as may be prescribed in this behalf inctuding compensation in the manner as provided under this Act: Provided thqtwhere an ollottpe does not intend to withdrow from the project, he shall be paid, by the promoter, interest for every month of delqy, till the handing over oJ the possession, at such rate as may be prescribed." (Emphqsis supplied) 47.

Clause 11(aJ of the buyer's agreement provides the time period of handing over possession and the same is reproduced below: 11(a).

Schedule for possession ofthe sqid unit "The compony based on its present plans and estimotes and subject to all exceptions endeovors to complete construction oI the said building/said unit within a period of sixE (60) months from the date of this agreement unless there shall be delay or failure due to department delay or due to any circumstances beyond the power ond control of company or force mojeure conditions including but not limited to reosons mentioned in clause 11(b) and 11(c) or due to failure of the allottee(s) to pay in time the total price qnd other chorges qnd dues/payments mentioned in this Agreement or any foilure on the part of the Allottee(s) to abide by qll or any of the terms ond conditions of this AgreemenL" + 26 Page 21 of 49.

I.IARERA ffiOURUGRAM Complaint No.

97 of 2021 48. f 2021 48.

The complainant booked the unit in the project of the respondent company situated at sector 37-C for a total sale consideration of Rs.

16,88,896/-.

The buyer's agreement was executed between the parties on 21.02.2014.

As per possession clause 11(a) ofthe buyer's agreement, the possession of the unit was to be handed over by within 60 months from the date of agreement.

The due date for handing over of possession comes outto be 21..02.20L9.

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

The authority is of the view that the allottee cannot be expected to wait endlessly for taking possession ofthe allotted unit and for which he has paid a considerable amount towards the sale consideration and as observed by Hon'ble Supreme Court of India in Ireo Grace Realtech Pvt, Ltd.

Vs.

Abhishek Khanna & Ors., civil appeal no.5785 of2019, decided on 1.1..0L.2021. "...,.The occupation certifrcate is not avqilable even as on date, which cleorly amounts to defrciency of seruice.

The ollottees cannot be made to wait indefrnitely for possession of the aportments allotted to them, nor can they be bound to take the qpartments in Phase l ofthe project.,.,..." Further in the judgement of the Hon'ble Supreme Court of India in the cases of Newtech Promoters and Developers Private Limited Vs State of U.P. and Ors.

ZOZI-2022(L) RCR (c ),357 reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLP (Civil) No.

13005 of 2020 decided on 1.2.05.2022, it was observed as under: "25.

The unquolified right of the allottee to seek refund referred Under Section 18(1)(a) and Section 19(4) oI the Act is not dependent on ony contingencies or stipulations thereof.

It appeors that the legislature has consciously provided this right of refund on demand as an unconditional absolute right to the allottee, if the promoter foils to give possession of the 50. of the 50. + Page 22 of 26 HARERA ffiGURUGRAI./ Complaint No.

97 of2021 apqrtment, plot or building within the time stipulqted under the terms of the agreement regardless of unforeseen events or stoy orders of the Court/Tribunat, which is in either way not attributable to the allottee/home buyer, the promoter is inder on obligation to refund the amount on demand w[th interest at the rate prescribed by the Stqte Government including compensqtion in the manner provided under the Act with the proviso that ifthe allottee does not wish to withdraw from the project he shall be entitled for lnterest for the period of delay till handing over possession at the rate prescribed.', 51.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of ?076, or the rules and regulations made thereunder or to the allottee as per agreement for sale under section 11[4](a) of the Act.

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 allottee, as he wishes to withdraw from the project, without preiudice 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.

52.

This is without preiudice to any other remedy available to the allottee including compensation for which allottee may file an application for adjudging compensation with the adiudicating officer under sections 71. & 72 read with section 31(11 of the Act of 2016.

53.

Admissibility of refund along with prescribed rate of interest: The section 18 ofthe Act read with rule 15 ofthe rules 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 of the rules. the rules.

Rule 15 has been reproduced as under: "Rule 75.

Prcscribed rdte ol intetest- [ptovisoto section 12, section 78 ond sub-section (4) qnd subsection (7) of section 1gl Page 23 of 26 HARERA ffiGURUORAI/ (1) Fot the purpose of proviso to section 72; section 18; ond sub- sections (4) ond (7) oJ section 19, the "interest otthe rote ptesc bed" sholl be the Stote Bonk ol lndio highest morginol cost of lending rote +2%.: Provided thot in cose the Stote Bonk ol tndio morginol cost of lending rqte (MCLR)is not in use, itshollbe reploced by such benchmork lending rotes which the Stote Bonk ol lndia moy lixftom tine to time for lending to the qenerol public." The legislature in its wisdom in the subordinate legislation under the provision of rule 1.5 ofthe rules, has determined the prescribed rate of interest.

The rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLRI as on date i.e., 26.04.2023 is 8.700l0.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2%o i.e., L0.7 0o/o.

56.

The authority hereby directs the respondent no.

1/promoter to return the amount received by him i.e., Rs.

12,45,710 /- with interest at the rate of L0.7 0o/o (the State Bank of India highest marginal cost oflending rate (MCLR) applicable as on date +2y0J as prescribed under rule 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 ofthe Rules ibid.

H.lI Direct the respondent to pay an amount of Rs.

3,00,000/- as compensation for harassment and mental agony to the complainant.

H. ainant.

H.llI Direct the respondent to pay compensation to the tune 5,00,000/- on account of false claims regarding mar Complaint No.

97 of2021 54. of Rs. keting, I Page24 of26 HARERA MGURUGRAN4 Complaint No.

97 of2021 58.

Hence, the authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance obligations cast upon the promoters as per the functions entrusted the Authority under Section 34(0 of the Act of 2016: i) The respondent/promoter no.

1 is directed to refund the entire amount of Rs.

12,45,710/- paid by the complainant along with prescribed rate of interest @ lO.7 0o/o p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation & Development) Rules, of to 20L7 from the date of each payment till the date of refund of the I _ deposited amount. )^( developing & booking/selling rights and ownership rights for the project, and for duping the complainant.

H.III Direct the respondent to pay an amount of Rs.

1,00,000/_ to the complainant towards the cost oflitigation.

57.

The complainant in the aforesaid relief is seeking relief w.r.t compensation.

Hon'ble Supreme Court oF India in civil appeal nos.

6745_ 6749 of 202l titled as M/s Newtech promoters and Developers pvt.

V/s State of UP & Ors, fDecided on 11,.t L.2OZL), has held that an allottee is entitled to claim compensation under sections 12, 14, 1g and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of,compensation shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.

The adjudicating officer has exclusive jurisdiction to deal with the complaints in respect of compensation.

Therefore, the complainant is advised to approach the adiudicating officer for seeking the relief of compe;rsation.

Directions of the Authority: Page 25 of26 Complaint No. plaint No.

97 of 2021 respondent to comply with the iling which legal consequences of 90 days is given to thar s given in this order and fa low. rnds disposed of lned to the registry.

HARERA GURUGRAM iiJ A period of directions E would follo' Complaint stan File be consiqnr 59.

60.

Haryana Real Estate Datedt 26.o4.20?3 Page 26 of26