RATNESH KUMAR vs PAREENA INFRASTRUCTURE PVT. LTD.

Compl3int No.5622 of2022 & other Member CORAM: Shri Sanjeev Kumar Arora 7.

2.

HARERA GED cr rDr raDAr\/ BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision: 75.17.2O23 ORDER This order shall dispose ofthe two complaints titled above filed before this authoriry under section 31 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred as "the Act") read with rule 28 ofthe Haryana Real Estate (Regulation and Development) Rules, 2 017 (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 bc responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

The core issues emanating from them are similar in nature and the complainant(s) in the above referred matters are allottees of the prolecr, namely, Laxmi Apartment situated at Sector-99 A, Gurugram being NAME OF THE BUILDER M/S PAREENA INTRASTRUCTTIRE PRIVATE LTD.

PROIECT NAME LAXMI APARTMENT S.

No.

Case No.

Case title Appearance 1 cR/ 5622 /2022 Ratnesh Kumar V/S M/S Pareena Infrastructure Private Ltd.

Shri Prakash Dutt Jha hri Prashant Sheoran 2 cR/s624/2022 Ravi Shankar Mishrd V/S N.l/S Pareen, lnfrastructure Private Ltd.

Shri Prakash Dutt lha hri Prashant Sheoran Page 7 of 26 * HARERA S* eunuenAvr developed by the same respondent/promoter i.e, M/s Pareena Infrastructure Private Limited.

The terms and conditions of the buyer's agreements fulcrum of the issue involved in all these cases pertains to failure on the part ofthe promoter to deliver timely possession ofthe units in question, seeking possession of the unit along with delayed possession charges.

3.

The details of the complaints, reply status, unit no. , unit no., date of agreement, possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given in the table below: Proiect Name and Location "Laxmi Apartment" at sector 99A, Gurgaon, Haryana.

Project area DTCP License No.

Cannot be ascertained 106 of 2014 dated 13.08.2014 valid upto 30.05.2021 Rera Registered Registered 25 of 2077 dated 27.07.2017 valid upto 14.09.2020 Possession clause: - 8.1.

Possession Except where any delay is caused on aacount ofreasons expressly provided underthis agreement and other situations beyond the reasonable control of the company and subject to the company having obtained the occupation/completion certificate from the competent authorities, the company shall endeavour to complete the construction and handover the possession ofthe said apartment within a period of4 years from the date of grant of environment clearance or within 4 years from the date of grant of sanction ofbuilding plans for the project, whichever is later, subject to timely payment by the allottee of all the amounts payable under this agreement and performance by the allottee of all other obligations hereunder.' Date of approval of building plansr 26.03.2015 Date of environment clearance: 15.03.2016 Due date of possessioni 15,O9.2O2O (Calculated from date of environment clearance i.e.

15.03.2016) Note: Grace period of 6 months is included while computing due date of possession on account of Covid-19 are in term of HARERA notification dated 26.05.2020 allowine qrace Deriod from 01.03.2020 to 30.09.2020. occupation certificatet 09.07.2021 Complaint No.

5622 of 2022 & other Page 2 of 26 ffi HARERH ffie nuennl,r Complaint No.

5622 of 202 2 & other Offer of possessiont 16.07.2027 Sr.

Complaint No., Case Title, and Date of nling of complaint Unit Unit admeasuri n8 Date of apartm buyer agreem Due date of possession Total Sale Consider ation / Total Amount paid by the complain Relief Sought .

DPC 1. t .

DPC 1. cR/ s622 / 2022 Ratnesh Kumar v/s M/s Pareena Infrastruc ture Private Ltd DOF: 06.09.202 2 Reply status: 0t.o5.202 3 203,2"d floor, Tower T4 H, \7L dTl x$t e€m tRl ;RU( 424 31.03.2 016 75.09.202 0 Calculate d from the date of environm TSC: - Rs.17,49 ,330 /- AP: - Rs. t7 ,49,33 0 2. cR/s624/ 2022 Ravi Shankar Mishra v/s M/S Pareena Infrastruc ture 704,hh floor, tower T1 424.833 sq. ft.

24.01.2 016 75.09.202 0 Calculilte d from the date of environm ent clearance TSC: - Rs.17,49 ,330 /- AP: - Rs.

77,49,33 0 DPC PaEe 3 of 26 .W IARERA 4.

I Complaint No.

5622 of 2022 & other S- eunuGRA[I Private Ltd.

