AMIT MALIK vs SS GROUP PVT. LTD.

ffiHARERA ffiGTIIUGRAM 1.

Complaint No.

5593 &5644 of 2022 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM UKI..,UR This order shall authority in form Development) Act, 201'6 fhereinafter referred as "the Act") read with rule 2B of the Haryana Real Estate (Regulation and Development) Rules, 2017 (hereinafter referred as "the rules") for violation of section 11(4)[a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties. dispose 2 CRA unde Order pronounced on: ZZ.O}.ZOZ3 Name of the Builder SS Group Pvt.

Ltd.

Project Name The Lea[, Sector 85, Complaint No. int Title s593/2022 Shri KK Kohli Shri Rahul Bhardw 5644/2022 rrarnyir Khurana Vs SS up Pvt.

Ltd, Shri KK Kohli Shri Rahul Page 1 of27 v Amit Malik vs ss Group Shri Ashok Sangwan HARERA M GUI?UGI?AM Complaint No.

5593 &5644 of Z0ZZ The core issues emanating from them are similar and the complainant in the above-referred matters had executed a BBA with the respondent for the purchase of units in the project, namely, The Leaf being developed by the same respondent/promoter i.e., SS Group Pvt.

The terms and conditions of the BBA form the fulcrum of the issue involved in all these cases about failure on the part of the promoter to issue timely possession of the units in question and seeking award of on charges.

3.

The details of the complaints, unit no., date of BBA, possession clause, the due date of of possession, total sale rV Page 2 of 27 consideration, the below: up, and relief t are given in the table Sr. no Complaint no./title/ date of filing the complaint Reply status o. ea rsuring rt area) Due date of possession & occupation certificate date & offer of possession Total sale consideratio and amount paid by the Complainanl (s) and amount waived off.

Relief Sought 1. cR/sse3/2022 titled "Amit Malik Vs SS Group Pvt.

Pvt.

Ltd." Date of filing complaint: 29,08.2022 Reply received on: 28.02.20 23 21D,21't Floor, Tower 2.

1575 Sq.

Ft.

Due date: 08.08.2016 Occupation Certificate: 09.05.2022 Offer of possession: 13.05.2022 Total sale considerati on: Rs.

86,33,700/- Amount paid: Rs.

77,40,1,73/- i.

Possession & DPC, ii.

Adjust the payment of DP towards dues form the complainan t.

Date of execution of apartment buyer's agreement.

08.08.2013 HARERA GURUGl?AM 4.

The aforesaid complain promoter on account inter se in respect possession charges.

5.

It has been decided to compliance of statutory ob in terms of section 34 compliance with the o the real estate thereunder. the Complaint No.

5593 &5644 of Z0ZZ mplainant against the between the parties an application for non- f the promoter/respondent e authority to ensure rs, the allottee(s) and the regulations made 6.

The facts of both the complaints filed by the complainant[s)/allorteefs)are also similar.

Out of the above-mentioned case, the particulars of lead case CR/s593 /2022 titled "Amit Malik Vs SS Group Pvt.

Ltd." are being taken into 4'/ Page 3 of27 cRls644/2022 Titled "Dharamvir Khurana Vs SS Group Pvt Ltd." Date of filing complaint: 29.08.2022 Reply received on: 28.02.20 23 21A,21't Floor, Tower 2.

1620 Sq.

23.09.2013 Due date: 23.09,201.6 Occupation Certificate: 09.05.2022 Offer of possession: 13.05.2022 Total sale considerati on: Rs.

88,67,720/- Amount paid: Rs.

7e,68,093/- i.

Possession & DPC ii.

Adjust the payment of DPC towards dues form the complainan t. ffi ffi fiu{q wqi 2. ffiHARERA ffiGuRUGRntr,t Complaint No.

5593 &5644 of 20ZZ consideration for determining the rights of allottee[s) qua delay possession charges inter alia.

A.

Unit and project-related details 7.

The particulars of the project, the details of sale consideration, the amount paid by the complainants, the date of proposed handing over of the possession, and the delay period, if any, have been detailed in the following tabular form: cR/s593 /2022 titted " V titted " Vs SS Group Pvt.

Details , Gurugram rpl DTCP license and validity 76.09.2011 valid up to Name of li not registe t/ 3 of2019 dated 01.05.2019 Unit no.

21D,21't floor, Tower No.2 [page no.

40 of reply] Unit area admeasuring 1,575 Sq.

Ft. ( page no.

40 of replyl Date of execution of agreement to sell 08.08.2013. [page no.24 of complaint) Page 4 of27 J/ Sr.

No.

Particulars 1.

Name of the project 2.

Project area 11.093 acres 3.

Nature of the project 4.

M/S Shiva Profins Pvt Ltd 6.

7.

8.

9.

L0.

Possession clause 8.

