ARUN KUMAR SINGH AND TRIPTI SINGH vs EMAAR MGF LAND LTD

ffi ilRRrn I P-eunueRRH,I BEFORE THE Complaint No.

5040 ol 2022 HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no. : 5O4O of2o22 Complaint filed on : O7.08.2022 First date ofhearing : 27.1O.2O22 Date of decision ': 16.71.2O23 1.

Mr.

Aruu Kumar Singh 2.

Mls.'l'ripti Singh Iloth RR/o: Flat no.

703, Tower ii1, Commonwealth Ganres, Near Akshardham Temple, Delhi - 110092.

Complainants Versus M/s Dmaar India Limited Formerly Known as Emaar MGF' Land I-td.

Rcgistered Office: ECE House,28, Kasturba Gandhi Marg, New Delhi - 1100001 Corporate Office: Emaar Ilusiness Park, MG Road, Si)<anderpur Chowk, Sector 2ti, Gurugram, Haryana- 122002.

CORAM: Sh ri Vijay Kumar Goyal AP PEARANCE: Respondent Member ComplainaDts Respondent Shri Arun Kumar Singh and Tripti Singh [Complainants in person) Shri Ishaan Dang lAdvocate) ORDER 1. 'lhe present complaint has been filed by the complainants/ailottees in Iiorm CRA undcr section 31 of the Real Llstate (llegulation and I)evelopment) Act,201,6 [in short, the Act) read with rule 28 of the Ilaryana Ilcal Estate (Regulation and Developmentl ltules, 2017 (in short, the IlulesJ for violation of section 11(4)(a) of the Act wherein it is inter alia prescribed that thc promoter shall be responsible for all Page 1ol 36 l{ & HARER" ffieunuennnr Complaint No.

5040 of 202 2 obligations, responsibilities and functions to the allottee as per the agreement for sale executed inter se them.

A.

Proiect and unit related details 2.

The particulars of the project, the details of sale consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Sr.

No.

Particulars Details 1.

Name of the project Palm Terrace Select, Sector 65, Gurugram, Haryana 2.

Total area of the project 37.708 acres 3.

Nature of the project Group housing colony 4.

D'fCP license no.

93 0f 2008 dated 12.05,2008.

Valid/renewed up to 11.05.2020.

50 0f 2010 dated 24.06.2010.

4.06.2010.

Valid/renewed up to 23.06.2020.

2.

1.

Occupation certificate granted on 08.03.2 019 lpg.

138 of replyl 6.

Unit no.

PTS-10-0002, ground t'loor, building no.

10. lpage 64 ofcomplaint] 7.

Area ofthe unit 2410 sq. ft. u.

Provisional allotment letter issued on 20.07.2010 [page 64 ofcomplaint] 9.

Date ofexecution of buyer's agreement with original allottee 06.10.2010 Ipage 69 ofcomplaint] 10.

Date of agreement to sell executed between original allottee and complainants 73.lL.20\6 [pg.

119 ofcomplaint] 11.

Nomination letter in favor of complainants 30.04.20t7 [pg.

136 ofreply] 72.

Possession clause 14.

POSSESSION Page 2 of36 IA, IARER ffi.GURUGRAI/ Complaint No.

5040 of 202 2 (v- (a) Time of handing over ahe possession Subject to terms of this clause and subject to ollottee(s) having complied with oll the terms oncl conditions of this buyer's ogreement, and not being in defoultunder any of the provisions of this buyer's ogreement ond complionce with all provisions, formolities, documentqL@n etc., os prescribed by the compony, the company proposes to hand over the posses.sio, oI the unit within 36 (thiray six) months Irom the dote oI stqrt oI construction, subject to timely complionce of the provisions of the buyer's agreement by the qllottee.

The allottee(s) agrees qnd understonds thqt the compony sholl be entitled to a groce period of 3 (three) months, for applying and obt.ri ning the completion certilicote/ occupotion cenifrcqte in respect of the unit qnd/or the project.

IEmphasis supplied) Ipg.

B7 of complaint] 13.

Date of sUrt of construction as per SOA dated 26.07.2021 31.07.2072 [pg.218 ofcomplaint] -t4.

Due date of possession 31.07.2 015 [Note: Grace period is not included] 15.

Total consideration As per statement of account dated 26.07 .2021, at page 218 ol complaint As per payment plan annexed with the buyer's agreement Rs.2 ,28,9 4,295 / - Rs.2 ,25 ,42 ,'aB / - 1.6.

17 'lotal amount paid by the allottees as per statement of account dated 26.07. ted 26.07.2027, at page 219 ofcomplaint Offer ofpossession Rs.2,30,04,604 /- 11.03.2019 lDs.

148 ofcomplaint Page 3 ol 36 * HARERA #- eunuennu 3.

B.

Complaint No.

5040 of 2022 Facts ofthe complaint 'fhe complainants made the following submissions in the complaint: i. 'Ihat in the year 2010, the respondent issued an advertisement announcing a group housing colony project called'Palm'lerraces Select' in a land parcel admeasuring a total area of approximately 37.708 acres, situated at Sector 66, Gurugram, Haryana and thereby invited applications from prospective buyers lor the purchase of units in the said project.

Ilespondent confirmed that the project had got building plan approval from the authority. 'l'he respondent painted a rosy picture of the project in its advertisements making tall claims. ii.

The respondent company told the complainants who bought the unit from its original allottees on 13.1L.2016 about the moonshine reputation ofthe company and the representative ofthe respondent made huge presentations about the project mentioned above and also assured that they have delivered several such projects in the national capital region. iii.'l'hatrelyingon various representations and assurances given bythe respondent company the complainants, purchased the said unit in the proiect by paying an amount of Rs.2,29,68,545/- and also paid huge amount of PLC as the unit was located on the ground floor with front lawn and green area and backside dedicated lawn to the complainants.

Page 4 oi 36 (\ & HARERA # ounuennll Complaint No.

5040 of 2022 iv.'Ihat, a buyer's agreement was executed between the original allottees and respondent on 06.10.2010.

As per clause 14(a) of the buyer's agreement the respondent had to deliver the possession of the unit within period of 33 months from the date of start of construction of the project.

Therefore, the due date of possession comes out to be 01.11.2015. v.

1.2015. v. 'l'hat the original allottees subsequently transferred/endorsed the proper$r in favour of the complainants vide agreement to sell dated 13.1 1.2016.

The original allottee executed an "agreement to sell" in favour of the present complainants for an appropriate consideration.

