EMAAR INDIA LIMITED vs SURINDER DASS MAHANT

H G l.lma Add RUGRAl\4 Complaint no.

2847o1 2021 EFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no. t 2847 of202l Complaint filed on : 22.07,2021 Date ofdecision | 21.02.2023 India Ltd. ss:306-308, Square 0ne, C-2, Centre, Saket, New Delhi- 110017.

Complainant I)istr 1.

Shri Shri Sh ri APP Sh ri Sh ri i> Add New Z. r.

Ajay Mchra Add ss: B1/10, VasantVihar, Ncw Deihi.

CO ijay Kumar Goyal hok Sangwan anjeev Kumar Arora RANCE h ruv Rohatgi jVardhan c prcscnt complaint dcr scction 3 l of thc Member Member Member ORDER Advocate for thc complainant Advocate for thc resp0ndcnts bccn filcd by thc complainant/pronlotcr Ilstatc (llegulation and Dcvclopmcnt) Act, Respondents has Real 16 [in short, thc Act) rcad lvith rutlc 28 of thc Ilaryana Real listatc cgulation and l)evclopnrettt) Itulcs, 2017 [,n short, the IlLlles) lor olation of section 19(1 0J of the Act wherein it is inter alia prescribctl Pagc 1 ol 21 1 (u\] fitv Complaint no.

2B470f 2021 t the allottee shall take physical posscssion ofthe apartment, plot or ilding as the case may be, within a period of two months of the cupancy certificate issued for the said unit.

AIso, the obligation of ottee to make necessary payments in the manner and within time as cified in the agreement for sale under section 19(6J and to pay erest, at such rate as may be prescribed, for any delay in payments as e particulars of the projecg the details of sale considcration, thc .il , rl i) ount paid by the respondents, date of prof proposed handing over the session, delay period, if any, havc been detailed in the followrng bular form: Particula.s N,lnrr ol thc proJccL Curgaon Creens, Curu8ram, Ilaryana Sector 102, Proj{rctarca- _- -.

Naturc oi thc prolcct DTCP license no.

Valid lr ll Namc ol licensce 13.531acres Croup housing colony 75 of 2012 dated,3l.07 .2012 30.07.2020 Kamdhenu Projects l)vt. l,td. and another C/o l.lmaar MCF l,and l,td.

Page 2 cl27 Dctails A.

Pfoject and unit related details Sr. etails Sr. f" RUGRA[/ HRERA registered/ registered IlRERA extension oI regrstration llRFlRA registration valid up to 31 ,1 2,2 01 B Complaint no.

2847of 202'l Registered vide no.

36(a) of 2017 dated 05.12.2017 for 95829.92 sq. mtrs.

01 of 2019 datcd 02.{)8.2019 I.lxtension valrd up !o :t7.12.2079 25.01.201 .1 cxLrrc C, pagc 47 ol complaint] "07-1002, 1oth floor, tower no.7 ure l.', page 70 ofcomplaintl [annexure l, pagc 67 ol complaintl 4.

POSSESSION of honding the I)rovisional allotmcnt datcd [Jnit no.

Possession clause Unit mcasuring [supcr area) 50 sq. ft.

I)atc ol oxccution ol buyer's a8fcclllc11l 06.05.2013 Sublect to terms of Lhts clouse and borring force mojeure condttrlts, subject to the AllotLee hoving complrcd wilh all the Lerms ond condiuons ol tllts Altreetnent, qnd not being in defoull ,tnJpr ony oI rhe ot^tons ,'f rh,, Agreement and complionce with oll ptovisions, formatlities, documenLotion LIt.- o\ t)tt ltpLl by the Compouy. th. fanpany pnrposcs to hatcl over th. posseston ofLhe liniL within 3L.Ilhilty Six) monlhs Irom the dole ol stort of construction, subjecL to titrrcly complionce o[ the provisions of the Aqrcement hy the AlloLtee.

