SWARN KUMAR SAHA vs MAHIRA BUILDTECH PVT. LTD.

& HARERA #* eunuennu Complaint no.; First Date of Hearing: Date ofDecision: Sh.

Swarn Kumar Saha R/o: - I{ouse no.-209, E/16 D Nai Basri, Partap Nagar, Gurugram- 122001 Complaint No.415 of 202:.] BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM 475 of 2OZ3 28.O4.2023 26.70.2023 Complainant Versus N4/s Mahira Buildtcch Private Limited.

Regd.

Office art 302-A, Global Foyer, Scctor Li, Golt Course Road.

Gurugram- 122009 Corporate Office at - 302.A, Global Foyer, Scctor 43, Colf Course Road, Curugram- t22009 CORAM: Shri Vijay Kumar Goyal APPEARANCE: Sh.

Swarn Kumar Saha None ORDER Respondent Member Complainant-in-person Respondent 1.The present complaint dated 02.02.2023 has been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and Development) Act,2016 (in short, the Act) read with rule 28 of the Ilaryana Real Estate (Regulation and Development] Rules, 20't7 (in short, the RulesJ forviolation ofsection 11(4)(a) ofthe Act wherein it is Page 1 of 10 tu .E-HARER & eunuennnr Compiaint No.415 of 2023 inter olio prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the Ilules and regulations made thereunder or to the allottees as per the agreement ior sale executed lnter se.

A.

Unit and proiect related details 2.'l-he particulars of unit details, sale consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: S.No.

Particulars Details 1.

Name and location of the proiect "Mahira Homes" at sector 103, Gurgaon, Haryana 2.

Nature of the project Affordable Group housing 3.

Project arca 5.403 7 acres 4.

IJTCP license no.

31 of2019 dated 01.03.2019 valid up to 28.02.2024 5.

IIERA Registered/ not registered Registered vide no.

15 of 2019 dated 01.04.2019 valid up to 28.02.2023 6. lJnit no.

1304, Tower-D (As per page no. r page no.

6 of the complaintl 7 llnit area admeasuring 570 sq. ft. (Carpet areaJ [As per page no.

6 of the complaintl I 9 Date of allotment N.A Date of building plan approval 29.03.20t9 (As per information provided by planning branch) 10.

Ilnvironmental clearance datcd 29.01.2020 [As per information provided by planning branchl 11.

Possession clause ('Iaken from another project of affordable group housingl 5.7, HANDING OVER OF POSSESSION 5.1.1 Subject to Clause 72 herein or any other circumstances not onticipoted and beyond the control of the developer or any restraints/restrictions from ony courts/Authorities but subiect to the I'agc 2 of 10 A & HARERA #- eunuenal,r 3.

Complaint No.

415 of 202:l B.

Facts ofthe complaint: The complainant has made the following submissions: - i.

The respondent published very attractive brochure of Affordable Group Housing Colony called 'Mahira Homes' at Sector - 103, Gurugram, Haryana.

The project was launched in 2019 with the promise to deliver the possession on time and huge funds were collected over the period by the respondent. purchaser(s) having complied with all the terms and conditions of this Agreement ond not being in det'oult under any of the provisions of this agreement including but not limited to tlmely payment of the total price and having complied with oll provisions, formalities, documentotions, etc., as prescribed hy the developer, the developer proposes to offer the handing over the physical possession of the flat to the purchaser(s) within a period of forty-eight(48) months from the commencement date, 12 13 Due date of possession 29.07.2024 [Due date of possession calculated from the date of environmental clearance dated 29.01.20?0] Total sale consideration N.A 14 15 Amount paid by the complainant Rs.

11,76,650/- (As per bank letter on page no.

13 of the complaint.) Occupation certificate N/A 16.

Offer of possession Not offered 1_7 .

Cancellation application 05.02.2022 18. 'l'ripartite Agreement 29.07 . nt 29.07 .2019 (As per bank letter on page no.

13 of the complaint) V Page 3 oF 10 .& HARER . #eunuennnr Complaint No.

4 15 oi 202:j ii. ]'hat based on the various representations made by the respondent, the complainant booked a unit no.