The balance amount for obtaining the property which was still under construction was paid by the complainants according to the demands raised by the respondent. vi. 'l'hat the respondent failed to hand over the actual physical possession of the unit which is in a habitable situation and not only this, the respondent has mischievously and fraudulently charged heavy PLC amount for front side lawn and green area and backside dedicated Iawn which are now completely exposed to general public by constructing a ramp right in front of the unit in dispute and a staircase in the back side which opens right in between of the lawn of the complainants for which PLCs was charged. vii.

That the respondent have completely failed to honour its promises and have not provided the services as promised and agreed through the brochure, BBA and the different advertisements released from PaBe 5 of36 A, ffiHARER #" eunuennu x.

5040 of 2022 time to time.

Further, such acts of the respondent is also illegal and against the spirit of the Act of 2015 and the Rules of 2017. viii.

That the respondent has played a fraud upon the complainants and have cheated them fraudulently and dishonestly with a false lx. promise to complctc the construction over the project site within stipulated period.

Thc respondent had further mala-fiddly failed to implement the BBA executed with the complainants.

Flence, the complainants being aggrieved by the offending misconduct, fraudulent activities, deficiency and failure in service of thc rcspondent is filing the present complaint. 'l'hat the respondent asked the complainants to sign the indemnity bond as perquisite condition for handing over of the possession. ossession. 'lhey raised objection to above said pre-requisite condition of the respondent as no delay possession charges was paid to the complainants but respondent instead of paying t.he delay possession charges clearly refuse to handover the possession if the complainants do not sign the aforesaid indemnity bond.

Further, the complainants left with no option singed the same. 'l'hat the complainants have never delayed in making any payment and havc always made the payment rather much before the construction linked plan attached to the BBA. 'l'hat the execution of thc undertaking in the format prescribed by the developer was a pre-requisite condition, for the delivery of thc possession.'[he respondent company, in my opinion, could not have xl.

Page 6 of36 ffi HARERA *&" eunuennvr C.

4.

5040 of 202 2 insisted upon clause 13 of the lndemnity-cum-undertaking.

The execution of such an undertaking would defeat the provisions of section 23 and 28 of the Indian Contract Act, 1872 and therefore would be against public policy, besides being unfair trade practice.

That the present complaint sets out the various deficiencies in services, unfair and/or restrictive trade practices adopted by the respondent in sale of their unit and the provisions allied to it, be it cither through not implementing the services/utilities as promiscd in the brochurc or through not delivering the project in time. xiii. 'l'hat the complainants after losing all the hope from the respondcnt having their dreams shattered of owning a llat & having basic necessary facilities in the vicinity of the project and also losing considerable amount, are constrained to approach this authority for rcdrcssal oI their grievancc.

Relief sought by the complainants 'Ihe complainants are seeking the following relief: l)irect the respondent to pay the interest on the total amount paid by the complainants at the prescribed rate of interest as per the Act of 2016 from the due date of possession till the date the date of actual physical possession after adjusting the already paid DPC [paid as per one sided BBA).

Page 7 of 36 ffi HARERi #.eunuennnr 6.

5040 of 2022 lll. ll.

Direct the respondent to reverse the PLC for central green amounting to Rs.13,49,323/- r PLC for ground floor large Iawn amounting to Rs.44,52,765/- as the said PLC'S are charged wrongly.

Dircct the respondent not to charge holding charges, CAM charges, maintenance charges and any other charges which arc not the part of BBA.

Direct the respondent not to create any third-party rights upon the unit. iv. v.

Direct the respondent to set aside the offer of possession letter datcd 11.03.2019.

0n thc date of hearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11(4) (a) of the Act to plead guilty or not to plead guilty.

Reply filed by the respondent 'Ihc rcspondent had contestcd the complaint on the following grounds: 'Ihat the complainants have filed the present complaint seeking intcrcst on account of alleged delay in delivering possession of the apartmcnt purchased by the complainants.

It is respectfully submitted that complaints pertaining to refund, interest, compcnsation etc. are to be decided by the adjudicating authority under section 71 ofthe Act read with rule 29 ofthe rules and not by D.

Page I of36 ffiHA *6H- eun RER UGRAN/ Complaint No.

5040 of 2022 this hon'ble authority.

The present complaint is liable to be dismissed on this ground alone. 'l'hat the complainants have got no locus standi or cause of action to file the present complaint. 'Ihe present complaint is based on an crroneous interpretation of the provisions of the Act as well as an incorrect understanding of the terms and conditions of the buyer's agreement dated 06.10.2010.

6.10.2010. '[he respondent craves leave of this authority to refer to and rely upon the terms and conditions set out in the buyer's agreement, in detail at the time of the hearing of the present complaint, so as to bring out the mutual obligations and the responsib ilities of the respondent as well as the complainants thereunder.

The provisions ofthe Act are not retrospective in nature. 'fhe provisions of the Act cannot undo or modifu the terms of an agrcemcnt duly executed prior to coming into effect of the Act.

The Act applies to ongoing proiects which are registered with the authority, the Act cannot be said to be operating retrospectively.'[he provisions of the Act relied upon by the complainants for seeking intercst cannot be called in to aid in derogation ;rnd ignorance of the provisions of the buyer's agreement.

The interest for the alleged delay demanded by the complainants is beyond the scope of the buyer's agreement.

The complainants cannot demand any interest or compcnsation beyond the terms and conditions incorporated in the buyer's agreement. ii.

Page 9 oF36 HARERA ffi GURUGRAI/ Complaint No.

5040 of 2022 iii.

That the original allottees namely, Dr.

Manisha Mishra & Anurag M ishra had approached the respondent in the year 2010 for purchase of an independent unit in its upcoming residential prolect ,,palm Terraces Select" at the Palm Drive, Sector 66, Gurgaon.

That prior to approaching the respondent, the original allottees had conducted extensive and independent enquiries regarding the project and it was only after the original allottees were fully satisfied with regard to all aspects of the project, including but not limited to the capacity of respondent to undertake development of the same, that the original allottees took an independent and informed decision to purchase the ' unit, un-influenced in any manner by respondent. iv. ndent. iv. 'fhat thereafter the original allottees applied for provisional allotment of a unit in the project being developed by the respondent.

In pursuance of the aforesaid application form, the original allottees werc allotted an independent unit bearing no P'l'S-10-0002, located on the 00 Floor ofTower 10, in the project vide provisional allotment letter dated 24.07.201,0.

The original allottees consciously and willfully opted for a subvention payment plan for remittance of the salc consideration for the unit in question and further represented to the respondent that the original allottees shall remit every installment on time as per the payment schedule. 'Ihe respondent had no rcason to suspect bonafide of the original allottees.

The original allottees further undertook to be bound by the terms and conditions of the application form. 'Ihereafter, buyer's agreement was executed Page 10 ol36 HARERA GURUGRA[/ Complaint No.

