KULJOT SINGH GABARHIA vs SS GROUP PVT. LTD.

*HARERA S-cLrnuenm,r Compla'nt No 5405 0f2022 HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM BEFORE THE Kuljot Singh Gabarhia, R/o: C-203,2"d floor, Sushant Lok'1, curugram, Haryana.

Versus [1/s s s. croup Private Limited.

Regd. office at:_ S.S House, Plot No 77, Sector,44, Gurugram, Haryana CORAM: Vijay Kumar Goyal APPEARANCEI Sh.

Mann Batra and Rohit Aggarwal (Advo€ate, Shri Rahu I Bhardwai (Advocatel 54OS ol zOU) o4.oa,2022 z7,o7.2023 I ORDER The presentcomplainthas been filed by the complainant/auottee under section 31 olthe R€al Estate (Regulation and DeveloPmeno Act' 2016 (in short, the Actl read with rule 28 of the Haryana Real Estate (Regulation and Developmentl Rules, 2017 (in short, the Rules) for violation otsection 11[4](al ofthe A€t whereiD it is i'leroli'o prescribed that the promoter shall be respons,ble lor all obligations' responsibilities and functions under the provisions of the Act or the 1rHARERA S-cLrnuenlv Compla nt No 5a09 ofZ022 Rules and rcgulations made thereunder or to the allottees as per the agreemenl for sale erccuted irlerse.

Unlt and prol€ct r€lated detalls The particulars ofunit detaili sale mnsideration, the arnount paid by the complainant, date ofproposed handlng over the Possession' d€lay period, ifany, have been detailed ln the following tabular form: 2. s.N.

Details l.

Name ofthe Project "The I P2l" Sector 85, Gurusram nrn',n HousinsComDlex 2.

Registered ,1 61201s dated 01.05.2019 3.

RERA Registered/ Not Resistered a1 ^f 201 1 dated 16.09.2011 DTPC License no. \s.09-2024 5.

3B.3d floor, Buildins 10 rn,,. n.

41 olcomDlaintl 2280 Sq.

Ft. (Pase no.

41 of complaintl 6.

7 8 IJnit measuring 70.o9.2012 (Paee no, 28 of complaintl Date of execution of floo. buver's agreement- 24.09.2073. rP,,. nn 39 of comDlaint) 8.

Possesslon 8.1 Tlme of handing over the 8.1 (a) subiect ro terms of thrs clause and subi€ct io the flat buve(sl hav'ng . l hav'ng .omDhed wtth all the terms and lcondrtions ol this asreement and nol I berne rn default under anY of th€ I .rovisions of this agreement and I iompriea wiih all Provisions I formalities, documentation etc. a!

I orescnbed bv the developer, th( I developer proposes to handover tht I Doss€sslon ofthe flat q!!!!q1pSl!9! lrHARERA -$- eunuennll Contrleint No.

5405 of 20?2 The complainant has is sellinghis flat bearing no 38 on the 3rd floor ofTower 10 having an approx. super area of 22 80 sq ft in the above-said project and hence, the respondent get the said flat transferred in the name of the complainant vide letter dated 28 03.2013. ll.

Thai accordingly, on 2409.2013, a flat buy€r agreement dated 24.09.2013 was signed and executed between the respondent and the 3. l. of thtrty six months from the date of stgnlng of this agreement.

The flat buyerfs) agrees and understands that thedeveloper shallbe entitl€d to a grace period of 90 days, after the expiry of thirry-six months or such extended period, for applying and obtaining occupat,on certificate in respect of the Grouo Housine ComDlex.

10.

Due date ofpossession 24_O9.2016 (Calculated from the date of signing oi buyer agreement) Grace Derloil not ollowed 11.

Totalsaleconsideration Rs.

7,23,03,720 /' fPase no.

4l oicomplaint) 12.

Total amount paid by the k.93,32,544 /- (As alleeed by the complainant) 14.