DOF: 06.09.202 2 Reply status: 07.05.202 3 N otc: l n the tabl€ r el'erred above certain abbreviati o ns have been us ed They are elabo ratcd as Abbreviation Full form Tsc Total sale consideration 5.

AP amoDnt naid bv the allotteefsl The aforesaid complaints were filed by the complainants against the promoter on account of violation of the builder buyer's agreement executed between the parties in respect of said units for not handing over the possession by the due date, seeking the physical possession ofthe unit along with delayed possession charges.

It has been decided to treat the said complaints as an application for non- compliance of statutory obligations on the part of the promoter /respondent in terms of section 34(0 of the Act which mandates the authority to ensure compliance ofthe obligations cast upon the promoters, the allottee(s) and the real estate agents under the Act, the rules and the regulations made thereunder.

The facts of all the complaints filed by the complainant(s) /allottee(s)are similar.

0ut of the above-mentioned case, the particulars of lead casc CR/5622/2022 Ratnesh Rumar V/S M/S Pareena Infrastructure Privote Ltd are being taken into consideration for determining the rights of the allottee(s) qua delay possession charges.

Proiect and unit related details 6. +6 months of grace period of Covid) A.

PaEe 4 of26 ffi HARERA #, eunuennvr 7. nuennvr 7.

The particulars ofthe project, the details ofsale consideration, the amount paid by the complainant(s), date ofproposed handing over the possession, delay period, if any, have been detailed in the following tabular form: CR/S622/2022 Ratnesh Kumar V/S M/S Pareeno lnfrastructure Privote Ltd, s.

N.

Particulars Details 1.

Name of the project "Laxmi Apartments" at sector Gurugram I 2.

Nature of the project Affordable Group Housing 3.

Project area Cannot be ascertained 4.

DTCP license no. and validity status 106 of 2014 issued on 13.08.20 valid up to 30.05.i|021 RERA Registered/ not registered Registered vide no.

25 of 2017 issued 27.07.20L7 valid up ro 14.09.2020 6.

Unit no.

203,zad floor, tolver T4 Ipg.43 of complaint] 7.

Unit area admeasuring 424.833 sq. ft [pg.43 of complai nt] 8.

Date of apartment buyers agreement 31..03.2 016 [pg.

42 of complaint] 9.

Date of approval of building plans 26.03.20t5 [pg.

43 ofcomplaint] Complaint No.

5622 of 2022 & other 99, 14 oll Page 5 ol26 Complaint No.

5622 of 2022 & other & HARERA #-eunuennt't 10.

Date of environment clearance t5.03.2016 [pg.

28 of reply] 11 t2 Possession clause 8.1 Expected Time For Handing Over of Possession: Except where any delay is caused on account of reasons expressly provided under this agreement and other situations beyond the reasonable control of the company and subiect to the company having obtained the occupation/completion certificate from the competent authorities, the company shall endeavour to complete the construction and handover the possession of the said apartment within a period of 4 years from the date of grant of environment clearance or within 4 years from the date of grant of sanction of building plans for the proiect, whichever is later, subject to timely payment by the allottee of all the amounts payable under this agreement and performance by the allottee of all other obligations hereunder.

Due date of delivery of possess ion L5.09. ion L5.09.2020 fcalculated from the date of environment clearance] Including grace period of 6 months in lieu of covid 191 13 T4 Total sale consideration < 1.7 ,49,330 / - [pg.

46 of complaint] Amount paid by the complainant 1 17 ,49,330 /- Page 6 of26 #HARERA #-eunuonnir,r [as alleged by the complainant at pg of complaint] 15 Occupation certificate 09.07 .2027 [pg.

25 of reply] 16.07 .2021, [pg.

15 of complaint] 16 Offer of possession B.

Facts ofthe complaint The complainant has made the following submissions in the complaint: 8.

That the complainant was approached by the sales representative of the company, who made tall claims about the project as one of the best projects in the country where lower income group person can gct his home.

The complainant was lured to pay cost of application to bc a member of lucky draw to be held for the allotment.

The complainant arranged amount of Rs 87,467/- from bank on interest at the time of application and took part in the lucky draw.

9.

That the petitioner after letter of allotment of flat issued to him on 09 Nov 2015, applied for housing loan from SBI to the tune of Rs.

1,5,74,000/- which was approved in the Month of Mar 2016 and disbursed to the respondent as when the demand was raised by the respondent.

10.

That the complainant paid all the amount agreed by him as per payntcnt plan.

The first payment after allotment of flat was made late due to l:rte sanction of Home Loan through SBI and company had charged Intcrcst about Rs 13000/- For three months which was also illegal because wor-ks services had not started on site physically and cr:mpany could not gct environment clearance due to which work started late.

