VINOD KUMAR DUREJA vs SS GROUP PVT. LTD.

'JARER,: GURUGRAM Vinod Kumar Dureja R/o: I:lat no.

302, tower-8, Uniworld garden-1, near Subash chowk, Sohna road, South city - 2, Gurugram-122018 Versus Complaint No.

6880 of 2022 Complainant Rcspondent BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM I Date of complaint : Order pronounccd on: 37.70.2022 79.1O.2023 CORAM: Shli Vijay Kumar Goyal APIJF]ARANCE: Shri Subash Grover, Advocate Shli ltahul 13hardwaj, Advocate ORDER 1. 'l'hc prcsent complaint has been filed by the complainant/allottces under section 31 of the Real Estate (Regulation and Developmentl ,a.ct, 2016 (in short, thc ActJ read with rule 28 of the Haryana Real Estate (Regulation and I)cvelopr]rent) Rules, 2017 (in short, the Rules) for violation of section I 1 (4 )(al of the Act wherein it is infer olia prescribed that the promoter shall bc rcsponsiblc for all obligations, responsibilities and functions under the provisions ofthe Act or the Rules and regulations made thereunder or to thc allottces as per the agreement for sale executed infer se. ld,/ Page 1 ol20 I I Membcr Cot,,i,lainant Rcspo ndcnt M/s SS Group Pvt.

Ltd.

Rcgistcrcd officer 77, SS house, Sector-44, Gurugram HARERA P*GURUGRAII Complaint No.

6880 o12022 A.

2.

Unit and proiect related details 1'hc particulars of unit details, sale consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Sr.

No.

Particulars Details 1 Name of the proiect 'The Leaf, Sector -84-85, Gurugram 2 Nature of the project Group Housing Complex 3 DTCP License No.

81 0f 2011 dated 16.09.201 1 Valid upto 15.09.2024 4 RERA Registered/ Not Registered RERA registered 35 0f 2021 dated 74 .07 .2027 5 Unit no.

24D,24rh Floor, T-3 (BBA on page no.

139 of complaint) 6 Unit admeasuring 1575 sq. ft. (!BA on page no.

139 of complaint 14.09 .201.3 (On page no.

137 of complaint) 7 Date of execution of builder buyer agreement Possession clause 8. clause 8.

Possession 8,7: Time of honding over the possession 8.1 (a) subject to terms of lhis clause oncl subject to the flqt buyer(s) hoving complied with all the terms ond conditions of this agreement and not being in defoult under any ofthe provisions ofthis ogreement ond complied with all provisions, formolities, documentotion etc. as prescribed by the developer, the developer proposes to handover the possession oI the flqt within a period of thirty six months Jrom Page 2 ol20 rA # HARERiT S-eunuenRll Complaint No.

6880 of 2022 the dqte oI signing oI this ogreemenL However, this period will automoticolly stand extended for the time token in getting the building plans sanctioned.

The llat buyer(s) ogrees and understonds thot the developer sholl be entitled to a grace period of 90 doys, ofter the expiry oJ thirty-six months or such extended period, for applying ond obtoining occupotion cerlificoLe in respecL o[ the Croup Houstng Complex. (Emphasis supplied).

9 Grace period utilization As per the clause for possession, the developer shall be entitled to o groce period of 90 ddys, after the expiry of thirty-six month (36) months or such extended period for applying and obtdining the occupation certificote in respect of the Group Housing Complex.

The promoter hos not opplied for occupation certificate within the time limit presffibed In the builder buyer ogreement.

As per the settled law one cannot be allowed to take advantage of his own wrong.

Therefore, the grace period is not allowed 10 11 Due date of delivery of possession 14.09.20t6 (Calculated from the date of signing of buyer agreement) Total sale consideration Rs.86,24,250 /- [As per BBA, page 141 of complaint) Page 3 of20 w 'l'otal amount paid by the complainant 0ccupation Certificate 0ffer of possession B.

3.

S HARERH S- eunuenRvr complaint No.

6880 of 2022 Rs.7 6,97 ,98'1. / - (As alleged by the complainantl-l 09.05.2022 (As per page no.

