BINA DEVI SOMANI AND JUGAL KISHORE SOMANI vs PAREENA INFRASTRUCTURES PVT. LTD.

HARTR& GUI?UGl?AM Complaint No.21.24 of Z\Zt BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGMM Complaint no. : ZLZ4 of Z}ZL First date of hearing: 06.05.ZOZL Date of decision : 08.03.ZOZT 1.

Bina Devi Somani 2.lugal Kishore Somani Both R/O: A-21,, First Floor, Ashok Vihar, Phase-2, Delhi-52.

Complainants Pareena Infrastructure Respondent CORAM: Shri KK Khandelwal Shri Vijay Kumar Goyal APPEARANCE: Chairman Member ORDER Shri Sukhbir Yadav Advocate for the complainants Shri Prashant Sheoran Advocate for the respondent 1.

The present complaint dated 1,g.o4.zoz1 has been filed by the complainants/allottees under section 31 of the Real Estate fRegulation and Development) Act, 2016 (in short, the Act) read with Rule 28 of the Haryana Real Estate (Regulation and Development) Rules,201.7 (in short, the Rules) for violation of section 11[a)[al of the Act wherein ir is inter alia Page t of 22 ffi ffi q{iq qqd ffiHARERA ffi- GuRLrcRAM complaint No.2L24 of 2021. prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the rules and regulations made there under or to the allottee as per the agreement for sale executed inter se.

A.

Unit and proiect related details 2.

The particulars of unit details- sale consideration, the amount paid by the complainants, roposed handing over the possession, delay peri have been detailed in the iollowing tabular form: owlng tabu S.

No Information 7.

Name and location of tt project te encies" , sector m 2.

Nature of the projec 3.

10.5875 acres 4.

DTCP Iicense no.

10 of 201.3 dated 12.03.201,3 valid up to 1t.03.2024 5.

6.

RERA Registered/ not registered Registered vide no.

35 of 2020 issued on 16.10.2020 up to L1.03.2024 7.

Unit no.

T2-602 Ipage no.

87 of complaint] B.

Unit measuring 1.997 sq. ft.

I page no.

87 of complaint] 9.

Date of execution of Flat buyer's agreement 1,1.02.201,5 Ipage no.

85 of complaint] 10.

Date of start of construction t6.L0.201. t6.L0.201.4 Page Z of 22 Heads Group Housing Colony Project area Name of Licensee M/s M onex infrastructure Pvt.

Ltd.

HARERA ffiGURUGI?AM complaint No.2124 of 2021 [as per demand cum tax invoice, page 121. of complaint] TL, Total consideration Rs.

1,23,53,456/- [as per summary of dues on page no.

108 of complaintl 72.

Total amount paid by the complainants Rs.75,39,866/- [as per demand cum tax invoice and receipt attached with file on page no.1.2l-123 of complaint] 13.

Due date of deli possession 71.02.2019 fDate of execution of buyer agreement is later than the date of start of construction, so the due date calculated from the date of execution of buyer agreement i.e., 1,1.02.20t51 1.4.

3.1 POSSESSTON ,3.1,,,, "That the developer shall, under normal ednd,itions subject to the foice majeure, complete gonstruction of tower/ building in which the said flat is to be located with 4 .,fGlargL 'of the start of constiuction or execution of this agreement whichever is later, as per the said plans and specifications seen and accepted by the Flat Allottee.

15.

Occupation certificate Not obtained 16.

Offer of possession Not offered 17.

Delay in handing over of possession till the date of decision i.e., 08.03 .2022 3 years, 25 days Page 3 of 22 Possession clause ffiHARERA W*GURUGRAM B.

3.

Complaint No.21,24 of Z\Zi- Facts of the complaint That the complainants Mr.

Bina Devi Somani and ]ugal Kishore Somani are law-abiding citizens and residing at flat no. a-21, first floor, ashok vihar, phase - 2, Delhi-S2.

That in January 2013, complainants received a marketing call from the office of the respondent, they represented a residential project namely "coban Residences" situated at sector-99 A, Gurugram.

The complainants visited the Gurugram office and project site of the respondent.

There they consulted with the marketing staff of builder and got information about the project "coban Residences". sidences".

The rnarketing staff of the respondent through a brochure and representations projected and assured that the project shall have various facilities.

That believing on representation and assurance of respondent, the complainants booked a 3BHK flat bearing no.

602 in tower T2 for size admeasuring 1,997 sq. ft. on 20.01,.2013 and paid a booking amount of Rs.