5040 012022 between the original allottees and the respondent on 06.10.2010.

The original allottees willingly and consciously executed the buyer's agreement without raising any objections to the terms and conditions thereof, which are binding upon the original allottees as well as the complainants, as his successor in interest, with full force and effect. 'fhat the original allottees and the present complainants approached the respondent requesting that the allotment be transferred in the name of the complainants.

The complainants executed various transfer documents including the indemnity cum undertaking in tcrms of which the complainants agreed and undertook to be bound by thc buyer's agreement dated 06.10.2010 and also admitted and acknowledged that they shall not be entitled to any compensation in thc cvcnt of delay in delivering possession.

Prior to purchasing the unit in resale from the original allottees, they had conducted their own due diligence and had fully satisfied themselves about all aspects of thc project and the complainants too inants took an independent and informed decislon to purchase the uriit in resale, uninfluenced in any manner by the respondcnt.

Agreement to sell dated 13.11.2016, was cxecuted betwcen the original allottees and the complainants.0n the basis of the transfer documents executed by the complainants, nomination letter dated 30.04.2017 was issued by the respondent in thcir favour. vi. 'l'hat clause 16 of the buyer's agreement provides that compensation for any dilay in delivcry o[ possession shall only be given to such Page 11 of 36 {L Complaint No.

5040 of 2022 HARERI GiIRUGRAI,/ vii. allottees who are not in default of their obligations envisaged under the agreement and who have not defaulted in payment of instalments as per the payment plan incorporated in the agreement.

In case of delay caused due to non- receipt ofoccupation certificate, completion certificate or any other pe rm iss io n/sanction from the competent authoritics, no compcnsation or any othcr amount shall be payable to the allottees.

Clause 14(b)(vi) ofthe buyer's agreement provides that in the event of any default or delay in payment of instalments as per the schcdule of payments incorporated in the buyer's agreement, the time for delivery of possession shall also stand extended. [urther, clause 16 of the buyer's agreement further provides that in case of delay caused due to non- receipt ofoccupation ccrtificate, completion certificate or any other permission/sanction from the competent authorities, no compensation or any othcr con.rpensation shall be payable to thc allottecs and the time taker) by the statutory authorities in granting the occupation certificate in respect of thc project needs to be excluded in determining the time period utilised for implementation of the project.

I)cspite there being a number of defaulters in the project, the rcspondent itself infused funds into the project and has diligent)y developed the projcct in question. question.

The respondent completed construction in fuly 2017 and had applied for the occupation certificatc on 1 1 .01 .2 018 and the same was obtained on 08.03.2 01 9.

Page 12 of 36 14 ffi HARERA *c&" eunuenAlr Complaint No.

5040 of 2022 viii. 'l'hat without prejudice to the contentions of the respondent, the present complaint is barred by limitation.

The complainants had alleged that the possession of the unit was to be given not later than November, 2015 and therefore cause of action, if any, accrued in flavour of the complainants in November, 2015 i.e. prior to coming into forcc of the Act.

Thus, the complaint sceking interest as a form of indemnification for the alleged delay is barred by limitation. ix. 'fhat the complainants were offered possession of the unit in question through letter ofoffcr ofpossession dated 11.03.2019.'Ihrough this letter, the complainants were called upon to remit balance payment including delayed payment charges and to complete the necessary formalities/documentation necessary for handover of the unit in question to the complainants.

However, the complainants did not come forward to obtain possession ofthe unit in question.

They were not cntitled to any compensation under the buyer's agreement, being defaulters, the respondent nevertheless credited an amount of Rs.7,11,313/- as compensation in accordance with the buyer's agreement.

Rs.36,059/- was also credited to the complainant on f,ccounl oIantj-profiteering. x. 'fhat in terms of clause 15[b) ol the buyer's agreement, stamp duty and rcgistration charges are payable by the complainants.

At the joint rcqucst of complainants/original allottees, the said unit was transfcr /cndorsed in the namc of the complainants in terms of which, thc complainants agreed and undertook to be bound by thc buycr's A/ Page 13 of 36 ffi HARE!i *&- eunuenRvt Complaint No.

5040 of 2022 agreement dated 06.10. ted 06.10.2010 and also admitted and acknowledged that they shall not be entitled to any compensation in the event of delay in delivering possession.

The transfer documents were voluntarily and consciously executed by the complainants out of their own frcc will.

By getting the unit transferred/endorsed in their name, thc complainants had stepped ,n the shoes of the original allottees and are bound by the terms and condition of the buyer's agreement with same force and effect as the original allottees. xi. 'fhat thc contractual relationship between the complainants and the respondent is governed by the terms and conditions of the buyer's agreement dated 06.10.2010.

Clause 12 of the buyer's agreement providcs that time shall bc the essence of the contract in respect of the allottees obligation to perform/observe alL obligations of the allottccs including timely payment of the sale consideration as well as othcr amounts payable by the ailottee under the agreement.

Clause 13 of the buyer's agrcement, inter alia, provides for levy of interest on dclayed payments by thc allottec. xii. 'lhat scveral allottees, including the complainants, had defaulted in timely remittance of payment of instalments which was an essential, crucial and an indispensable requirement for conceptualisation and development of the proiect in question. 'fhat all the demands that have been raised by the respondent are strictly in accordance with the terms and conditions of the buyer's agreement duly executed and agreed to between the parties.

There is fdz xtit' Page 14 oF 36 tr HARER\ *&-eunuennH,i 7.

5040 of 2022 no delault or lapse on the part ofthe respo ndent. 'l'h e entire sec]uence of events, that no illegality can be attributed to the respondent, 'l'he allegations levelled by the complaitlants are totally baseless.'l'hus, it is most respectfully submitted that the present complaint deserves to be dismissed at the very threshold. threshold.

Copics of all the rclevant documcnts have been ljled and placed on rccord.'l'heir authenticity is not in dispute.

Hence, the complaint can be dccided on the basis of these undisputed documents and written subrnirsions n)ddc by thc parties.

Writtcn submission filed by the parties ll.l written submission on behalfofthe complainant: 'fhc complainants have filed the written submission o n 22.11.2023, and nrudc lhc lollowing submissions - a. 'l'hat the complainants vide agreement to sell dated 13.11.2016, proceeded to purchase the unit in question with all rights and cntitlemerts in terms of buyer's agreement from Mrs.

Manisha Mishra & Mr.

Anurag Mishra (i.e., original allotteeJ and paid 11s.22,00,000/-vide cheque nos.

000001 & 000016 as earnest money and Rs.1,3 5,00,000/- was agreed to be paid through HDFC bank by availing loan.