The same has been Compla int No.5522 of 2022 & other 5' I Page 7 of 26 & HARERA *ds* eunuennu asked through legal notice dated 07 A.t'g2027 and company failed to reply the month in which construction actually started and claim of interest has been called time barred as it has happened more than three years back 11. s back 11.

That besides this, an amount of Rs.

14000/- has also been asked by the respondent to pay as Interest for delayed payment may be in the Year '2Ol8l2o1g which became time bar as of now and cannot be claimed by the respondent as per reply ofthe notice by the counsel ofthe respondent similarly as amount deposited by the Petitioner became time bar for claim 12. 'lhat the builder buyer agreement was executed on 31 Mar 2016 between the complainant and the respondent.

Para H of the BBA states that the allottee has thoroughly inspected all the relevant deeds, documents, approvals, licenses and authorizations in respect of the company but in real, company had not shown its environment clearance obtained from thc authority conr;erned which was asked by him orally and subsequently asked through mails.

Building Plan was shown through a brochure wherein the area of the flat was fixed and no variation in area was communicated to him from starting to work at site in 2016 and before offering letter of possession in lul 2021.

He has queried from other allottees also irnd they are also have observation about the company on this issue.

13.

That para 3 of BBA under heading sale purchase agreement states that the petitioner has to pay a total of Rs L7,+9330.50/-.

Apart from it, he is agreed to pay any applicable taxes, cess, levies or assessment including VAT, Service Tax etc.

The BBA executed and made in favour of the respondent in most of the aspects which can be seen by the respected authority while going through any para of the agreement as there is no Complaint No.

5622 of2022 & other Page B of 26 *HARERA S-eunuenntrt scope for the buyer to deviate from any angle.

In this series, it can be secn that EDC is being charged by the company from the allottees.

14.

That building plans are made by authorized engitreers / architects who draws the plan as per requirement proiected by the developer/builder on the available/earmarked land for it and exact (alculation along with propo with proposed flat size is being given to the developers. .,\ccordingly, pillars are planted as per calculated area and common areas ofthe building.

Company failed to inform the reason for increased carpet area, if any, which has not been shown to the complainant during his visit to site on 02 Arg2021 Lo see the status of work services completed upto thalt date, 15.

That the company had agreed to handover complete flat within 4 ycars which has already expired in month of Mar 2020.

The respondent has neither informed any delay for any reason nor informed any governmcnt restriction on work services.

16.

That when the petitioner visited the site on 02 Aug 2021 he saw that work services in kitchen and bathroom were not completr:d.

There was no watcr connection available on that day in his flat and on a;king from respondcnt about the reason, he told that all balance work services will be completcd when he pays the balance amount.

17.

That the complainant do not intend to withdraw fr.om the project.

As pcr the obligations of the respondent/promoter under section 18 of the Act 2016 read with Rules 15 and 16 ofthe rules,2017, it has an obligation to pay interest on the delayed possession on the amount deposited by thc complainant at the rate prescribed.

The respondent has neglected its part of obligations by failing to offer a legitimate, rightful, lawful and legal Complaint No.

5622 of 2022 & other Page 9 oi 26 & HARERA #, eunuenRvt possession of the flat in time.

The Petitioner reserve their right to seek compensation liom the promoter.

C.

Reliefsought by the complainant: - 18.

The complainant has sought following relief[s): L Direct the respondent to pay interest for every month of delay in offering the possession of the flat since 01.04.2020 up to the date when the company offers the completed flat ready for Iiving in front of this authority, against the amount taken from the complainant for the sale c onsideration for the flat along with additional charges at the presc the prescribed rate as per the Act, 2016. ll.

Direct the respondent to issue fresh offer of possession of flat completed in all respect as agreed in BBA. lll.

Direct the respondent to pay cost ofthe legal proceedings.

19.

On the date of hearing, the authority explained to the respondent/ promoter aboLlt 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.

D.

Reply by the respondent 'l'he respondent has contested the complaint on the following grounds.

20.

That the respondent has already received occupation certificate qua the unit/tower in question and possession of the allotted unit has already been offered trr the complainant.

21.

That respondent completed the construction within agreed time frame and applied for occupation certificate.

The occupation certificate was received by the respondent and offered possession and demanded amount as per agreed terms and conditions.

During the phases when construction Complaint No.

5622 of2022 & other Page 10 of 26 ffi HARERA *&,eunuerw work was going on, the respondent faced several difficulties yet complctcd the same within the time schedule.