Possession 8.1 Time of handing over the possession 8.1 [a) subject to terms of this clause and subject to the flat buyerfs) having complied with all the terms and conditions of this agreement and not being in default under any of the provisions of this agreement and complied with all provisions, formalities, documentation etc. as prescribed by the $eveloper, the developer proposes to han$yer the possession of the flat Wi&th ror period of thirty-six months frbm , the date of signing of this ag5edment.

The flat buyer(s) agrees and uilerStands that the dlveiop.. shall be entitled to a grace period of 90 days, after the expiry of thirty-six, for applying and obtaining an occupation certificate in respect of the Group Housing Complex.

L2. r.3.

Due date of possession 08.08.2016 [calculated from the date of signing of buyer agreement) Grace period not allowed Total sale consideration Rs.

86,33 ,700 /- (Page no.

41 of reply) Rs.77,40,t73/- (rrs. ,,1!:l.eply) 09.05.2022 fPage no.

93 of replyJ 13.05.2022 14.

Amount paid by the complainants 15.

Occupation certificate /Completion certificate L6.

Offer of possession ffi ffi ilrq{q wli HARERA GUl?UGl?AM Complaint No.

5593 &5644 of ZOZZ Page 5 of27 4/ HARERA GUI?UGRAM B.

Facts of the complaint: B' The complainant is an allottee within the meaning of section 2[dJ of the Real estate (Regulation and DevelopmentJ Act 201,6.

Act 201,6.

9' In 201'2, the respondent advertised about its new group housing complex namely "THE LEAF,,, in Sector 85, Gurgaon; Haryana.

10' Believing the representations of the$;!pondent, the complainant booked an apartment in the project of the ..rpondunt and paid an amount of Rs.

7,50,000 dated 05 fuly 2012, towaids the booking of the said apartment bearing no.2j.D, Tower-2,21't Flo6i, measurin glsTssq. feet super area.

1'1" To finance the purchase of the said unit, the complainant availed a home loan of Rs' 69,00,000/- from Housing Development Finance Corporation Ltd.

12' That, after executing the flat buyer agreement, the respondent kept on demanding money on account of the purchase of the said unit upon which the complainant requested the respondent either to give possession or to refund the deposited amount, left with no other option, the complainant kept on making the payments as per the demands raised with the hope that the respondent would construct the said project and would handover the possession as per the time schedule.

13' During the perio d of 201,6-17, the complainant approached the project site in order to see the status of the construction of the project but the project was nowhere near completion.

The complainant then contacted the respondent to know about the completion of the project upon which the Y' Page 6 of27 ffi ffi (As per page no.

96 of replyJ Complaint No.

5593 & 5644 of 2022 ffiHARERA ffiaJRUGnAM Complaint No.

5593 &5644 of Z02Z 15.

1,6.

1,7.

18.

1,9. respondent kept on saying that the project would be ready within a period of 1 year.

1,4.

That, thereafter the complainant kept making calls and through personal visits, meetings, and telephonic conversations kept requesting the respondent to complete the construction of the project but all in vain.

The respondent after 9 years i.e., much after the due date of possession, on L3 May 2022 executed the offer of possession after so many calls and e-mails. d e-mails.

The respondent duped the complainant of his hard-earned money and life savings.

The aforesaid arbitrary ,iii unlawful act on the part of the respondent has resulted in extreme kind of financial hardships, mental stress, pain, and agony to the complainant.

The respondent retained the hard-earned money of the complainant for so many years beyond the due date of possession, thereby highlighting unfair trade practice on their part and also a breach of terms and conditions of the agreement and deficiency in the service on the part of the respondent.

As per section t\ (4) of the Real Estate (Regulation and Development) Act, 201,6, the promoter is liable to pay delayed possession interest to the allottees of an apartment, building or project for a delay or failure in handing over such possession as per the terms and agreement of the sale.

That, as per SectionlB of the Real Estate (Regulation and Development) Act, 201,6, the promoter is liable to pay interest to the allottees of an apartment, or building project for a delay or failure in handing over of such possession as per terms and agreements of the sale. .1/ PageT of27 20. ffiHARERA S*aiRUGRRtrll the Complainan the due date of on till the The respondent raised several unjust demands in the dated 1,3.05.2022: i.

Electricity and backup charges of Rs.

3,44,4 OO /_ ii.

GST. iii.

Increase of 65 sq. ft. in Super area.

The relief sought by the complainants: relief(s): i.

Direct the respondent to e possession. ii.

Direct the Respo Complaint No.

5593 & 5644 of 2O2Z offer of possession the total amount paid by rest as per RERA from hysical possession. complainant has failed der the said provisions of not pertain to the tion of the project C.

21.

D.

22.

Reply by the That the present peti to disclose any main' the Act as all compensation and i under Section L8 of the Real Estate (Regulation and Development) Act, 201'6 as the project has already been completed and the respondent has already received the occupational cert ional certificate from the competent authority and is required to be filed before the civil court as the agreement is civil in nature and not before this Hon'ble Regulatory Authority.