7 he Albttee Page 3 of 21 rl 10 x I RER UGRAI,I R Complaint no.

2847of 202 1 agrees ond understonds thot the Compony sholl be entitled to a grace period of 5 Ave) months.

Ior appbling and obtqining the completion certificate/occupotion certilicote in respect oI the Unit ond/or the Proiect. (emphasis suppliedl lannexure F, page B3 ofcomplaintl 2.

I)uc datc ot possession 3.

Iotal Lunsiderat.on ., per lJate of start of construc per stirement ol acco 13.12.2018 at page complaint I)uc datc ot possession statcmcnl of accou nt dated 13.12.20:lB at pagc 191 oi complainl '[otal amount paid by complalnanls as per statement oF account dated 13.12.2018 page 192 of 1)iTlaint _ _ 0ccupation certificatc 0ffer ol posscssion Ilelay compcnsatjon Jlrcady paid by thc complain. complain.int lor dclay in handr ng over possession as pcr statement ol' accoLrnl dated 1:i.12.2 "1ti at page 192 of compiarnt t-4.06 2013 Rs.1,26,33,530/ te: Crace p.r od is not inclLrdcdl 2013 2016 : Crace p.r od is not inclLrdcdl t6,33,s301 ,09,8U7 I io,,t lannexure H, page 172 of complajntl 13.'t2.20111 Iannexurc i, page 185 ofcomplaintl Rs.

3,07 ,17 1 / - Pagc 4 ol 2'l B.

3.

H G cts of the complaint e complainant/promotcr has made following submissions in thc mplaint: l'hat thc conrplainant dcvclopcr lras devclopcd a group housing colony ("said prolect"J by the name of "Gurgaon Creens" on thc land admeasuring 13.531 acres, situated at Sector'102, Villagc Dhankot, 'l'chsil & l)istrict Gurgaon, I{aryana, lnter olio comprising of various [ruilclings and units therein, \,vith suitablc infrastructuri]l facilitics includinil multi-level bascmcnt parl<ing. 'l'hc said developnrent ol the group housing colony has been carried out in planncd and phased manner over a period oI time comprising of ccrtain blocks / scgrnents / constituents / parls / phascs which have bccn developed, all in accordance with the licensc and thc building plan as approved by D'l'CP from time to time and othcr approvals, sanctions, permissions by thc concerned authority.

Pursuant to thc construction and development ol the said projcct, thc compctent authority, aftcr duc inspcction and verification, has granted occupation cerLrficate dated 05.1,2.20 1 B. 'lhat respondents in thc month of August 2012, after making indepcndcnt enq uirics and only after being fully satisfied about thc projcct, approachcd the complainant company for booking of a residcntial unit/ apartmcnt in thc said projcct.'l'hc rcspondcnts had also duly signcd and undcrstood lhe indicative teflrs and conditions of thc allotmont alo ng with the application form.

All the terms and conditions including the cost of the apartment, sizc/supcr arca of thc apartnrcnt etc. nrcnt etc., were clearly mentioned in PaBe 5 ol 21 &HARER #"eltrnuennnr the said application.'fhe respondents had optcd for installmcnt paymcnt plan.

I'hat in vicw ofthc commitments made by the respondents to make timely payments, the complainant provisionally allotted unit no. "cGN-07-1002" ('Apar.inent') in said project.

The respondents were provisionally al)ottcd a residential apartment admeasuring approx.

1 650 sq. ft. supcr arca on the .10'h floor of tower no.7 in thc said projcct vidc provisional allotment letter dated 2 5.01 .201 3.

That the complainant fonuatd"d two copies of the buyer's agreement vide letter dated 20.03.2013 to thc respondcnts fbr execution.

As per the instructions in the said letter, thc respondents were under an obligation to return original sets of thc signed buyer's agrccment to thc complainant. 'l'he apartment buyer's agreement was executed between the parties on 06.05.2013.

The said agreement was duly signed by the respondcr'rts aftcr properly understanding each and every clause contained in thc agrccment.

