VIKAS KUMAR vs LANDMARK APARTMENTS PRIVATE LIMITED

t& HARERA GURUGRAIV BEFORE THE ComplarntNo 24I0 of 2021 HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ComPlaintno.

Dat€ offlllngof complalnt: Dale ofdecisiotr B/o: \.w lantd Hdrdwdre. t\ear Chdudhary D"vr Lal Park, Bio Diversjty Park, Wazirabad Market, Nea.

Sabji Mandi, Sector 52,C$rgram'1220?2 Versus N,l/s La ndmark Apartments Private Limited Office, Landmark House_65, Sector'44, Curug.am, CORAM: ShriVijay Kumar Goyal Sh.iAshok Sangwan APPEARANCEI Sh.

K.K.

Kohl, (Advocate) sh.

Amarjeet (umar (Advocate) Counsel for the complainant Counsels for the Respondent Z41O ol2O2l 14,06.2021 os.09.2023 Respondent ORDER 1.

The present complaint dated 14.06.2021 has been filed bv the complainants/allottees under sect,on 31 of the Real Estate (Regulation and Developmen0 Act, 2016 (in short, the Act) read with .ule 28 of the Haryana Real Estate (Regulation and Developmen0 Rules, 2017 (in short, the Rules) for violat,on of section 11(al(al of the Act wherein it is inter o/ia p.escribed that the promoter shall be responsrble for all obligations, responsibilities and functions under the provision olthe Act or the Rules *HARERA S- cLrnuertqv 2 I Prcjec I 2 I Nature otthe Drolect F.-t *-F-*"-* dared 1205.2008 valid uPto 97 of 2oOA 11.05.2020 t +N-,"?ri"",'".

M/s Landmark APartmenrs Pvt.

Ltd negstered vrde no.

61 ot 2019 2s 11.20191 15u sq. ft. and regulations rnade there underorto the allottee as per the agreement for sal€ executed irter se.

Utrlt and pro,ect related detalls The particulars of unit details, sale consideration, the amount paid by the complainants, date of Proposed handing over the possession' delay period' ifany, have been detailed ln the following tabular form: [. u- I ra"tt.,ta* [ilr,*,.a "Landmdrk corPoEr Cenrr ,ts-to.Oul of 1021 l ti. tPrq".ta*" [o-fct" "re*.,r- "r u"u 29-0A.2016 (as per page no.47 of replyl rttal the possessron of are. shall be offered by the companv ro the rntend'n8 Allotteelsl wlthln 35 months from the . from the .late ofslgnlng ot the agreement to sell subieci to torce maleure circumstances and up,,n regrsrrahon of sale deed provided all amounts due and pavable bv the rnrcndrne alloteetsl as provided herein and as per asreement to sellbve l ll I ro I Possession claus€ rs HARERA GURUGRAM Rs.

I5,l0,U0U/' been paid to the company.

It is, however, understood betlveen the Parties that variousblock comprised in the landnark The oudet shallbe readyand completed in phases and handed over to the allottee(sl accordingly.

The Company shall be entitled to reasonable extension in delivery of possession ofthe space to the allotteels] in the event oi any default or neSligence aft ributable to the AllotteeGl fullilment or Terms & Conditions ofthis allotment 29.04.201,9 (TaLen from thedateolMou,as BBA isnol Rs.

14,88,000/- 15. occupation cerdflcate trking tas per pase no.19 oicomPlain0 26.12.20LA 09092019&14.04.2021 (As per page no.54 & 6l ofreply) 52 of.eply) L I,u .

Facts ofthe complaint 3.

The complainanthas made the following submissio ns in the complaint: L That the complainant on various representations and assurances by the respondent filed the booklng application of the unit in the project on 18.11.2011 and later, on the demand rased by the respondent Ior the booking amount, thecomplainant paid sum ofRs.5,00,000/ videCheque no.016493 dated 18.11 2011 drawn on Curgaon Gramin Bank, Harvana, ol the said unit bearing Shop_24 at OUTLET" in Sector 6T Curugranr having supe. area rneasuring 460.00 sq. ft to th e respo ndent' The prolect 'OUTLET howeverdid notcommence due to unexplained'easons lrHARERA S- crntrcnntr,,t Il.