Occupation certificate dated 09.05.2022 (As per page no.85 ofreply 15 Notice for Offer of 12.05.2022 B, Facts ofthe complaintl That the complainant approach€d the respondent to book a unit in its project namely "The Leafl'at Sector 84-85, Gu.gaon and ic .epresentatives i.fo.med him thatone allottee n'tued Narender Kunrar {THARERA S- euRuennu complai.ant, by virtue ofwhich the respondent assured and promised the complainant to handover the said flat in the said proiect for a total consideration of sum of Rs. sum of Rs.1,23,03,720l- including all kinds ofcharses' fees, PLC, EDC,IDC, club memb€rship fees, car parking charges and anv other statutory charges etc' payable to the government departments/any other authorities and that no further amounr 's payable bY the comPlainant. lll.

That from 31.03.2013 _ 16'072018, the complainant made a total paymentof a sumoiRs 93,32,544/-(inclusiveof TDS and 18% interest on delay in payment) !o the respondent on the pretext that the respondent would handover the said flat immediately after ihe said payment is mad€ by the conptalnant' However' the same was acknowledged by the account ledger shared bv the resPondent dated 29.11.2019 However, contrary to the same' the respondent once again failed with its assuranc€s and prom'ses'Therefore' the complainant has left with no trustin th€ resPondent' 1v.

That the complainant has made repeated enquiries through emails and telephonic conversarions from the respoDdent about the delivery of possession ol the satd flat However, it was to no avail' as it gave ia lse a.d frivolous response to the same Duelo such delayed possesnon the complainant had no option but accommodate himselfand hrs fam'lv in a rented accommodatio' and thus, incurred unnecessarv expenses towards the reDt and etc' due to the breach committed by dre respondent.

That, accordingly, on 29.11.2019, the complainant during a meeting with the officials ofthe respondent that he does not wish to continue with the prole€r anrt requested the omcials ofthe respondent to refund THARERA 4-cLrnuennv VI, vlll the amount of Rs.

93,32,544/' along with interest @18% p a' alongwith damages that it has suffered due to serious breach of the said flat buyer agreement by the respondent.

However, the respondent refused to refundthemon€yandrebuffedthecomplainant Thus,thecomplainant was lefl with no option buito approach the Authority' That owing to the above'mentioned acts of falsehood and kaud' the complainant realized that the respond€nt has acted in t acted in the most arbirrary and illegal manner'W pot mana8ing lo keep up Io the contracrual obligat,ons Inrau itr7it t the compldinant' As such the comptainant s€eks the inreru"nifdi irur e'rr'o"rv to seek necelsary .lirection along with an additional number ofdamages' Vll That pertinently, afrer a sigD ificant delay ofapprox'67 months from the said agreed date of possession, the respondent vide letter dated 1,2.05.2022 has offered the possession ol th€ said flat but ihat was neither legalnor a proper offer ofpossession which were promised bv the respondent lt is also pertinent to mention at rhis stage that in the said letter or possession, the respondent has also raised false and frivolous excessive dernands whicb were against the builder buyer That the respondent has engaged in unfair and malafide practrces by one or the other means in order extract money from th€ complainant illegally.Thus,thesameclearlydemonstratesthattherespondentnever had any int€ntion to complete the said project on time and under the garb of the flat buyer agreement, the respondent has cheated the innocent comp)ainant and has committed a wrongful loss to him qua thei. hard-earned monev interestfreeby usingthe same for its pe'sonal 9HARERA -ds- eunuennu compl.LnrNo 5405olzo22 c. gains and benefrts.

The respondent dlverted the money given by the various flat buyeE for lhe said project to its other pending proiects' Rellef sou8ht bY the comPlalnant: The complainant has sought following relief(s)r L Direci the respondent to handover the possession of the unit and pay delay possesslon charge at the prescribed rate ofinterest' Il.

