JAWAHAR LAL MEHRA THROUGH SPA SANCHIT MEHRA vs AALIYAH REAL ESTATES PRIVATE LIMITED

ARERA URUGRA[/ Complaint no.

7028 of 2022 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.: 7028 of 2022 Complaint filed on: 31.'10.2023 Date of decision : 12-70.2023 lawahar Lal Mehra R/o: - House No.

87, Block-D, Multitech Towers, Scctor-g'1, Mohali, Punjab ['l'hrough Special Power of Attorney holder Mr.

Sanchit Mehra) Complainant Versus M/s Aaliyah llcal Estates Private Limited Regd. office at: Corporate One, Cround Floor, Plot No.

5, I)istrict Centre Jasola, New Delhi - 1100 2 5 Also At: - 271, Udyog Vihar, Phase-z, Gurugram, Ilaryana - 122 016 Respondent CORAM: Sh ri Vijay Kumar Goyal Member APPEARANCE: Shri Ashish Budhiraja [Advovate) Complainant Shri Somesh Arora [Advocate] Respondent ORDER 1. 'l hc prcsent complaint has been filed by the complainant/allottee' undcr scction 3l ofthc Ileal Estate (Regulation and DevelopmentJ Act,2016 [in short, thc ActJ read with rule 28 of the Haryana Real Ilstatc (llegulation and Dcvclopment) Rules, 201 7 (in short, the Rules) for violation of scction 1 1 [4J IaJ of the Act wherein it is inter alia prescribed that thc promoter shall bc rcsponsible for all obligations, responsibi lities and functions to thc allottee as per the agreement for sale executed inter-se them.

A.

Unit and Proiect related details: Page 1 ot 19 ft 2. 'l'he particulars ofthe project, the details ofsale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: S.

N.

Details .& HARER. #.eunuennH,t 1.

3.

F Complaint no.

7028 of 2022 Valid up to 14.10.2023 M/s Aaliyah Real Estate Pvt.

Ltd. (BIP Holder vide order dated 04.01.2016) 01 .01.2 01 3 [As per page no.

61 of replyl "Baani Citv Centre" Project location Nature of the project Commercial Colonv 80 0f 2010 dated 15.10.2010 DTCP license validity status no. and 5.

7.

Name of licensee RERA registration details Applied on 28.07. on 28.07.2022 Allotment letter llnit details n page ent on complainant :er dated otment was no.

09 o[ Page 2 ol 19 Particulars Name of the project Sector 63, Village Maidawas, Gurugram, Haryana S. no. a Unit no.

Unit Area Documentary proof 811 1179 sq. ft. [As per allotment lctter o no.

61 of replyl b.

707 on 7th floor, tower- IKON 1180 sq. ft. [As per buyer's agreem page no.

37 of complaintl C.

811 As alleged by the comp that vide letter 23.02.2076, its allotmer changed; on page no. complaint 2.

8. lil ffi HARERi' *&"eunuennH,t Date of builder buyer's buyer agreement Possession clause Complaint no.

702t1 of 2022 (As per page no.

56, vide letter ddted 23.02.2016, demand wos rqised against allotment of unit no.

707 only) 29.02.20t4 [As per page no.

36 of complaint] 2.

Possession 2,7 The intending seller, based upon its presenL plans ond estimates, ond subject to oll exceptions, proposes to handover possession of the commerciolspace within a period ol forty- two (42) months from the dqte of approvol of building plans of the commercial complex or the dqte oI execution of this agreementt whichever is loter ("commitment period")- Should the possession of the commeraol unil notbepiven within the commitment period due to ony reason (except deloys mentioned in clouse 9 below), the intending purchoser agrees to an extension of one hundred ond eighty (180) days ("grace period") afier exprry ol the commitment period for handing over the possession oI the commerciql uniL 24.01-.2013 [As per complaint no.34'16-20201 03.02.2016 [As per page no.

53 of complaint] 29.02.2078 fCalculated from date of buyer's agrebment i.e.

29.02.2014, being later.l crace period of 180 days is allowed.

10.

L 11.

12.

Date of building plan llevised payment plan 13.

Due date of possession Page 3 oi19 9. w Complaint no.

7028 of 2022 14. 'Iotal sale consideration Rs.1,1 2,10,000/- (BSP) Rs.1,20,97,340/- (TSC) [As per payment plan on page no.

46 of complaintl 15.

Amount paid by the complainant Rs. ainant Rs.34,70,901/- [As per statement of account dated 30.77.2022 on page no.