It is stated that this Hon'ble Authority does not have the jurisdiction to entertain the Page 8 of27 n/ ffiHARERA ffiaJRuGRAM Complaint No.

5593 &5644 of 2022 present complaint as it has been wrongly filed and shall be filed with the appropriate authority for the proper adjudication.

23' The complainant after checking the veracity of the project approached the respondent and expressed an interest in booking a unit in the residential project developed by the respondent known as "The LEAF,,.

24.

Thereafter the complainant book._G,.+ unit on os.o7.zo1,z by paying a booking amount of Rs.

7,50,000/-.

Thereafter the complainant was allotted a unit bearing no.2L D, z1't Floor looated on Tower-Z, measuring 1,575 sq. ft' in the project vide an allotment letter dated 10.0g.20L2.

The complainanr willfully opted for a down payment plan and further represented to the respondent that he shall remit every installment on time as per the payment schedule.

25.

The flat buyer's agreement dated 08.08.2013 was executed between the complainant and the respondent and contained the final understandings between the parties stipulating all the rights and obligations.

26' It is submitted the total sale consideration of the flat booked by the complainant was Rs.86,33,700/-.

However, the sale consideration amount was exclusive of the registration charges, stamp duty charges, service tax, and other charges that were to be paid by the complainant at the applicable stage.

Further, the complainant defaulted in making payments towards the agreed sale consideration of the flat from the very inception, i.e., after signing the allotment letter.

Page 9 of27 ffiHARERA ffioullUGRAM Complaint No. plaint No.

5593 &5644 of 20ZZ 27 ' The complainant is an investor and has booked the unit in question to yield gainful returns by selling the same in the open markeq however, due to the ongoing slump in the real estate market, the complainant has filed the present purported complaint to wriggle out of the agreement.

Moreover, the complainant himself has delayed the payment towards the installment of the unit and only cleared the payments after continuous efforts made by the respondent after sending numerous reminder and demand letters to the complainant.

28' It is submitted that as per claus e L.2(aJ of the Flat Buyer Agreement dated 0B'08'2013, the external development costs and infrastructure development costs shall be paid by the allottee(s) along with the taxes, fees, and other charges levied by the government.

The charges which the complainant is being called upon to dispose of their responsibility were always known to them by the way of the flai buyer agreement dated 08.08.2013.

Further, the increase in area is within the permissible limits of the Directorate of Town & Country Planning, Haryana, and the provisions of the Real Estate IRegulation & Development) Act, 201,6.

29' Furthermore, the allegations levied against the respondent with respect to the levying of unqualified electricity charges and power backup charges as well as charges with respect to the increase in area are grossly misconceived.

Moreover, in the payment plan which has been mentioned in the offer of possession letter dated 1,3.05.2022, it can be clearly observed that no Page 10 of27 *1- HARERA GUl?UGRAM Complaint No.

5593 &5644 of 2022 amount per se has been levied against the increase in the super area of the unit.

30' It is submitted that the respondent has not raised any unjustified demands at the time of the offer of possession, the respondent has asked the complainant to make the payment of the balance amount from their basic sale price along with the GST @ 5o/o in accordance with clau with clause 2, electricity and power backup connection chaiges, in accordance with clause L7, charges in connection with the incfeAsea area of the unit in accordance with clause 7.2 (a), the payment of all above-mentioned charges are responsibili!r/ liability of complainant, which they cannot evade by disputing them, demand raised by the respondent at the time of offer of possession are in consonance with the builder buyer agreement dated 08.08.2013.

3 L.

Furthermore, the respondent in consonance with the builder-buyer 'agreement dated 08.08.2013 calculated and adjusted the delay compensation for the unit in question for the period of delay.

32.

Further, the project got delayed on account of various force majeure conditions such as orders of the Hon'ble Supreme Court, NGT, the Covid-19 pandemic, labor shortage, building material shortage, demonetization, GST implementation, payment defaults by allottees, farmers protest.

33.

Several allottees defaulted in timely remittance of payment of installments which was an essential requirement for conceptualisation and development _l/ Page 11 of27 HARERA ffiGUI?UGI?AM Complaint No.

5593 &5644 of Z02Z of the project in question.

Despite there being a number of defaulters in the project, the respondent infused a huge amount of funds into the project and diligently developed the project.

34.

The project at the present date stands completed and has received the occupational certificate [OC) from the competent authority on date 09.05.2022.

Therefore, it will be difficult for the respondent to pay any interest on the delayed possession at this stage.

Further, the respondent has . already sent the offer of possessibn letter dated l3.OS.2OZz.

Atthis point, when the project already stands c,,qmpleted any relief cannot be given to the complainant as it will be detrimental to the interest of the respondent as well as all the other investors who have invested in the project.

35. oject.

35.

