SHEETAL DAWER AND MRS NEEKITA DAWER vs REAL TOWN PROPERTIES PVT LTD

*HARERA dD- cLrnuemtil Complarot no.2357 of 2022 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complalnants 14/s Venctian LDI Prolects LLP R;pd. office.

20s, 2'c l'Loor' Time C'nire, Coli Co;rse Rodd, SeLtor - 54 Curu8ram H'rvand - r 22002 also at SCO - 320,2'd Floor, Near HDFC Bank, Sector - 29, Gurugram Haryana _ 122001 CORAMI shri.

San APPEARANCEi Mr. gatrut strarma ProxY counsel ORDER The present complaint dated 1g'os20zL has been filed bv the compla,nant/allottee in Form CRA under sectio' 31 oi the Real Estate (Regulation and Development) Act, 2016 (in short' the Actl read with rule 28 of the Harvana Real Estate (Regulation and Development) Rules, 2017 (in short, the Rulesl for violation of 2357 ol2o22 1.

SheetalDawer 2.

Neetika Dawer Both RR/o: - A 28, New Friends Colonv, New Delhi-110065 Ms.

Shrkha ProxY counsel I _-'-T- 1. {THARERA S-clnLrcnll,r C.m.la,ntnn 2:57of 2022 2. section 11[4][a] ol the Act wherein it h inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions to the allottee as per the agreement for sale executed intersc them.

Proiect and unit related details The particulars ofthe project, the details ofsale consideration, the amount paid by the complainant, date of proposed handing gver the possession, delay period, if an, have been detailed in the fol owrng tabulrr form: SN, Details 1. "83 Avenue" Secto.

U3, Gurugram Nature oithe project 3 12 of2013 dated 13.03.2013 valid up to 12.03.2019 Explred RERA Registered/ not Registered 3t0 I 42 /2019 Dared 16.01.2019 ri1130.09.2020 Expir€d 14.08.2014 [Page s3 ofthe complaint) G-52 fPage 59 oithe asreernent] L Unit area admeasuring 296 sq. ft. [super area] & HARERA GURUGRA[/ Compla'nino.

23s7 of 2021 (Page s9 ofthe asreement) 8.

MOU 13.08.2014 (Page 22 ofthe complaintl 9.

Assured retDr..lause 3.1 'ritt the noti.e lor oller ol possesslon k /lstecl, the developer shall pay to the allottee on ossured retum at the rote ol Bs.

140. l Bs.

140.78/- per sq. ft ol super ofea of premises per month.

10.

14 08.2014 lPage 53 or thc compla'n0 ll Space Buyer's 25.08.2014 IPase s6 oithe complaint) 12 34.

The developer contemplates to ofrer possession ol said unit to allo,tees within 36 months oJ stgnlng oI this agreement ot within 35 months lrom the date ol sturt oJ construction ol the said building whichever is later with the grace period ol 3 months subject to Iorce maleure events t3 Date of start of 14.

Due Date ofpossession 25.71.2017 (36 months from the date of agre€ment as date ofstartof construction is not available +3 monthsofgrace per,od) *HARERA S- eunueqnu Complarnr no.

2357 of 2022 15.

B. [acts ofthe com k.

47 ,7 +,150 / - (Page 58 of the complaint) 3.

The market,ng pricelist and all dent allured with the proposed specifi wiu be handed over wi with a grace period ( from the date oiagreement, was fu.ther apprised and assured to them that if th€y pay around 80 9ool0 payment rn a consolidated manner, they would also get rhe assured return irom 4.

That, believing on represenration and assurance ot respondent, they Mr.

Sheetal Dawer and Mrs.

Neerika Dawer, putting their hard earned money, booked one shop bearing Un,t No.

G- S2 on g.ound floor, admeasur,ng 296.56 sq. ft. and paid Rs.

10,00,000/- rhe Rs.37,01,832l- (As per page 63 ofconplaint) Amount oa assured return pa,d Rs.71,53,226/- (PaEe 22 of rcply) (From 13.08.2014 to 07.12.20151 16. t7.