Further, a sum of Rs.54,49,086/- was to be paid at the time of transfer of unit in the name of complainant and lis.1:i,16,025/- was agreed to be paid to respondent as and when demandcd by the respondent.

Thus, a total sum of Rs.2,1,7,49,087 l- was paid by the complainant to the original allottee.

E, B.

Page 15 oF 36 /4.

HARERT.

GURUGRAII Complaint No.

5040 of 202 2 h. 'l'hat as per lhe BBA (though one sided) the respondent was under legal obligation to complete the project and hand over the physical possession of the unit within thirty six (36) months with a grace period ofthree (3) months from the commencement ofconstruction (refer clause 14 [al).

According]y, the possession of the unit in case was to be given by 01.11.2015 including grace period of 3 months.

It is furthcr established that there was an inordinate delay in complcting the project due to some dispute betufeen the respondent and its contractor for that complainant cannot be made to suffer on any count.

Because it is an admitted case of respondent that construction start date was 31.07 .2012. .07 .2012.It is submitted that OC for the ground floor to 3,d floor only was received on 08.03.2019 and construction for at all other Roors and also the construction of additional staircasc from the unit of complainant on ground floor, the ramp and wall in front of the unit etc. were on going which was finally inlormed to have ended on 22.1,0.2019, as per their mail. 'lherefore, thc offerof possession dated 11.03.2019 was not a valid offer of possession.

Also, by raising additional staircase in rear lawn and a wall in front of the claimants' unit, resulted into the complete loss of preferential location for which the respondent illegally has charged Rs.58,02,088/- ond the comolainant is entitled for reversol ruf Pl,C chqrges for central green and back lawn. in addition to the delo),ed possession compensation.

The due date of possession in this casc shall be 31.07.2015, as 3 months grace period shalt not be Page 16 of 36 t{ ffiHARERA ffieunuennu Complaint No.

5040 of 2022 allowable since the project was already inordinately delayed and lt is settled law that one cannot be allowed to take advantage of his own wrong.

In para 16 of the reply of the respondent, the respondent in its letter dated 11.03.2019 offering possession has categorically admitted giving compensation for delayed possession to the tune of Rs.7,11,3731- (as per one sided UBA), but the same is against the Act of 2 016 and the rules of 2017. c.

Upon reccipt of letter of offer of possession, they visit to the apartment not allowed on the ground that the project is undcr construction, from the available view it was found that a wall is being ercctcd just in front of the unit and thus creating a total blocl<age of any view of central green lawn lbr which a PLC of Ils.1 3,49,323/- (including ST) was charged and being enjoyed by the respondent.

Erecting a wall in front of the unit made it least prcfcrcntial location also in the whole society. e society.

Also, the additional staircasc construction works were being started along with the unit, at the time of letter of offer of possession, in the back lawns where all the loundation works, man material handling wcre being done.

A hugc amount of PLC on account of rear large green lawn was paid by complainants i.e., Rs.44,52,7 65/- (including ST) and being enjoyed by thc respondent.

These resulted into complete loss of PLCs on thcse two accounts to the sum of Rs.58,02,088/- and the complainant is entitled for reversal of PLC charges of Rs.58,02,088/- along with interest.

Page 17 of 36 ffi HARERTT #. eunuennM Complaint No.

5040 ot 2022 9. d. 'fhcrefore, as a law-abiding citizen and consumer, the complainant deposited the balance sale consideration of Rs.6,88,442/-, as per SOA received with offer of possession, under protest.

However, the rcspondent, using his dominant position, did nothing to either issue fresh possession letter, after completion of all the ongoing construction works on the projects, making this ground floor unit habitable did not reverse any PLC and also did not pay thc balancc I)PC, as pcr the Act of 2016.

The complainant, vide mail dated 04.04.2019 to CEO/IjMAAR, raised all the concerns and intimated 'under protest' and future actions of registration etc. will be got donc when these is clarity on these issues.

E.ll written submission on behalfofthe respondent: 'fhe rcspondcnt has filed the written submission on 27.11.2O2:1, and irrdde the following submissions: - a.

That prior to approaching the respondent, the original allottees had conductcd extensive and independent enquiries regarding the project and it was only after the original allottees were fully satisfied with rcgard to all aspects of the project, took an independent and informcd dccision to purchase the unit. b.

That the original allottees further undertook t.o be bound by the terms and conditions of the application form. tion form.

1'hereafter, buyer's agrecment was executed between the original allottees and the respondent on 06.10.2 010.

Page 18 of 36 14, F. .l 0.

HARER,l.

GURUGRAI/ Complaint No.

5040 of 202 2 c.

That no amount of preferential location charges [PLC) charged by thc respondent is liable to be refunded to the complainants.

The l,LC amount demanded by the respondent have been mentioned in schcdule of payment appended on page 49 of respondent's documents. 'l'he complainants had voluntarily agreed to make payment of the PI-C amount.

As per, the relevant clauses in the buycr's agrcement pertaining to Pl,C charge by the respondcnt clausc 1.1(eJ on page 56 of respondent's documents.

It is evident frorr a pcrusal of the aforesaid clauses that the original allottecs/complainants are liable to make payment of PLC amount and the same have been demanded legally and in consonance with thc tcrms and conditions of the buyer's agreement. d.

That furthermore, the complainants have lalsely and incorrectly stated in their complaint that the unit in question is not prcferentially located anymore.

The same is absolutely false and the unit of thc complainants continues to be preferentially located. lurisdiction of the authority 'lhc preliminary objection raised by the respondent regarding jurisdiction of the authority to entertain the present complaint stands rcjected.

The authority observed that it has territorial as well as subject matter jurisdiction to ad,udicate the present complaint for the reasons givcn bclow.

I.l Territorialiurisdiction A.

Page 19 of 36 ]].

HARERA GURUGRAM Complaint No.

5040 of 2022 As per notilication no.

1/92/201.7-1TCP dated 14.12.2077 issued by 'fown and Country l)lanning Department, llaryana the jurisdiction of Ileal llstatc Regulatory Authority, Gurugram shall be entire Gurugram I)istrict fbr all purpose with offices situated in Gurugram.

Gurugram.

In the present casc, thc proiect in qucstion is situated within thc planning area of Curugram District, therefore this authority has complete territorial jurisdiction to deal with the present complaint. li.ll Subicct-matteriurisdiction 12.

Scction 11(al[a) of the Act provides that the promoter shall be rcsponsible to the allottee as per agreement for sale.