79 of reply) 14.05.2022 (As per page no. r page no.

83 of the reply) Facts of the complaint: 'l'he complainant has made the following submissions: - I.

That on dated 21..07 .2072,Lhe complainant filled an application form i.e, Il. advance registration form, whereby he requested for booking a unit in the said project and remitted a registration amount of Rs.7,50,000/- .

That the respondent issued allotment letter dated 10.09.2012 of unit no.24-D,24th floor, tower-3, Group Housing Complex, Sector-84, Gurugram with super area of 1575 sq. ft. with basic rate of Rs.4,650/- per sq. ft., preferential Iocation charges (PLC) of Rs.150/- per sq ft., External Development Charges [EDC) of Rs.355/- per sq. ft. and infrastructure Development Charges (IDCJ of Rs.35/- per sq. ft. i.e. for total sale consideration of Rs.86,24,250/- to the complainant.

That builder buyer's agreement was executed on 14.09.2013 between the parties.

As per clause 8.1 ofthe builder buyer agreement dated 14.09.2013, the time of handing over the possession of the said unit was prescribed as 36 months from the date of executing buyer's agreement, therefore the date ofhanding over the possession can be determined as 14.09.2016.

III, IV.

Page 4 of 20 13 14 A S HARER; #- eunuennH,r VII, VIII.

Complaint No.

68B0 of 2022 That on dated 76.02.2014Ihe rcspondent through broker/ middle man M/s Goel Associates remitted an amount of Rs.1,41,750/- to the account of complainant as a discount towards booking of unit.

That respondent requested to deposit 1%o as TDS on amount paid after 01.06.2013, as per the notifications by central government.

That in 2017 respondent did not issued any demand notice for installment payment nor there was any communication regarding status of project completion, despite the fact that the possession of the unit was due to be delivered on 14.09.2016, i.e. was already in delay to deliver the possession of unit by 2 years.

By the year 2017, the respondent was only able to reach 50 per cent of its milestone, i.e. tone, i.e. not even 50 per cent construction was completed and the project site was only a concrete mess with no sight of forwarding with the plan and despite this the respondent over the years, without failure, kept issuing demand notices with the promise of timely completion ofthe project.

That the complainant has been very punctual with the payment of amount as when issued through demand notices issued by the respondent and till date Rs.76,97,98L/- has been paid to respondent against the total sale consideration of Rs.86,24,250 /-.

That on several occasions, the complainant has approached the respondent to complete the project and hand over the possession as promised in builder buyer's agreement.

But even after a delay of6 years and 1 month approximately, there seem no sight of completion of project as well.

That the respondent issued the notice of possession for the unit on dated 14.05.2022.

Thereafter, when the complainant visited the site on dated 29.05.2022 to check the condition he was surprised to see that a VI.

IX.

X, {V Page 5 of 20 Complaint No.

6880 of 2022 D.

6. lot of work was pending which is yet to be done.

Thereafter the respondent assured the complainant that work would be completed within a month.

That the complainant again took a visit of site on 11.09.2022 and was shocked to find that the condition of the unit & the project was same.

Thc complainant took the photograph of the site which was sent to the respondent through email dated 74.09.2022.

That the complainant has invested a sum of Rs.76,97,981/-which had been lying with the respondent since 6 years because ofthe delay in the delivery of possession caused by the respondent.

The complainant had invested this huge some elsewhere and would have fetched a healy return on investment.

Therefore, the complainant prays for the interest given on the amount till the date of receiving of possession due to the delay caused by the respondent. * HARERA #-eunuennn,l XI. xlt. l XI. xlt.

Relief sought by the complainants: C.

4.

1'hc complainant has sought following relief: I.

Direct the respondent to pay delay possession charges along with prescribed rate of interesL 5.

On 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) of the Act to plead guilty or not to plead guilty.

Reply by the respondent/builder.

1'hc respondent has contested the complaint by filing reply on the following grounds: - i.

That, the respondent has perused the complaint filed by the complainant and thus, states that the same is grossly misconceived, blatantly false and frivolous.