Olre* ttre responaent to pay input tax credit on th€ GST amount paid to the comPlaina.t on the date of bearin& the respo.dent/promoter aboutthe contr conrmitted in relation to section 11(4 not to plead guilty. authority explained to the aventions as alleged to have been I (a) ofthe Act to Plead guilty or D.

Reply by the respondent/bullder' 6. ullder' 6.

The respondent has contesred the complai't by filiD8 reply on the following grounds:' r Th:t the apartment in question was allotted to Mr' Narender Kumar' the original allottee vide an allotment letter dated 10092012' subsequently, the original allottees and complainants entered into an agreem€nt dated 2g 03 2013 in order to ransfer the unit from ihe original allottees to the complainant and same was endorsed by the respondentvide a letter dated 28'03'2013 'nd stand transferred to the complainant herein vide a nomination letter dated 28'03'2013 ii.

That the allotment lette' being the preliminary and the initial draft contained the basic aDd primary understanding between the respondent and original allottee' to be iollowed bv the flat buyer s agreement to be executed between the parties' ]'hereafter' immediaiely on 24.09.2013, the flat buyer agreement was executed ITHARERA S-cunuenll,l Complaini No.

5405 of 2022 between the complainant, and the respondent which contained the f,nalunderstandings between theparties stipulating all th€ rights and obligations. iii.

That, the complainant was allotted the unit bearing no 3 b' building 10, 3rd floor, having an approximate super area oI2280 sq' ft' of the p.oject "The Leaf" at the basic price of Rs 45s9l- per sq' ft and preferential locatioD charges (PLC) of 150/-per sq' fi' external development charges [EDC) ofRs' 355/-per sq' ft'' and infrastructure development chanses (lDC) ofRs 35/ per sq ft' to be pavable as per the payment plan.

The sale considerarion of the flat booked by the complainant was Rs.

1,23,03,720l- However' tbe sale consideration amount was inclusive oi the registralio' charges' stamp duty charges' service tax and orher charges which were to be paid by the complainant at the applicable stage' The complainant defaulted in making payments towards the agreed sale 'oDsideration of the flat from the very inceprion, i e.,after signingthe alloiment letter iv. letter iv.

That at tbe time ofthe allotment, the complainantwas aware about the stage of the construction of the project and even willingly opted to enter into an agreemeDt wlth the respondent' The complainant is habitual defaulters who has n€ver paid their instalments on trme and was always served with the remi'der notices forthe same' That the respondent from the very inception had to run after the complainant to clearthe outstaDding dues' The stme can be evidenced by the very iact that for every instalment towards the unit' the respondent had to send him the demand notice to clear the outstanding bills.

The kind notice olthe Authority that from 2012 to 2022 the respondent sent numerous demand letters' IPHARERA -&- crnLrennlll ComplarntNo 5405of 2022 vi.

That the project at present date has been completed and accordingly therespondenthasreceivedtheoccupationalcertificateof thepro)ect by the competent authority dated 09 05 2022 It is evident from the entire sequence of events that no illegality can be attributed to the respondent.

The allegations levelled by the complainant are toully baseless.

Thus, it is most respectiully submitted that the present complaint deserves to be dismissed at the very threshold' vii.

That vide a possession letter dated 12-05.2022 and email daied 13.05.2022, the respondeDtoflered the possession olthe apartment to the complainant and invited him to take possession of the apailment as the respondent had received the occupation ce'tificate' But the complainant did not come forward to take the said possession' However, at the time of,applying for kansfer letter to the respondent the complainant was auare of the stage of the construction of the project, but even then, they willinglv opted to continue with the project.

The acts of the complaina't clearly exhibit their malafide intentions and further eslabllsb the fact that the complarnant Ls investor and booked the unit in question to yield gainful returns bv selling it in the open market. en market. viii.

That the construction ofthe projectwas sloppedon a€count ofthe NCT order proh,biting corstruction (structur'l1 activity of any kind in the entire NCR by any person, private or government Authority' lt is submitted that vide order dated 20.07 2016 NCT placed sudden ban on the entry ofdiesel trucks mor€ than ten years old and said that no vehicle from outside or within Delhi would be permitted to transport any consiruction material.