That the compensation in the form of interest on delayed possession to be paid by the respondent to the complainant is unjust and improper as the respondent itself has infused a huge sum of funds into the project through SWAMIH Loan sanctioned by the Ministry of Finance, Government of India for completing the stalled project in the interest of the buyers so that the project could be completed on time.

E. furisdiction of the authority: 36.

The plea of the respondent regarding the rejection of the complaint on the grounds of jurisdiction stands rejected.

The authority observes that it has territorial and subject matter jurisdiction to adjudicate the present complaint for the reasons given below. )'/' Page t2 of 27 HARERA GURUGRAM complaint No.

5593 &5644 of 2022 E.

I Territorial iurisdiction As per notification no. t/92/2077-ITCP dated 14.1.2.201.7 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be the entire Gurugram District for all purposes with offices situated in Gurugram.

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

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

E.

II Subject matter jurisdiction Section 11(aJ(aJ of the Act, 20,L6 provides that the promoter shall be responsible to the allottee as per the agreement for sale.

Section ll(4)(a) is reproduced as hereunder: Section 11(a)(a) Be responsible for all obligations, responsibilities, and lunctions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sole, or to the association of allottees, as the case may be, till the conveyance of all the apartments, plots oi buitdings, as the case moy be, to the allottees, or the common arees to the association ojallottees or the competent authorttlt, as the case may be; Section 34-Functions of the Authority: 3a[f rity: 3a[fl of the Act provides to ensure compliance with the obligations cast upon the promoters, the allottees, and the real estate agents undei this Act and the rules and regulations made thereunder.

37 .

So, given the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainant at a later stage. .v Page 13 of27 F.

F.I HARERA GUl?UGRAM Findings on objections raised by the respondent. objection regarding the entitlement of Dpc on the grounds of the complainant being an investor.

38' The respondent has taken a stand that the complainant is the investor and not consumer, therefore, he is not entitled to the protection of the Act thereby not entitled to file the complaint under section 31 of the Act.

The respondent also submitted that the pSeamble of the Act states that the Act is enacted to: protect the interest of co4sumers of the real estate sector.

The authority observes that the respondent is correct in stating that the Act is enacted to protect the interest of consumers of the real estate sector.

It is a settled principle of interpretatioh that a preamble is an introduction of a statute and states the main aims & objects of enacting a statute but at the same time preamble cannot be used to defeat the enacting provisions of the Act' Furthermore, it is pertinent to note that any aggrieved person can file a complaint against the promoter if the promoter contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon Careful perusal of all the terms and conditions of the builder buyer's agreement, it is revealed that the complainant is a buyer and he has paid a total price of Rs. ice of Rs.

77,40,173/- to the promoter towards the purchase of an apartment in its project, At this stage, it is important to stress upon the definition of term allottee under the Act, the same is reprocluced below for ready reference: "2(d) "allottee" about a real estote project, means the person to whom a plot, aportment, or buirding, as the case may be, has been ailotted, sold (whether as freehold or leasehold), or othe'rwise transferria ry *e promoter, and includes the person who subsequently orqiir6 the said allotment through sale, transfer or otherwise but does not include a person to whom such prot, apartment or buirding, as the case may be, is given on rent;" Page 14 of27 )/ ffi ffi &q{! wi Complaint No.

5593 &5644 of ZO22 ffiHARERA S*EIRUoRAM Complaint No.

5593 &5644 of Z0ZZ 39. ln view of the above-mentioned definition of "allottee" as well as all the terms and conditions of the space buyer's agreement executed between promoter and complainant, it is crystal clear that the complainant is allottee as the subject unit was allotted to him by the promoter.

The concept of investor is not defined or referred to in the Act.

As per the definition given under section 2 of the Act, there wilr be "promoter" and ,,allottee,, and there cannot be a party having the status of "investor".

The Maharashtra Real Estate Appellate Tribunal in its' order dated 2g.o1,.2otg in appeal no.

0006000000010557 titled as rvlli,ffitqiSarrgam Developers pvt Ltd.

Vs.

Sarvapriya Leasing (P) Ltd.Anr. i;r:rilo held that the concept of invesrors F.II 40. is not defined or referred io ftr .l 1!, that the allottee being an investor is not entitled to the protection of this act also stands rejected.

Objections regarding force Majeure The respondent-promoter has raised the contention that the construction of the contention of a promoter -rr Page 15 of27 the tower in which the unit of tt t is situated, has been delayed due to force majeure circumstanees SuqJr as ofders passed by the Hon,ble SC, Nat le SC, National Green Triburlal to stbp @$t$Ctiffi',iiuring, Covid-19, Labor and material shortage, tgFpaffi= * oF instattment by allottees and demonetization, GsT,ljgaraei's,$iot4!!.retel .The plea of the respondent regarding various orders of the NGT and demonetization and all the pleas advanced in this regard are devoid of merit.

The orders passed by SC, and NGT banning construction in the NCR region were for a very short period of time and thus, cannot be said to impact the respondent-builder leading to such a delay in the completion.

