MOHIT MALIK vs ST. PATRICKS REALTY PVT LTD

MHARERA 9S- eunuenm,r ComblaintNo 2713 of 2020 BEFORE THE HARYANA REAL ESTATE REGUI,ATORY AUTHORITY, GURUGRAM Mohit Malik R/o: - H.No.

Bzcl14, New Rohtak Road, Karoi Bagh, New Delhi-110005.

Versus 1.

M/s St.

Patricks Reality Private Limited Regd.

Office at: - Asset 58, Hospitality District, Delhi Aerocity, New Delhi-110037.

2.

Mahesh Gi.i Regd.

Address: A-20, CF, Sushant Lok-lll, Go;f Course lxtn Road, Crugram-122001.

271A ot ZO2O o7.10.2020 25.O4.2023 Respondents CORAMI Shri sanjeev XumarArora APPEARANCE: Sh.

Sukhb,r Yadav Sh.

Amit Aggarwal Member Advocate lor the complainant Advocdte for the r.spondcnts ORDER 1 The present complaint has been qted by the complainant/allottee undersection 3l ofthe Real Estate (Regulaiion and Development) Act, 2016 (in short, theAct) read with rule 28 ofthe Haryana Real Estate (Regulation and Development) Rules, 2017 (in sho(, the Rules) for violation of section 11[4](a) of the Act wher€in it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the rules and regulations nade there under ot to the allottees as per the agreement for sale executed inter se. *HARERA #-eunuennl,r ComplarnrNo 2718ot2020 A.

Unlt and prolect retated dcta s 2.

The particulars ofunit details, sale consid€ration, the amount paid by the conplainant, dare ofproposed handing over the possessjon, delay period,lfany, have beendetatled in the following tabular form: I 'Central Park tlowerValley",Se.

29,30 and 32, Curgaon DTCP O7 ol 2O2O dated 29 -01 2a2o 54 of2014 dated 20.06.2014 3 Registered vide 11 o12020 dated 78.03.2020 L D-108 lAnnexure P4 at pa8e 43 ofrhe 2700 sq. ft./300 sq.yard lAnnexure P4 at page 43 of the 74.07.2014 1. r3.07 2015 (Annexure P4 at pag.43 ofthc Date ofbuilderbuy€r's The conpany sho endeovor to hondover the posessioh of the eid plot ol the opplicant within a pedod ol24 nonths eith a gruce period ol onother 5 nonths Jrom the dore ol the ogreement s greement subject to tinelt poynent oJ ele price, othet c han ges a nd o I I othe r pot tue nts in clud i ns PHARERA S-elnLnmu Complrinr No, 2718 of 2020 Due date ofpossession Cannor be as.errained 10.

29 05.2018 Total sale.onsiderati.h lannexure K pase s9 or.eplyl 1l 12 Rs.12,00,000/- lPaEe 22 ofCll]1l 29.09.202A 1s Toffe;of p;sion 14.

I Complerion certrficate Baslcsale price.

Rs.1,09,59,300/- (As pe. page 6 ofthe complaintl B, 3.

Factsofthe complaitlt The complainanthas pleaded the complaint on the foltowing grounds: a.

That in lune 2014, M..

Mohit Malik (the complainanrl received a marketing call from a real esrate agent Mr. [4ahesh C,ri (respondentno.2),whorepresentshimsetf asanaurhorizedagent oithe respondent no.

1 (St.

Patricks Realty private Limired) and marketed the ploned projectofrhe respondent no.

1 by the name and style 'Central Park llt'sltuated in Sector - 29, 30.

32 & 33.

Sohna, Gurugram.

The complainant along with the real estate agent vis,ted rhe project site and local office of respondents The marketing staff otthe respondents showed a rosy picture of rhe project through glitzy advert,sements and colourfut brochures. proposing ro develop and consrrucran integrated plorted project at the prime location ofSohna-Curugran Road, Sohna, CuruC.anr, claimingthe same to be a newconcept otmodern architecrure and a unique amalgamarion of plors, independenr floors, high rise apartment, retail, office, and matt.

Undeniably, the respondents, l HARERA GURUGRA[/ CohplaintNo.2718of 2020 vide the said glitzy advertisements and colourfut brochures claimed to provide luxurious featurcs including but not limited to the entrance through a marvellously designed entrance, rhe world-class landscapin& and ample surface parking tor rhe visitors,100% power back-up, CCTV'S at the entry point and lifts, 24 hours manned surveillance and access barriers, etc b. rs, etc b.

That lured byassurances, prohiser and representations made by the r€spondents, the complainant signedan expression otinteresr 000/- drawn in lClCl Bank om the account on of the complajnant on 0I. ing amount for plot admeasuring 300 .36,531/-. p€r sq. form and issued a cheque and cheque amount was yd.