Since the construction activiiy was suddenly stopped, after the lifting of the ban it took some time for *HARERA S- cunuenlut ComparnrNo S4050f202U mobilization of th€ work by various agencies emploved with the respondent.

Then the developers wer€ skuck hard by the two consecutive waves ofthe Covid_19, because olwh'ch the construction work complet€ly came to halt.

Furthermore, there was shortage of labour as well as the capital flow in the market dtre to the sudden lockdown impos€d by the government' Tbat the complainant has also concealed from the Authoritv that the responde.t being a customer centric company has always addressed the concerns of the complalnan! ard had requested the complainant telephonically time and again to vis't the office ol the respondent to amicably resolve the concems of lhe complainant' Howev€r' notwithstanding several efforts made by the respoDdent to attend to the queries of the complainant to the'r complete satisfaction' the complainant erroneously proceeded to file lhe present vexatious complaint before !he Authority against the resFondent' lurisdiction of th€ authorlty The authority obseNes thar it has terriiorial as well as subiect m:tter iurisdiction to adJudicate the present complaint fo' the reasons grven E.l Territorialiurisdlction E, 7.

As per notification no- l/92/2011'ITCP dared 14'12'2017 issued bv Town and Country Planning Departm€nt, theiurisdiction oiRealEstate Regulatory Authority, Gurugram shall be enti'e Gurugram Dist'ict for all purpose with offices situat€d in Curugram' ln t gram' ln the present case the project in question is situated within the planning area of Curugram District.

Therefore, th,s authority has complete territorial iurisdiction to deal with the present co mplaint *HARERA S- crnrcnnur 8.

E.ll SubjectmaBeriurisdiction Section 11(4)(al of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 11(41(al is reproduced as hereunder: Section 11.....(4) The ptonoter thotl- (o) be responvble lar oll abligotnns,.esponsbilitrcs and fun.tons undet the pravdonsofthk Act or the ttles ond rcgLlotionsnade thereundet or to the allotteesosper the agrcenent lor ete,ot ro the asaciation ofallattees, as the case noJ be, tillthe.onveyance ofallthe apoftnent' plots ot btildings, as the case no! be, ta the ollotteet, or the cannan oreos tothe osaciation ofollotteeso. the canpetent outhonty, as the .,se ho! be: Section 34.Functions of the Aurhonq: 344 ol the Act proides to 4sure conpliahce ol the obliqotions cast upon the pra oters, the allottees an.l the reol estatc agents unAet th6 Ad o"d the tules on.lrcgulottons node theretndet So, in viewolthe provisio ns of the Act quoted above, the authority hds complete jurisdiction to decide the complaint .egarding non compliance olobligations by the promoter leaving asrde conrpensanon which is to be decided by the adjudicaring oificer if pursued by the complainant at a later stage. r Findingson th€ ob,ections raised bythe respondent.

F.I ob,ection reg.rdlng force maleure condittons: 10.

The respondent promoter raised the conteniion that the consruct'on of the project was delay€d due to force majeure conditions such as %rious orders passed by NGT and weather conditlons of Delhi NcR region and non-payment of instalm€nt by ditrerent allottees ol the project, but all the pleas advanced in this regard are devoid of merit.

Thefloor buyer's agreement was executed betlveen the parties on 24.09. on 24.09.2013 and as per terms and conditions ofthe said agreement the due dare ofhanding overofposs€ssion comes out to be24.09.2O16.The *HARERA $- eunuennv events such as various orders by NGT in view ofweather condition of Delhi NCR region, were for a shorter duration oi time and were not continLtous as there is a delay ofmore than three years and even some happeningafter due date oi handing ov€r of possession Thus' the promoter-respondent cannot be given anv leniencv on based of aforesaid reasons lt i5 well settled principle that a person cannot take benefit oihis own wrong- 11.