All averments, submissions, and V Page 6 ol 20 & HARERA #- eunuennvr ll.

IL complaint No.

6BB0 of 2022 contentions raised in the complaint are denied by the respondent, unless expressly admitted to hereinafter and no part of the suit shall be deemed to have been admitted for mere want of specific traverse.

That the complainant vide an application form daled 23.07.2072 applied for an allotment of a unit in the project.

Pursuant to the receipt of the registration form the complainant was allotted a unit bearing no.

24-D,24th floor, tower-3 super area of 1575 sq. ft. vide an allotment Ietter dated 10.09.2012.

The complainant consciously and willfully opted for a construction linked payment plan for remittance of the sale consideration for the unit and further represented to the respondent that he shall remit every installment on time as per the payment schedule.

That the registration form and allotment letter being the preliminary and the initial drafts contained the basic and primary understanding between both the parties, to be followed by the buyer's agreement to be executed between the parties.

After fulfilling certain documentation and procedures the buyer agreement dated 1,4.09. ed 1,4.09.20L3 was executed between the complainant and respondent which contained the final understandings between the parties stipulating all the rights and obligations.

That the complainant were allotted unit bearing no.

24-D, 24th floor, tower-3 super area of 1575 sq. ft. of the project "The Leafl' at the basic price of Rs.

4650 per sq. ft. and Preferential Location Charges [PLC) of Rs.

150/- per sq. ft., External Development Charges (EDCI of Rs.

355/- per sq. ft., Infrastructure Development Changes (lDC) of Rs 35/- per sq. ft. to be payable as per the payment plan.

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

86,24,250/-.

The sale v Page 7 of20 & HARERA &eunuennu Complaint No.

68B0 o12022 consideration amount was exclusive of the registration charges, stamp duty charges, service tax and other charges which were to be paid by the complainant at the applicable stage but the complainant defaulted in making payments towards the agreed sale consideration of the unit from the very inception i.e. after signing the allotment letter. v.

That complainant has no cause of action to file the present complaint as it is based on an erroneous interpretation of the provisions of the act as well as an incorrect understanding of the terms and conditions of the buyer agreement between the parties.

Complainant is an investor and therefore booked the unit in question to yield gainful returns by selling the same in the open market.

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.

The complainant has not come under the ambit and scope of the definition of an allottee under section 2[dJ of the act, as the complainant is an investor and booked the unit in order to enjoy the good returns from the proiect. vi. oiect. vi.

That the complainant is attempting to raise issues at a belated stage, attempting to seek modification in the agreement entered between the parties in order to acquire benefits to which the complainant is not entitled in the least. vii.

That the respondent from the very inception had run after the complainant to clear the outstanding dues and has sent demand notice to clear the outstanding bills from 2013 to 2022.

That the proiect at present date has been completed and accordingly, the occupational certificate of the proiect by the competent authority has been received dated 09.05.2022. v iii.

Page B of 20 i# HARERA S* euRueRRu IX.

6880 of2022 l'hat the possession of the unit has been offered to the complainant vide letter dated 74.05.2022 and has invited them to take possession of their apartment as complainant's apartment is ready for possession.

But complainant did not come forward to take the said possession.

The acts of the complainant clearly exhibit their mala fide intentions and further establish the fact that the complainant is investors and booked the unit in question to yield gainful returns by selling it in the open market.

That the construction ofthe project was stopped on account of the NG'l' order prohibiting construction (structurall activity of any kind in the entire NCll by any person, private or government authority.

That the possession of the unit as per clause 8.1 of the buyer agreement was to be handed over within 36 months fplus the grace period of 90 days i.e.

3 months) from the date of the execution of the flat buyer agreement and not from the date of terms and conditions as stated by the complainant who is trying to confuse this Hon'ble Authoriry with his false, frivolous and moonshine contentions.

The date of the completion of the project therefore comes out to be 23.03-2077.

The date of possession as per the buyer's agreement further increased to grace months of 3 months.

3 months.