The original BS (pre-launch) dl*6 totaleffective BSP of have assured that apart .t re (BS ey, the respondents sale price, the allottee has sq. :;i,*::i:'#ff *"Hmmrffi ff :il::: approval and sa{cii{etrlp{hrj( dy'ie(oE ltre pro;ect ana slo*ea license to the complalnanL Moreover, the respondenrs represented that Plor will be handov€r over on or before 01.08.2017 (within 3 years toom the date of booking).

Ir js pertinent to mention here rhat both the respondents never totd that there is facinS PLC on plor That on 16.06.2015, the respondents sent an invitation letter for physi€al presence at a draw ceremony for the altotmenr ofptot ill *HARERA S- eunuenrlr t c h the project on 30.06.2015 at 3r00 P[4(lST) at sales and markering ofir.".

Lenrrdi Park- ll.

Sector 48.

Sohn, Rodd Curgaon.

That on 13.07.2015, .espondents sent a provisional allotment or plot no.

D - 108 in C€ntralPark III, Sohna, Gurgaon, atong with a demand notice for 1st Instalmentand asked ro pay Rs.1539,A25/- dtLer dcknowledeins tne re.eived Rs.12,00 000/-.

That on 25.07.2015, the complainant contacted respondenrs and asked ior clarification on PLC. respondenrs also reiterated rhat there was no "PLC for facing" atthe time ofbooking and assu.ed that he will ask the Euilder to remove this PLC.

It is pertinent to mention here that the plot was allotred to the complarnant through an open draw (luck by chance) and the no(h-iacing ofthe plot does not attractany PLC Itis again perrinenr to menrion here that it was never inlormed by both the respondents rhat there is any PLC lor North facing.

That on 23.09.2015, respordents sent a reminder for overdue payment towards plot no. s plot no.

D - 108 in Cennal Park I1t, Sohna, Gurgaon and asked lor the balance payment ol Rs.

15,39,825/ That on 30.11.2015, the respondents sentanother demand notice on "Commencement of Levelling Work' and asked for payment oi Rs.42,31,890/-.

That on receipt of the above,said demand letrer, the conplainanr again visited the office ofthe respondents along with respondents and asked for the removal of PLC from the cost of the Plot or reaund ofpaid money:longwith inreresr.

The office-bearers ofthe respondents have assured him ro rake-up rhis issue beforc top management and fu.ther assured to get i! to resolve as soon as possible.

It is perrinent to mention here rhat the complainant *HARERA s-eunuonnl,r ConplarnrNo 2718 ot 2020 j k t. informed the oftice beare.s ofthe respondents that he will make iurther paymentonly on condition of removal ot facjng pLC.

That on 06.10.2016, the respondents sent a letter about the change in the numbering ofthe ptot from plot No.

D 108 to D- 168 and asked for payment ol Rs.

68,74,140/- on stase ''Commencement of PIot Demarcation ar Site,,.

That on receipt oi the above,said letteralso, thecomplainant rook follow-up lrom the respondenrs and asked for a plot without the cost of PLC or refund of paid money along wjth interest.

The .espondents furtherassuredhlm to ger resolve the matrer as soon That oo 24.03.2018, the respondents senr a ,,Notice before cancellation of provisional allotmenr due to non,executjon ot the Buye.

Agreement & non-paymeor ofrhe instalftents due: Mikasa PlotNo.

D - 168".In the said notice, respoodents atleeed tor faiture to execute the plor buyer agreement and making the paymenr of Rs.6A,74,l4O/-.

Ir is pertinent to mention he.e that the complainant never .eceipts a copy of rhe plot buyer agreement and did not sign any detailed application form.

When the complainant asked for a copy oi the appl,cation form, rhen the .espondent did not provide the same. the same.

That the complainant has visited severat rimes to rhe off,ce ofrhe respondents and met with omce bearers/representative namety Amit Mishra, Sumit Tandon, Priyanka, Dilya lain, and Manish Berry, etc. on different dates, to get resolve the issue of pLC. location ofplot and to get the copy ofthe sanctioned plan ofptot no.

D 108/168.

But all went in vain, rillthe date the respond.nrs lrHARERA SeunuenAnr respondents did not refund th ?

ConplaintNo.

2718of 2020 did not refund the paid money nor resolved the grievances of the complainant. m.

That the main grievance of the complainant in the present complaint is that despite the complainant paid Rs.

12,00,000/- on 07.07.2014 and ready and willing to pay the remaining legitimate and mutually agreed amount (if any amount becomes due), the respondents party has miserably fail€d to rectiry the cost of the Plot and deliver the possesslon of PLOT, moreover, the n.

Thatit is more than 6years ate of booking and even the respondents did not f the plot nor refunding the negligence ably and utilized Reliefsought by the co c.

D.

The compla,nanthas sought a.

Direct the respondent to refund the entire amount paid by him along with prescribed rate ofi.terest. b.