As far as delay in construction due to outbreak of Covid_19 is concerned, Hon'ble DelhiHigh Court in c:se titled as /s Halliburton Ollshore Senices lnc V/S veilonta Ltil' & Anr' beartns no O M P (t) (Comm ) no.

88/ 2OZ0 ond tAs 3696'3697/2020 dated 29 0s'2020 has observed that_ .s thebo\t4ar'pltlano4caoI LhP' on@ lat o otDe oldon?d drl bLne,OtlD tabtioranMoahra20tr' tn thPCart'u'tat ao -r 'i"ori "*" *p"^t* zo's opportunitieswe'esNen to the contractar .',,,.',i -i" '0"**'t' o;spite the sode' the contrdctar cautd hat ,""-.,i,-" ,," ,,.'"i rne onbtPok ot o porocn" orrct bP l'Pd o a1 '* "." i, *" r'n"*" q o'\ o4t' 01 tot unr h t ne oPudt 14 r 4 a duch befo.e the outbreok itser" 12.

The respondenr was liable to complete the construction of the prolect and the possession ol the said unitwas to be handed over bv 24.09.2016 and is claiming benefit oflockdown which came into eiTect on 23.03.2020 whereas the duedate ofhanding over ofpossession was much prior to the event oloutbreak ofCovid'19 pandemic' Therefore' the authority is olthe view that outbreak ofa pandemic cannot be used ,( an excuse for non_ performance ofa contract for which the deadlines were much belore the outb'eak itselfand for the said reason' the said me period is not excluded while calculatingthe delav in handing over complJnt No.5405 of202z U H G * U) ERA GRAIU \R Ru G.

Findlngs on the reliefsought by the complatnanL c. latnanL c.l Dire(t the respondent to dellver the pos"ssion otthe allotted unit and Dav the delay Possesslon cnarS€s aong wlth prescribed rate of 13.

The complalnant intends to continue with the delay possession charges as provided under the ofthe Act.

Sec.18[1) proviso reads as und€r:' "sectton 1s: ' Rettn oJ onouat ond @npe$orton 1a(t tf.he prodakt Joik to canptete at E unobte to |tv' posesear al ar a pattnent, P] at, a. buihtnq - .o*pfi"n." *itf, all provisions' lormalities and documentation as prescribed by the promoter' Th€ drafiing of this clause and Ptuvided rhot where on ollofie does not h@n't to *ithdta* lan th' ,,o)e,r'^e 'qtt oepaa U ae pn1o@t"\a $t to'4q) no*hotddo' ',.,i,,i"i'"i 'i*' a *; *;*'ol' or:u'h 'ot?o'-o bP p e "'a"d 14.

Clause 8 ofthe buyer's agreement provides the time period ofhanding over possession and lhe same ls r€produced helowi a 1 t ,b,^'i b a'ns ot tt ' *': ":".:i:{;;,"i:h:,!;."b:.:,"':;: 'otia orptkd u'tl ott tr" t?'n'""'"' ':';..i;.,.,;,;""." . "," , o. bi.no ; dep"tt und.r on! ot 'n" o''""'!i;;;(:;. ,:. ,;. o, , . , ."0 ';- '; wnh ott oroweois-Jatnoti )et do?tn .i;.,i),i'"ii),'.;"*a"i,' p'opoe' to,\o\da@''tu adi "'o at.r' id dnhr a D''ao al dnv no ^ tru\''h? oa " at' an ns o' t'" .)i'"ii^"ui"*.;n'p;'a*routar-'totv ond 4 Qnd"a !a" h' 'i;"'ii* ..);;*,1" ^n'e pton 'oht 'o14 t" tot bu'?' ) ,"il;;, "^2,.";' .* w *.*'! \'l#,;:;.'l:.:":,:;i.i ;nnd or 9a dov\' offer d1? dpttv ol thtrtrsD ' p"':ii";"',;;;':',.'"" """';''" oc'lponan t Pan\o' ".^ 4.

DP'. ot th?