8,50,000 /-.The flat was purchased under the construction linked plan for a sale consideration of Rs.

1,,!9,40,077 /-, BSp @ Rs.

4845 per sq. ft.

Further on 14.03 .2014 respondent issued a provisional allotment letter to the complainants.

That after a long follow up, on 06.04.2014, a pre-printed, unilateral, arbitrary builder buyer was executed inter-se the respondent and the complainants.

That the complainants received a call from the respondent for a change in the payment plan with an additional cost, the 4.

5.

7.

Page 4 of22 ffi ffi q{tq qqii HARERA GUt?UGRAM Complaint No.21,24 of 2021 complainants were agreed upon that and thereafter, they complainants singed a pre-printed application form for modification in the payment plan on 11,.02.201s.

Since the complainants have agreed to change the payment plan, the respondent has changed the BBA and issued a fresh BBA to the complainants on t7.\z.zols, under the compelling circumstance, the complainants had signed the BBA.

That the respondent had charg?d,rn extra loading amount of Rs.

325 on account of "L:"g1,r.t,of payment plan conversion" and also increased the ba;ircuu?,ales price from 4B4s to 5170 and increased the total sale consideration of the unit to Rs. ndent sent a demand cum tax 9.

10. the That 6/- i.e., 610/o of the total consideration That the main grievance is that complainants have paid more than 61,0/o amount of the actual cost of the flat and ready to pay the remaining amount but the respondent has failed to deliver the possession of the flat on promised time and till date project is without amenities. amenities.

Relief sought by the complainants: The complainants have sought the following relief: C.

11,. invoice and raised complainants have Page 5 of22 ffi ffi q{ls wi HARERA GURUGI?AM Complaint No.21.24 of 2021 (i) Direct the respondent to handover the physical possession of the apartment along with prescribed rate of interest. [ii] Direct the respondent to get the area calculation i.e., carpet area and common loading of flat/ apartment.

1,2.

On the date of hearing, the authority explained to the respondent/promoter about the contravention as alleged to have been committed Act to plead guilty or n section 1,1,(4) [aJ of the ilty.

D.

Reply by the 13.

That the res eloping residential group several of them one is "Coban neiia 1.4.

That the consttucti stage and the completed and g work is endeavoured to be very short thereafter occupancy certificate as agreed in builder buyers' agreement.

1,6.

That baseless and unsubstantiated oral allegations are made by allottees against the respondent with a mere motive of avoiding the payment of balance consideration and charges of the unit in question.

If such frivolous and foundation less allegations will be admitted then, the interest of other completed as soon as possible.

That the project is near completion and within a span of period it would be completed and possession shall be offered after obtaining Page 6 of 22 HARER& W-GUI?UGRAM Complaint No.2L24 of 2021 genuine allottees of the project will be adversely affected.

In these circumstances, the present complaint deserves to be dismissed.

17.

That admittedly the completion of the project is dependent on a collective payment by all the allottees and just because few of the allottees paid the amount, demand does not fulfill the criteria of collective payment.

It is submitted that numerous allottees ha in payment demanded by the respondent, resul I delay of completion of the to complete the project funds, 18. funds, 18.

That over a period of time numerous allottees have defaulted in their payments at the relevant stages of construction and it is not possible to construct with inadequate funds.

Thus, the situation of non -payment of the amount by the allottees is beyond the control of the respondent.

It is submitted that even in the apa t it was stated that a normal conditions and imagination situations faced by respondents are not normal.

19.

That other than above stated factor, there are lots of other reasons which either hampered the progress of construction of and in many cases complete stoppage of construction work.

Such as detailed below: o NGT vide order dated 07.04.2015 had directed that old diesel vehicles [heavy or light) more than 10 years old would not be permitted to ply on the roads of NCR, period of 4 years was force majeure and with PageT of22 ilARERA GURUGRAM complaint No.2L24 of 2021.

Delhi.

It had further been directed by virtue of the aforesaid order that all the registration authorities in the State of Haryana, UP and NCT Delhi would not register any diesel vehicles more than 10 years old and would also file the list of vehicles before the tribunal and provide the same to the police and other concerned authorities.

NGT vide order stone crusher .201,7 had directed that no obtain consent to operate unless they Pollution Control Board, authorities and the Enviro passing of the from the competent o been directed that no 016 had directed that all Delhi would be prohibited one week from the date of const Authority vide its order dated 07.L7.201,7 had to closure of all brick kilns, stone crushers, plants etc. with effect from 7th of November further notice.