1304, tower-D admeasuring 570 sq. ft. in the proiect of the respondent by paying an amount of Rs.1,15,000/- as booking amount on 05.04.2019. iii.

A 'Iripartite Agreement was executed between the complainant, the respondent and Canara Bank on 29.07.2019 for obtaining a housing loan towards payment of total sale consideration. iv.The complainant further paid Rs.4,73,326 /- on 30.07.2019, Rs.2,94,L62/- on 05.03.2020 and, Rs.2,94,762 /- on 07.10.2020 as per the Ietter dated 02.03.2022 issued by the bank. v. 'l'he complainant sent a letter dated 05.02.2022 to the respondent for cancellation of booking stating that he would not be able to continue the said booking in the project of the respondent due to some other financial commitments. vi.That the complainant has approached the Authority seeking refund of their paid amount with interest.

C.

Relief sought by the complainant: 4. l'hc complainant has sought following relief(s): I.

Direct the respondent to refund the paid-up amount along with interest at the prescribed rate.

5.

1'he authority issued a notice dated 03.02.2023 to the respondent by speed post and also on the given email address at gurgaon(amahiragroup.com and [email protected] filing of reply and putting up appearance on the date fixed for hearing.

The delivery reports have been placed in the file.

Despite given ample opportunities vide hearings dated 28.04.2023, 28.07.2023 and 29.09.2023 the counsel for the respondent neither put in appearance (V Page 4 of 10 &:ARER S.eunuennnl Complaint No.

415 oF 202:l nor did not file any reply to the complaint within the stipulated period.

Accordingly, the authority is left with no other option but to struck off the defence of the respondent along with the cost of Rs. ost of Rs.5,000/- and decide the complaint on the basis of facts submitted by the complainants which are not disputed.

D. lurisdiction ofthe Authority: 6. 'l'he authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below. l).

I Territorial jurisdiction As pcr notification no. l/92/2017-1TCp dared 74.1,2.2017 issued by 'Iown and Country Planning Department, the jurisdiction of Real Ilstate Regulatory Authority, Curugram shall be entire Gurugram I)istrict for all purpose with offices situated in Gurugram.

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

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

D.

II Subiect matter jurisdiction Scction 11(4)[a] of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section I1(4J(al is reproduced as hereunder: Section 11(4)(o) De responsible Jbr oll obligotions, responsihilities ond functtons uncler the provisions of this Act or the rules and tegulotions made thereunder or to Lhe olloltee os per the ogreement for sale, or to the ossociotian of alloLtec, os the case moy be, till the conveyonce of all the oportments, plots or baldn9s, us lhe cose ntoy be, to the allattee, or the common oreos to Lhe associotion ol olloLLee or Lhe competent outhority, as the case moy he; Section 34-Functions of the Authority: Page 5 of 10 A & HARERA S- eunuennvr 8.

Complaint No.415 of 2023 344 of the Act provides to ensure complionce of the obligations cast upon the promoter, the ollottee ond the real estote agents under this Act and the rules and regulotions 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 adj by the adjudicating officer if pursued by the complainant at a later stage.

7.

Irurther, the authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the ,udgement passed by the Hon'ble Apex Court h Newtech Promoters ond Developers Private Limited Vs State of U.P. ond Ors." SCC Online SC 7044 decided on 11.71,2021 and followed in M/s Sana Realtors Private Limited & others V/s Union of lndio & others SLP (Civil) No.

13005 of2020 decided on 12.05.2022 wherein it has been laid down as under: "86.

From the scheme of the Act of which o detailed reference hqs been mode ond toking note of power of odjudicotion delineoted with the regulotory outhority and adjudicoting officer, ivhot finolly culls out is thot olthough the Act inclicotes the distinct expressions like 'refund', 'interest', 'penolty' and 'compensotion', a conjoint reoding ofSections 78 ond 19 cleorly monifests thot when it comes to refund of the amount, ond interest on the refund amount, or directing poyment of interest for deloyed delivery of possession, or penolty qnd interest thereon, it is the regulatory outhority which has the power to exomne ond determine the outcome of o comploint.