Thata settlement agreement was executed betw€en the complainant and respondent dated 24.09.2015 stated that the complainant has requested to cancel the unit at the "THE OUTLET" project and to transfer the paid amount of Rs.

14,88,000/- to book an executive suit measuring super area of 150 sq. ft.

50 sq. ft. having total consideration of Rs 15,30,000 in the respondent's another project "CoRPOMTE CENTRE" and left with only a payment of Rs.

42,000/- wh,ch would be paid at the time of offer of possessioD and thus no other liability was left except the abovemeDtioned agajnst the unitbooked in the'0UTLET' pro)ect.

IIL That no buyers agreement has been executed berween the parties but a Memorandum of Understanding was executed b€tlveen the respondent and complainant on 29.08 2016 IV.

The complainant made a payment of approximately 98% of the total consideration towards the baslc sale price, car parking, external development charges /infrastructure development charCes, I B M S/ IFM S, Power Backup, PLC ol the unlt from 2011 onwards.

The complainant opted for the constructlon linked payment plan and made payments promptly and in a timely manner as and when the demand lette.s were raised by the respoDdent.

V.

That the complainant contacted the respondenton severaloccasionsand were.egularly in touch with the respondent.

The respondentwas never able to give any satisiactory response to the complainant regarding the physicalpossession.

VL That the respondent had applied f,or the occupat,on certificate on 17.01.2015 and the same was granted by the competent autho.itv on 26.12.2014. of 2021 *HARERA S-crnrrcnru VIl.

The complainant received a Reminder to take possession vide letter dated 09.09.2 019 by respondent wherein it was stated that complainant shall clear all outstanding dues.

However, despite receivin& a total amountof9S% against the unit the proiect is still far from complete.

C.

Rellef sou8ht by the complalnants: 4.

The complainants have sought followinE relief(t.

1.

Directthe respondent to refund the paid-up amount.

IL Direct the respondent to award a compensation of Rs.

30,00,000/. towards unlair practic€s and pro\.di.g deficient se.vices to the complainant.

II1.

Costoilitigationand mental agonyofRs.

10,00,000/-.

5. ,000/-.

5.

0n the 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) ofthe act to plead Suilty or not to plead guilty.

D.

Reply by the respondent 6. lhe respondent hascontested thecomplalnton the ibllowinE S.ou nds. a.

That complainant booked a retail outlet admeasuring area 460 sq tt in a project developed by the r€spondentbythe name 'Landmark the outlet' part and parcel of proiect namely Landmark Cyber Park, situated in Sector6T Gurugram forabasicsale price otRs 6a,a0,000/ and the complainant made a payment olRs 14,88,000/'. b.

That thereafter since the complainant was unable to adhere to the terms and condition of the allotment/payment schedule it requested th e respond ent fo. cancellatio n oi booking in 'landmark the o utlef a nd transter ofpaid sum for its subsequent booking for executrve suit. in Landmark Corporate Centre in Landmark Cyber Park, Sector 67 Cursaon, Haryana. tr t$ HARERA GURUGRAN/ That upon such request of the complainant, a setdement agreernent dated 24.09.2015 was executed beflveen the pafties vide which the complainant unit in landmark the outletwas cancelled and funds were transferred to,ts subsequent booking ofan executive suite measurlng 150 sq.ft in project Landmark Corporate Centre part and parcel of Landmark Cyb€r Park Sector 57, Curgaon.

The complainant as p€r the terms of the agreement was also supposed to make other payments w.r.t EDC/lDC, maintenance,parung etc as per the demands raised by the respondent at the timo olX$itery of possession apart from the pending basic sal€ Price d.

That an MOU dated 29.08.2016was €x€cuted between the parties w r't subsequent booking ofthecomplainant ln Landmark Corporate Centre part and parcel of, Landmark CyberPark, Sector 67, Gurgaon, as per the MoU, the complainant had made the payment of98% ofthe basic sale price against the executive suite @ Rs.10. e @ Rs.10.200/_ per sq' ft lor totalarea of 150 sq.ft e.