18.

19. ir", "rt"*rt HARERA GURUGRA[/ as booking amount.

The Shop was purchased under the consolidated scheme and within a span of two rnonths, the complainants paid almost Rs.

37,01,832l- by 9.8.2014 itseli out ol the total Sale Consideration price of Rs.

40,99,248 / exclusive That, accordingly, a MOU dated 13.8.2014 has been executed between the parties.

By that time, they have paid almost Rs.

37,01,832l- in a consolidated manner to the respondents and as agreed under the execulion of MoU, the Respondent is liable and undertaken to pay Rs.

140. y Rs.

140.78 per sqrft. assured return on area of 296.66 sq- ft. as per Article 3 Clause 3.1 of the MOU.

That, the payments made by the complainants, as stated above were admittedly admitted by the respondent under t{ou ior the said That on 14.8.2014, the respondent issued allotment letter lor the said shop in question on 14.8.2014, allottlngthe commercial.

That on 25.8.2014 a pre-printed, unilateral, arbitrary shop buyer agreement / buyer's agreement was executed inter - se the pades.

Accordins to C)ause 38 of the Space Buyer Agreement, ihe respondent has to give possession of the said Shop within 36 Months lrom the date ofsigning BA or within 36 months lrom the date ofstart oaconstruction ofthe said Building which is later with a grace period of 3 months.

Hence, the possession has to be given Complcrntro 2357 ot2022 THARERA S-cLrnrrc+llr Complcjnt no 2357 oI2022 by the Respondenton or beiore 25.11.2017 and hence, the due date of possession was 25.11.2017.

That as per the terms ol MOU, the Respondent was obliged to pay the assured return ro the Complainants @ Rs.

140.78l per sq. ft. on booked area of 296 sq. ft., rrom the date ofexecution oflUoU tillthe offer ol possessio n as per Clause 3.3 of, the MOU.

The assured return comes out ro Rs.

41,440/- per month, which after necessary deduction, an amount I of Rs.

37,588/- was started paying by the respondenr since September,2014 tothe Complainants through two cheques i. both Compla,nants name, by way ofRs.18,794l in each Complainanrs It is pertinent to mention here that the said assured return was paid till lanuary 2017 by the respondent aod, thereafter, without disclos,ng any reason and wlth the malafide intention, the respond€nt has stopped making such assured return payment to rhem.

Further, the respondent stoppedmakirg the assured return since February 2017 without any valid reasons and p.ior intimation of it. ion of it. lt is pe(inent to mention here that the physical possession of the said commerci:l unit has not been offered to them by the respondent.

Allqueries relating to status ofthe construction orthe said pro)ect includingthe shop in question, weregone unheeded w,th no reply at all by the respondent.

All the grievances have not been sorted u HARERA GURUGRA[/ Comp cint no 2357 of2022 10 11.

1? out by respondent hll date including delivery ofpossession ofsaid unit/shop in complete respect as per buyer's agre€ment.

That, since 2017, they have been regularly contacting the office bearers of the respondent party and making efiorts to get possession ofthe allotted shop inquestionwith allconformity, but all in vain.

Despite several visits and requests by them, the respondent did not give possession of the said shop in all conformity/ terms of MoU /Space EuyerAgreement.

Even the construction ofthe said project is not completed despite laps,ng of eight [8] years when they were made the payment.

Ivloreover, as per SBA also, the respondent was to give the possession on or after 25.11.2017, however they have delayed the construction and when they during last week personally went to the site in question, theyfou.d lhat the constructio n olthe proiect is not complete and var,ous amenities were not fulfi1led, .or the respondent has till dateapplied foroccupation certificatewith the concerned authorities.

That they are also liable to get the comm,tted assured return amount of Rs.