IitotP Houeng ConPtu 15.

The authority h:s go'e through the possession clause ofthe agreement Atthe outset, it is relevant tocomment on the p'e-set possessionclause of the agreement wherein the possessio n bas been subiecred to all kinds oi terms and conditions ol this agreemeDt and the complainants not beins in delalrlt under any provision of this agreement and in project and is seeking proviso to section 18(1) lL- THARERA S-cunuenel,t complai. t complai.tlo g{osor2o22 ] incorporation ofsuch conditions is not onlyvague and uncertain but so heavily loaded in favour of the promoter and against the allottee that even a single deiault bv th€ auottee in lulfilling formalities and documentations et€' as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottee and the rommrlmpni ddte ror hdndrng over posse'sron los"s rr\ mearrng 16.

The buyer's agreement isa pivotal legal docu ment which should ensure that the rights and liabilities of botb builder/promoter and buyer/allottee are protecred candidlv The flat agreement lavs down the terms that govern the sale of ditrerent kinds of p'operties like .esidentials, comm€rcials etc beiween th€ builder and the buyer lt is in the interest ol both the parties to have a well'drafted buver's agreeme nt which would thereby protect the rights ofboth the builder and buver in the unfortunate evenrofadispute that may arise lt should be drafted 'n the simple and unamblguous language which mav be understood bv a contain a provision with regard lo stipulated time of delivery of possession oftheunit' pLotorbuilding' asthe case mav be and the right ofthe buyer/allottee in case of delay in possession olthe unit' 17.

Admissibility of grace pertod: The respondent promoter has proposed to handover the possession ofthe unit within a penod oi:16 months from the date of signing olthis agreement ln the present casc' the promoter is seeking 90 davs as grace period for applving and obtaining occupation certificate' However there is no materiai evidence on record that during the period of90 davs' the period sought as grace n Deriod, thP p-omotet\ hav" apPIPd lo Jny duthorrry tor obrrrn'ng rhp lq' necessary approvats wrrh resppct ro tn,: prolecr or obtrrned dut'ns thi' period.

So, the promoters cannot claim the benefit ofgrace period of90 days.

Consequently, the authority has rightly determined $e due dat€ olpossession. ossession.

Thus, the grace period is notallowed' and the due date of possession €omes out to be24 09 2016 18.

Admlsstblltty of delay possesslon charges at pr€scrib€d rete of lntcrest Th€ complainan(s) is seeking delay possession charg€s' However, proviso to section 18 provides that wh€re an allotee does not *HARERA S-eunuonnu Conpla,ntNo.5405of 2022 intend to withdraw fiom th shall be Paid, bY the Promoters, interest for every month of he handing over ofPossession, at "uct' rat" as rnuv t" p."siia'd'ffil6ta'teen prescribed under rule I s ofthe rules.

Rule 15 " . ,.d,-J_a' ttattd.a,\at4rc'? rd5t tP BanI olt' da ndqrd'o tu' , h;.d b! ruch b.nchnotk tendins tdbs dinate legislation under the 19.

The legidature in its Rute t5 Pretoib.d totc ol tnteest'tp' ^iia "e'r'" r z *a'" ru vd *b:":,::: !'l ::: :ib:.::'::",!:).::,:::"1" ::' ",," ." . '.',',.- \,i"i:,iiii.;"i n 't? lrkP't the'o' "'r'r"n'"'' .",,, v 'i e.^*A """', "h-'a sn-ot'6'dbnd-o-"?')u reasonabte and if the said rule ls tollowed to ,ward the interest it will ensure unilorm practice in aU thecases' 20.

Consequently, as per website of the State Bank of lndia i'e'' tbe marginal €ost ofl€nding rate (in short' MCLRI as on date i.e., 2? .07 .2023 is 8.7 5% Accordingl, the prescribed rale of interestwill be marginal colt oflendingrate +2% i e ' 10 75%' 21.