The r€spondent party may kindly be directed to pay Rs 10,00,000/- as compensation, mental aSony and harassment Reply by the respondent The respondent by way of written reply made the following a.

That on 10.7.2014, the complainanl of his own volition and accord, signed and submitted a detailed booking form for booking ofa plot in the project in question.

This booking form runsinto 27 *HARERA 1j$- eLrnuennu l1.hbLaint No.

2718 of 2020 pages and bears the signature of the complainant on each and every page ofthe said booking form.

The booking form contains detailed terms and conditions in relation to the allotment ofthe plotinquestlon, including the "key indicators from the terms and conditions olthe plotbuyer's agreement". greement". lt also contains detailed information about the paym€nt plans as well as the approximate cost of the plot in question, which includes charges towards basic saleprice ["BSP"), preferential location charges ('PLC'], EDC,IDC, deposri ("lFMSD"l, club membe.ship charges and er charges as mentioned in nsideration of the said cluding IBMSD and form, the PLC fo. signature of th€ complainant.Th hadsoughtallotme the plot is speci out that this pa th As per the booking liable to make re of EMD and As per the booking form, th€ complalnant was also liable to executeth€ plotbuyer's agre€mentand failure to do so in the time provided by the respondents, would entail cancellation oi allotment and forfeiture of EMD and other amounts of non_ r€hrndable natur€.

In this regard, reference may be had to clause 7 otthebooking form.

On 16.6.2015, the respondent no.1 sentan r8% of sP. d. i.

HARERA GURUGRAIV Rs.15,39,825/-was due invitation to the complainant for conducting of a draw for allotting ofplots.

The said draw was ro be conducied on 30.6.2015.

Pursuant to the aforesaid draw, the €omplainant was allotted a plot bearing no.

D-108, with north facing PLC.

This fact was duly communicated to the complainant vide respondent No-l's provisional allorment letter dated 13.7.2015.

Pursuant to the allotment of the Plot No.

D-108, the respondents on 13.7.2015, sent another letter to the complalnant in the form ot a demand C.mbl.int N.

2713of 2020 ted 13.7.2015, an amount of le by the complainant on 17.8.2015.

15.07.2015 and 7 days for the numberingand marking bering of the plot e purpose of linear rn rn place for facilrtahng the plot rema,ned the same and only its numberingwas changed.

Since the complainant failed to execute the plot buyeis agreement and make any payment pursuant to the demand notices and reminder letters, the respondent no.1 was constrained to send a "Notice before Cancellation" dated 24.3.2 018 as a last opportunity for the complainantto comply with his oblagatiotls. agatiotls.

Since even the aforementioned notice before cancellation dated 24.3.2018 had therewas no changein location or orient?tion of the plot.

As such, {}HARERA S-ounuonen,l ComDlarnt No.

2718 of 2020 E.

7.

8. no effect on the complainant, and the complainant remained in complete and utter deiault of his obligations under the booking form, the respondents were constrained to cancel the allotment vide cancellation letter dated 29.5.2018. g.

All other averments made in th e €omp laiDt were denied in toto.

Copies oiallthe relevant documents have been filed and placed on the record.

Their authe.ticity is not in dispute.

Hence, the complaint can be decided on the basisofthese undisputed documents and submission made by the parties. ,urisdiction of the authority The authority obserues that ithas territorialas well as subject matter jurisdict,on to adjudicate the present complaint for the reasons given [.

I Territorial iurisdlction As per notification no.

1/92/2077-7TCP dated 14-12.2017 issued by Town and Country Plannirg Department, Haryana, the jurisdictron of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes.

In the present case, the project in question is situated within the plannlng area of Gurugram district.

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

E. ll Sub,ect-matter iurisdiction section 11[4](a) oithe Acl2016 provides that the promoter shallbe responsible to the allottees as per agreement for sale.

Section 11(41(al 's reproduced as hereunder; Be r*po^sible Ior o obligatioht r$ponsibilities and lunctions under the prcinons ol this Act or the rules ond rcgulotions node thereunder or to the allottees as pe. the ogreenent for sole, or tb the asrociotion of atloneet os the cose nay be, ti the.onvetan.e ololl theaportnents, plots o. bril.lingt, as the c6e not be, to the dllottees, or the connon or@s to the aseciotion ol ollott@s ot the . s ot the .onpetent duthority,6 the coe nat be s2 ciion 3'k F rn ctl on s of th.

A trhorl tY 34A oJ rhe Act Provides to e$ure conptiotce ol the obligod s c6t uPon the p@ote6, the ollone$ and the rdl e$oa 4qents un let thts A.t an l the tu14 ond rcaubtio6 node thercunde..

10.