Now when the construction is complete and occupation certificate has been received, the complainant has no right seek delayed possession charges as there is no delay in completion of construction on part of respondent.

22.

That the license for the said pro.iect was granted by the concerncd 23. authority on 14-08-2074 and the building plans for the said project wcrc sanctioned on 26.03.2015.

The environmental clearance for the said proiect had been granted by the concerned authoriLy on 15.03.2 016.

That the said project is being developed under the affordable housing policy, 2013. ln terms of that policy, the project was required to bc completed within a period of 4 years.

This period was to commence front the date of sanction of building plans or grant of et. ant of et.lvironment clearancc, whichever is later and was to remain subject to force majcure circumstances.

That the prescribed period of 4 years is subject to force nrajeuru circumstances.

There were a number of court orders, notifications and other circumstances completely beyond the reasonable control of the respondent which directly impeded the ability and even its intention to continue with the development and construction work of the said proicct.

25.

That on account oF various notifications and judicial orders, the development and construction work of the said project was impeded, stopped and delayed.

The total number of days dr"rring which despitc ol' being absolute willingness on the part of respondent, it could not raisc construction is for 141 days.

Thus, that period should be added to thc Complaint No.

5622 of 2022 & other 24.

Page 7l of 26 complaint No.

5622 of 2022 & other 26.

27. & HARERA #- eunuennvr period of 4 years to calculate the due date of completion of project and offer of possession of the allotted unit.

That account of corona virus pandemic, the authority granted additional time of six months for completion of project in year 2 0 20 and additional 3 months in year 2021 from 01-04-2021to 30-06-2021.

Even the Town and Country Planning Department, Haryana extended the period of 6 months from 01.03.2020 to 30.09.2020 and further of 2 months from 07.04.2021 lo 37.05.2027 and imposed moratorium for the period qua all the real estate projects for all purpose and intents as stipulated in those notifications and the present project is squarely covered under said notifications and is entitled for benefit provided in said notifications. 'l'hat on 13th of March 2020 the respondent applied for obtaining an occupancy certificate for the said project from Town & Country planning Haryana. g Haryana.

That as is the norms and rules of Town & Country planning Department, Haryana, an endorsement/receipt was given by the aforementioned department regarding the application which had been moved by the respondents for obtaining the occupancy certificate.

2U. ]'hat it remains an unfortunate but undeniable fact that merely 7 - 8 days after the applying for occupancy certificate the entire country was in the grip of coronavirus pandemic.

The pandemic escalated to such a Ievel that the central government was constrained to issue orders of national lockdown from 2sth of March 2020.

Even though the orders for national lockdown came to be effective from 25th of March 2020 however the effects of pandemic had become apparent well before that.

No citizen including the employees and officers ofTown & Country planning Haryana remained unaffected from the pandemic.

That despite ofthe completion of Page 12 of 26 ffi HARERA #,eunuennlrr the project and an application being moved in this regard for obtaining thc occupancy certificate, considerable procedural delays occurred on tlrc part of Town & Country planning Haryana.

It is submitted that even though the aforementioned department is already struggling with department delays on various accounts but regarding the application for which had been moved by the respondent, the prevailing pandemic was perhaps the major reason for the delay which occurred at the part of Town & Country planning Haryana in granting the occupancy certificate. l'hat lor all legal purposes the project was complete and therefore any allegation on the part of the allottees regarding there being any delay in thc completion of project is misconceived.

It is submitted that thc process has been set for grant and issuance of occupancy certificate by the Town & Country planning Haryana.

The only role in this entire process which lics on the part of the developer in this case the respondent is movrng an application for grant of occupancy certificate. rtificate.

The respondent complicd with its part by not only completing the projecr but applying for thc occupancy certificate now ifthere occurs any delay on the part of thc'l own & Country planning Haryana in granting or issuing the occupancv certificate then the time period exhausted betlveen the date of appljcatio n for grant of occupancy certificate and the date of issuance of occupancy certificate cannotbe considered a'delay'in completion ofthe project. fhus absolutely no claim of the allottees is made out regarding payment ol' delayed possession charges.

That even otherwise the occupancy certificate was deemed to be granted under the provisions of clausc number 4.10(5) of Haryana building code, 2017.

Thus in rhcsc circumstances there is no delay at all delivery of the project.

That on I 5- Complaint No.

5622 oi 2022 & other PaEe 13 ol26 "&HARERA #" eunu Complaint No.