NGT had passed the said order dated 9th of November 201,7 completely prohibiting the carrying on of I be permitted for a period f order.

Control) directed hot mix 201,7 tlll NGT vide c brick kilns PageB of22 ffiHARERA ffi* GuRUoRAM 201,8 civil Complaint No. plaint No.21,24 of 2021 construction by any person, private or government authority in the entire NCR till the next date of hearing (1,7th of November 201,7).

By virtue of the said order, National Green Tribunal had only permitted the completion of interior finishing/interior work of projects.

The order dated 9th of November 201,7 prohibiting construction activity was vacated vide o Haryana State Po trol Board, Panchkula had passed the o aglth of October 2018 in of Environment Pollution Oc dated 27th of 29th of October n n activities involving excavation, uding internal finishing/work where no construction material was used) were directed to remain closed in Delhi and other NCR Mahender Garh, Haryana who have not complied with the siting criteria, ambient air quality, carrying capacity and assessment of health impact.

The Tribunal further directed initiation of action by way of prosecution and recovery of compensation relatable to the cost of restoration. furtherance of ( (Prevention and Page9 of22 HARERA ffiGURUGI?AM o That Municipal corporation, Gurugram had passed order dated 1i-th of october z0rg whereby construction activity had been prohibited from l-1th of october z0rg to 31st of December 201.9.

It was specifically mentioned in the aforesaid order that construction activity wourd be completely stopped during this period.

That from March zozo till now, there have been severar months where construction work was completely stopped either due to nationwide lock down or regional restrictions, furthermore metro cities like Gurgaon and Delhi suffered from a major outburst of covlD cases and deaths in such a number which can't be comprehended.

That developers were helpless in these times since they had no alternative but to wait for the situation to come under control.

That even RERA has extended the time limits for completion of project vide notification dated z6-os-2020,by six months. ix months.

But the aforesaid was the period evidencing the first wave but the relaxation in restrictions were seen at fag end of year 2020.

However, soon thereafter the country saw a more dangerous variant of covlD from the month of March 2021, and only recently restrictions have been lifted by the government.

That whole of this consumed more than 11, nronths wherein 2/3rd time there could be no construction and rest of the time construction progressed at very slow pace to several restrictions imposed by state government on movement and number of persons allowed etc.

20.

Complaint No.2tZ4 of Z0Zl 21,.

Page 10 of22 ffi ffi qislq qqi 22.

23.

HAREI?A GURUGl?AM Complaint No.2L24 of 2021 That the builder buyer agreement pertains to unit in question is dated 1.1.-02-201,5, whereas complainants intentionally concealed the actual state of affairs qua execution of fresh builder buyer agreement and intentionally mention wrong date 06-0 4-201,4.

That the complainants have intentionally concealed the fact that builder buyer agreement dated 06-04-2014 was already stand cancelled and superseded by fresh though initially a builder agreement dated 11-0 buyer agreement d 4 was executed between the parties h ment payment plainants have to pay amount as in instalments F.

24.

F.

I T 25.

As per notification no.

1/92/2017-ITCP dated 14.1.2.201,7 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram rrial iurisdic Page 17 of22 ffi ffi qfliq qqd HARERA GUt?UGRAM Complaint No.2124 of 2021, District.

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

II Subiect matter iurisdiction 26. iction 26.

Section 1,1,(4)(aJ of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section 11(a)(a) and regulations per the ag Section 34-Functions 34(f) reg ulations made thereunder.

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 leaving 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. com, of as nent.

27.

Be responsible for functions under tht responsibilities and this Act or the rules ' or to the allottees as to the association of conveyonce of all cose may be, to Page 12 of 22 ffiHARERA ffi- GURUGRAM Complaint No.21.24 of 2021 G.l Obiection regarding delay due to force maieure.

25.

The respondent-promoter raised the contention that the construction of the project was delayed due to force majeure conditions such as national lockdown, shortage of labour due to covid 19 pandemic, stoppage of construction due to various orders and directions passed by hon'ble NGT, New Delhi, Environment Pollution [control and prevention) Authority, National Capital Region, Delhi, Haryana State Pollution control Board, Panchkula and various other authorities from time to time but all the pleas advanced in this regard are devoid of merit.

The flat buyer's agreement was executed between the parties on 11.02.2015, as per the possession clause of the agreement the possession of the said unit was to be delivered within 4 years from the date of start of construction or execution of this agreement whichever is later.