The date of the completion ofthe project was further pushed due to the force majeure conditions i.e.

Due to the NGT orders and the lockdown imposed because of the worldwide covid-19 pandemic, by which the construction work all over the NCR region came to halt.

DTCP, I'laryana vide its notification no.

27 of 2021 dated 25.06.2021, gave a relaxation of 6 months to all the builders in view of the hurdles faced by them due to covid-19. x. xl.

Page 9 ol20 lq & HARERA S- eunuennvr Complaint No.

6880 of2022 7.

Ft.

8. xii.

That all the reliefs claimed by the complainant is false and frivolous and hence denied, and therefore the complainant is not entitled for any such reliefs.

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

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of those undisputed documents and oral as well as written submissions made by the parties. f urisdiction of the authority The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.l Territorial iurisdiction As per notification no.

1/92/20L7-LTCP dated L4.L2.20L7 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory n uthority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the proiect in question is situated within the planning area of Gurugram District.

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

E.ll Subiect matter iurisdiction 9.

Section 11(aJ(aJ of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 11(4)[aJ is reproduced as hereunder: Section 11..... on 11.....(4) The promoter sholl- (o) be responsiblefor allobligotions, responsibilities and functions under the provisions ofthis Act or the rules ond regulations mode thereunder or to the allottees as per the ogreement Ior sole, or to the ossociotion of ollottees, as the cose may be, till the conveyonce of all the oportments, plots or buildings, os the case may be, to the allottees, or the common lA,' Page 10 of 20 &IIARERA & eunuenRu Complainr No.

6880 o12022 areos to the ossociotion of ollottees or the competent outhority, as the cose moy be; Section 34-Functions of the Authority: 34(, of the Act provides to ensure compliqnce of the obligotions cost upon the promoters, the ollottees qnd the real estate agents under this Act and the rules and regulations made thereunder.

10.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter Ieaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a later stage.

Findings on the obiections raised by the respondent.

Ir l Obiection regarding force maieure conditions: 'l'he respondent-promoter alleged that grace period on account of force majcure conditions be allowed to it. [t raised the contention that the construction of the project was delayed due to force majeure conditions such as shortage of labour, various orders passed by NGT and weather conditions in Gurugram and non-payment of instalment by different allottces ofthe proiect but all the pleas advanced in this regard are devoid of merit.

The flat buyer's agreement was executed between the parties on 14.09.2073 and as per terms and conditions of the said agreement the due datc of handing over of possession comes out to be 14.09.2016.

The events 11.

F'. ts 11.

F'. such as and various orders by NGT in view of weather condition of Delhi NCR region, were for a shorter duration of time and were not continuous as there is a dclay of more than six years and even some happening after due date of offering possession.

There is nothing on record that the respondent has even made an application for grant of occupation certificate.

Hence, in view of aforcsaid circumstances, no period grace period can be allowed to the respondent- builder.

Though some allottees may not be regular in paying the (v Page 11 ol20 .& I]ARERi P* GURUGRAfu{ Complaint No.

6880 ot 2022 amount due but whether the interest of a}l the stakeholders concerned with the said project be put on hold due to fault of some of the allottecs.

Thus, the promoter-respondent cannot be given any leniency on based ofaforesaid reasons.

It is well settled principle that a person cannot take benefit of his own wrongs.

12.

As far as delay in construction due to outbreak of Covid-19 is concerned, Hon'ble Delhi High Court in case titled as M/s Halliburton offshore Services Inc.

V/S Vedanta Ltl, & Anr. bearing no.

O.M.P (l) (Comm.) no.

88/ 2020 and I.As 3696-3697/2020 dated 29.05.2020 has observed that- 14. "69.The past non-performance of the Controctor cannot be condoned due to the COVID-19 lockdown in Morch 2020 in lndio.

The Controctor was in breach since September 2019.

Opportunities were given to the Contractor to cure the same repeotedly.

Despite the some, the Controctor could not complete the Project.