That after receipt of occupat'on certificate the respondent has sent a letter dated 09.09.2019 thereby intimating the complainant for taking over ofpossession or exercising its option to grve its unit on lease and also requested the complainantto clear its pending dues f.

That since the complainant did not come forward to clear its d ues the responde.tagain issued a letter dated 14.04.2021to the comPlainant for mmpletioD of docum€ntation tor possession/leasiDg oithe unit of the complainant in Landmark Corporate Cenire part and parcel oI Landmark Cyber Park, Sector 67, Gurgaon' The complainant was requested to visit the corporate office for necessary documentation' However, the complainant very conveniently ignored the said lett€r *s 7.

8 HARERA GUl?UG|?A[/ Complarnt No 2a10 of2021 and never contacted the respondent with r€spect to the delivery of possession of the unit.

All other averments made ln the complaintwere denied in toto. copies ofall the relevantdocuments have been 6led and placed on record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis ofthese undlsputed documents and submlssion made by the E. lurisdlction ofthe authorltY 9.

The authority has conplete territoYal shd subject matter jurisdiction to adjudicate the present complaintforthe reasons given below.

E.l Territo rial iurlsdlction 10.

As per notification no.1 192 /2017 "LTCP dated7412 2017 issued bvTown and country Planning Department, Haryana, the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram sha)l be entire Curugram district ior all purposes. ln the present case, the proiect in question is situated within the planning area of Curugram d,strict.

The.efore, this authority has complete territorial iurisdi€tioD to deal with the present E.lt subiect.matter rurlsdlcllon 11.Se. lon 11.Se.tion 11(4)(a) of the Acr 2016 provides that the promoter shall be responsible to the allottee as per agreement ior sale.

Section 11[a)(a) is rep.oduced ashereunder; section 11 rilr rn, p-.** 'norr (a) be Bponsible lor ol I obhgo riohs, respontibi litiet ahd lunctions undet the provisions of rhis Act or the rtler and regulotions nade thereundet or b rhe ollottees os pet the agreenent fo. sal. or to the ossociotion ofollott4es, os the co no! be, till the coivelonce of dll the oportnenLs, plots ar buildings, os the co not ba to the HARERA GURUGRAN/ Complaint No 2410 of2021 allottees, or the cannan at@s tn the osociation al ollottes ot the canPetent outhority, os the cose na! be; Se.tion 3l-Functions oJ the Authority: 34A o[ the Act provid$ to ensure conpliahce ol the obliqotians cost upon the ptonaters, th. ollottees ond the rcol estote oqents under this Act ohd the rlles ond regulations node thereunder' 12.So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decid€ the complaint regardiDg non_compliance ofobligations by the promoterleaving aside compensation which is lo be decided bythe adiud,cating officer ifpursued bv the complainant at a later n 13.

Further, the authority has no hitch in proceeding with the complaint and to grant a reliefof reiund in the ptesent matter in view ofthe iudgenrent passed by the H o.'ble Ape x Conft h Newtech Promoters and Developers Private Limited vs Stote ol U,P. and Ors." 2021'2022(1)RCR(C), 3s7 and followed in case ol M/s Sana Realtors Private Llmited & other vs Union ol tndia & others SLP (civil) No.

1300s ol 2020 decided on t2-05.2022 wherein it has been laid down as underl "aa Fron the ihene ofthe Act ol which o detdited referen.e hos been 1ode and tokino note ol pNi ofadtud@t'on dettneotP']w h thp teoutato ortho4o ond odiudi@ n! ofrc?t whorlaattt !t^ad '- i;. alh;uen he Act ndEate\ the dbtinct Pve\'o4\ h\c rc[Lnd hter t, penolry ond co peBation o Lonloint rcodng o[<?. odng o[<?.u-r' 1d a4d t a t teorD nant4B $or wh?n t con^ to 'elund olthe onar4t on.l inte.est on the rcfund onount or dnecting povnent al intercst lot delayet) delivery ofpos5sion, or penolry ond intetest thercan it isthe rcoutot ory atthot ry wh ha\ ttR poEe' tae\a4tnP a'd det?'n re ,h; ou..anP at o .oaplont auqtion af eekinp the relief of adjudging conpensatioh and ineren ihercon under sections 12, 14, 18 ond 19, the adiudicotins allcer c\,t!!\etj ha\ he pow?' t o dete'n,n'- \eepng tr vten th' ntta v' rcadno ot S.don'1 t eod drh 5? t'oa?) olt\e Act ltn? adudt ottan -a.iea,o^ t! )4 ]a and $ otnP, thor 'anoertot aa d: ehvisoged, il dtended ta th. odildicothg africet os proled thot in'ut lie\|,;oy;^Md to expand the anbt ond scope ol the powe6 and u HARERA GURUGRAIU fundons olthe odjudicanns oJf@t under section 71 ahd thot woutt) be ogoinst the nondoi oJ the act 2a16." 14.Hence. in view ol the authoritative pronouncement of the Hon'ble Supreme Court in the case mentioned above, the autho'ity has the iurisdiction to entertain a complaint seeking reiund of the amount and intereston the refund amount, F.