So, in view of the provisions of the Act quoted above, the authority has complete lurisdiction to decid€ the complaint regarding non_ complianceofobligations by the promoter leaving aslde compensation which is to be decided by the adiudicating officer if pursued by the complainants at a later stage. *HARERA S-cLrnuennu t.

Fl.dings on the reliefsough F.l Direcr th€ responde along with presc 11.

The€omplainant was sq. yrds. vide allo coDsideration of { 1, Complaint No.2718of 2020 mountpaidbyhim admeasuring300 9,5 ,3 th ofI 12,00,000/'tilld for the development Ii was liable to pay 25% ofB mount wrthin 45 days ol 13.07.2015 wherein the respondedt demanded t 15,39,825/_ which was payable on or before 17d AuCust 2015.

Wher€as, as per pavme.t plan the due date of making payment of the above amount was 28.08.2015.

Although the complainant did not pay the amount due eventill2S.0s.20lS.Furthertherespondentraisedtheseconddemand on 30.11.2015 ol I 42,31,890/- on commencement ol tevelling work which atso remained unpaid by the complainant.

Furthermore, the complainant states that the respondent vide letter dated 06.10 2016 72. *HARERA {t- eunuennnl complainlNo.

2718 of 2020 changed the numbering of the plot fiom D'108 to D_168 and ralsed unreasonable demand of i 68,74140l' including the outstanding amount on stage "commencement of plot demarcation at site".

Also, the complainant in its complaint has contended that the respondent mentioned north facing PLC in the allotment letter dated 13.07.2015 however the draws were held for the allotment and it was luck bv chance that the complainant was allotted the Dorth facing plot 13 therefor€, he is notliable tor PLC. e tor PLC.

At th€ outset, it is relevant to com respondent sent the copy of BB complainant on the other of buyer's agreement. fact that although the on 15.07.2015 but th€ ever received the copy aia not oav tle outsJrhr 9 BBA executed betw cancellation dated 24.0 note thot despite being in tor getting the d that We regret to copies of the plot buyer ogreement t'or over 30 days and desplte several teninders you hove ldiletl ta return the same tothe conpany oftet executing it" Also, no proot of delivery is placed on {eclrd by ihe respondent noreover no reminder to execute the BBA is placed on record for its reliance.

Thereafter, the respondent sent termlnation letter dated 29.05 2018 for non'payment ol the ouistanding dues by the complainant.

14.

This act of respondent is arbltrary and unjustlfied as the respondent took the payment ofmore than 10% ofthe sale consideration and kept demanding more payments wilhout ffrst entering into the buyer's agreement which i5 in violation of section 13 of the Act and the ComplainrNo 27r8o12020 respondent is liable for penalty under section 61 of the Acl 2016 Accordingly, the authority hereby sets aside this cancellation l€tter daied 29.06.2018 bein8 invalid and the complainant is entitled for r€fund ofthe paid up amount along with interest.

15.

The authorityherebydirectsthe respondentto refund theamountpaid by the complainant i.e., { 12,00,000/'aloog with interest at the prescribed rate @ 10.75% (the state Bank of lndia highest marginal cost oflending rate (MCLR) applicable as on date +2%) as prescribed under rule 15 of the Haryi Estate fRegulation and {tHARERA S- eunuonnu Development) Rutes, 20t7 fro of payment till the dat€ of refund ofthe deposited am 10,00,000/'as 16.

The complainant i F.ll The respondent ly be direcled to PaY Rs.

I agohy and harassment. r is lElking relief w.rr Dlkins relief w.rl dlt unn""t ,i t"a "' velop ICivll appeal nos- 674 2027.

674 2027. thatan allottee is entitled th eS' 18 and section 19 which is to be decided bv the adjudicating officer as per section 71 and thequantum ofcompensation shall be adjudged by the adjud,cating omcerhavingdue regard to th€ faclors mentioned in section 72.

The adjudicating otricer has excluslve iurisdiction to deal with the complaint! in respect ofcompensation G.

Dtrecttons ofthe Authorlty: 17.

Hence, the Authorfy hereby passes this order and issue the following directions under sectron 37 of the Act to ensure compliance of obligations cast upon the promoter as per the functions entrusted to the Authority under Secrion 34(0 oftheActof20l6: {THARERA 15* eunuennv The authority hereby direcls therespondentto refund the amount paid by the complainant i.e., { 12,00,000/- along with interest at the prescribed rate @ 10.75% (the state Bank of lndia highest marginal cost oflending rate (MCLR) applicable as on date +2%) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Rules,2017 ftom the date of payment tillthe date ofrefund ofthe d€posited amount is made.

A period of90 days is given to the respondent to comply with the complairr No.

2718ot2020 iora) directions given in this orderand failing which legal consequences 18.

19.

Complaint stands disposed F,l€ beconsigned to the Regi A ol Memb€r Gurugram HARERA GRAM G eal Es 3 Haryana R Dated:25.08.202