The outbreok of o pandemic cannot be used os on excuse for non- performance of a controct for which the deadlines were much before the outbreqk itself." 'l'he respondent was liable to complete the construction of the project and thc possession of the said unit was to be handed over by 1.4.09.2016 and is claiming benefit oflockdown which came into effect on 23.03. on 23.03.2020 whereas the due date of handing over of possession was much prior to the event of outbreak of Covid-19 pandemic.

Therefore, the authority is of the view that outbreak of a pandemic cannot be used as an excuse for non- performance of a contract for which the deadlines were much before the outbreak itself and for the said reason, the said time period is not excluded while calculating the dclay in handing over possession.

F.ll Obiection regarding the complainants being investors.

The respondenti have taken a stand that the complainants are the investors and not consumers, therefore, they are not entitled to the protection of the 13.

V Page 72 ol20 ffi HARERH #- eunuennvr Complaint No.

6880 of2022 Act and thereby not entitled to file the complaint under section 31 of the Act.

The respondents also submitted that the preamble of the Act states that the Act is enacted to protect the interest of consumers of the real estate secton The authority observed that the respondents are correct in stating that the Act is enacted to protect the interest ofconsumers ofthe real estate sector. lt is settled principle of interpretation that preamble is an introduction of a statute and states main aims & objects of enacting a statute but at the same time prcamble cannot be used to defeat the enacting provisions of the Act.

Irurthermore, 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.

At this stage, it is important to stress upon the definition of term allottee under the Act, the same is reproduced below for ready reference: "2(d) "altottee" in relation to a reol estqte proiect means the person to whom o ploL qpartment or building, as the case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise trqnsferred by the promoter, and includes the personwho subsequently acquiresthe said qllotmentthrough sol hrough sole, trqnskr or otherwise but does not include o person to whom such plot, oportmentor building, 0s the cose moy be, is given on renti' 15. ln view of above-mentioned definition of "allottee" as well as all the terms and conditions of the apartment buyer's agreement executed betlveen promoter and complainants, it is crystal clear that the complainants are allottee(s) as the subject unit was allotted to them by the promoter.

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

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

Thus, the contention of promoter that the allottee being an investor is not entitled to protection of this Act also stands rejected.

Page 13 of 20 IL & HARERA S-ernuennnt Complaint No.

6880 of2022 c.

Findings on the relief sought by the complainant.

G.l Direct the respondent to deliver the possession of the allotted unit and pay the delay possession charges along with prescribed rate of interest.

16.

In thc present complaint the complainant intends to continue with the project and are seeking delay possession charges as provided under the proviso to section 18(1J ofthe Act.

Sec.

18(1) proviso reads as under: - "Section 18: - Return ofamountand compensation 18(1).

If the promoter fails to complete or is unable to give possession ofon apartment, plot, or building, - 17.

Provided that where an ollottee does not intend to withdr1t fron the project, he sholl be poid, by the promoter, interest for every month ofdeloy, till the handing over of the possession, ot such rote as may be prescribed.

Clause B of the buyer's agreement provides the time period of handing over possession and the same is reproduced below: "8-1 (o) subject to terms of this clouse ond subject to the flot buyer(s) having complied with oll the terms and conditions ofthis ogreement and not being in default under any of the provisions of this ogreement ond complied d complied with all provisions,formolities, documentation etc. os prescribed by the developer, the developer proposes to handover the possession ofthe flot within o petiod oI thirty six monahs from the daae of signing ol this agreefienL However, this period will automatically stond extended for the time taken in getting the building plons sonctioned.

The fiot buyer(s) agrees and understands that ahe developer sholl be entitled to a groce period of 90 days, qlter the expiry oI thirty-six months or such extended period, for applying ond obtaining occupotion certifrcate in rcspect of the Group llousing Complex The authority has gone through the possession clause of the agreement.

At the outset, it is relevant to comment on the pre-set possession clause of the agreement wherein the possession has been subjected to all kinds of terms and conditions of this agreement and the complainant not being in default under any provision ofthis agreement and in compliance with all provisions, formalities and documentation as prescribed by the promoter.

The drafting of this clause and incorporation of such conditlons is not only vague and uncertain but so heavily loaded in favour of the promoter and against the 18.