Thedefinition otterm'lnteresl asdefi ned underse€tion 2(2a) of theAct provides ihat the rate of interest chargeable from the alloftee by the provision ofrule 15 ofthe rules, has determined the prescribed rate of interest.

The .ate of interest so determined by the legislature' 's sHARERA $- cunuenRvt promoter in case of default, shall be equal to the rete of interest which the promoter shall be liable to pay the allotteq in case of default' The relevant section ls reproduced below: 'tel'n@an' nlns ie ruB ol inu? t povobte bv h' pawt't ot Ih' ;ttrtu B t\. @P nov be.

E otononon -Fot i' pury*e oJrhts 'touse- ili ",:il -) "r-.*) ,i.*-:tt, ttud te ottove bv d. tove bv d. ptu4ok' r "' i:;;i.;;i.;;ii;" *';t b I^. ruE ot 'k'a't wh't^ t'' 'i-^ie,:iittii,.u,, pit *" otlotu . tco5. oto'toun ,,'i)iii-., ".*u, t",t, otuno.et @ th' otton''^dtt be roa rh? '"i,i li-i.ii*}i1,*a;*@onro' onv podtheeot u rhe dn* :;:':-^:,^, * *- ,h.,,a',,,dt^36t lhe,4n s Ql'nd.d. ond d? "i',i)i ""iuZi ai otda t& ptunou' snott b' ltun rh' dote ');'.'ii#llliiii";i&ca'ptunou' dtt t^e do* n E po'd'' ,, rh","r",",'i;;;H;;;ir" aWi*[-" r'"' 'he comprainant sh/rr b€ charsed dt the Prescrrbed rete i.e., 10.70% bY the respondents/promoters whi€h is the sam€ as is beine granted to them in case ofdelaved possession charges 23.

On consideration of the documents available on record and submission s made by both the parties, the authority is satisfied that the respondent is in co ntraventioD ol th€ section 11(41(a) oftheActbvnothandingover possession by the due date as per the agreement' 8v virtue of clause 8 of the agreement execuled between the parties on 24'09'2013' the possession ol the subject apartment was to be delive'ed within 36 months from the date ofexecution ofaSreement' Fo' the reasons quoted above, the due date of possession is to be "lculated from the date of execution oi buyer's agreement i'e ' 2 4 09'2 013 a'd the said time period of 36 months has not been extended by any competent authority Therefore, the due date of possession is calculated from the date ol execution of buyer's agreement and the said time period ol36 months expired on 24.09.2016 As far as grace Feriod is concerned' the same 's *HARERA 4-cLrnuenm,t disallowed for the reasons quoted above' Therefore' the due date of handiDg over possession is 24'09 2016' 24.

The respondent has obtained the occupation certificate on 09'05'2022 Copies oithe same have been placed on record The authoritv is ofthe considered view lhat $ere is delay on the part ofthe respondent to oiter physical possess,on of the allo$ed unit to the complainant as per the rerms and cond,tions oi the buyer's agreement dated ent dated 2409'2013 executed betweeD the parties' ltisthefailure on partofthe promoterto fulfil its obligatioDs and responsibilities as per the buyers agreement dated 24.09 2013 to hand over the possession witbin the stipulated 25 Section 19(10) oithe Act obligates the alhttee to take possession ofthe subiect unit within 2 months from the date of receipt of occupation certificate. ln the present complaint' the occupation certilicate was grantetl by the competent authority on 09'05'022 The respondent offered the possession of the unlt in question to the complainant only on 12.05 2022.

So, it can be said thal the complainant came to know about the occupation certlficate only upon the date of offer ol possession.

Therefore, in the lnterest of natu ral iu stice' the complainant should be given 2 months'time from the rlate ofofferolpossession' This 2 months' of reasonable time isbeing given to the complainant keeping in mind that eveD after intimation of possession practically he has to arrange a lot oi logistics and requisite documents including but not limited to inspection oithe completely tinished unit but this is subicct rothatlheunitbernghandedover rllh' rrmeotrakrngposses'ron rJr1 hdb,tdble (ondilion. h i\ furt'rer clarrlied thdr the delay po$F;\rJn charges shall be payable from the due date ofpossession i e' 24 09'2016 IL THARERA $-cLrnueneu till the date of offer of possession t12 05'2022) plus two mo'ths i'e' 12.07 2022.