The respondents were neither forccd nor influcnced by thc complainant developer to sign thc said agreement. lt was the rcspondents who after understanding thc clauscs, signed the said agreement in thcir complete senses.

It is pertincnt to mcntion that the apartment buyer's agreement duly covers all the obligations, liabilities and rights of both the parties and the conscqucnccs of any breach of the agreed terms.

That the respondents "s per their own decision and aftcr fully understanding their obligations opted for the installment paymcnt plan. lt is submittcd that the complainant devcloper raised all thc Complaint no.

2B47of 2021 Page 6 ol21 ll l.

RER RUGRA[,{ demands as pcr thc paymcnt plan so optcd for by the respondents.

Ilowevcr, thc rcspondents dcfaulted in making timely payrnents, lor which thc complainant developer issued various remindcr letters and also made rcpeatcd follow-ups. ollow-ups. 'l'hat a substantial amount of finarces for the construction ol-a project conrcs fron) thc paymcnts madc by the rcspective allottccs in terms of the buycr's agreement.

Any delay or lapses in the timcly payment by thc respective allottees, not adhering to the paymcnt schcdulc and/or dcmands madc by thc dcvcloper, scvercly impacts thc construction progress of thc projcct.

That a pcrusal of the above-mentioned c.mmunications clcarly spells out thc hugc delays on the part of thc rcspondents in making the timelv dirc payments to the complninant as per the payment schedule.

I)cspitc this, thc complainant developcr nradc all drlrgcnL ellorts [or- construction and dcvelopnrent of the said proiect and completed the construction.

No payment has been made by the respondcnts since 20I 4.

The last payment forwarded by thc respondents datcs back to 13.09.2 014.

This clearly showsthe malo Jides exercised by the ICspondents as thcy are speculativc investors.

That thc complainant has also crcdited an amount of Rs.

3,07,1 71/' towards compcnsation on 'lntimation oI Posscssion'as a goodwill gesturc to the respondents. 'l'hat dcspitc of dcfault by thc rcspondents in fullilling its obligations, thc compl..:rant did not default and completed the construction of thc projcct without having regular paymcnt of monies by the respondents.

That as is known and practically Complaint no.

2847of 2021 PageT ol2l VII H RER Gl]]RUGRAN/ undcrstood that rcgular and timely payments by the allottees are pertinent towards the cornpletion of the real estate projcct, yct, without thc same being donc in thc present case, the complainant has shown an cxcmplary conduct as a real estate promoter which should bc duly takcn into account. l'hat it also nccds to be noted that the complainant was adversely affected by various construction bans, lack of availability ol building material, regulation of thc construction and dcvclopment activities by thc judicial authoritics including NG1' in NCIt on account n account oI the environmental conditions, r€strictions on usage of ground watcr by thc lligh Court of Punjab & Haryana, ctc. and other forcc majeure circumstances, yet, thc complainant completed thc construction ofthe project diligently and timely, without imposing any cost irnplications ol thc alorementioned circumstances on thc rcspondcnts. l'hat construction :f the tower wherein the said apartmcnt of lhc rcspondcr'rts is situated was completcd and thc complainant developcr applied to the competent authority (being thc officc of Diroctor Gcneral, Town & Country Planning llaryalra, Scctor-17, Chandigarh) for thc grant of occupanry certificate on 13.04.2 018.

I'hat despite best cfforts and regular follow-ups, the complainant received the occupation ccrtificatc only on 05.12.2018 i.e. after a period of almost ['] m^nths.

That this dclay of the competcnt authoritics in processing and granting the occupancy certificate cannot bc attributed to and/or considcrcd to bc delay on thc part of thc conrplainant in delivering the posscssion of the said apartn)ent, since on thc day when thc complainant applied to lhc tr;lrl","--lj-4:"f fil Page I ol 21 RER RUGRAM compctcnt authority for the grant ol'thc occupancy certificate, the said apartmcnt was conrplete in all respect.