The due date of possession is calculated from date of execution of agreement as it is later than the date of start of construction i.e., 11.02.201,5, which comes out to be 1,1,.02.201,9. .02.201,9.

The authority is of the view that the events taking place do not have any impact on the project being developed by the respondent.

Thus, the promoter respondent cannot be given any leniency on based of aforesaid reasons and it is well settled principle that a person cannot take benefit of his own wrongs.

G.

II.

Obiection regarding Timely payments: PageL3 of22 ffiHARERA ffiouRUGRAM Complaint No. ?1.24 of 2021.

26.

The respondent has alleged that the complainants having breached the terms and conditions of the agreement and contract by defaulting in making timely payments.

The authority is of view that the respondent cannot take advantage of this objection of timely payments being himself at wrong firstly by still not obtaining the occupation certificate and offering the possession of the unit despite being delay of 3 years, 2 ,.- , .: ,, Therefore, the respondent ntractual and statutory no document on file to t regarding delay in to handover the physical itself failed to com obligations.

More support the co timely payme sought following relief[s) : (i) Direct along with prescribed 26. 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[1J proviso reads as under. "section 1B: - Return of amount ond compensation Page t4 of22 HARER& ffi ffi 18(1).

If the promoter fails to complete or is unoble to give possession of an apartment plol or building, - Provided that where an allottee does not intend to withdraw from the projecl he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed." 27.

Clause 3 of the flat buyer's agreement provides the time period of handing ove{ possession and the same is reproduced below: "Clause 3. "Clause 3.1- per shall, under normal force majeure, compl building in whi 4 years of of this the said by the for such GURUGl?AM res add the d I p F Complaint No.2t24 of 2021 ions in number, of entire ment all tary sale be got scheme may be be or which the a result of 'reduction or increase in the super area of the said flat or its location, no claim, monetary or otherwise will be raised or accepted except that the original agreed rate per sq. mtr./sq. ft. and other charges will be applicable for the changed area i.e., at the same rate at which the said flat was registered/booked or as the developer may decide and as consequence of such reduction or increase in the super area, the developer shall be liable to be refund without any interest only the extra basic price and other pro rate charges recovered or necessary or petent authority to Page15 of22 HAREt?A ffiGUI?UGI?AM complaint No.21.24 of 2027 shall be entitled to recover the additional basic price and other proportionate charges without any interest as the case may be.

If for any reason, the developer is not in position to allot the said flat applied for, the developer, at its sole discretion, shall consider for any alternative property or refund the amount deposited with simple interest @700/o per annum.

28.

The authority has gone through the possession clause of the agreement.

At the outset, it is relevant to comment on the pre-set possession cl possession has been agreement wherein the to all kinds of terms and conditions of this a complainants not being lis agreements and in only vague the promoter default by loaded in favour of that even a single lling formalities and formalities and )moter.

The drafting r conditions are not the promoter may for the purpose of the allottee and the commitment date for handing over possession loses its meaning.

29. aning.

29.

The buyer's agreement is a pivotal legal document which should ensure that the rights and liabilities of both builders/promoters and buyers/allottee are protected candidly.

The apartment buyer's agreement lays down the terms that govern the sale of different kinds of properties like residentials, commercials etc. between the buyer and builder. documentation as of this claus,e Page L6 of22 ffiHARERA ffiGuRUSRAM It is in the interest of both the parties to have a well-drafted apartment buyer's agreement which would thereby protect the rights of both the builder and buyer in the unfortunate event of a 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 delivery of possession of the apartment, plot or building, as the case may be and the right of the buyer/ailottee in case of delay in possession of the unit.

In pre-RERA period it was a general practice among the promoters/developers to invariably draft the terms of the apartment buyer's agreement in a manner that benefited only the promoters/developers.

It had arbitrary, unilateral, and unclear clauses that either blatantly favoured the promoters/developers or gave them the benefit of doubt because of the total absence of clarity over the matter.

30.

Admissibility of delay possession charges at prescribed rate of interest: The complainants are seeking deray possession charges, proviso to section 1B provides that where an allottees 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 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 of interest- [proviso to section 12, section 78 and sub-section (4) and subsection (7) of section 791 Complaint No.2L24 of 2021.

PagetT of22 Complaint No.21,24 of 2021, ffi ffi qq*q qqi HARERA GUl?UGl?AM (1) For the purpose of proviso to section L2; section 18; and sub-sections (4) and (Z) of section 1g, the "interest at the rate prescribed', shall be the State Bank of India highest marginal cost of lending rate +20k.: Provided that in case the state Bank of tndia marginal cost of lending rote (MCLR) is not in use, it shaill be replaced by such benchmark rending rates which the state Bank of India may ftx from time to time for rending to the general public.