37.588/- (every month lrom February 2017 till the date oi oller ol possession from the respondent and thus requesting ior necessary direction from this Hon ble Authority, being based on terms of lvlou, whereby the Respond€nt have undertaken to pay the committed liability and in lieu thereof, I}HARERA ($-euntnmlr. complaintno.

2357 of 2022 almost maximum amount has already been paid by rhem except 5ol0, which is liable ro be paid at rhe ttme ofoffe. of possession as per terms and conditions ofMoU. ons ofMoU.

Reliefsought by the complainanrsl 13.

The compldinants have sought iollowing retief(sl: c.

Directthe respondent to execure and register sale deed ofthe said commerclal unit in favour ofthem.

Direct the respondentto complete the construction and give the physical possession ofthe said commercialunit Direct the respondent to give the complete amount of a*ured rerurn rermeo as commirteo ldbrlrty srnce February 2017 t,ll the offer of possess ion is given by rhe Direct the respondent ro give delayed possession charges to them as per terms and conditionsoiMoU and SBA; D,recttherespondentto givelitigationchargesj 14.

On the date of hearing, the Authorty explained to the respoDdent/promoter about the contraventions as alleged to have been committed in relarion to secrion 11[4](a) of the Act to plead gu,lty or not to plead gujlry. ru HARERA GURUGRAIV I), Reply by the respondentl The respondenr has filed rhe reply on the basis or the foltowing 15.

That atthe very outset, it is submitred that the instant comptaint is untenable both in facts and in taw and is Uabte to be dismissed on this ground alone.

That the complainants are estopped by their own acts, conduc! acquiescence, laches, omissions, erc. tiom fiting the present complaint.

That even otherwise, they have no locus standior cause oladion ro file rhe present compla inr.

The present complaint is based on an erroneous tnterprerarion of the provisions ofthe Act as well as an incorrect understanding of the terms and conditions olthe memorandum ofunderstanding dared 13.08.2014 and the space buyer's aAreement dated 2S.08.2014, as shall be evident from the submissions made in the iollowing paragraphs oithe present rep1y.

16.

That the parties had categorically agreed to novarion of the contract as per section 62 ofthe Indian ContractAcr, 1872 which is reiterated hereunder: 62.

ElIect ol novationr rescisstoL and contra. nd contra.L-q the parties to o controct agree ew contract Ior it" or to rescind or alter contruct, need not be perJormed.

Compldrntno.

2357 of 2022 17.

That the parties had the intention ofestablishing their rights and obligations as per the new contract- the agreement- which deals trEAREA gP- GTRUGRAI/ Complainr no.

2357 of ?0zz with allthe aspects of contractual relatio nsh ip berlveen the parties jn toto. lt categorically superseded the MOU.ltisa settled principle ol law that upon novation involving the substitution of an old contract with a new contract, the obligations ol the old contract stands dissolved and are completely dealt with by the oew 18.

That it is to be noted that as per clause 38 ofthe SB.d the proposed due date of offer of possession was 36 months of signing of the agreement [25.08.2014) orwithin 36 months from the date ofstart ol construction of the proiect. lt is comprehensively established that a period of 377 days was consumed on account of ' circumstances b€yond the power and control of the respondent, owing to the passingoforders otvarious statutory authorities and the Covid-19 Pandemic, as noted above.

It is well recognized that one day of hindrance in the construction industry leads to a gigantic delay and has a cascading effect on the overall construction process ofa real estate proiect.

Allthe circumstances stated hereinabove come within the meaning oliorce majeure, as stated abov€.

How€ver, despite allodds, the respondent was able to carry out construction/development at the proiect site and obtain the necessary approvals and sanctions and has ensured compliance u nder the agreement,laws, and, rules and regulations' 19.

That the respordent, despite such delay, earnestly tulnlled its obligation under the Euyer's Agreement and the construction of the Project is going on as exp€ditiouslyas possibl€ in the tacrs and circumstances of the case. the case.

The default committed by them and various factors beyond the control oi the respondenr are the factors responsible for delayed development oi the project.