That upon thc receipt oIthe occupancy certificate, the complainant issucd lcttor of offer of possession dated 13.12.2018, which was dispatchcd on 24.12.2018 to thc rcspondents.

The complainant vide the said noticc of offer of possession advised and requestcd the respondents to clcar the outstanding dues and takc thc posscssion r.rf the said apartment aftcr completing the possession related formalities and naperwork. 'l'hat thc complainant sent possession rcminder letter datcd 14.01.2019. nggrieved by the non-responsivc attitudc of thc resporrdcnts, the complainant sent a final notice dated 20.06. ted 20.06.2019 to the respondents, calling upon them to comply with the previous communications sent by thc complainant, fajling which thc complainant reser','ed its right to cancel the allotment and deal with the said Llnit as per its discretion.'l'hc complainant yet again scnt possession reminder letters dated 01.10.2019, 0'1.11.2019 and lastly ol 01.12.201.9 to the respondents, once again calling upon thenl to clear thc outstanding ducs, complete the neccssary formalities and to take possession of the unit allottcd to thcm. llowevcr, thc rcspondents have paid no hccd to thc said remindcrs and continue to be in default, thereby causing loss to the complainant.

I'hat as pcr the calculation sheet as on 15.07.2021, thcrc is an outstanding due of Rs.1,11,28,096/- against the said unit bookcd by thc respondents.

The said amount is inclusive of Rs .73,23,639 /- Complaint no.

2B470f 2021 Page 9 ol 21 x H xl l.

RER S*erfnuenntt,r Comolaint no.

2847 ol 20 21 towards thc balance sale consideratjon and lls.

35,03,925/ towards the delay iiayment charges.

Apart from the said amounts, the respondents are further liablc to pay a sum of Rs.3,00,532/ towards the holding charges as per clause 17.1(al ofthe buyer's agreement.

Over and above the said amounts, the respondents, in order to Bet the conveyance / sale deccl executed are furthcr lia blc to pay the stamp duty @ 7a/o i.e.

Rs.

7 ,7 4,550 l- along with othcr ancillary charges towards E-Challan and IlVA'l' Security.

It ls pertinent to mention thlt the fespondcnts are further liable to pay Rs.

2,3:J,:J05/- towards cominon area maintenance charge. 'l'hat thc complainant developer has already spent enormous amount ol moncy towards the consruction and dcvelopmcnt of the said project, of which occupation certilicate(s] has been granted, including the tower in which the said apartment of the respondents is situated and the same being rcady for occupation, the noticc of offer for possession was issucd to the respondents oll 13.12. oll 13.12.2018 followed by subsequent reminders, thereby calling upon thc rcspondents to pay the outstanding amounts and clear all the possession rclatcd formalities and papenvork.'l'hercfbre, it rs the complainant developer who after having spent enormous sums of money [including funds borrowcd from banks and financia] institutions and other -.ntities) and having duly performcd its obligations has been unablc to realize the proceeds of the sard apartment from the respondents and reap in the benefits of thc development Llndcrtal(cn by it.

The lcgitimate dues of thc complainant deve)opcr for no jus1. and valid cause have bccn withheld by thc rcspondents and therefore, oit account of such I']agc 10 ol 21 RUGRAIVI breachcs, dolays and dclaults of the respondents, it is thc complainant devcloper who are cntitled to claim compensation from the respondents.

That the complainant is entitlcd to file the prescnt complaint under section I9 of the said Act which providcs for the rights and duties of the allottees, read with scction 31 of the said Act. xiv. 'l'hat the cause of action file the present compliant is still continuing as respJn iled to make timely payments and take the possessio id apartment in question as per the terms and conditions of the buyer's agreement and thc paymcnt plan opted by the respondents.