Page 14 of 20 h 'E HARER #- cLrnLrcnnu Complaint No.6880 of 2 022 allottee that even a single default by the allottee in fulfilling formalities and documentations etc. as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning.

19. 'l'he buyer's agreement is a pivotal legal document which should ensure that the rights and Iiabilities of both builder/promoter and buyer/allottee are protected candidly.

The flat agreement lays down the terms that govern the sale of different kinds of properties like residentials, commercials etc. between the builder and the buyer. the buyer.

It is in the interest of both the parties to have a well-drafted buyer's agreement which would thereby protect the rights oFboth the builder and buyer in the unfortunate event ofa dispute that may arise.

It should be drafted in the simple and unambiguous language which may be understood by a common man with an ordinary educational background.

It should contain a provision with regard to stipulated time of dclivery of possession of the unit, plot or building, as the case may be and the right of the buyer/allottee in case of delay in possession of the unit.

20.

Admissibility ofgrace period: The respondent promoter has proposed to handover the possession of the unit within a period of 36 months from the datc ofsigning ofthis agreement.

In the present case, the promoter is seeking 90 days as grace period for applying and obtaining occupation certificate.

Howevet there is no material evidence on record that during the period of 90 days, the period sought as grace period, the promoters have applied to any authority for obtaining the necessary approvals with respect to this project or obtained during this period.

So, the promoters cannot claim the benefit of grace period of 90 days.

Consequently, the authority has rightly determined the due date ofpossession.

Thus, the grace period is not allowed, and the due date of possession comes out to be 14.09.2016. (4/' Page 15 of 20 .& HARERA #- eunuenntu Complaint No.

6880 of 2022 21.

Admissibility ofdelay possession charges at prescribed rate ofinterest: 'l'he complainants are seeking delay possession charges.

However, proviso to section 18 provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoters, interest for every month of delay, till the handing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 of the rules. the rules.

Rule 15 has been reproduced as under: Rule 75, Prescribed rate ofinterest- lProviso to sectlon 72, section 78 and sub-section (4) ond subsectlon (7) oJsection 191 0 For the purpose of proviso to section 12; section 18; ond sub-sections (4) ond (7) ofsection 19, the "interest at the rate prescribed" sholl be the Stote Bank of Indio highest morginal costoflending rate +2ok.: Provided thot in cose the State Bonk of lndio matginol cost of lending rote (lvlCLR) is not in use, it sholl be reploced by such benchmork lending rotes which the Stote Bank of India moy fix from time to time for lending to the general public.

22.

The legislature in its wisdom in the subordinate legislation under the provision of rule 15 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.

23.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost oflending rate (in short, MCLR) as on date i.e., 19.70.2023 is U.75%.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2 70 i.e.,10.750/0.

24.

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 rotes of interest payable by the ptumoter or the allottee, os the cose noy be.

Page 76 of20 {L & HARERA &eunuennll Complaint No.6880 of 2022 Explanotion- -For the putpose of this clouse- (i) the rate of interest chorgeable from the allottee by the promotea in cose ofdefoult, sholl be equal to the rote ofinterest which the promoter sholl be lioble to pay the allottee, in case ofdefault. ofdefault. [ii) the interestpayable by the promoter to the ollottee shollbefron the dote the promoter received the omount or ony part thereof till the date the omount or port thereofand interest thereon is refunded, ond the interest poyoble by the ollottee to the promoter shall be from the date the allottee defoults in payment to the promoter till the date it is poidi' 25.

Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate i.e., 10.750lo by the respondents/ promoters which is the same as is being granted to them in case of delayed possession charges.

26.

On consideration of the documents available on record and submissions made by both the parties, the authority is satisfied that the respondent is in contravention of the section 11(a)(a) of the Act by not handing over possession by the due date as per the agreement.

By virtue of clause 8 of thc agreement, the possession of the subject apartment was to be delivered within 36 months from the date of execution of agreement.

For the reasons quoted above, the due date of possession is to be calculated from the date of cxccution of buyer's agreement i.e., 14.09.2013 and the said time period of 3 6 months has not been extended by any competent authority.