The respondent cannot be penalized and held responsible for the default of its customers or due to force majeure circumstances.

Thus, it is most respectfully {}HARERA $-GuRuGRAM CumpLd nt no 1157o12022 d.scrves to be dismissed at the verv rhreshold That they have prayed fo r the reliel of "Assured Return s , inter a lia, on the basis ofa Memorandum of Understanding, which is beyond the ju.isdiction that the Ld.

Authority has been dressed with.l hat it is relevant to mention h€re that nowhere in the said provision the Ld.

Authoriq, has been dressed with jurisdiction to grant 'Assured Returns".

It is addjtionauy pertinent to note that the RERA Act also does not define a'Memorandum oi U nde.standing' on the basis of the which, relief has been sought by the That itis germane to note that the non-payment ofassured return, as alleged by the them in their complaint is bad in law.

It is pertinent to mention herein that the payment ofassured return js not maintainable beiore the Ld.

Authority upon enactment of the 2A ?1 ffHARERA 9!- cLrnLrennu Complaintno.

2357 of 2022 22.

23.

Banning of Unregulated Deposits Schemes Act, 2019 [BUDS Actl wherein, under section 7 thereol the Legislature, in its utmost wisdom, has noted that the 'competent authority' shall have the jurisdiction to deal with cases pertaining to the Act.

That any direction for payment of assured return shall b. tantamount to violation ol the provisions of the BUDS Act.

It is stated that the assured returns or assured rentals under the said Agreement, clearly attracts the definition of"deposit" and faUs under the ambit ol'Unregulated Deposit Scheme".

Thus, the Respondent was barred under Section 3 of BUDS Acr from making any payment towards assured return in pursuance to an "Unregulated Deposit Scheme'and the competent authority to adjudicate such iss e such issue has to be notified under section 7 ofthe BUDS Act.In this regard, it is most humbly submilted as under: That the Respondent cannot pay'Assured Returns" to them by any stretch of imagination in the view ofthe prevailing legal position.

That on 21.02.2019, the Central Covernment passed an ordinance ''Bann,ng of unregulated Deposits, 2019", to stop the menace ot unregulated deposits and payment of.eturns on such unregulated Thereafter, an act t,tled as "The Banning olUnregulated Deposits Schemes Act,2019" (hereinafter referred to as "the BUDSAct"lwas notified on 31.07-2019 and came into force.

That under the said *HARERA S-eunLnqltr Comparntno 2357 of2022 24 Act, all the unregulated deposit schemes have been banned and made punishable with strict pen31 provisions.

That being a law abiding company, by no stretch of imagination, the Respondent cannot continue to make the payments ofthe said Assured Returns in violation ofthe BUDS Act.

Further, it pertineDtto mention herein that the EllDS Act provides tlvo fo.ms oldeposit schemes, namely Regulated Deposit Schemes and Unregulated Deposit Schemes.

Thus, for any deposit scheme, lor not to fall foul of the provisions ofthe BUDS Act, must satisfy the requirement ofbeing a'Regulated Deposit Scheme'as opposed to Unregulated Deposft Scheme.

Hence, tbe main object of the BUDS Act is to provide for a comprehensive mechanism to ban Unregulated Deposit Scheme.

The lollowing may be relerred: That in addition to the above, it is emphatically submitted that jurisdiction is a legislative function and at this instance, is dealt with by the BUDS Actand the RERA Act and has to be exercised as allowed within the fou. walls oatbe respective legislations.

That it is a matter of fact that the obliSations of pavment of the Assured Returns as pc. the M0U have been righdullv completed.

That the I\4OU was replaced by the SBA on 25.08.2014 and thus all therights and obligations under the M0U stands discharged.

25.

26 27.

That thereafter, as a bonafide gesture, the respondentcontinuedto make the payments of assured returns for some time.

That the ffHARERA 4!- cLrnucnnu complaroino 235, of 2022 28. same was paid till lanuary 2016.