Further, the respondent-promoter must have foreseen such events.

Also, there may be cases where allottees have not paid ffiHARERA III I{iffi oUnUGRAM Complaint No.

5593 &5644 of ZOZ2 instalments regularly but all the allottees cannot be expected to suffer because of few allottees.

Thus, the promoter respondent cannot be given any leniency on the basis of aforesaid reasons and it is wellwell-settled principle that a person cannot take benefit of his own wrong.

Findings on the relief sought by the complainant: Direct the respondent to hand over the possession.

41..

In the instant case, the space bu;rreSgffi,qe,9...1nent was executed between the G.

G.I complainant and the respondent on 08.08 .zo1.3,and as per clause B. j.(a) of the said agreement, the possession *r, to be handed over within 3 years.

The said clause is reproduced below: s.1 (a) subject to terms of this clause and subject to the flat buyer(s) having complied with all the terms and conditions of this agreement and not being in default under any of the provisions of" this agreement and complied with all provisions oJ this agreement and complied with all provisions, formalities, documentation etc. as prescribed by the developer, the develoner nronoses to hondnwor tho the developer, the developer proposes to handover the possession of the flat witiin a period of thirty-six months from the date of signing of this agreement. agreement.

The flat buyer(s) agrees and,uiderstands that the developer shall be entitled to a groce period of 90 days, after the expiry 42.

Admissibility of grace period: the promoter in clause 8.1[a) of the agreement between the parties has stated that an additional grace period of 90 days shall be available to it for applying and obtaining the occupation certificate in respect of the group housing complex.

The respondent- promoter contended that it shall be provided the grace period of 90 days.

However, the Authority is of the view that the grace period shall not be available to it as there has been a massive delay in the completion of the '^'/ Page 16 of27 ffiHARERA ffiaJRUGRAM Complaint No.

5593 &5644 of Z0Z2 project and the same period was not utilized in obtaining the completion certificate.

43' There has been a delay in obtaining the occupation certificate by the respondent, the said OC was obtained only on 09.05 .ZoZz.

Thereafter the respondent issued an offer of possession on L3.05 .ZOZZ that contained several demands including payment of balance dues on the part of the complainant.

After this, the complainant filed a complaint with this Authority on 29.08.2022.

45.

44.

46.

47.

As the occupation certificate has been obtained by the respondent, the offer of possession can be made by the respondent.

As per section 19(10) of the Act, the complainant/allottee is duty-bound to take possession within two months of the occupancy certificate issued for the said unit. on the issue of unjust additional demands, the said issue has been dealt with in detail in succeeding paras.

The complainant contended that the letter for the offer of possession is bad in law as it has raised several illegal demands that are not listed in the flat buyer agreement.

The demands raised illegally as per the complainant are as follows: Electric and power backup charges (EPBC), GST at the rate of So/o, and demand on account of increased super area. uper area.

On the issue of electricity and power backup charges, clause 1.7(a) states that the cost of electric wiring and power backup charges shall be included in the total sale price" The said clause is reproduced below: "L.7 The total sale price of the said Frat mentioned in the Schedule of Payments in Annexure I of this Agreement includes the proportionate cost of providing electric iiring and switches in each unit and ftre fighting and ftre safety equipment as required by the existing code/regulations ancl powe'r back up PagelT of27 1,/ HARERA GUl?UGr?AM Complaint No.

5593 &5644 of Z0ZZ not exceeding S WA for 2 BHK, g KVA for 3 BHK, g KVA for 4, and L2 KVA for 5 BHK after accounting for an overall suitable diversity of 700fi per apartment in addition to that for the common area and services, but is exclusive of cost of electric fittings, fixtures, electric and water meter etc. which shall be got installed by the Flat Buyer(s) at his/her their own cost os well as charges for water and electricity connection.

If, however due to ony subsequent legislation/Government order, directives, guidelines or changes/amendments in Fire codes including the National Building code or if deemed necessary by the Developer at its sole discretion, additional trre siyeiy measures are undertaken, then the Flat Buyer(s) undertakes to pay within thirty (30) days from the date of written demand by the Developer, the additional expenditure incurred thereotn along with other Flat Buyer(s) prorate basis, in proportion to the super area ofhis/her/their FLAT to the total super area of all the flats in the said Group Housing complex as determined by the Developer in its absolute discretion.

The Flat Buyer(s) agrees to pay any additional deposits, charges for bulk supply of electrical energy, any amount spent towards additional transformers, sub-stations or any transmission line to the 'Group Housing complex' as may be demanded by the Developer from time to time. e to time.,, In the context of the aforesaid clause, it becomes evident that the further demand of Rs.

3,44,400 in the head of electricity and power backup charges raised upon the complainant is unjust and illegal.

Hence said demand cannot be raised upon the complainant.

On the issue of demand for GST, it is evident that the goods and services tax was enacted only in the year 2017, so it is a fresh tax.