I.'urthcr cause of action also arosc when dcspite repeated follow-ups by thc complainant and the complainant having pcr-formcd the respondents v obligations. liefsought by the Direct the respondcnts to take possession of the said apartment from the complainilnt after completion of all formalities as per thc agreement, including the payment of all outstanding dues and execution of the conveyance/ sale deed in respect of the said apartment.

Complaint no.

2847of 2021 performancc of its contractual lainant having pcrformcd its contractual obLigations, :lts withheld the due performancc of its contractual c complainant has filcd the present complaint for seeking followin g following Page 11 ol 2.l xt tl 4 l UGRAII ER Complaint no.

2B47of 2021 Direct thc respondents to pay the balance sale consideration of the apartment amounting tr l\s.7 3,23,639 /- and pay delay payment charges at prescribed rate as per provisions oI the Act.

Direct thc respondents to pay hold ing charges in respect to the said apartment (@ the rate of 11s.7.50 per sq. ft. per month of the supcr area of the said apartment from 1:1.12.20'18 when the offer of possession was madc till such time the respondents actually takc possession ofthe said apartm( r completion ofall possession formalities.

Direct the responde on area maintenance charges to the mmitted ilry or not to plead guilty. stry has sent the notice arong with a copy of the complaint through ed post as well as through email to the respondents and the samc is own to has delivered as per the report available in the file.

It is propcr rvice of the notice.

On the hearing dated 27.1,0.2022, the counsel for e respondents were directed to file reply in the registry of the thority.

However, the reply has not been filed till date.

Though thc ion as alleged to have been & [10J of the Act to p]ead Page 12 of 21 5 RUGRAM aU 1 fi d n a Complaint no.

2847of 2021 pondents put in appcarance through their counscl on 19.10.2021, .1.2.2021, 18.02.2022, 07 .04.2022 and 27 .L0.2022 but have failed to written reply despite given several opportunities.

Accordingly, thc nce of the respondents stand struck off.

So, the authority is Ieft with option but to procecd with thc complaint based on avcrmcnts/ ments made during argumcnts and the documents placed on rd by the parties. pies of all the documents and placed on record.

I'hc dccided on 7. thenticity is not in dispu complaint can be isdiction to adjudicatc th, present c t for low. as subject mattcr the reasons given .T R -Ll I'I'erritorial iurisdiction gulatory Authority, Gurufram shall be entirc Gurugram l)istrict for purpose with offices situated in Gurugram.

Gurugram. ln the present case, the iect in question is situated within the planning area of Gurugram strict, therctbrc this authority has cornplctcd territoriJl jurisdiction deal rvith tl)c prcscIt corrrplarnt.

Pagc 13 of 2'l ( D. ti )nl7 i<< E.

G RER, UGRAIII D 'I F""relr*-"l8ar"f ,t" l I Sub,ect matter iurisdiution e authority has complete jurisdiction to decide the complaint l' arding non-compliance of obligations by the promoter as per p ovisions of section 1 1 [4) (a) of the Act and duties of the allottee as pcr S ion 19 of thc Act lcaving asidc conrpensation wh ich is to be decidcd b the adjudicating officcr, if pursued by the parties at a later stage. ing on the relief sought by the complainant/promoter Relief sought by the complainant: 'fhc coorplainant has sought the following rcliefs: Ilirect the respondents fo take possession of the said apartment from the complainant aftcr completion of all [ormalities as l)cr thc agreement, including ti.e payment of all outstanding dues and execution of thc conveyance/ sale deed in respect of the said apartment.

Direct the respondents to pay the ba)ance sale consideration of the apartment amounting Lo Rs.7 3,23,639 / and pay delay payment charges at prescribed rate as per provisions of the Act.

Direct thc respondcnts to pay holding charges in respect to the said apartment @ the rate of lts.7.50 per sq. ft. per month of the supcr area of the said apartment from 111.12.2018 whcn the ofler ol possession was madc till such timc the respondents actually takc posscssion of thc said a partment aftcr completion of all possession formalitics.

Direct the respondents to pay common area maintenance charges amounting to lis.2.33.3n5/-.