156 of complaintl 16.

Demand letter and reminder letters 26.tt.2013, 20.05.2014, 04.07.2014, 12.10.201.5, 74.06.2016, 06.07.2016, 27 .09.2076 page no.97-103 of complaintl 17.

Cancellation letter dated 13.02.2019 [As per page no.

109 of replyl 18.

Part occupation certificate 16.01..2018 [As per page no.

54 of complaint] 19.

Notice of possession (Offer of possession) 3 0.0 3.2 018 [As per page no.

107 of reply] 20.

I,egal notice dated 22.03.201.9 [As per page no.

117 of replyl The same wos duly replied by the respondent.

B.

Facts of the complaint 13. 'l'hc complainant has made the following submissions; - L 'Ihat in thc month ofOctober, 2012, the respondent along with its agent, Ilaj Kumar 13udhiraja of A-1 Properties, having add ress at 1 2 -A, 1't floor, *HARER' #"eunuennlir Page 4 ol19 h &HARER SD" eunuenRu Complaint no.

7028 o12022 Ninex City Mart, Sohna l{oad, Curgaon represented to the complainant that the respondent is in the process of constructing a commercial complcx under the name and style "Baani City Center" at Sector 63, Village Maidawas, Gurugram.

IL 'lhat the respondent, acting in criminal conspiracy/common intention and in connivance with each other deliberately and with mala fide intentions deceived the complainant by concealing it from the complainant that vide License No.

80 of 2010 granted to the respondent from the 'Iown and Country Planning Department of the Ilaryana Covcrnment (l,icense"l qua the said project, the respondent was specifically prohibited from carrying out any advertising and sale pcrtaining to the project before obtaining the necessary and mandatory approval of layout plan/building plans, a condition precedent set out in thc said license.

IIL 'Ihat with a view to defraud and cheat the complainant as above, the respondent, dishonestly, fraudulently and by exercising deceit and fraud by misrepresentation, obtained a total sum of Rs. sum of Rs.34,70,901/ from the period October 2012 till May, 2013 paid vide different transactions. lV. 'l'hat, cven having represented it to the complainant that the project would be a construction-linked project, the respondent kept on sending rcminders to make further payments, although the complainant was under no obligation whatsoever to make any further payment, since the rcspondent had failed to commence construction of the project.

The rcspondent was never authorized to carry out the construction of the projcct since it obtained the approval from the Directoratc of Town I)lanning, Ilaryana only on 03.02.2016.

Pagc 5 oi 19 A & HARER",, s*eunuennl,r Complaint no.

702U of 202 2 V. 'lhat to further defraud the complainant, the respondent made the complainant sign across the dotted lines of the unstamped and unrcgistered commercial space buyer's agreement daled 2+.02.2014. 'fhc signaturc of thc complainant was obtained by misrcprcscntation and total dcccption on part of the respondent.

Some ofthc clauses in the said agrcement which the complainant/buyer was made to sign by the rcspondent are one sided.

The complainant had signed alrcady prepared documents and some of the clauses contained thcrein arc totally unreasonable and in favours of the respondent.

VI. lhat pursuant to thc said agreement, in an absolutely clandestine and unauthorized manner the respondent kept raising demand lettcrs on thc complainant even without commencing work on the project and without obtaining the necessary approvals from the competent authoritics only with a vicw to arm-tvvist the complainant and usurp thc complainant's hard-earned money.

VIL 'Ihat vide letter dated 23.02.20L6, by pressing on the terms and conditions of the illegally obtained agreement, the respondent further demanded an exorbitant sum of Rs.51,75,589/- from the complainant, but had failed to respond to the queries pertaining to the unit made by thc complainant. mplainant.

The respondent unilaterally changed the apartment allotted to the complainant from 811 to 707 without any knowledgc or approval of the complainant.

Thereafter, the respondent issued a cancellation letter dated 1,3.02.2019 which went contrary to the rcprcsentations including apologies made by its representatives to thc r (lnrplainant on the phone.

VIIL 'lhat vide the aforesaid letter dated 1,3.02.2019, the respondent has admitted the receipt of the payments from the complainant and by PaBe 6 of 19 {a .& HARER., #"eunuennHl Complaint no.

702U of 2022 relying on the said one-sided agreement which was executed by exercising fraud, deceit and misrepresentation, the respondent illegally threatened to forfeit 15olo of the total consideration of the unit, which the respondent stated shall be paid to the complainant only after the unit is sold off to a third party.