Section 11(4)(a) is r-cproduccd as hereunder: Section 71 (4)'l'he promoter sh1ll- (o) be responsible for all obligotions, responsibihties ond functions under the provisions of this Act or the rules qnd regulotions made thereunder or to the qllottees os per the ogreement fot sale, or to the ossociotion ofallottees, as the cese moy be, till the conveyonce ofallthe apartments, plots or buildings, os the cose n)qy be, to the allottees, or the common oreos to the associotion ofollottees or the competent authority, os the'cose moy be; Sectio 34-Functions oI the Authority: 34(D of the Act provides to ensure compliance ol the obligotions cast upon the promoters, the allottees and the real estate agents under this Act ond the rules and regulqtions mode thereuncler.

13.

So, in view of the provisions of the Act quoted abo!'e, the authority has conrplcte jurisdiction to decide the complaint regarding non- compliance of obligations by the promoter as per provisions of section 11[4][a) of the Act leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a later stage.

Page 20 of 36 A 14.

HARERiI GURUGRANI Complaint No.

5040 of 2022 Findings on the obiections raised by the respondent G.l Objection regarding iurisdiction ofauthority w.r.t. buyer's agreement executed prior to coming into force of the Act and provisions of the Act are not retrospective in nature, Ore of thc contentions of the respondent is that the authority is dcprived of the jurisdiction to go into the interpretation of, or rights of thc parties inter-se in accordance with the buyer's agreement exec ement executed bctwccn thc parties and no agreement for sale as referred to under the provisions ofthe Act or thc said rules has been executcd inter se parties. 'l he respondent further submitted that the provisions of the Act are not retrospective in nature and the provisions of the Act cannot undo or rrrodily the terms of buyer's agreement duly executed prior to coming into eflect of the Act. 'fhc authority is of the view that the Act nowhere provides, nor can be so constrLled, that all previous agreemcnts will be re-written after coming into force of the Act.

Therefore, the provisions of the Act, rules and agrccment have to be read and interpreted harmoniously.

IIowever, if the Act has provided for dealing with certain specific provisions/situation in a specific/particular manner, then that situation will bc dcalt with in accordance with the Act and the rules after the date of coming into force of the Act and thc rules.

Numerous provisions of thc Act save the provisions of the agreements made between thc buycrs and scllcrs.

Ihe said contention has been upheld in appeal no.

173 of 2 019 tjtled as Magic Eye Developer Pvt Ltd.

Vs, Ishwer Singh Dahiya, 15.

Page 21 of 36 l^. ffi HARERH #-eunuennHl Complaint No.

5040 of 2022 in order dated 17.12.?019 the llaryana Real Estate Appellate Tribunal has observed- "34.

Thus, keeping in view our aforesaid discussion, we ore of the considered opinion that the provisions of the Act ore quost retfooctive to some extent in operation ond will be opplicoble to the qgrceLeils-bLsQle eu o even pnor to coning inLo operation oflbclbtvhere thcttralsa&io n o re st i ll in the p roc ess of c om p letion. llence in cose of deldy in the offer/delivety of possession as per the Letms on.l conditions of the agreement for sale the ollottee sholl be entitled to the interest/deloyed possession charges on the reosonoble raLe of interest as provided in Rule 1:5 of the rules and one sided, unfair ond unreasonoble rote ofcompensaLion mentioned in the ed in the ogreement for sale is liable to be ignored-" 16. 'flre agreements are sacrosanct save and except for the provisions which havc been abrogated by the Act itself.

Further, it is noted that the buycr's agreements have been executed in the manner that there is no scope left to the allottee to negotiate any of the clauses contained thcrein. 'fherefore, the authority is of the view that the charges payable undcr valious heads shall be payable as per the agreed terms and conditions of the buyer's agreement subiect to the condition that the same are in accordance with the plans/permissions approvcd by the rcspectivc dcpartments/competent authorities and are not in contravcntion of the Act and are not unreasonable or exorbitant in ltitI lr re.

G.ll Whether a subsequent allottee who had executed an indemnity cum undcrtaking with waiver clause is entitled to claim delay possession charges. 'fhc rcspondcnt submitted that complainants executed various transfer documents including indemnity cum undertaking in terms of which the conrplainants agrees and under took to be bound by the buyer's agrcemcnt dated 06.10.2010 and also admitted that they shall not bc 1"7 .

V Page 22 ot 36 ffiHARERA #" eunuennu '18.

79.

5040 of 2022 entitled to any compensation in the event delay in delivering the possession.

I'herefore, the complainants are not entitled to any co ll]pcnsation. 'l'hc Authority has comprehensively decided this issue in CR/4031/2079 titled as Vorun cupto Vs Emaar McF Lond Limited whercin the authority has observes as under: "'l'he outhority holcls that irrespective of the execution of the afJidovit/untlertqking by Lhe complainants/subsequent allottees at the Line of transfer ofthe unit in their name os olbttee in place of the original all{)ttees in the record of the promoter does not disentitle them Jrom claitning the delay possession charges in case [here occurs ony delay n delivering the posse.ssion of the unit beyond the due date of delivery of po. ery of po.tscssio, os promised even after execution oI on in1lemnity-cum- underLaking." 'fhus, irr view of the above the objections raised by the respondent stands rejected.

Findings on the reliefs sought by the complainants H.l Direct thc respondent to pay the interest on the total amount paid by the complainants at the prescribed rate of intcrest as per the Act of 2016 from the due date ofpossession till the date ofactual physical possession after adiusting the already paid DPC (paid as per one sided BBA). ln the present complaint, the complainants intend to continue with the project and arc seeking delay possession charges as provided under the proviso to section 1B[1J ofthe Act.

Sec.

18( 1] proviso reads as under. "Section 1B: - Return oJqmountond compensqtion 'lB(l)- lfthe promoter Ioils to complete or is unable to qive posseseon ol on oforinont plol orbutldtng. - Provided thqt where an allottee does not intend to withdrow from the project, he shall be paid, by the promoter, interest for every month of delay, till the hqnding over of the possession, at such rote os may be prescribed." H.

20. /a-- Page 23 of 36 21.

GURUGRA[/ Clause 11(a) of the buyer's Complaint No.

5040 of 2022 agreement provides tbr time period for handing over of possession and is reproduced belor"v: I I.

POSSTSS,ON (a)Time ofhonding over the Possession Subject to terms ofthis clause ond subject to qllottee(s) having complied wiLh qll the terms and conditions of this buyer's qgreement, ond not bcing in defoult under any of the provisions of this buyer's ogreement ond complionce with oll provisions, formalities, documentotion etc., os prescribed by the compony, the compony proposes to hond over the possession ofthe unit within 36 (thirty six) months from the date of start olconstruction, sub)ect to timely compliance oJ the provisions of the buyer's qgreement by the ollottee. ollottee.