Findings on the reli€f sought by the complalnants' F.l Direct the r€spond€nt to retund the amourt paid bv the 15.

The complainant booked a unit bearlng no.

GF_24 admeasuring area 460 sq.ft. in the project developed by the name "Landmark the outlef'for a basic prjce ofRs 64,40,0 00/- against which the complainant paid sum of Rs.

14,88,000/ Ther€after a setllement agreement was executed between the part,es on 24.09.2015 as the project'Outlet' did not commence due to unexplained reasons by the respondent and rorplaindnl rPquested lhe re\pondentro cancelthe unir rnd rranner ot paid sum lor its subsequent booking for executive suite in L'andntark Corpo.ate Centre in Landmark Cvber Park, Sector 67, Gurgaon, Harvana' It is pe.

It is pe.tin€nt to mention here that no buyer's agreement has been executed between rhe parties, but a MoU has been executed between the complainant arld respondent on 29 08.2016.

15.The complainant took a plea that the .espondent builder obtained occupatio. cedificate on 26.12.2018 butno offer of possession was made to him till date. on tbe contrary, the respondent builder states that the occupation certificate has been obta,ned from the competent authoritv and vide latter dated 09.09.2019, the respondent_builder intimated the complainant for taking over ofpossession or exercising its option to g'vc its unit on lease and also requested the complaina't to clear its pending Complarnr No Z4l0 of 2021 {SHARERA S- ounuennl,r ComplarntNo.

2410 of 2021 dues but complainant never come forward to ctear its outstanding dues.

So, the respondent again issued a le$er dated 14.04.2021 to the complainant for complerion of documentat,on for possessjon bur complainant did not pay any heed to the respondent.

17.

Vide proceeding ofday dated 18.07.2023, both the parties were siven tast oppo.tunity to submit their wrirten submissions bur titt date no writren submissions has been filed by both the parties, and hence matter is being further proceeded with on bas,s of facts fited by rh e complainan t a nd .eply 18.

The Section 18[1] is applicableonlyln the eventuality where rhe p.omot.r fails to complete or unable to glve possession of rhe unit in acco.dance with terms ofagreement for sale or duly completed by th€ date speciired therein.

This is an eventuality wherethe promoterhas offered possession of the unit alter obtaining occupation certilicate and on demand ol duc payment at the timeofoffer ofpossession, the allottee wishes to withdraw from the project and demand return of the amount received by rhe promoter in respect olrhe unit with,nrerest at the prescribed rate.

19.

The due date oipossession as per agreemenr for sal€ as mentioned in rhe table above is 29.08.2019.

9.08.2019.

The allottees in this case has filed this appl canon/complainton 14 06.202I was offered to them on 09.09.2019 and 14.04.2021.

As per the section 19(10) every allottee shall take physicat possession ofthe apartment plot or building as the case may be, within a period of two months of the occupancy certiffcate issued for the said apa(ment, plot or building, as the case may be.

In the present case, the complainants did not take rhe possession as they had objection to completion of the unit as well as demands whi€h were raised by the 1rHARERA #- eunuottntr,l ComplaintNo 2410 of 2021 respondent.