At the same time, when it comes to o question ofseeking the relief of odjudging compensotion ond interest thereon under Sections 12, 14, 18 and 19, the odjudicating olficer exclusively hqs the power to determine, keeping in view the collective reoding of Section 71 reod with Section 72 of the Act. if the adjudicotion under Sections 12, 14, 18 ond 19 other than compensotion os envisaged, ifextended to the odjudicsting oJtrcer os proyed that, in our view, may intend to expond the ombit ond scope of the powers ond functions of the odjudicoting officer under Section 71 and that would be agoinst the mandote ofthe Act 2016.

Act 2016." IIence, in view of the authoritative pronouncement of the Hon'ble Supreme Court in the matter of M/s Newtech Promoters and I'age 6 of 10 IL ffiHARER *0. euRuenRvr 12. 'l.he 1'h c Complaint No.415 of 2023 9.

Developers Private Limited Vs State of U.P. and Ors. and M/s Sana Realtors Private Limited & others V/s Union ol lndio & others (supra), rhe authority has the jurisdiction to entertain a complaint sceking refund of the amount and interest on the amount paid by him.

E.

Entitlement ofthe complainant for refund: E.l Direct to the respondent to refund an amount of Rs.

11,76,650/" along with interest. 'l'hc complainant booked a unit in the proiect of respondent "Mahira Ilomes", in Sector 103, Gurugram in 2019 and paid a booking amount of Ils.1,15,000/- on 05.04.2019.

Though no buyer's agreement was executed between the parties, but the complainant started paying the amount due against the booked unit and paid a total sum of Rs.

11,76,650/-. l'he due date of possession is to be calculated 48 months from the date of environment clearance i.e.,29.07.2020 which comes out to be 29.01,.2024 as per the possession clause of another pro,ect of affordable group housing.

11.

The complainant vide order dated 26.70.2023 has brought to the attention of the authority that there is no progress at site till date and request for cancellation of application made on 05.02.2022 has been duly received by the promoter-company including all the documents but till date no amount has been refunded neither to the complainant nor to the bank.

10. project was registered on 01.04.2019 and valid up to 28.02.2023. authority has gone through the possession clause of the agreement nother project of affordable group housing and observed that the ofa l4-'' Page 7 of 10 t M HARERii GURUGRAI\/ Complaint No. plaint No.

4 15 of 2023 respondent-developer proposes to handover the possession of the booked unit within a period of four years from the date of approval of building plan or from the date of grant of environment clearance, whichever is later.

In the present case, the date of approval of building plan is 29.03.2019 and date of environment clearance is 29.01.2020 as per information provided by the planning branch.

The due date is calculated from the date of environment clearance being later, so, the duc date of subject unit comes out to be 29.01.2024.

Further as per HAREM notification no.

9/3-2020 dated 26,05.2020, an extension of 6 months is gronted Ior the projects hoving completion/due dote on or after 25.03.2020.

The completion date of the aforesaid project in which the subject unit is being booked by the complainant is 29.01.2024 i.e., after 25.03.2020.

Therefore, an extension of 6 months is to be given over and above the due date of handing over possession in view of notification no.9/3-2020 dated 26.05.2020, on account offorce majeure conditions due to outbreak of Covid-19 pandemic.

So, in such case the duc date for handing over of possession comes out to 29.O7 .2024.

13.

Now when the complainant approached the Authority to seek refund, the respondent already clarified their stance that the complainant is cntitled to refund as per clause 5[iii)(h) of Affordable Housing Policy, 2013 in case of surrender of flat by any successful allottee, the amount of Rs.25,000/- can be forfeited in addition to the following: S.

No.

Particulars Amount to be forfeited Iaa) tbb ) 1olo of the cost of flat 3% of the cost of flat Nil In case of surrender of flat before commencement of proiect Up to 1 year from the date of commencement of project (.i) Up to 2 years from the date of Page B of 10 ARER,l Ul?UGRA[/ Complaint No.415 of 202:'j 14.

Since the complainant has applied for cancellation on 05.02.2022 i.e, after 2 years from the commencement of the pro.iect i.e., 29.0L. e., 29.0L.?020(date of EC).