The ollotL:ee(s) ogrees ond utlderstands that the compqny sholl be entitled to o groce period oI3 (three) months, for dpplying qnd obtaining the completion certificote/ occupation certificate in respect of the unit and/or the project." 22.

At the outset, it is relevant to comment on the preset possession clause of the agreement wherein the possession has been subjected to all kinds of tcrnrs and conditions of this agreement, and the complainant not bcing in dcfault under any provisions ofthis agrecmcnt and compliance with all provisions, formalities and documentation as prescribed by thc promoter.

Thc drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promoter and against the allottee that even a single default I)y thc allottee in fulfilling formalities and documentations etc. as prescribed by the promoter may make the possession clause irrelevant for tl.rc purposc of allottee and the commitment time period for handing ovcr posscssion loses its meaning. 'l'he incorporation of such clause in thc buycr's agrecment by the promoter is just to evade the liability .

1 towards timelv delivery of subject floor and to deprive the allottees of )v their right accruing after delay in possession.

Page24 of 36 23.

Due date of possession and admissibility of grace period: The promoter has proposed to hand over the possession of the said unit within 36 months from the date of commencement of construction and it is furthcr provided in agreement that promoter shall be entitled to a grace period of three months for applying and obtaining completion tr HARERA s-eunuennnr 24.

25.

Compla int No.5040 of 2022 certilicate/occupation certificate in respect ol said floor. 'Ihc construction commenced on 31.07.2072 as per statement of account datcd 26.07.2027.

The period of 36 months expired on 31.07.2015.

1.07.2015.

As a nrattcr o[ fact, the promoter has not app]ied to the concerned authority {or oblaining completion certificate/occupation certificate within thc timc limit prescribed by the promoter in the buyer's agreement.

As per thc scllled law one cannot be allowed to take advantage of his own wrong.

Accordingly, this grace period of six months cannot bc allowed to thc promoter at this stage.

Therefore, the due date of possession comcs 0ut to be 31.07.2015.

Entitlement of delay possession charges to the complainant being subsequent allottee w.e.f. due date of handing over possession or w.e.f. the date of nomination letter/endorsement (i.e. date on which they became allottee)- 'fhe complainants are seeking delay possession charges w.c.fl due date as per the buyer's agreement i.e,,06.10.2010. lt has further been stated that the complainants were endorsed as an allottees in the above project [as subsequent allottees) on 30.04.2017. 'fhe occupation ccrtificatc ofthe project was received on 08.03.2019 and the same was offcred on 11.03.2019.

Page 25 of 36 lv :, li,.

27.

HARER,i GURUGRA[/ Complaint No.

5040 of 2022 'l'hc counsel for the respondent states that the claim of the complainant arises from thc date the complainant was endol'sed as an allottee t.c., 30.04.2077.

In this regard, he refers to the orders passed by this authority in CR No.U04 of 2022 rlated 08.09.2022 ra'herein the DPC has bccn allowed w.e.f. the date of nomination. 'flre authority observes that the issue w.r.t. the entitlement of delay possession charges to the allottees being subsequent allottees is concerned, thc authority has exhaustively decided the said issue in CR no.4037 of 2079 titled as Varun Gupta Vs.

Emuar MGF Lond Ltd. u,hcrein it has been held that where subsequent allottee had stepped into the shoes of original allottee after the due date of handing over posscssion but before the coming into force of the Act, the delayed possession charges shall be granted w.e. anted w.e.l the date of nomination letter issLred by the respondent. 'lhc authority observes that in the present complaint, the subject unit has bccn cndorsed in favour of the complainant vide nomination letter dated 3 0.04,201 7 i.e., after the due date of handing over possession but bcfore the coming into force of the Act.

Therefore, in furtherance of Varun Gupta Vs, Emaar MGF Land Ltd. (supra), the complainant is cntitlcd to dclay possession charges w.e.f., the date of nomination letter i.c'.,30.04.2017.

Admissibility of delay possession charges at prescribed rate of interest: The proviso to section 18 provides that where an allottee does rot intend to withdraw from the project, he shall be paid, by the 28.

29 Page 26 of 36 tv ffi HARERI S-eunuennn,r Complaint No.

5040 of 2022 promotcr, intcrest for every month of delay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules.

Rule 15 has been reproduced as under: Rule 15.

Prescribed rqte ofinterest- lProviso to section T2, section 78 snd sub-section (4) and subsection (7) ofsection 191 (1) l:or the purpose of proviso to section 12; section 18; and sub- secLions [4) ond (7) of section 79, the "interest ot the rote prescribed" shall be the Stote llonk oJ lndio highest morginal cost of lending rate +2%0.: Pt oviclecl lhol in case Lhe Stote Bonk of lndia mdrginol cost of lendin!) rate (MC|,R) is not in use, it sholl be reploced by such benchmark lending rates which the Stote tsank of lndia may lix from time to time for lending to the general public.

30. 'l'hc legislaturc in its wisdom in the subordinate legislation under rule I 5 of thc 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, 31.

Consequently, as per website of the State Bank of India i.c., hltps://sbi.co. ://sbi.co.in, thc marginal cost of lcnding rate (in short, MCLR) as on datc i.c., 16.lt.20?3 is 8.750/o.

Accordingly, the prescribed rate of interest will be MCLR +2% i.e.,1.0.75o/o. :12.

Rate ol interest to be paid by the complainants in case of delay in making payments- The definition of term 'interest' as defined under scction 2(za) of the Act provides that the rate of interest chargeable from thc allottce by the promoter, in case of default, shall be equal to thc rate of interest which the promoter shall be liable to pay the allottee, in case of default. {d-' PaEe 27 of 36 33. ffiHARERA #- eunuonnM 34.

5040 of 2022 'Ihcrcfore, interest on the delay payments from the complainants shall bc charged at the prescribed rate i.e., 10.75o/o l:y the respondent /promoter which is the same as is being granted to the complainants in r dsc of dclav possession charges.

0n consideration ofthe documents available on record and submissions made by the parties regarding contravention as per provisions of the Act, thc authorjty is satisfied that the respondent is in contravention of thc scction 1 1(4)(al of the Act by not handing over possession by thc d uc dalc as pcr thc agrecment.

By virtue of clause .t 1 (a] of the buycr's agrecrrent executed between the parties on 06.10.20I0, the possession of thc said unit was to be delivered within a period of 36 months front lhc datc oIcon]mencement ofconstruction and it is further provided in agreement that promoter shall be entitled to a grace period of three nronths for applying and obtaining completion certificate/occupation ccrtificate in respect of said floor.

As far as grace period is concerned, the same is disallowed for the reasons quoted above.

Therefore, the due rlate of handing over possession comes out to tre 31.07.2015.