It is pertinent to mention he.e tbat the allottee never ea'lier opted/wished to withdraw from the proi€ct even after the due date of possessioD and only when offer olpossession w's made and demand for due payment was raised, then only, he liled a complaint before the 20.The right under section 18(1)/19(a) accrues to the allottees on tailure of the promoter to complete or unable to give possession of the unit in accordance with the terms ofthe agreement for sale or duly completed by the date specified therein.

If allottees have not exercised the right to withdraw from the project after the due date oipossession is over till the ofier ofpossession was made to them,itimpliedly means that the allottees tacitly wished to continue with the project.

The promoter has alreadv invested in the proiectto comPlete itand ofiered possession olthe allotted unit.

Although, for delay in handing over the unit bv due date 'n accordance with the terms of the agreemeDt for sale, the consequenccs provided in proviso to sectton 18(11 will come in force as the promoter has to pay interest at the pr€scrlbed rale ofevery month of delay till the handing over ofpossession and dlottee's interest forthe money ihey have paid to the promoter is prote€ted accordingly and the same was Lrpheld by in rhe judgement ol the Hon'ble Supr€me Court or India in ihe cases oi Newtech Pronoters onit Developers Prlv opers Prlvate Llmited Vs State o[ U P and ors. (supra) rciteftred in case of M/s sana Realtors Private Limited & other vs llnion ol tndia & others SLP (Civ ) No' 1300s ol2020 decided on 12.05 2022, it was obseryed: '25 The unquoliled shtolthcallattee k eekrefund rclercd Untle' sec'an lqt I tt a I anJ Se" bn I qt 4 I at tttP 4d : not d"pend"nt oq aa) ort 1"ea P'' 'Dntat on.th "ot ttoppPo'\Ihat th"Pqt\totu'P ro'' ar "att\ fio'td-'J L'1 ,';'' ot 4t,,i oa ocraldo.d tie pronoret lails ta givc possssion ofthe opafttuent plot ot buituins tutthrn t he une ,tollot.d !4det , na tern\ ol thP ogtee4?cL rcooit, 4t r'to'e p?' ^.-' - t*" .aut ot ie rou,t/Tt'burot rhfi ^ n e hP'| ra! rct oi bunble i the ollottee/hone blvet, the pronoter is Lnder on abtilanan n )a""a ne anoun on aenona wnh in@ta\t a' th totc p'|e'-"b'd D\'\? stdte ',.t., "--, .,,"d.s -.p-'onan i 4e aanne- p'ov'dedLndithe 4 ! t!h ,i".,".,,. ** i,'iari* aoe' nat t'htor'trd'aa t'oa tne uoP. \P .h h hP ?nlnteo tot htet ?n ot 0" p?t:od ol detol tnl hord'na o\Pt Do e' n' ot the rcte Ptes;ribed 21.The promoter is responsible for all obligations, responsibilities and llrnctions under the provisions oi the Act of 2016' or the rules and regulations made thereunder or to the allottees as per ag'eement for sale This judgementoithesupremeCourtof lndiarecognized unqualified risht of the allottees and liability ofthepromoter in case offailure to complete or unable to give possession of the unit in ac€ordance with the terms of agreement for sale or duly completed by the date speciiied therein But the complainant allottee failed to exercise his right althoLrgh i! is unqualified one.The complainant hasto d€mand and make his intentions clear that he wishes to withdraw from the proiecL Rather tacitly wished to continue with the proiecx and thus made hlmsell entitled to receive HARERA compla'nt No.2410 o[ 2021 GURUGRAM inte.

GRAM inte.est for every month of delay till handing over of possession It is observed by the authoriiy that the alloltee invest in the project for obtainingthe allotted unitand on d€layin completion ofthe proiect never wished to withdraw lron the project and wheD unrt is readv for possession, such withdrawal on considerations other than delav such as reduction in the market value ofthe property and investment purely on speculative basis willnotbe in the spirit ofthe section 18 which protects the right ofthe allottees in case of failure ofpromoter to give posseston by due date either by way ofrefund ifopted by the allottees or by wav of delaypossession charges at prescribed rate ofinterest for every month of Complatnt No.

2410of 2021 22.