5622 of 2022 & other GRAIU 10-2020 Haryana government vide its extraordinary gazette notification amended THE HARYANA LIFTS AND ESCALATORS ACT and make it mandatory to install "Emergency Rescue devices [ERD]" for lift in high rise building.

It is submitted that installing of Emergency rescue device in already installed lift is a time and money consuming work.

That above stated notification qua ERD also proved to be a great hurdle in getting occupation certificate.

It is submitted that soon after first moratorium pcriod was over and above stated notification came in force and it became mandatory to install ERD systems in Lifts and to obtain Lift N0C after installing ERD systems.

That said notification proves to be an injunction like situation, Since at the time said notification came in -force no company/vendor in northern India had the experience or capability of installation of ERD system.

That installation of ERD system is a complex process and involves specialized hardware and specially customized software to run the ERD system.

RD system.

That Since it became mandatory to install ERD systems, respondent started looking for any vendor/company who has experience and capability of installation of ERD systems.

However even after extensive search respondent was not able to find out any such vendor or company in NCR or neighboring states, rather such systems were not available in whole of the northern , eastern and western India at that point of time.

That ultimately respondent able to find a company namely Renutron Power solutions Pvt.

Ltd, and after contacting with said company they introduced the respondent about their Dealer in Gurgaon namely Modern business solutions in lan 2021 who apprised that a Bangalore based company has experience in ERD systems.

That though the vendor namely Modern business solutions was Gurgaon based but all the PaCe 74 of 26 I.IARERA ffi- GURUGRAN/ necessary equipments were arranged by it through saidkohlapur based company namely Renutron Power solutions pVT, Ltd.

That after acquiring knowledge of the fact that ERD system can be installed now, thc respondent immediately asked the said vendor to send the quotations and after receiving quotation respondent immediately started working on thc same.

That quotation ofsaid vendor is Annexure R5.

That after completion ofwork the LIFT NOC was granted to respondent on 06-04-2021, howcvcr- due to outbreak of second wave of COVID 19, DTp again imposcd moratorium period for 01,-04-2021 till 31.05.2021 and even RERA also vide its notification dated 02-08-2027 grant extension of 3 months frollr 01-04-2021t:-ll30-06-2021,.

Thatsoon after said time period was over rhc DTP granted respondent occupation certificate and immediately thc possession was offered to concerned allottees.

Thus from these facts it is clear that there is not delay in offering of possession.

29. ssion.

29.

That after applying for the occupancy certificate and in fact during thc subsistence of zero period, certain notifications and policies were jssLrcd by the state government whereby changes were made in the manner in which the lifts installed in the project were to work.

On account of this policy certain work was again undertaken by the respondent however tlrc same was restricted only to implementation ofthe aforementioned policy relating to installation of ERD in lifts.

That policy qua ERD was issucd without prior intimation and thus despite of policy vendors who ntay provide ERD device were not available.

Thus this fact will also havc to bc considered while assessing the project.

30.

Thus keeping in view of above stated facts and circumstances it is clcarlv established that there is no delay on the part of Respondent and tltc Complaint No.

5622 of 2022 & other Page 75 of 26 '& HARERA -dd,* eunuennHl Complaint No.

5622 of 2022 & other 32.

33. possession as been offered by the respondent completely within the agreed time frame.

3 1 .

That th e allottees like present one without knowing actual state of affairs and without getting acquaintance with the problem faced by respondent filed the false and frivolous complaints.

That there are several other orders and notifications which caused delay in the construction of project and were beyond the control of developer and the same are as follows: That the additional charges levied by the respondent are as follow: .

Additional .Area: That the authority itself vide its notification dated 07 0 5-2021 extended the area to be included in carpet area and due to said notification, the area of unit in question stood extended. .

Administrative Charges: Fixed @ Rs.

15,000 by district town planner vide order dated 02-04-2018.

Even as per clause 4.1 to 4.9 of the agreement, the allottee agreed to pay all kind of taxes, charges, levies, cess, assessment. .

Labour Cess: Calculated on pro-rata basis. ata basis.

Total labour cess paid by respondenl. are Rs.72,63,988 /- and total area of proiect as far as type 1 & type 2 units comes to 451,853.58 sq. ft.

Thus, the pro-rata cess per sq. ft. comes to Rs.

16.08 per sq. ft. .

Meter connection charges: The total cost of installing electricity meters was 672,954 + 79,29,954 =a6,02,908/- and the total number of units in laxmi apartment is 804, Thus, the pro-rata cost of each unit comes to Rs.

10,700/.