That the total amount olassured return paid is Rs.

11,53,226.

The assured return sheet is annexed The Complainants have failed in noting that the AgreemeDt (SBAI having been novated has superseded the MOU, as is also evident from Clause 83 oithe SBA.

In any circumstance, whatsoever, the Act does not speak of recognition olmultiple aS.eements for sale In the presence oithe entire agreemeot clause 83 ofthe SBA, the MOIJ can, under no circumstance beconsidered.

That the parties have, novated the SBA over the Molj to establish their rights aDd obligations in toto through the SBA.

That the section 62 of the lndian Contract Act, 1872 is squarely applicable in the present insta.ce.

That it ls a settled principle of law that the parties to an original contract can, by mutual agreement, enter rnto a new contract insubstiturion oftheold one leadingto novation of thecontract.

It is categoricalto note that the rights and obligations ofthe Parties are completely discerned from the SBA, which replaced the I'4OU.

That the intention oithe Parties is entirely clear from the same _ i.e., to replace allthe previous understandings and agreements.ln light ofthe same, it is submitted that the entire agreement clause 83 needs to be given a strict interpretation.

31. ffHARERA gP- GURUGRAI/ Complaint no.2l5? of 2022 32.

That it is categorically and vehemently submitted that the Act is silent on provisions with respect to novation and superseding and hence, recourse is taken to the Indian ContractAct, 1972.

33.

Copies ofallthe relevant docu ments have becn filed and placed on the record.

Their authenticiry is not in dispute.

Hehce, the complaint can be decided on the basis of these undisputed E.

Iurisdiction ofthe authority 34. hority 34.

The authority has complete territorial and subject nratter jur,sdiction to adjudicate lhe present complaint for the reasons E.I Territorialjurisdiction 3 s.

As per notification no .

7 /92 /201? -7TCP dated 14.1 2.2 017 issued by Town and Country Planning Department, Haryana, the jurisdiction ol Haryana Real Estate Regulatory Authority, Curugram shall be entire Gurugram distr,ct for allpurposes.ln the present case, the project in question is situat€d within the planning area of Curugram district.

Thereiore, this authoriry has complete territorialjurisdiction to dealwith the p resen t complaint.

E.llSubiect-matter lurlsdlction 36.

Section 1 1(41 (a) of the Act, 2 016 provides that the promot€r shall be responsible to the allottees as per agreement for sale.

Section 11(alta) is reproduced as h€reunder: Section71..,,, (4) The ptunotersholl. [a) be responsible la. all obligottans, rcspansibitittes ond fuhctiohs unde.the prorbionsafthisA.t orthe rrles ond regulotians hade thereLnder or to the ollottees as per the osreenent lar sote, ot to the osnciation olottott*t as the cose noy be, till the canvetonce ofall the opo.tnenq plats a. buildinst os the cose nay be, ta the ottatte$, or the comnon oteas to the associotloh ofatlottees or the canpetent authority, os the case noy bel Section 34-Functions ot the Authority: 34A al the Act protid.s ta ensure cohplionce al the abtigotions cast upon the prcnoters the ollattees ond the reol estote osen\ under this Act ond the tules and reg u lo tian s n o de thercunder.

37.

So, in view ofthe provisions oitheActquoted above, the authority has complete jurisdiction to decid€ the complaint regarding non_ compliance of obligations by the promoter leaving aside compensation which is to be decid€d by the adjudicating officer if pursued bythe complainants ata laterstage.

F. tindings on the telief sought by the complainants i. ainants i.

Direct the respondentto complet€ the construction and glve the physical possession of the said comm€rcial unit to them. ll, Directthe respondentto Slve the complete amount of assured return termed as committ€d llability since February 2017 till the off€r of possesslon is given by the respondent iii.

Direct the respondent to give delayed possession chatges to th€m as p€r terms and condltions ofMoU and sBA; 38.

All the above-mentioned rel,efs are taken together as being *HARERA S- crrnrcnnur Complaint.o.