Th€ complainant is further directed to take possession of the allotted unit after clearing all the dues within a period of 2 months and fail,ng which legal consequences as per the provisions of the Act w,llfollow.

26.

Accordingly, the non_compliance oi the mandate coDtained in section 11(4)[a) read with section 18(1) ofthe Act orl the part ofthe resPondent is established.As such the complainants are ent'tled to delav possession charges at rate oi the prescribed interest @ 10'750/0 p'a w'ef 24.09. 'ef 24.09.2016 till the date of o6er of possession (12'05'2022) plus two montbs i.e..

12.07.2022i as pei provisions of seciion 18[1) ot the Act read with rule 15 oftheRules' G.

II Direct the responalent to pay tnput tax cr€dit on the GST amount bald to the.omPlalnani ,r. ii"-.".,iL'*i,i.l,t'itea tnat ttre retpondenr hd\ nor pd\sed rnv benefit ofCST input taxcredit in their favour' lt is observed that as per table above the due date of handing over of Possession was 24'09 2016 whereas the incidence ol GST came into op€ration thereafter on 01.072017.

The authority has uPheld the issue in complarnt no 4031/2021' titted as Vorun Gupta us ll/s Emtur MGF Lan'l Limited that the allottee cannot b€ burdened to discharge a liability which had accrued solely due to respondent's own fault in delivering timelv possession ofthe flat' The respo'deDt is directed to itrnish details oi GST paid and input tax credit thereon' It is further directed to pass on the benefit of input tax credit as per applicable laws H.

Dtrections ofth€ authority A- {THARERA S-eunuennv 28.

Hence, the authority herebv passes this order and issues the following directions under secrion 37 of the Ad to ensure compliance of obligations castupon thepromoter as perthe function entrusted to the author,tY under section 34(l): l.

The respondent shall pay interest at the prescribed rate ie'' 10'75 % per annum for every month of delay on the amount paid by the complainants from due date of possession i'e'' 24'09 2016 till the date ol offer of possession l1'zjs'2022) plus tlvo months ie 12 07.2022, as per proviso to section 18(11oftheAct read with rule 15 ofthe rules' ll.

The rate of interest chargeable from the allottees by the p'omoter' i! case ofdefaultshall be charged at the prescribed rate i'e'' 10 75 % by the respondent/promoter which is the same rate of interest which the promoter shall b€ liable to pay the allottees' in case of defauli i.e., thedelaved possession charges as per section 2(za) olth' IIl. olth' IIl.

The respondent is tur$er direct€d to isslre fresh statement of :ccount after adjusting delav poss€ssion charges alongwith benefit IV, The complainanrs are directed !o pay outstandinB dues' if any remainsalteradiustingdelaypossession interestwithin30 davs and the respondent shall handover the possession of the allotted unit complete in all aspects as per specifications of buver's agreement within next 30 days and if no dues remain outstanding' the possession shallbe handed over within fourweeks fro date ofthis ComphntNo 540tor2022 A-- HARERA D- GURUGRAI/ VI, 29.

30.

Co Fil Haryana Real ty, Gurugram HARERA GURUGRAM Compla'nt No 54os of2022 A period of 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences The respondent shall not charge anlthing from the complainant which is not the part of buyer's agreement The respondent is not entltledto charge holding charges from the complainant/ allottee at any point of time even after being part or the builder buver's agreement as per law settled by Hon'ble Supreme Court in civil appeal nos.

3854-3889/20 20 oa 74 'rZ 2020 ' mplaint stands disPosed oi e be consigDed to registrY' "'^A;i '"ut ""n.0.,