The meter installed in each unit are prepaid meters. o EEC Iexternal electrification charges & emergency rescue device charges]:The total cost of electrification was Rs.2,93,36,329/- and total PaBe 16 of26 8 HARER/, #- anuennlrr 34.

E.

35.

The plea of the respondent regarding reiection of complaint on ground ol' jurisdiction stands rejected.

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 Territorialiurisdiction arears 4,81,269.21 sq. ft.

Thus, on pro-rata basis, the per unit cost comcs @ 60.96 per sq ft.

IFSD (interest free security deposit] & maintenance charge: As pcr clause 10 of the agreement, maintenance work and services in rclation to the common area and facilities are be provided by the company for S years.

However, the same are not free in any manner at all.'l'hc promoter was only under its liability to provide services and cost of services is the duty ofallottees only, Moreover the authority recently in its oreder in EMMAR cases clarified that the promoter is entitled to charge IFSD.

Advance electricity consumption deposit: The meters installed in cach unit are prepaid meters and in prepaid meter, a person has to p,ry rn advance charges and same are deducted as per usage.

Thus, the amount which was demanded is to be deposited in advance against consumption and same would be utilized by allottee himsell as per his usage aftcr taking over of possession of the unit, Copies of all the relevant documents have bee s have been filed and placed on thc record.

Their authenticity is not in dispute.

Hence, the complaint can bc decided on the basis ofthese undisputed documents and submission nradc by the parties. f urisdiction of the authority Complaint No.

5622 o12022 & other Page 77 of 26 "& I1ARERI #. eunuennv Complaint No.

5622 of 2022 & other 36.

As per notification no.

1/92/2077-7TCP dated 74.12.2077 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 District. 'l herefore, this authority has complete territorialjurisdiction to deal with the present complaint.

E.ll Subiect matter iurisdiction 37.

Section 11(al(a) of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11[a](al is reproduced as hereunder: Section 77 [4) The promoter shall- [o) be rcsponsible for all obligotions, responsibilities anc] functions under the provisions of this Act or the rules and regulations mqde thereuncler or to the allottees os per the agreement for sale, or to the ossociotion ofollottees, as the case moy be, till the conveyance of all the aportments, plots or buildings, os the case may be,to the ollottees, or the common oreqs to the qssociation of qllottees or the competent authority, as the case mqy be; Section 34- Functions of the Authority: 344 of the Act provides to ensure compliance of the obligations cqst upon the promoters, the allottees and the real estate agents under this Act ond tke rules and regulations mode thereunder.

So, in view of the provisions of the Act quoted above, the authority has complete iurisdiction 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 com by the complainant at a later stage.

Findings on the relief sought by the complainant 38.

F.

Page 18 of 26 Complaint No.5622 of2022 & other 39.

HARERA *-ry- GURUGI?AI\,,1 l.

Direct the respondent to pay interest for el,ery month of delay in offering the possession of the flat since 01,04.2020 up to thc datc when the company offers the completed flat ready for living in front of this authority, against the amount taken from the complainant for the sale consideration for the flat along with additional charges at thc prescribed rate as per the Act, 2016.

II.

Direct the respondent to issue fresh offer of possession of flat completed in all respect as agreed in BBA.

In all the complaints, the complainant intend to continue with the projcct and is seeking delay possession charges as provided under the proviso to section 18(1) oftheAct.

Sec.

18[1J proviso reads as under: - "Section 1B: - Return of amount qnd compensatiott 1B(1). lf the promoter foils to complete or is unoble to gtve possession ofan apartment, plot, or building, * Provided that where an ollottee does not intend to withdrow from the project, he shall be poid, by the promoter, interest for every month ofdeloy, till the handing over ofthe possession, at such rate os may be prescribed." 40.

Clause 8 of the apartment buyer's agreement provides the time period of handing over possession and the same is reproduced below: "Clouse 8- 8.1 Except where ony deloy is coused on occount of reosons exptessly provided Jor under this ogreeaent ond other situations beyond the reosonoble controlofthe Compony ond subject to the Compony hovinE obtoined the occupation/ completion cettificote t'rom the competent outhorities, the compony sholl endeovour to complete the aonsttucton ond hondover the possession of the soid aportment within a period of 4 yeors from the dote ol gront ol environmentol cleoronce or within 4 yeors lrom the dote of gront of sonction oJ building plons far the project, whichever is lotet, subject to timely po timely poyment by the ollotte.e of oll the omounts poyoble under this ogreement ond petfotmonce by the ollottee ol oll other obligotions hereunder.

Pagc 19 ol26 * HARERA #.eunuennt't 41.

The authority has gone through the possession clause ofthe agreement.