The possession of the apartment was supposed to be delivered in August201.6, therefore, the tax which has come into existence after the due date of delivery should not be levied being unjustified since the same would not have fallen on the allottees had the same been delivered within the time stipulated in the builder buyer's agreement.

The authority is of the view that admittedly, the due date of possession of the unit was 08.08.2016 but the offer of possession was made only on 1'3.05.2022.Had the unit been delivered within the due date or even )/ Page 18 of27 ffi ffi urq{q wi ffiHARERA ffiGt.JRUGRntrl Complaint No.

5593 & 5644 of ZOZZ with some justified delay, the incidence of GST would not have fallen on the allottee.

Therefore, an additional tax burden with respect to GST was enforced upon the buyer for no fault of his and is due to the wrongful act of the promoter.

49.

The authority has also perused the judgement dated o4.og.zot1 in complaint no.

49 /2018, titled as Parkash Chand Arohi Vs.

M/s pivotal Infrastructure Pvt.

Ltd. of the Haryana Real Estate Regulatory Authority, Panchkula wherein it has been oUserveU that the possession of the flat in term of buyer's agreement was re$rlired.,[o be delivered on 1..1.0.2013 and thereafter on 01.07.201,7.

So, the a liability which had accrued solely due to respondentiis own fault in delivering timely possession of the flat.

The relevant portion of the judgement is reproduced below: "8. below: "8.

The complainant has then argued that the respondent,s demand for GST/vAT charges is unjustified for two reason: (i) the GST liabilig has accrued because of respontlent's own failure to handover the possession on time and (ii) the actual VAT rate is L.05% instead of a% being claimed by the respondent.

The authority on this point will observe that the cannot be burde cannot be burdeneQ ta disgharge a liability which had acqued solely due to resporden{s i*, fault in detivering timely possession of the flat Regarding VAT, the Authority would a advise that the respondent sholl consult a service tax expert and will convey to the complainant the amount which he is liable to pay as per the actual rate of vAT fixed by the Government for the period extending up to the deemed date of offer of possession i. e., L 0.

L 0.2 0 1 3." 50.

In appeal no.

21, of 2019 titled as M/s Pivotal Infrastructure pvt.

Prakash Chand Arohi, Haryana Real Estate Appellate Tribunal, has upheld 4/- Page 19 of27 ffiHARERA ffiaIRUGRAM Complaint No.

5593 &5644 of 2022 the Parkash Chand Arohi Vs.

Ltd. (supra).

The relevant para is reproduced below: "93.

This fact is not disputed that the GST has become applicable w.e.f.

01.07.2017.

As per the ftrst Flat Buyer's Agreement doted 14.02.2011, the deemed date of possession comes to 13.08.2014 and as per the second agreement dated 29.03.2013 the deemed date of possession comes to 29.09,2016. so, taking the deemed date of possession of both page 146 of 205 complaint No.4031/201"9 and others the agreements, GST has not become applicable by that date.

No doubt, in clauses 4.L2 and 5.1.2 the has agreed to pay all the Government rates, tax I property taxes and other taxes levied or levia future by Governmenl municipal authority or any othif gbiiernment authority.

But offered on 08.12.20L7 by that time the CSi naa become this liability shall be confined only up to the deemed date oy possession.

The delay.in de!. ay.in de!.iyery o/possessi on is the default on the part of the appellant/pro:motei iind the possession was 51. appticable.

But it is settled principle of low that a person cannot take the benefit of his own wrong/default.

So, the appellant/promoter was not entitled to charge GST from the respondent/allottee as the liability of GST had not become due up to the deemed date of possession of both the agreements,,, After taking into consideration all the material facts as adduced and produced by both parties, the authority hereby concludes: No doubt as per the builder buyer's agreemen! the complainant/allottee has agreed to pay all the Government rates, tax on land, municipal property taxes, and other taxes levied or leviable now or in the future by the Government, municipal authority, or any other government authority, but this liabiliry shall be confined only up to the due date of possession.

The delay in delivery of possession is the default on the part of the respondent/promoter and the possession was offered on 09.05.2022 by that time the GST had become applicable.

But it is a settled principle of law that a person cannot take the JW Page 20 of27 52. ffiHARERA #-h aiRUGRAM Complaint No.

5593 &5644 of Z0Z2 benefit of his own wrong/default.

So, the respondent/promoter was not entitled to charge GST from the complainant/allottee as the liability of GST had not become due up to the due date of possession as per the agreement.

Therefore the demand on account of GST is illegal.

On the issue of demand on account of increase of 65 sq. ft. in Super area.

Clause 1'.2(d) of the agreement between the parties, it is mentioned that any increase in the Super area shall be payable by the allottee.

The said clause is reproduced below: ,' ,l . "lt is made clear that the sufier area of the Flat as defined in Annexure -ll is tentative and subiecttn chonop till rho "r,r,.t,,trrinn Annexure -ll is tentative an of th-e -'Group Housing Com, 53. :hange titl the construction is complete. complete.