2357 of 2022 39.

In the instant case, a MoU has also been erecuted between the parties on 13.08.2014 and subsequentlv, the builder-buver agreementwas executedberween theparties on 25'08 2014and as per clause 38 ol the said agreement, the possession was to be handed over within rhirty six (361 months ol the signing oi the agreement or irom the date ofstart ofconstrD'tion' The due date is calculated from.late ofsigning ofagreement as the date olstart oi construction is not available.

The said clause is reproduced ffI]ARERA S-GURUGRAI\,4 Complarntno.

2357 of 2022 34.

The derelapet contenPlates ta otet Pose$ian ol sa i d u n it ta o llotted w thin 3 6 ha nth s aJ t g I t n I al thi\ ooeenlent or within 36 danths fton the dote ot st;n at &a"rudor al de tdd butt&n! whtheve | ts la@t wth the groG pet nd al 3 nant hs subj*t ta force noieu.e evenL' 43. 'fhor th$ ogreeme .aontutet rh. entuc oore.nent between the DoiPt oh.l supebedes ott ,;. d;.u$Dnr.ot6ponden.e opphcotton ond ogre.nenr berween de patus 4 rhP nateB corered heretn wierhe. \|titteh, o.ol or inplied This og.eenenr sholl not be changed ot nodiled except bv witten Pace 17 af 24 40. 'lhe complainants through this present complaint are seeking delayed possession charges and assured retLrm as their pivotal 41. on the contrary respondent mentions clause u3 ofthe 'rgreement which categorically tnlks about novation ol contract lhc said clause is r€produced below_: *HARERA 4&, arnuennrv a.m. ennrv a.m.L3lnt no 2357 0f2022 dnendnents duly ogr.ed b! the potties. the terns ond conditions ond votious pravisions embodied in this ogreenent shall b. incorporoted in the sole deed and shott lam pot thereol 42.

The respondent contends that MOU executed between the parties stands d,scharged by g,ving the reference of above-mentioned clause of the agreement and further contends that MOU is no longer in existence and was replaced by th€ agreement which was executed on 25.08.2014.

43.

On consideration of the circumstances, the documents, submissions made by the parties, and based on the findings ofthe authority regarding existence of MOU and liability iv.r.t. assu.ed return is set aside as invoking of clause 83 ol the agreement reliDquishes the liabiliry of respondent as it clearly mentions that the same will supersede the previous discussions/correspondence This particularly means that agreement will prevail and no previous cor.espondence(i.e , Moul w,ll be in existence and secondly, resardins contravention as per provisions ofrule 28[2), the Authority is satisfied thatthe respondent is in contravention of the provisions oithe Act.

By virtue ofclause 38 oithe agreement executed between the parties on 25.08-2014, the Possession otthe subject unit was to be handed over with,n thirtv'six (361 months of the execution of agreement along with a grace period of 3 months.

The due date of possess,on comes out to be 25.11 2017' ]'he respondent failed to hand over possession of the subject unit SHABIRA gH.

GURUGRAful Complarntno 2357of 2022 by that date.

Accordingly, it is the tailure ol the respondent/promoter to iulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

The authority is of the 'onsidered view that there is a delay o. the p:rt of the respondent to obtain the occupation certificate and offer olpossession ofthe allotted uDit to the complainants as per the terms and conditions of the buyer's ag. uyer's ag.eement executed between the Parhes 44.