The legislature in its wisdom in the subordinate legislation under the provision of rule 15 of the rules, has determined "(za) "interest" means the rates of interest payabte by the promoter or the allottee, as the case may be.

Explanation. -For the purpose of this clause- 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 tiabte to poy the allottee, in case of default; 31. 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. consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate fin short, MCLR) as on date i.e., 08.03.2022 is 7.300/0.

Accordingly, rhe prescribed rate of interest will be marginal cost of lending rate +2o/o i.e., 9.3 0o/o per annum.

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

The relevant section is reproduced below: 32.

33.

Page LB of22 ffi ffi GUl?UGl?AM HARERE carpet area 35.

That the co (ii) the interest payable by the promoter to the allottee shall be from the date the promoter received the amount or any part thereof till the date the amount or part thereof and interest thereon rs refunded, and the intereit payable by the alrottee to the promoter shail be from the date the allottee defaults in payment to the promoter till the date it is paid;" 34.

Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate i.e., 9.30% p.a. by the respondent/promoter which is the same as lainants in case of delay possession charges. [ii)Direct the respond area calculation i.e., Complaint No.21,24 of 20ZL apartment. t have prayed for directs the section 19[1) of the Acr, all be entitled to obtain the , layout plans along the competent authority directing th unit.

The au 201,6 directs information re with the specificatio and such other information as provided in this Act or the rules and regulations made thereunder or the agreement for sale signed with the promoter.

In view of that the respondent/ promoter is directed to provide the area calculation of the subject unit to the complainants.

36.

The validity of registration of project detailed above was provided with effect from 16.1,0.2020 up to 1j-.03.2024 as evident from certificate of registration 35 of zo2o.

The project is still incomplete, and the promoter has not obtained Page L9 of 22 I{ARTRA GURUGRAM Complaint No.21.24 of Z02l occupation certificate.

During the period of covid_19, there was comprete rockdown and ail the activities including construction came to stand still. so, keeping in view that situation the authority gave benefit of 6 months to ail the projects for registration vide its notification dated 26'05.2020' Thus, keeping in view that the grace period is allowed to the promoter with regard to the registration of project. f project.

However, the ts are also given benefit of 6 months and the pib,l not charge interest on nt executed between ln of the booked unit was to be delivered within a perio d of 4 years of the start of construction or execution of this agreement whichever is later.

The due date of possession is calculated from the date of execution of agreement as it is Iater than the date of start of construction i.e., Lr.oz.zo1-s, which comes out to be 1.t.02.2019.

38' Accordingly, non-compliance of the mandate contained in section 1,1(4) (a) read with proviso ro section 1B[1) of the Act 37.

Page 20 of 22 HAREI?A GUI?UGRAM complaint No.2L24 of 2021, on the part of the respondent is established.

As such the complainants are entitled to delayed possession charges at the prescribed rate of interest i.e.,9.300/o p.a. for every month of delay on the amount paid by them to the respondent from the due date of possession i.e., 1,t.oz.zo19 till the offer of possession of the subject flat after obtaining occupation certificate from the competent authority plus two months or handing over of ever is earlier as per the provisions of section 1 t read with rule 15 of the rules.

Directions of H.

39. = Hence, the authori following direitior compliance function en The res prescribed r from offer occu ; this order and issues the r 37 of the Act to ensure n the promoter as per the under section 3a[fl: to pay interest at the br every month of delay i.e., 11,.02.20L9 till the ct flat after obtaining t authority plus two months or handing over of possession whichever is earlier.

Grace period of 6 months on account of covid rg shall be applicable to both the parties. ii.

The respondent is directed to pay arrears of interest accrued within 90 days from the date of order and thereafter monthly payment of interest to be paid till Page 2\ of 22 ffiHARERA #- GURUGRAM Complaint No.2124 of 20Zl date of handing over of possession shall be paid on or before the 1Ott, of each succeeding month. ing month.

The complainants are also directed to pay the outstanding dues, if any.

The respondent shall not charge anything from the complainants which is not part of the builder buyer agreement.

40.

Complaint stands disp 41..

File be consigned to Vt (Viiay Kurilar Khandelwal) hairman Haryana ', Gurugram Dated:08.03.202 iii. iv.

Page22 of 22 Member