PaEe 74 ol21 9.

HARER G|?-GRA'.1 compla int no' .2l47ot2o2t iv::: I 10.

I I -]ARER ;lnlenri,i @l_l'lllgt Il)fe date of possession and -.Jmissibility of grace period: Clause 1 1 (aJ od the buyer's agrecmcnt provides for time period for handing over of I p$ssession and is reproduccd below; I| ,4.

Po.

I| ,4.

Po.ssFssroN I p1 rime oJ nanaing over the Possession | ,u,jrr, It) lerms ol thts (lause ond bqrring force majeure conditions, I suhjeLL to lhc AllotLec huwng cotnplied with oll the Lerms ond conditions ol I th6 lgreement. otld nol beitl n defoult under any ofthe provisions of this I Ag eemcnt und e om tth,t r,. e wtth oll Wovt<ton\, fo rmo Iit tes, do. u mPnl Lll it 't ' I etc., os prescnhed by Lhe Conponythe eompony proposes Lo hond over the I posses*ron oJ the llntl wtLhn 36 (TILW Sixl months from t I slort o[ construction. :uUect totifia,l! complionce of Lhe provisions of the I Agr"en,"nL by Lhp Allottee.'fhe Allottee qgrces ond understonds thot the I r..ompory \hLttl bc enttled to a grace period of 5 Ovet months.

Ior I oppl!ing and oblaininp lhe completion certi[icote/occupation I certificste in resnect of thd lJnit and /or the ProJect.

I Omphasis supplied) ' I'lhe promoter has propt.scd to hand over the possession ofthe said unit i rnlithin 36 months from the datu ofcommencement ofconstruction and I iq is further provided in agreement that promoter shall bc entitled to a i gface period of five months for applying and obtaining complction I cfrtificatc/occupation ccrtificatc in respect of thc unit and/or thc l plrotect. 'l'he construction commenced on 14.06.2013 as per statemcnt lo[ account daLcd 13.12.20]1.

The period of 36 months expired on ll+.oO.zOf O. ns a mrttcr of fact, thc pronlotcr has not applicci to thc I cpncerned authoriry ior ohtaining completion certificate/occupation I cprtiticate within thc time limit prescribed by the promoter in the l L{uycr's agrcemcnt.

As pcr the scttled law onc cannot bc allowcd to takc l apvantage of hrs own wrong. r\ccordingly, this grace period ol fivc I I I | ')asc 15 ol 21 I 11.

I c d a r a p u al RUGRA[,I Complaint no.

2847 of 2027 nths cannot be allowed to the promoter at this stage.

Therefore, the e date of possession comes out to be 74.06.2016.

4.06.2016. the present complaint, the due date for handing over of possession mes out to be 14.06.2016 as computed above.

On perusal of cuments on record, it is observed that the occupation certificate of said project was granted oy the competent authority on 05.12.2 018 d the complainant has offered possession of the subject unit to thc pondents-allottces on 13.12.2018.

IIowever, the respondcnts- ottces havc failcd to abidc by the terms and conditions of the buyer's reement by not making the payments in timely manncr as pcr thc yment plan opted by them and by not taking the possession of the in question as pcr the terms and conditions of the buyer's rcement.

Further, despite repeated follow-ups by the promoter and ving performcd its contractual obligations, the respondents-allottccs thheld to pcrlbrm their contractual obligation.'Ihe respondcnts, ottees havc failed make the requisite payment as per the provision of ction 19((, ofthe Act and as pcr sectjon 19[7) ofthe Act to pay thc erest at such rate as maylbe prescribed for any delay in payments ards any amount or charges to be paid under sub-section (6). viso to section 19(6) and 19(7) reads as under: "Section 19: - Right ond duties ofallottees. - (6) every allottee, wl,a has entered into an agreement for sole to toke an oportment, ploL or building os the cose moy be, under PaEe 16 ot 21 L2.

A 13.