At the outset, it is relevant to comment on the pre-set possession clause of the agreement wherein the possession has been sublected to all kinds of terms and conditions of this agreement and the complainant not being in default under any provision of this agreement and in compliance with all provisions, formalities and documentation as prescribed by the promoter. 'I'he drafting of this clause and incorporation ofsuch conditions is not only vague and uncertain but so heavily loaded in favour of the promoter and against the 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.

42.

The buyer's agreement is a pivotal legal document which should ensure that the rights and liabilities ofboth builder/promoter and buyer/allottee are protected candidly.

The apartment buyer's agreement lays down the terms thatgovern the sale ofdifferent kinds ofproperties like residentials, commercials etc, between the buyer and builder.

It is in the interest ofboth the parties to have a well-drafted apartment buyer's agreement which would therebl, protect the rights of both the builders and buyers in the unfortunate event of a dispute that may arise.

It should be drafted in thc simple and unambiguous Ianguage 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 rights of the complaint No. plaint No.

5622 of 2022 & other buyer/allottees in case of delay in possession of the unit.

Page 20 of 26 ffi HARERA ffi eunuennl,r Admissibility of grace period: The apartment buyer agreement was executed between the parties on 31.03.2016 and the environment clearance for the project was received by the builder on 15.03.2016.

So as per clause 8.1 ofthe agreement, the due date ofhand ing over ofpossessrorr is to be counted 4 years from the date of sanction of building plans or environment clearance whichever is later.

As the environment clearancc was received by the promoter on 15.03.201,6, so, the due date for handing over the possession as per clause 8.1 of the agreement comes to 15.03.2020.

There was a pandemic in March 202A and all the activities including construction works were closed.

So, the authority in pursuancc to notification dated 26.05.2020 issued by the State of Haryana allowcd it grace period of 6 months.

Thus, in this way, the due date of handing over possession of the allotted unit in the above-mentioned proiects comcs to L5.09.2020.

44.

Admissibility of delay possession charges at prescribed rate of interest: The complainant(s) are seeking delay possession chargcs.

However, proviso to section 18 provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promorer, interest for every month of detay, till the handing over of posscssiolr, .rL such rate as may be prescribed and it has been prescribed under rule l5 ofthe rules.

Rule 15 has been reproduced as under: Rule 15, Prescribed rate of interest- [Proviso to section 12, section 7B and sub-section (4) and subsection (7) oI section 191 (1) For the purpose of proviso to section 12; sectiotl 1B; ond sub sections (4) ond (7) ofsection 19, the "interestatthe rate prescribed" sholl be the Stote Bonk of Indio highest morginol cost of lending rdte +2 o/0. te +2 o/0.: Providecl that in cose the Stote Bank of lndiq morginal cost of lendtng rate (MCLR) is not in use, it sholl be reploced by such benchmork Complaint No.

5622 of 2022 & other Page 2l of 26 Complaint No.

5622 of 2022 & other 45.

46.

47. .SHARERA S. eunuennur lending rotes which the Stqte Bank of lndio moy lix from time to time Jor lending to the genProl public. 'l'he 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.

Consequently, as per website of the State Bank of India i.e., hllps://sbi.co.in, the marginal cost of lending rate (in short, MCLR) as on date i.e., 15.12.2 023 is 8.75o/o.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2o/o i.e.,10.75o/0. l'he definition of term 'interest' as defined under section Z(za) of the Act provides that the rate of interest chargeable from the allottee by the promoter, in case of delault, 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 promotet or the allottee, os the case may be.

Lxplonotion- -For the purpose ofthis clouse- the rate of interest chargeoble from the allottee by the promotet, in case ofdefault, shall be equol to the rote ofinterest which the promoter shall be liable to pqy the allottee, in case of default; the interest payoble by the promoter to the allottee shall be from the dote the promoter received the omount or any port thereof till the date the omount or port thereof and interest thereon is refunded, and the interest poyable by the allottee to the promoter shall be from the dqte the allottee defaults in pqyment to the promoter promoter till the date it is pqid;" 48.

On consideration of the documents available on record and submissions made regarding contravention of provisions of the Act, the authority is PaEc 22 of 26 tr IAREBA ffieunuenRtrl satisfied that the respondent is in contravention of the section 1 1(4) (a) o f the Act by not handing over possession by the due date as per the agreement.

By virtue of clause 8.1 of the buyer's agreement executed between the parties, the possession of the subject apartment was to be delivered within a period of four years from the date of approval of building plan or from the date of grant of environment clearancc, whichever is later with a grace period of 6 months (COVID-191.