This conduct of the respondent was solely perpetrated to arm-twist the complainant and illegally obtain further sums of money from the complainant and to further cheat and defraud the complainant.

IX.

That the overall conduct of the respondent towards the complainant has been perpetrated solely with the motive of cheating the complainant, and has brought, incer a/ia, undeterminable pecuniary loss to thc complainant, from which the respondent has made undue monetary profits illegally and fraudulently, thereby causing a wrongful gain to itself and a wrongful loss to the complainant.

X. 'lhat the complainant sent a legal notice dated 23.03.2019 to thc respondent but instead of complying with the same, the respondent got issucd a rcply thereto vide the reply dated 2 5.04.2 019.

XI. lhat the respondent earlier cancelled the unit and offered possession oi' the said unit on 06.07.2022 and iater sent final notice dated 14.07 .2022 to the complainant calling upon to pay the remaining dues and for possession, execution and registration of conveyance deed of the changed unit.

Xll. unit.

Xll. 'fhat receiving all the payments of all demands raised by the respondent fbr thc said unit and despite repeated requests and reminders over phonc calls and personal visits, the respondent illegally and arbitrarily cancelled the unit of the complainant and in any case failed to deliver tu Pagc 7 ol19 ffiHARERA *e*eunuennt',r Complaint no.

7028 of 2022 thc possession of the allotted unit to the complainant within thc stipulated period.

XII L'f hat on account of the acts and omissions on the part of the respondent, thc complainant has suffered extreme mental pain and agony and also continues to incur severe financial losses.

This could be avoided if the respondents had refunded the money of the complainant along with intcrcst, whcn the same was demanded by the complainant.

C.

Rclief sought by the complainant: 4. 'l'hc complainant has sought following relief: 5.

D. ('.

Dircct the respondent to refund the total paid up amount along with prcscribcd rate of interest.

0n thc datc of hearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11(4) (a) of the Act to plead guilty or not to plead guilty.

Reply by the respondent 'l.hc respondent has contested the complaint on the following grounds:- I.

That on 11.1'l .2012, the complainant applied for the unit no.

811 admeasuring 1179 sq. ft.in the project "Baoni Ci6) Center". 'lhe complainant had signed and understood the indicative terms and conditions of the allotment mentioned in the application form.'lhe said unit was allotted vide provisional allotment letter dated 01 .01.2013. lt was clearly stated that the allotted unit was a tentative unit Page I ot19 A ffiIARER ffi eunueRnH,r II.

III, Complaint no.

7028 of 2022 That vide letter dated 14.08.2073 respondent informed complainant that the area and unit has revised to unit no.

707 admeasuring 1180 sq. ft. (super areal. per areal.

That the complainant did not raised any obiection rcgarding the change in unit and further requested to send builder buyers agreement vide email dated 24.10.2013.

That the respondent sent builder buyers agreement for unit no.

707 admeasuring 1180 sq. ft. (super area) to the complainant on 15.11.2013 which was then signed by the complainant and respondent on 24.02.20L4.

That the respondent has issued several reminders dated 12.09.2 013, 04.r0.20i3, 23.1_0.2073, 26."11.2013, 20.05.2014, 04.07.201 4, 12.10.20"15, 1,4.06.20L6, 06.07.201-6 and 27.09.2016 for due paymcnts to the complainant.

The respondent was left with no option to but to server a final notice dated 19.01.2017 for clearing the outstanding amount.

That the occupation certificate was granted on 16.01.201U to the rcspondent after due inspection and verification by the relevant authorities and verifying that it is habitable and has been constructed in accordance with the approved building plan and building sanctions.

That after obtaining OC respondent has offered possession on 30.03.2018 to the complainant but complainant refused to come forward to clear due payments and take physical possession of unit.

IV.

Page 9 of 19 fi.

VI. &HARER ' *&-eunuennH,r VII- VIII.

Complaint no.

702U of 2022 That respondent had already granted extension to the complainant to clear due payments but eventually the respondent cancelled the unit aftcr waiting for long period of time and issue the cancellation noticc to the complainant on 73.02.201.9, That aftcr the complainant issued a legal notice dated 23.03.2079 to the respondent for asking for full refund with interest and threatened to filc thc present complaint, instead of clearing due payments and tal{ing posscssion ofthe unit, the complainant filed a complaint in the I)istrict 'l'own Planner [Enforcement] Gurugram and also filcd a policy complaint at Udhyog Vihar PS, Gurugram.