1.07.2015. 'Ihe complainant in the present complaint is subsequent allottee and had purchased the unit in question from the subsequent allottees and therealter, thc rcspondent had acknowledged the same vide nomination letter dated 30.04.2017.

In terms ofthe order passed by the authority in complaint titled as Varun Gupta Versus Emaar MGF Land Ltd. (CR/4031/2019), the complainant is entitled to delayed possession charges w.e.l the date of nomination letter dated IL Pagc 28 of 36 HARERA GURUGRAII 3 0.04.2 017 as he has stepped into the shoes oforiginal allottee after the due date ofhanding over possession but before the coming into force of the Act.

In the present case, the complainant was offered possession by tho rcspondcnt on 11.03.2019 after obtaining occupation certificate dated 08.03.2019 from the competent authority.

The authority is ofthe considered view that therc is delay on the part ol'the respondent to olfcr physical posscssion of the allotted unit to the complainant as per the terms and conditions of the buyer's agreement dated 06.10.2010 executed between the parties. :15.

Section 19(10) of the Act obligates the allottees to take possession of thc subiect unit within 2 months from the date of receipt of occupation ccrtificate.

In the present complaint, the occupation certificate was grantcd by the competent authority on 08.03.2019.

However, the rcspondcnt offered the possession of the unit in question to the complainant only on 11.03.2019, so it can be said that the complainants camc to know about the occupation certificate only upon the date of offer of possession.

Therefore, in the interest of natural justice, he should be given 2 months' time from the date of offer of possession. 'Ihcse 2 months' of reasonable time is being given to the complainant I<ecping in mind that even after intimation of possession practically he has to arrangc a lot of logistics and requisite documents including but not limited to inspection of the completely finished unit but unit but this is subject to that the unit being handed over at the time of taking posscssion is in habitable condition.

It is further clarified that the delay Complajnt No.

5040 of 2022 Page 29 of 36 A- ffiHARERA #" eUnuGRA[/ Complaint No.

5040 ot 2022 possession charges shall be payable from the date of nomination letter i.e.30.04.2017 till the expiry of 2 months from the date of offer of posscssion (11.03.2019) which comes out to be 11.05.2019.

Also, the complainant is directed to take possession of the unit in question within 2 months from the date of this order as per section 19(10J of the Act after clearing outstanding dues, if any.

36.

Accordingly, the non-compliance of the mandate contained in section 1 1 (4)(a) rcad with section 18(1) ofthe Act on the part of the respondent is cstablished.

As such the complainants are entitled to delay possession chargcs at prescribed rate of the intercst @ 10.750lo p.a. w.c.f.

30.04.?017 till 11.05.2019 as per provisions of section 18( 1) of the Act rcad with rule 15 ofthe rules.

37.

Also, the amount of Rs.7,11,313/- (as per statement of account dated 26.07.2021) so paid by the respondent to the cornplainants towards compcnsation for delay in handing over possession shall be adjusted towards the delay possession charges to be paid by the respondent in terms ofproviso to section 18(1) oftheAct.

H.lI Direct the respondent to reverse the PLC for central green amounting to Rs.13,49,323/- + PLC for ground floor large lawn amountin8 to Rs.44,52,765/- asthe said PLC'S are charged wrongly.

38. 'Ihe complainants in their complaint have stated that the respondent has charged heavy PLC amount for front side lawn and green area and backside dedicated lawn which are now completely exposed to general public by constructing a ramp right in front of the unit in dispute and a Page 30 of36 HARERA GURUGRAN/ staircase in the back side which opens right in between the lawn of the complainants. plainants.

On thc contrary the respondent replied with respect to the above contcntion of thc complainants, that the additional staircase had to be mandatorily constructed by the respondent due to revision in the fire safety norms which were applied by the fire department with rctrospcctive effect.

Assuming without in any manner admitting that thc unit has ceased to be preferentially located, it is submitted that the same is not on account of any change in layor"rt plan but due to Govcrnment reg,ulations which the respondent is bound to comply with.

It is submitted that the complainant's right of use of the lawns is not unconditional but is subiect to the terms and conditions of the buyer's agreemcnt. 'Ihe authority observed that as per clause 1.2(a) and (e) of the buyer's agrcement, following provisions have been made regarding P[,C: "7.2 Sole Price for Sale of Unit (d) Sale Price i. 'lhe sale price of the Unit ("'totol Considerotion",l poyoble by the Allottee(s) Lo the Company includes the basis sole price ('BSP") @ the rote ol Rs.S750/- per sq. ft., External Development Charges ('EDC') @ the rote of Rs.368/- per sq. ft., lnfrastructure Development Charges ('lDC') @ th rotp ol Rs -14 /- ner so fL- Prcferential I ofiLion Choroes I P LC ) oround noorl-oroclown@Rs-1650/-so lL- oreen helL (a RS-150/ so-lI-Centrol Creen @ Rs.500/- so.IL dnd exclusive right to use two (2) reserved cor parking(s) space allotted to him/her fot his/her exclusive use, which sholl be charged separotely ot the rate of Rs.

350000/-, eoch for two cor pork situoted dt upper basement.

5040 of 202 2 39.

40. (d) Preferential Locqtion Chqrges Page 31 oi 36 lv ffi Hnnrn,r #" eunuennvr Complaint No.

5040 of 2022 i.

I he Developer sholl, qpaft lrom the basic price of the Unit, charge or fix pteferentiol locotion charges ("PLC") for certoin Unit in the Building ond if the Allottee(s) opts for any such Unit then he/she/them/it shall be lioble to pqy such PLC to the Developer. ii. loper. ii. 'lhe ToLal Considerotion for preferentiolly located LJnit includes the preferentiol locqtion charges of Rs.s5,43,00A/- for the Unit locoted in the Uuilding. '|'he qbove rate of PLC is opplicable to partial green, central green, joggers pork, green belt, floor raiser, rear lawn, penthouse, u)rner IJnit etc., and if due to chonge in loyout plan, design /orchitecture plon etc., the lacation ofony Unit, whether prelbrentiolly lo&ted or otherwise is changed to ony other preferential location where the PLC are higher thun the rote os mentioned hereinabove, then in such t1 cose the Allottee sholl be liable to pay the PLC as per the revised Pl,C decided by the Dcveloper within thirty (30) doys of any such communicotion rcceived by the Allottee in this regard.

However, ifdue to the chonge in the layout plan Lhe UniL ceases to be preferentiolly located, then in such an event Lhe Developer shall be liable to refand only the amount of preferentiol Iocotion charges poid by the Allottee without on),interest ond/or conpensation and/or damages ond/or costs of any nature whaLsoevet ond such refund sholl be odjusted in the last pqyoble instollmentfor the llnit.." 4 1 .