The Sale Price payable shall be recalculated ,prn conprmaiion by m, irrrtopi;i;i; final super area'oJthe said FLAT and any increase or reduction in the super are,a.of the said.,F,MT shq'lJ be payable or refundable, without any intB.resc at iheiame rale per square feet is agreed herein above.

If there shatl be an increis, in'rupii;;;;, the Flat Buyer(s) agrees'and undertqkes to pay for'thr'irrr.o'i i, ,up* area immediately.on demand by the Developer and if there shall be a reduction in the sup:br 4ieg;llen the refundable amount due to the Flat Buyer(s) shall be adjusted by the Developer from the final installment as setforthin the,,,,Schedute of payments ippended in Annexure 1." 54.

Furthermore, clau se 7.2 states that if the alteration in size of the unit is in excess of l0o/o, then the developer shall obtain the written consent of the allottee.

The said clause is reproduced below: "ln case of any major alteration/modification resulting in excess of 100/o change in the super area of the Flat in the sole ipinion of the Developer any time prior to and upon the grant of occupation certifi.cate, the Developer shall intimate the Flat Buyer(s) in writing the changes thereof and the resultant change, if any, in the sole Price of the Flat to be paid by him/her and the Flat Buyer(s) agrees to deliver to the Developer in writing his/her/their coisent or obiections to the changes within thirty (30) days from the date of dispatch by the Developer of such notice failing which the Flat Buyer(s) shall be deemed to have given his/her/their full consent to 4/' Page 2l of 27 HARERA ffiGURUGRAM invalid.

Direct the respondent Complaint No.

5593 &5644 of ZOZ2 to pay the balance amount due to the all such alterations/modifications and for payments, if any, to be p_aid in consequence thereof, If the writtei notice'of the Flat Buyer(s) is received ll tne Deveroper within thirty 6io1 aays oy intimation in writing by the Developer indicating his/hir/theii noi- consent/objections t jections to such alterations/modifiiations ai intimated by the Developer to the Flat Buyer(s), then in such case alone this Agreement sholl be cancelled without further notice and the Developer shall refund the money received from the Flat Buyer(s) within sixty (60) days from the date of intimation receivea ny ine Developer from the Flat Buyer(s).

0n payment of the money after making deductions as stated above the Developer shall be released and discharged from all its obligations and liabilities under this Agreement.ln such a situatian, tlte.pewloper shall have an absolute an_d unfettered right to ollot'transfer,,j,elt and assign-ti'e plat and all attendant rights.and t{g,pltltiis ,tg a third party.

It being specifically agreed that irrespec.qlve qf ,ry outsianding amount payable by the Developer to the Flqt Buyir(s), the Flai Buyer(s) 55. shall have no right, lien or charge on the Flai in respect of which refund as conternplated by this clause is payable.,, A combined reading of both the aforesaid clauses shows that the increase of 65 sq ft in the Super area is valid as the increase is less than 10% and therefore the demand raised is also valid.

Hence, the complainant is duty- bound to pay the same.

56' In view of the above discussion, it is evident that the offer of possession dated 13.05.2022had several invalid demands, and hence the said offer is F.2 complainants from the respondent on account of the interest.

57 ' In the present complaint, the complainants intend to continue with the project and are seeking delay possession charges as provided under the proviso to section 1B[1) of the Act.

Sec.

1B(1) proviso reads as under.

4-// "Section 78: - Return of amount and compensation Page 22 of 27 w ffi iliq{s wi HARERA GURUGI?AM Complaint No.5593 &5644 of 202?

1B(1).

If the promoter fails to complete or is unable to give possession of an apartmenl plot, or building, - Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by paid, by the promoter, interest for every month of delay, till the handing over of the possession , at such rate as may be prescribed." 58.

Clause B of the buyer's agreement provides for the handing over of possession and is reproduced below: "8.1 (a) subject to terms of this clause and subject to the Jlat buyer(s) having complied with all the terms and conditions of this agreement and not being in default under any of the provisions of this agreement and complied with all provisions, formalities, documentotion etc. as prescribed by the developer, the developer proposes to handover the possession of the flotwithin a period of thirty-sixmonthsfromthe date of signing of this agreement.

The llat buyer(s) agrees and understands that the developer sholl be entitled to a grace period of 90 days, after the expiry of thirty- six, for applying and obtaining an occupation certificote in respect of the Group Housing Complex. " 59.

Admissibility of delay, possession charges at prescribed rate of interest: Proviso to section 18 proVides;.that where ,ah allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over c be prescribed and it has been prescri has been reproduced as under: Ipossession, at such rate as may der rule 15 of the rules.

Rule 15 Rule 75.