In the instant case, the complainants have continued with the project and are seeking DPC as provided under the proviso to sec 18(11 olthe Act Sec 18(11 proviso reads as under: 'secnon 7A! - Retu olomountoh'l'otupenetion l1lti t the poao@'toJ< to canptPtP ot 6 "4able o \\P oos*stoc ol or opoane -ptot o'bt'ldinq - ,,i"iil"i it'* *n"* * "ttottee d@s not ihtend to wnhdros lrod the ptoieca he sholl be potd' b! the branatet, interest fot eeert danth ol delo! till the 'hondi$ ovet of the possessioh' ot slch rote os ma' be pres.tibed. qs ea m rss it tlitv o f dela v possesslon charges at pr€scribed ra te of tnteresc Proviso to section 18 provides that where an allottee does not intend to with draw from the project'they shallbepaid'by the promoter, interest for every month of delay' till the handing over oi possession, at such rate as may be prescribed and it has been p.escribed under rule 15 of the rules Rule 1s has been reproduced as under: *HARERA {.}- c,Lrnuennut Complaint no 2357 o12022 Rule 15.

Presetibed rote oI interest' lP'oviso to section 12 section 18 ond sub'sectiot (4) ond subsection (7) of section 191 lltFoI t\c Put\o'c al P'ov 'a t" i on 12 sedbn ta: od'b t"tttun, l4l antJ tr al' P! n t'. the "interdt ot the rute presctibed sholl be the State Bo n k ol t nd n's h ig h 6t no rgt nol cost al k hd i n ! r dte +2%: Prcvided thot in cose the stote Bonk ol tndio naronal.o" ol Prd'rq"ae lu tRtIrottn'ea .\ai b" ,"p'- "d bJ * h b"", att t?rd'ns 'oP\ which the stdte Bonkoflhtiio nav lix lran une to tme lor lendng ta the gencrcl public' 46.

The leg,slatu.e in rts wi;dom in the subordinate legislation under the provision of,rule 15 oftherules, has determined the Prescribed rate of interest.

The rate of interest so determined by the legislature, is reasonable and ifthe said rule is iollowed to award tbe interest. itwill ensure unilorm practicein allthe cases' 47. cases' 47. consequently, as per the website of the State Bank of lndia ie'' the marginal cost oflending rate Iin short, MCLR] as ofthe date i.e.,15.12 2023 is 8 85o/o.Accordinglv, the prescribed rate of interest will be the marginal cost oi lendinB rate +2% i e'' 10.85olo.

48.

The delinition ofthe term'interest as defined under secbon 2lzal of the Act provides that the rate of inreresr chargeable from the allottee by the pro mote r, in case of delault, shall be equal to th e rate ofinterestwhich the pro moter shall be liable to pav the allottee' in .ase ofdefault.

The relevant section is reproduced below: tzo) tere* n?on\ thP tu@t ol htqtett potobtP b! the prc oter or rhe alloiree. os rhe .ose nat be E\pIano@n. -For the pDrpose ofthaclouse *HARERA S-aJRUGRANa Complarntno. ll57 of 2022 ti)The ma ol intqest charyeoble ltun the allottee b! the prcnotet, in cose oJ deJoulC tholl be equol to the rute ol indest that the prchot r shdll be lidble to pot the o ottee, in cov ofdelarlr; (ii) the inrer^t polable by ke pronotet to the allottee thotl be lron the dote the ptunotq rccei@d the onouht d dt1! port thercof till the date the onount or Wrt thel@f and int2rcstther@n is ftfunded, ond the interest patable ' by the atlottee to the pr@otet shall be lrnn th' dore the illofuee deldults in pdynat t, the prcnoter ti the dote it h paid: 49.

Therefore, interest on the delav pavments from the complainants shall be charged at the prescrlbed.ate r.e, loaso/o bv the promoter which is the sanle as is being granted to it case ofdelayed possession charges 50. ]'he due date olpossession comes out to be 25.08.2017.

Ilotlever' the as per above mentioned clause a Srace period of3 nronths has the above-menrioned date as the same unqualified.

So, the due date ol possession 'omes out to be 25.17-2417.

51.