T ER H \f RUGRAII secLion 1:ll1l, sholl be responsible to mqke necessory poyments in the manner ond wi|hin the time as specilied in the soid ogreement for sale and shall pay ot the proper time oncl ploce, Lhe sharc of the registrotion charges, municipol toxes, woter ond electricity charges, mointenance charges, ground rent, ond other chorges, if ony. (7) the ollottee shall be hoble to poy interest, ot such rate ds may be presctibed, for ony delay in poyment towards ony omount or chorges to be poid. tnder sub-section (6). per clausc 1. clausc 1.2 (cl of the buyer's agreement, the respondcnts ottees are also contractually li4ble to pay the instalment as per yment plan opted by them. (c) reproduced as underl (c) Payment Plan The Allottee agrees ond undertakes to pay Lhe bolonce qmounL oJ the 'l otal Cansiderution sLrictb/ in accordance with the Payment Plqn.

In the event the AlloLLee t'ails neglects and/or deloys the puyment of installments then, noLwiLhslanding the right of the Company to concel such ollotment at its discretion any time olter such defoult in poymenL occurs, the Compony ot its sole option and dscretion, without prejudice Lo any oLher rights provided to iL under this Agreemetlt, wotve such failures, neglect:s and/or deloys in the poymenL of installments but on the con.liLhn thaLthe Allottee shall poy deloyed payment charges @ 240/0 per onnum on Lhe inslqlment due, to be calculoted from the due date of outstanding instollnent till the dote on which such instollment is pdid. lt is made cleor oncl so oqreed by the Allottee thol the exercise of such discrelion Lo woive such fotlureg neglects and/or deloys in Lhe payntenL oJ instqllments by any "llottee(s) shqll not be construed Lo be o precedenL ond/ot binding on the Con,pony to exercise such discretion in case of other 0llottee(s). c authority observed that thc possession of the unit was offered to e respondents-allottccs on l:1.12.2018 and despite repeated minders [annexed as annexure G, page 120 to '170 of complaint) to e resp o ndents-a llottees, they are not coming forward to clear thc tstanding dues and to execute conveyance deed.

Section 19(6) & Com pla int (7) of the Act provides tlrat every allottee shall be responsible to ake necessary payments as per agreement for sale along with Paee 17 ot 27 14.

A 15. t RER UGRAIV \.1 a p a F"-el"'* ".rSr. "'* ".rSr.f ,0;i I scribed interest on outstanding payments from the allottee and to ke physical possession of the apartment as per section 19(10) of thc far as contention of the complainant regarding obligation of the spondents-allottees to take possession is concerned, the authority is the view that no one can be forced to purchase a house but as the s po ndents-allottecs themsclves are at dcfault in making the paymcnt pcr the payment schcdule and still thcy intcnd to withdraw from thc ojcct will amount to thc brcach oiihe contract on thcir part.

This has so been observed by tjre appehate tlibunal in appeal no.

255 of 2019 ed as Ravinder Pol Singh V/s Emaar MGF Land Ltd. & anr. wherein is stated as follows: " 32. llowever, nobctdy can be forced or compelled to purchase the house, but os the oppellant hinse[is qt default in making the payment as per the poyment schedule snd if he still intends ta wiLhdraw Jiom the pro)ecL oul ol his o\tn which will omount to the brcoch of the controct on his parl, n thot eventuolity he will be entitled lor refuncl of the amount poid by him olter fc*iting 100k of the basic sale consrderation, which will be considered to be the reosonqble eornest money omount ond aJLer deducLing Lhe sLotutary dues olreotly deposited wiLh the government" owever, the counsel for the respondent states that the respondents e no longer interest in remaining with the project because of the delay d the complainant promoter may cancel the allotment as per the rms and conditions or the llBA subject to regulation of the authority lowing deduction of 10 % earnest money only.

Page 18 of 21 r; Complaiot no.