Prescribed rate ofinterest- [Proviso to section 72, section 78 and sub-section ft) and subsection (7) of section 791 (1) For the purpose ofproviso to section 12; section 18; and sub-sections (4) and (7) ofsection 79, the "interest at the rate prescribed" shall be the State Bank of India highest marginal cost of lending rate +20/0.: Provided that in case the State Bank of India marginal cost of lending rate (MCLR) is not in use, it shall be replaced by such benchmark lending rates which the State Bank of India may fix from time to time for lending to the general public. "V' Page 23 of 27 ffiHARERA W* GURUGRAM Complaint No. plaint No.

5593 &5644 of 2022 60' The legislature in its wisdom in the subordinate legislation under the provision of rule L5 of the 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.

61-.

Consequently, as per the website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLRI as on date i.e., L3.0g.2023 is 8.75 o/0.

Aicordingty, the prescribed rate of interest 62. will be the marginal cost of lending rate +zo/o i.e., 10.75o/0.

The definition of term 'interest' aS'defined under section 2(za) of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: "(za) "interest" means the rates of interest payable by the promoter or the allottee, as the case may be.

Explanation. -For the purpose of this clause- (1) the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interestwhich the promoter shall be liable to pay the allottee, in case of default; (ll) the interest payable by the promoter to the allottee shall be from the date the promoter received the amount or ony part thereof titl the dote the amount or part thereof ond interest thereon is refunded, and the interest payable by the allottee to the promoter shall be from the date the qllottee defaults in payment to the promoter till the date it is paid;" Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate i.e., 10.750/o by the respondent/ promoter 4/ Page 24 of 27 63.

HARERA ffiGURUGI?AM Complaint No. plaint No.

5593 &5644 of Z02Z which is the same as is being granted to it in case of delayed possession charges.

64.

On consideration of the circumstances, the documents, submissions made by the parties and based on the findings of the authority regarding contravention as per provisions of rule 2B(2), the Authority is satisfied that the respondent is in contravention of the provisions of the Act.

By virtue of clause B of the agreement executed between the parties on 08.08.2013, the possession of the subject apartmentwas to be delivered within 36 months from the date of execution of buyer's agreement.

Therefore, the due date of handing over possession was 08.08.201"6.

The respondent has failed to handover possession of the subject apartment till date of this order.

Accordingly, it is thg failure of the respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

The authority is of the considered view that there is delay on the part of the respondent to offer of possession of the allotted unit to the complainants as per the terms and conditions of the buyer's agreement dated 08.08.2013 executed between the parties.

65' The respondent/promoter is under an obligation as per sectio n 1,7 of Act to get the conveyance deed executed in favour of the complainants.

Hence, respondent is directed to execute the conveyance deed in favour of complainants within three months from the date of issuance of occupation certificate.

1/ Page 25 of27 ffiHARERA ffiGuRUoRAM 66' Accordingly, it is the failure of the promoter to fulfil its obligations and responsibilities as per the agreement dated 08.08.2013 to hand over the possession within the stipulated period.

Accordingly, the non-compliance of the mandate contained in section 1t(4)[al read with proviso to section 1B[1) of the Act on the part of the respondent is established. tablished.

As such, the allottees shall be paid, by the promoter, interest for every month of delay from due date of possession i.e.,08.08.2016 tillthe date of offer of possession plus 2 months or actual handing oVei of possession, whichever is earlier; at j prescribed rate i.e., 10.75 o/op.a. as per proviso to section 1Bt1) of the Act read with rule 15 of the rules.

F.

Directions issued the Authority: 67 ' Hence, the Authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the functions entrusted to the Authority under section 34[0 of the Act of 2016: i' The respondent is directed to pay interest to the complainant against the paid-up amount at the prescribed rate of 1.0.75o/o p.a. for every month of a delay from the due date of possession i.e., 08.08.2016 till offer of possession plus two months, as per section 1B(1) of the Act of 2016 read with rule 15 of the rules. ii' The respondent is directed to hand over physical possession of the unit to the complainant. iii.

The complainant is directed to pay outstanding dues, if any, after )/ Page 26 of 27 adjustment of interest for the delayed period; ffiHARERA ffiaJRUGRAM Complaint No.

5593 &5644 of ZOZ2 iv.

The arrears of such interest accrued from 08.08.2016 till the date of order by the authority shall be paid by the promoter to the allottees within a period of 90 days from the date of this order and interest for every month of delay shall be paid by the promoter to the allottee before 10*, of the subsequent month as per rule 1,6(2) of the rules; The rate of interest chargeable from the allottee by the promoter, in case of default, shall be charged at the prescribed rate i.e., 1.o.zso/o by the respondent/promoter whi e rate of interest which the promoter shall be liable to in case of default i.e., the delayed possession r) of the Act. vi.

The respondent shall e complainant which is not part of the bu 68. the bu 68.

This decision shall m entioned in para 3 of this order.

Complaint stands V.

69.

70.

File be consigned to the Haryana Real Estate R ry Authority, Gurugram Dated: 2719.2023 Page27 of27