Therefore, the due date of possession is calculated from the date of execution of buyer's agreement and the said time period of 36 months expired on 14.09.2016.

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

Therefore, the due date of handing over possession is 14.09.2016.

27. 'l'he respondent has obtained the occupation certificate on 09.05.2022.

Copies of the same have been placed on record.

The authority is of the considered view that there is delay on the part of the respondent to offer physical possession of the allotted unit to the complainant as per the terms PaEe 17 of 20 A ffi HARERA #-eunuennHr and conditions ofthe buyer's agreement dated 14.09. ted 14.09.2 013 executed between the parties.

It is the failure on part ofthe promoter to fulfil its obligations and rcsponsibilities as per the buyer's agreement dated 14.09.2013 to hand over the possession within the stipulated period.

28.

Section 19(10) of the Act obligates the allottee to take possession of the subject unit within 2 months from the date of receipt of occupation certificate. ln the present complaint, the occupation certificate was granted by the competent authority on 09.05.2022.

The respondent offered the possession ofthe unit in question to the complainant only on 14.05.202 2.

So, it can be said that the complainant came to know about the occupation certificate only upon the date of offer ofpossession.

Therefore, in the interest of natural justice, the complainant should be given 2 months' time from the date of offer of possession.

This 2 months' of reasonable time is being given to the complainant keeping in mind that even after intimation of possession practically he has to arrange a lot of logistics and requisite documents including but not limited to inspection of the completely finished unit but this is subject to that the unit being handed over at the time of taking possession is in habitable condition.

It is further clarified that the delay possession charges shall be payable from the due date of possession i.e.

14.09.2016 till the date ofoffer ofpossession (14.05.2022) plus two months i.e ., '1"4.07 .2022.

29.

Accordingly, the non-compliance of the mandate contained in section 11 (4)(al read with section 18(1) of the Act on the part of the respondent is cstablished.

As such the complainants are entitled to delay possession charges at rate ofthe prescribed interest @ 10.75% p.a. w.e.f.

14.09.2016 till the date ofoffer ofpossession [14.05.2022) plus two m onlhs i.e.,14.07 .2022; as per provisions of section 18(1) of the Act read with rule 15 of the Rules.

6880 of2022 A/'' Page 18 ol20 & HARERi #- eunuennHl complaint No. plaint No.

6880 o12022 H.

30.

Directions of the authority Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(fl: I. 'Ihe respondent is directed pay interest at the prescribed rate i.e., 10.75 7o pcr annum for every month of delay on the amount paid by the It. complainants from due date of possession i.e., L4.09.2076 till the date of offer of possession (14.05.2022) plus two months i.e . upto 14.07 .2022: as per proviso to section 18(1) of the Act read with rule 15 of the rules.

The respondent is directed to issue a revised account statement after adjustment of delay possession charges as per above within 30 days and thereafter the complainants are directed to pay outstanding dues, if any, within next 30 days and the respondent shall handover the possession of the allotted unit complete in all aspects as per specifications of buyer's agreement within next 30 days and if no dues remain outstanding, the possession shall be handed over within four weeks from date of this order The rate of interest chargeable from the allottees by the promoter, in case of default shall 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 be liable to pay the allottees, in case of default i.e., the delayed possession charges as per section 2(za) of the Act.

The respondent shall not charge anything from the complainant which is not the part of buyer's agreement.

The respondent is not entitled to charge holding charges from the complainant/ allottee at any point of III, IV.

Page 19 of 20 A HARERA GURUGRAN/ Complaint No.

6880 of2022 time even after being part of the builder buyer's agreement as per law settled by Hon'ble Supreme Court in civil appeal nos.

3864-3889 /2020 on 14.72.2020.

31.

Complaint stands disposed ol 32. sed ol 32.

F'ile be consigned to registry.

Datcd:.1 9.10.202 3 \t - 4----) ( Vijay Kumar Goyal) Member Haryana Real Estate Regulatory Authority, Gurugram Page 20 oF 20