The authority has observedthatth€ respondent'builder has intimated for the possession of the unit on various dates i e' 09 09'2 0 19 and 14'04 202 1 respectively, after obtaining occupation certificate on 26 12'2018 but the complainant wants to surrender the unit and refund the amount paid by him .

Keeping in view the aforesaid circumstances, that the respondent builder has already offered the possession ot the allotted unit after obtainiDg occupation certincate from the competent authority' and iudgmeDt ot rreo 6race Re altech PvL Ltd v/s Abhishek Khanna and ors civil appeat no.

5785 ol2019 decided on 11'01 20a it is concluded that if allottees still want to withdraw from the project, the paid up amount shall be reiunded afte. deduction as prescribed unde' the Haryana Real Estate Regulatory Authority Gurugram (Forieiture ol earnest monev by the builderl R€gulatio ns, 2018, wh,ch provides as under- "5, AMOUNT OF EARNES.

MONEY kenario priot to the Reol Estote (Regulotians ond Dev'lopnent) Act 2016 wos dife.enL Fruuds werc cofied att without onv t'ear ot thete ||as no taw lot the eme but nov th view of the obove loct' a^d tokins nto consderottan the judgenenLt ol Hon bh NotionolConsunetDispuis RedrcselConntssion ond the Honble Suptene e Suptene Court aJ tndio the outhoriE B olthe vte\| tho' the fotetu.e ohout ol the ea.nest none! shott not exceed narc thon 10% ofihe considerotion onount ol the tedl estote i e opo/tnent/ploqbuildi n! a\ the cosemoy bein o caseswhere the concettation al th' Iot/unn/ptot k mode by the buildet in o uhitoterol nonnet ot rhe buter intends to\|ithdtowton the prciect otu1 onv ogteement contohing anv cloLse contorv ta the aloresod rcgLlations shall bevoid ond nat biding on the bulet z3.Thus, keeping in view th€ aforesaid iactual and legal provisions' the respondent is directed to refund th€ paid'up amount of Rs'14'88'000/' after deducting 1oyo ot the sale consideration of Rs 15'30'000/- being 6/ ***, money along with an Inleren @ l0'750/o p d' lrhe Strre Bdnk of flHARERA S- cLnuennu *HARERA S- crtnlcnnul India highest marginal costoflending rate IMCLR) applicable as on date +zyo) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Rules, 2017 on the retundable amount, from the date of filing of this complaint i.e., 14.06.2027 requesting for refund of the amount till actual refund ofthe amount wlthin the timelines provided in rule 16 ofthe Haryana Rules 2017 ibid Fll Compensatio.

24.The complainaDt in the aioresald reliel is seeking .elief wr't compensation.

Hon'ble Supreme Courtoflndia in civil appeal titled as N1/s Newtech Promotersand DevelopersPvt Ltd.v/sState of UP&ors. {Civil appeal nos.

6745'6749 of2021, d€cided on 11.11.2021), has held that an allottee is entitled to claim compensation under sections 12, 14, 18 and section lgwhich is to be decided by the adl{dicating officer as per section 71 and the quantum of compensation shall be adjudged bv the adiudicat,ng oificer having due regard to the factors mentioned in section 72.

The adjudicating officer has exclusive jurisd,ction to deal with the complaints in respect of compensation.

Therefore, the complainant is advised to approach the adjudlcating officer for seekins the relier or G. lier or G.

Dtrectionsoftheauthorlty 25.

Hence, the authority hereby passes this order and issues the following directions under sect,on 37 ofthe Act to ensure compliance ofobligations cast upon the promoter as per the function entrusted to the authoritv under section 34(0: The respondent rs directed to refund to the complainants the paid-up deducting 10% of the sale consideraiion amountofRs.14,88,000 as earnest moneywith interesl at the prescrrbPd rate Rs.15,30,000/- ffI]ABERA -dD- cIRllGRAN/ ComplaintNo 2410ot2021 i.e.,10.750,6, from the date offiling ofthis complaint i-e., 14-06.2021ti11 the date otrealization of payment ii.

A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences 26.

Complaint stands disposed ol 27.

Eilebe ponsigned to registry vl -s (vllay Kufiarcoyal) Member orlty, Gurugram HARERA GURUGRAM Page 15 oflS :05.09.202 '$1