Accordingly, it is the failure ofthe promoter to fulfilits obligations and responsibilities as pe. the agreem. he agreem.nr to hand ovcr the possession within the stipulated period Accordingly, the non- comphance ofthe mandate contarned (al read with in section r1(41 proviso to section 18(1) ofthe Act on the part ofthe respondent is shall be paid, by the Promoter, As such, the allottees i.e.,25.11.2017 till the date ol the offer of possession plus two every month of r delay from the due ddle ofpoise<'ion months or handover of possession whichever is earli€r (after Pae.2l ol21 *HARERA d&- crrnucn,AN/ deducting assured return) alreadv paid at the prescribed rate ie' 10.85 % pa. as per proviso to section 18(1) of the Act read with rule 15 ofthe rules. [iv) Dir€ct the respondent to execute and 'egister sal€ deed of the said commercial unit in favour ofthem Section 17 (1) of the Act deals with dLrty of promoter to get the conveyance deed executed and the same is reproduced below: "lT lronsler oJ title ' ,,,,," "ri..,r, hor'' crPotPgtsteted toa\e)an\ed"ed n totort '"', i' i,^"" .-o -a "'' unanned DtoPo" o'o'P ttb i n" ,r.^on or"^ to tn" ou"iotion of the allottees ar the conpetent . ),i.i,r' .' *" ** ,, *, "nd hand over the Phtsicat possesion al iil.,.,'..,,,.*,x"i"" '\he a'e notbe @'t'P ottoue"' oad th .ona @a\4thea o ot oaolthPotntteP'a"n" anNPrt .ii.,r" ^ ro" **,", * 'n o 'eat estotc proje't and rhe othet title ,lo;udqts p*toinng thereto within sPecTetl pettod as Per .-1"t 1ed ptoa o\Pto'td"durdet ttito'-tlaw" 'i.,,*a ,i,, , ti" "o**" af dnv tocot tdw convelance decd in ,.:;:''i, ,,",',.,,"" a, ie o\\a"oiar ot ne otta, at t\P ...""*t **.,,t o' t\"o'c aoe be rldq th' :e't'ar '\)t b? ";,',;;.", "',h",,"."' ", * As 0C oi the unit has not been obtained' accordingly conveyance deed cannot be executed without unit come into existence forwhich conclusive proof of having obtained OC f'om the competent authority and filing of deed of declaration by the promoter before registering authoritY. oJ Direcl the r€spondenl to give litlgallon chargesi Complaintno. mplaintno.

2357 of 2022 *HARERA S-GTJRUGRAM Complarnt io.

2357of 2022 52.

The complainants are seeking relief w.r.t. compensation in the above-mentioned relief.

Hon'ble Supreme Court of India in civil appealtitled as M/s Newtech Promoters and Developers Pvt' Ltd' V/s StateofUp&Ors (supra), hasheld thatan allotteeis entitl€d to claim compensation & litigation charges 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 & litigation expense shall be adjudged by the adiudicating oificer having due regard to tbe factors mentioned in section 72 The adjLrdicating officer has exclusive jurisdiction to deal with the complaints in respect ofcompensation & legalexpeDses Therefore, for claiming compensation under sections 12, 14, 18 and section 19 ofthe Act' the complainants may file a separate complaint before the Adjudicat,ng Officer under section 31 read with section 71 of the Act and rule 29 ofthe rules. planning branch of the ion against the builder as C.

Directtons olthe Authority: 54.

Hence, the Authority hereby passes this order and issues the iollowing directions under section 37 of the Act to ensure compliaDce with obligations cast upon the promoter as per the complarnino.

2357of 2022 functions entrusted to theAuthority under section 34(0 ofthe Act ol2016l L The respondentis directed to pay delayed possession charges to the complainants against the paid'up amount for every month oldelayftom the due date of possession i'e 25112017 till the date of the offer of possession plus two months or handover ofpossession whichever is earlier (after deducting assured return) alread rescribed rate 10.85% p.a as per proviso to sectio the Act read with rule 15 of *HAREIA !$- eunuonnu II ltl IV, all the BBA.

55 Complrint slJnds drs ERA 56.

File be consign GURUGRAM HaryanaReal EstateRegulatoryAuthority,Gurugram Dated:15.12.2023 u #9