2847 of 2021 I I '-.[qRER CLnrcnAV lco-pu,n,no.zsozo,zoz, ,l I Tfe counsel for the complainant draws attention of the authority I trfwards clausc 9.312) of the Model tsBA which provides deduction of I idterest on the amount duc towards the allottee and cancel the unit. the unit. llut It{e authoriry is of the view that the complainant-promoter has not I cfrosen to cancel the unit and has retained whatever money has been I dInositcd hy the allot t ('c li]l dal c.

Il$ view of above discussion, ons latt opportunity is given to the I rfspondents-allottccs to make pay.lpgnt of outstanding amount along I vJith interest aI thc prescrihed rate within 4 wccks failing which thc I cf m plainant- p romotcr may proceed with the cancellation and to rifund the balance amount after deduction of 100/o earnest money. l {ccordingly, the respondents-allottees are directed to clear the oiutstanding dues along with interest at the prescribed rate i.e., 10.70% Her annum and to take the possession of the unit within four weeks ffom the datc of this order. 'l'he complainant-promoter shall adjust thc rfelayed possession charges, if any, at equitable rate of interest while cpmputing thc outstanding amount payable by the respondents- alllottees.

The complainant-promoter shall not charge anything from thc rpspondents-allottees which is not the part of the buyer's agreemcnt. '(he complainant promotcr is not entitlcd to charge holding charges ffom the rcspo n dents -a llottees at any point of time even after being lart of the builder buyer's agreement as per law settled by Hon'ble l]uprcme Court in civil appcal nos.

3t)64-3889/2 020 on 14.12.2020.

II Page 19 ol 21 I && 16.

1,7.

18.

1,9.

20.

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2t.

RER RUGRAI'/ Complaint no.

2847of 2021 Compensation R iefsought bythe complainant: Compensate the complainant of the I I costs i.e., Rs.s0.000/- incurred in instituting the present C mplaint. & T a a d o a i. e complainant in the aforesaid relief is seeking compensation.

The thority observes that Hon'ble Supreme Court of India, in case titled M/s Newtech Promoters an Pvt.

Ltd.

V/s Stqte of UP Ors. (civil appeal nos.

67 s held that an allottee is ctions 12, 14, 18 and s f 2021, decided on 1.1.11. on 1.1.11.2021), claiming compensation under which is to bc dccidcd by rhc s a S judicating officer as per scction 71 and the quantum of compensation all be adjudged by the adludicating officcr having due regard to thc ors mcntioncd in scction 72. ]'hcrefbre, tho conplainants arc at I ence, the authority hereby passes this order and issues the followrng ections under section 37 of the Act to ensure compliancc of ligations cast upon the promoter as per the function entrusted to the thority under section 34(n of the Act: The respondents-allottees are directed to make the requisite payments along with interest at the prescribed rate i.e.

10.70% per annu m and take the possession of the subject apartment as per the Page20 of 2l 22.

RER c RUGRAI\4 C.omplaint no.

2847 of 2o27 provisions ofsection 19(6), [7) and (10] ofthe Act, within a period of four wceks. 'l'he conlplainant-promoter shall adjust the delayed possession charges, if any, at equitable rate of interest while computing thc outstanding amount payable by the respondents-allottees. 'l'he complainant-promoter shall not charge anything from thc respo ndents -allo ttces lvhich is not the part of the buyer's agreement. l.he conl oter is not entitled to charge ents-allottees at any point of holding charges lrom time even after being part of the builder buyer's agrcement as por law scttlcd by llon'ble Supreme Court in civil appeal nos.3864- 3889 /2020 on 14.12.2020. lf the respondents-aljottees fails to comply with the aforesaid directions within lour weeks, the complainant-promoter may proceed with the canccllation and to refund the balance amount t 23.

F i Arora) (Ashok \.t* >--) (Viiay Kumar Goyal) Member Mem Member I laryana Rcal ljstatc 21.02.2023 Ilcgulato uthority, Gurugram Page 21 ol21 1 ll.