As such the due date of handing over oflosgession comes out to be 15.09.2020.

However, no interest shall be charged from the complainant in case of delayed payment during this 6 months COVID period from 01.03.2020 ro 01.09.2020.

49.

Section 19(10) of the Act obligates the allottee to take possession of thc subject unit within 2 months from the date of receipt of occupariolt certificate.

In the present complaint, the occupation certificate was granted by the competent authority on 09.07.2021.

The respondent has offered the possession ofthe sub.iect unit[s) to the respective complainant after obtaining occupation certificate from :ompetent authority.

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 tl.tar even after intimation of possession practically he has to arrange a lot of logistics and requisite documents including but not limited to inspcction of the completely finished unit but this is subject to that the unit bein!l handed over at the time oftaking possession is in habitable condition. tt is further clarified that the delay possession charges shall be payable fronr the due date of possession i.e., 15. i.e., 15.09.2020 till the expiry of 2 month s fro nr Complaint No.

5622 of 2022 & other PaEe 23 ol26 ffiHARERA -@"euRuennt',t complaint No.

5622 of 2022 & other the date of offer of possession (1,6.07.2021) plus two months (i.e,, 16.09.2021).

50.

Accordingly, it is the failure of the promoter to fulfil its obligations and rcs po nsibilities as per the apartment buyer's agreement to hand over the possession within the stipulated period.

Accordingly, the non-compliance of the mandate contained in section 11(4J (a) read with proviso to section 18(1) of the Act on the part of the respondent is established.

As such, the allottees shall be paid, by the promoter, interest for every month of dclay from clue date of possession i.e., 15.09.2020 till offer of possession plus rwo months (i.e., 1.6.09.2021), at the prescribed rate i.e., 10.75 %o p.a. as pcr proviso to section 18(1) of the Act read with rule 15 of the rules.

51.

Further the complainant duringthe proceedings has raised various issues such as labour cess and others.

Such issues were not pressed in the relief sought by the complainant in his complaint.

For redressal of such issues the authority has passed detailed order in CR/4068/2022 titled as Pradeep Kumar Vs.

Pareena Infrastructure Pvt.

Ltd.

IIL Direct the respondent to pay cost of the legal proceedings.

52.

1he complainant in the aforesaid relief is seeking relief w.r.t compensation.

Hon'ble Supreme Court of lndia in civil appeal nos.

6745- 67 49 of 2027 titled as M/s Newtech Promoters and Developers Pvt.

V/s State of UP & Ors. (Decided on 1L.1.1.202l), has held that an allottee is entitled to claim compensation under sections 12, 14, 18 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.'l'he adjudicating officer has exclusive jurisdiction to deal with the Page 24 of26 MHAREB.

26 MHAREB. #-eunuenRtrr complaints in respect of compensation.

Therefore, the complainant advised to approach the adiudicating officer for seeking the relief compensation.

G.

Directions of the authority 53.

Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligatio ns cast upon the promoter as per the function entrusted to the authorjtv under section 34[!: i.

The respondent is directed to handover physical possession of thc subject unit within 60 days from the date of this order as occupation certificate of the project has already been obtained by it from the competent authority. ii.

The respondent is directed to pay delayed possession charges at thc prescribed rate of interest i.e., 10.75o/o p.a. for every month of delay on the amount paid by the complalnant to the respondent from the duc date of possession 15.09.2020 till offer of poss€:ssion i.e., 16.07.2021 plus two months i.e., upto 16.09.2021 as per proviso to section 1B[t J of the Act read with rule 15 of the rules. iii.

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

The rate of interest chargeable from the allottees by the promorcr, rn case of default shall be charged at the prescribed rate i.e., I 0.75% by th c respondent/promoter which is the same rate of interest which thc promoter shall be liable to pay the allottees, in case of default i.e., thc delayed possession charges as per section 2(zaJ ofthe Act.

Complaint No.5622 ot 2022 & other is of iv. ?a9e ZS ol26 & HARERA .,-a-eunuennnt Complaint No.

5622 of 2022 & other v. 'Ihe complainant is directed to pay outstanding dues, if any, after adjustment ofinterest for the delayed period. vi. 'l-he respondent is directed to pay arrears of interest accrued within 90 days from the date of order of this order as per rule 16[2] of the rules.

54. rules.

54.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order.

The complaints stand disposed o Files be consigned to registry.

Arora) Haryana Real Estate Member Gurugranr 55.

56.

E',&RHR& GRA PaEe 26 of 26