Also, as per 'Schedule of payments' - P/5 of the buyer's agreement, it is statcd that 'PLC-Central Green' an amount of Rs.1,3,49,323/-,'PL,C- Grccn llclt' an amount of Rs.4,04,797 /- and 'PLC- Cround FJoor Large l,awn' is Rs.44,52,765/- and the total amount of Pt,C is Rs.62,06,885/- [)agc no.

104 oFthe complaintl.

42.

Necdless to say, that the buyer's agreement executed between the parties is binding on them and they are not entitled to avoid any terms or conditions contained therein except for the provisions which have bccn abrogated by the Act itself or where there are reasons to belicvc that the same were incorporated in the agreement by the promoter by taking bcnefit of his being in dominant position and the allottee had no option but to sign on the dotted lines. ted lines.

Pagc 32 of 36 (\ ffi HARERA ffi eunuennvr Complaint No.

5040 of 202 2 43. 'fhe competent authority (Director Town & Country PlanningJ approved the building plans as per the requirements of National Iluilding Code, 2005 as applicable at that time and the promoter developed the proiect and constructed the building as per approved plans. l,ater on, before obtaining occupation certificate, the National Iluilding Codc (in short, NBCI was amended in the year 2016 and as per amcnded provisions, all high-rise buildings (i.e. buildings having height of I5 mtrs. and above) irrcspective of the area of each floor, are now required to have two staircases.

It was notified vide Gazette published on 1 5.0it.2017 that the provisions of NBC 2016 supersede those of N llC 2005. 'fherefore, the construction of the second staircase is a statutory obligation under the provisions of NBC as amended in the year 2016.

In vicw of the same, the respondent has constructed the second staircasc in the rear lawn as per the existing statutory provisions.

44.

Ilowever, the respondent has constructed a wall and ramp in front of thc unit, thus ceasing the preferential location charges towards the front ofthe unit.

In light ofthe above, the authority is ofthe view that as the unit is still preferentially located, except to the extent ofpreferential location of the front lawn and the buyer's agreement clearly provides that the allottee had agreed to pay preferential location charges for preferentially located unit and such preferential location charges arc payablc by thc allottec in thc manner and within such timc as stated in the schedule of payment.

Thus, thc rcspondent is directed to providc thc prcfcrcntial location to the complainants as per buyer's agreement l)age 33 ol 36 {4. ffi HARERa S"eunuennH,r Complaint No. plaint No.

5040 of 2022 after removing the wall failing which the proportionate amount of PLC for front lawn which has ceased be refunded to the complainants along with prescribed rate of interest i.e., 1,0.7 SVo from the date of payment till its realization.

H.lll Direct the respondcnt not to charge holding charges, CAM charges, maintenance charges and any other charges which are not thc part of I]BA. .

Holding charges 45. 'lhc authority has decided this in the complaint bearing no.

4037 of 2019 titled as Varun cupta V/s Emaar MGF Land Ltd. wherein the authority has held that the respondent is not entitLed to claim holding charges from the complainant/allottee at any point of time even after bcing part of the buyer's agreement as per law settled by Hon'ble Supreme Court in civil appeal nos.

3864-3889/2020 decided on 1+.12.2020. 'Iherefore, in light of the above, the respondent shall not be entitled to any holding charges though it would be entitled to interest for the period the payment is delayed. .

CAM Charges & Maintenance Charges 46. 'fhc authority has decided this in the complaint bearing no.

4031 of 2019 tttled as Varun Gupto V/s Emaar MGF Land f,td. wherein the authority has held that since maintenance charges are applicable from the time a flat is occupied, its basic motivc is to fund operations related to upkeep, maintcnancc, and upgrade of areas which are not directly under any individual's ownership.

REIIA's provisions enjoin upon thc dcveloper to see that residents don't pay ad hoc charges.

AIso, there should bc a declaration from the developer in the documents that they 14,- Page 34 ot 36 ffi HARERA *6" eunuenRvt Complaint No.

5040 of 2022 48.

49. are actinB in own self-interest and that they are not receiving any rcm u ncra tion or kick-back commission.

H.lV.

Direct the respondent not to create any third-party rights upon the unit.

47.

In view ofthe findings ofthe authority at pt. ity at pt.

1 the respondent shall not create any third-party rights upon the unit and shall hand over the I, posscssion ofthe unit to the complainants after payment ofthe balance amount by the complainants, if any.

II.V Direct the respondent to set aside the offer ofpossession letter dated 11.03.2019. 'Ihe said offer of possession is valid as the possession has bccn offered after receiving occupation certificate from the competent authority.

Directions of the authority Ilcncc, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(i): i. fhc respondent is directed to pay the interest to the complainants at the prescribed ratc i.c, 10.750lo per annum for every month of delay on thc amount paid by the complainant from the date of nomination i.e. '30.0+.2017 til11.05.2019 i.e. expiry of 2 months ftom the date of offer oI possession [11.03.20 1 9).

The arrears of interest accrued so far shall be paid to the complainant within 90 days from the date of this order as per rule 16(2J of the rules.

Also, the amount of Rs.7,11,313/- so paid by the respondent towards compensation for delay in handing over possession shall be adjusted towards the delay possession charges to be paid by the respondent in terms ofproviso to section 1B(1) ofthe Act.

Page 35 ol 36 w ffi HARERA #- eunuennt,t Complaint No.

5040 of 202 2 iii. 'Ihe rate of interest chargcable from the allottees by the promoter, in case of default shall be charged at the prescribed rate i.e., 10.750lo by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottee, in case of default i.e., the delayed possession charges as per se ction Z(za) of the Act. iv. e Act. iv. 'fhe complainants are directed to pay outstanding dues, if any, after adjustment of interest for the delayed period within 30 days and the respondent shall handover the possession in next 30 days to the complainant/allottees and to get the conveyance deed of the allotted unit executed in the favour ofcomplainants in term ofsection 17[1) of the Act of 2016 on payment of stamp duty and registration charges as applicable. v.

PLC- 'Ihus, the respondent is directed to provide the preferential location to the complainants as per buyer's agreement after rcmovtng the wall failing which thc proportionate amount of PLC for front lawn which has ceased be refunded to the complainants along with prescribed rate of interest i.e., 10.7570 from the date of payment till its rcalization. vi. 'l-he respondent shall not charge anything from the complainants which is not the part ofthe buyer's agreement.

Complaint stands disposed ol liilc be consigned to registry.

Vt Dated: 16.11.2023 (viiay mar Goyal) Member Hirryana Real Estate Regulatory Authority, Gurugram 50.

51.

Page 36 ol 36