Keeping in view the aforementioned factual and legal provisions, the respondent can retain the amount paid by the complainant against the booked unit as per Clause 5(iii)(h) ofAffordable Group Housing Policy, 2013 i.e., Rs.z5,000/ plus 5 % of the cost of the flat.

15.

1'he prcscribed rate of interest as per Rule 15 of Rules, 2 017 payable by the promoter to the allottee or by the allottee to the promoter, as the case may be, shall be the State Bank of lndia highest marginal cost of lending rate plus two percent.

16.

The authority hereby directs the promoter to return the amount received by him i.e., Rs.11,76,650/- after deducting the amount of Its.25,000/- plus 50lo ofthe cost ofthe flat along as per above mentioned clause of Affordable Group Housing Policy, 2013 along with interest at the rate of 10.75% (the State Bank of India highesr marginal cost of lending rate (MCLR) applicable as on date +20lo) as prescribed under rule 15 of the Haryana Real Estate [Regulation and Development) Rules, 201.7 from the date of surrender date 05.02.2022 till the actual date of refund of the amount within the timelines provided in rule 16 of the Haryana Rules 2017 ibid.

F.

Directions ofthe authority: commencement of pro ject After 2 year from the date of commencement of proiect 5% of the cost of flat A,t' Page 9 ol10 -mmencement of Proiect After r-y"ar from the date of commencement of Proiect 5% of the cost of flat 14.

Since the complainant has applied for cancellation on 05022022 ie' after 2 years from the commencement of the proiect i'e ' 29.01.2020(date of EC) Keeping in view the aforementioned factual and legal provisions, the respondent can retain the amount paid by the complainantagainstthebookedunitasperClause5(iii)(h)ofAffordable Group Housing Policy, 2013 i'e, Rs'25'000/ plus 5 % of the cost of the flat.

15. flat.

The prescribed rate of interest as per Rule 15 of Rules' 2017 payable by the promoter to the allottee or by the allottee to the promoter' as the case may be, shall be the State Bank of India highest marginal cost of lending rate PIus two Percent' 16. 'l'he authority hereby directs the promoter to return the amount received by him ie., I1s 11,76,650/- after deducting the amount of Rs.25,000/- plus 5olo ofthe cost ofthe flat along as per above-mentioned clause of Affordable Group Housing Policy' 2013 along with interest at thcrateof10.75%lthestateBankoflndiahighestmarginalcostof Iending rate (MCLR) applicable as on date +20lo) as presciibed under rulel5oftheHaryanaRealEstate(RegulationandDevelopment)Rules, 201 7 from the date of surrender dated O5'OZ'2022 till the actual date of rcfundoftheamountwithinthetimelinesprovidedinrulel6ofthe tlarYana Rules 2017 ibid' F {4'' .

Directions ofthe authority: Page 9 of 10 Complaint No 415 of 202:l (ddl * HARERI #- eunuennll Complaint No.415 of 2023 17.

Hence, the authoriq/ hereby passes this order and issue the following dircctions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(!: i) 'Ihe respondent /promoter is directed to refund the amount i.e., Rs.

17,76,650/- received by him after deducting the amount of I{s.25,000/- plus 5% of the cost of the flat as per clause 5[iii)(hJ of Affordable Group Housing Policy,2013 along with interest at the rate of 10.75% p.a. as prescribed under rule 15 of the Haryana Real Ilstate (llegulation and Development] Rules, 2017 from the date of surrender dated 05.02.2022 till the actual date of refund of the amount. iiJ It was further directed out of the total amount so assessed, the amount paid by the bank/payee be refunded first in the account of the bank and the balance amount along with interest if any, be refunded to the complainant-allottee. -allottee. iii) A period of 90 days is given to the respondent to comply with thc directions given in this order and failing which legal consequences would follow. ivJ '[he cost of Rs.

5,000/- imposed on respondent vide order dated 29.09.2023 shall be included in the decretal amount.

18.

19.

Complaint stands disposed of.

Irilc be consigned to registry. \.t - 1-----> (Viiay Kun6r Goyal) Member Haryana Real Estate Regulatory Authority, Gurugram Datedt 26.70.2023 Page 10 oflO