That the respondent on 17.10.2019, receiving a show cause notice dated 16.09. ted 16.09.2019, issued by DTP, Enforcement, Gurugram. 'l-he rcspondent filed the reply to show cause notice and submitted by it to the DTP, Inforcement, Gurugram on 18.10.2019.

That the respondent again issued final notice for possession latter along with dues on 06.07.2022 and final notice for possessron cxccute all necessary documents on 14.07.2022 to the complainant t)ut the complainant chose to remain silent.

Till date the complainant has only paid Rs.34,70,901/- out of the total sale consideration of Rs.\,20,97,340/-.

IX, X.

That the Act of 2016 it is nowhere mentioned that the allottee can withdraw anytime from the project after the possession has been d, Page 10 of 19 XI.

HARERA Complaint no.

7028 of 2022 offered.

The occupation certificate was received on 16.01.2018 and the possession was offered on time on 30.03.2018.

That thc present complaint was filed in 2022 as an after-thought because if the reason for delay was a ground for refund then the complainant would have communicated through e-mails/lctters /noticcs etc. for refund and would had filed petition prior to offer of possession dated 30.03.2018 whereas the complainant being investor after paying initial amount waited to watch the market scntimcnts and when found that it is not in his favour then asked for rcfund aftcr the possession was offered.

The complainant neithcr paid as per terms of BBA nor the respondent had the opportunity to allot the unit to any other third party thus respondent suffered loss l)oth on non-payment as well as blocking of the unit.

To add furthcr the complainant should not be entitled for multi-benefits of its wrongs as to non- payment during construction, holding the unit for years altogether and due to its own failure then demand refund.

Iror ccrtain this is not the intent oF the Act of 2 016 nor this authority has in its previous orders/judgements has encouraged this.

Moreover, thc Act of 2016 is a balanced legislature and treat both allottee and builder the same. the same.

The intent of legislature is to penalise the defaulter and the penalty is for both the allottee and builder.

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

Their authenticity is not in dispute.

Hence, the complaint can be 7. /d, Page 11 of 19 I.IARER, gP GURUGRAI/ Complaint no.

7028 of 2022 decided on the basis of these undisputed documents and submissions made by the complainant.

D. lurisdiction of the authority U. 'l'hc authority observes that it has territorial as well as subiect matter lLrrisdiction to adjudicate the present complaint.

D.

I Tcrritorial iurisdiction As per notification no.1 /9212017 -LTCP dated 14.1.2.2017 issued by'lown and Country l)lanning Department, the jurisdiction of Real tjstate llcgulatory Authorify, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram. ln the present case, the project in qucstion is situated within the planning area of Gurugram district. 'l'hcrcfore, this authority has complete territorial jurisdiction to deal with thc present complaint. l). ll Subject matter iurisdiction 9.

Scction 11[ ](a) of the Act, 2016 provides that the promoter shall bc responsiblc to the allottee as per agreement for sale.

Section 11( )(aJ is rcproduced as hereunder: Section 11(4)(a) Be responsible for all obligations, responsibilities ond functions under the provisions of this Act or the rules and regulotions mode thereunder or to the allottee as per the agreementfor sale, or to the ossociation ofallottee, os the case may be, till the conveyance of all the opqrtments, plots or buildings' os the cose ntoy be, to the ollottee, or the common oreosto the association ofolloLtee or the conpeLent auLhority, os the cose mqy be; 34(f) ol the AcL provides to ensure compliance of the obligqtions cost upon the promoLers, the dllottee ond the real estate ogents under this Act ond the rules and regulations mode thereunder.

10. under.

10. so, in view of the provisions of the Act of 2 016 quoted above, the authority has complete jurisdiction to decide the complaint regarding non- compliance of obligations by the promoter Ieaving aside compensation Page 12 ol 19 ld.

E.

11.

HARtR.t P.GURUGRAN/ Complaint no.

7028 of 2022 which is to be decided by the adjudicating officer if pursued by the complainant at a later stage.

Findings on the objections raised by the respondent.

I Obiection regarding the complainants being investor, 'l'he respondent has taken a stand that the complainant is the investor and not consumer, therefore, he is not entitled to the protection of the Act and thereby not entitled to file the complaint under section 31 of the Act. 'fhe rcspondcnts also submitted that the preamble of the Act states that the n ct is cnacted to protect the interest ofconsumer ofthe real estatc scctor. 'l hc authority obscrved that the respondent is correct in stating that thc Act is enacted to protect the interest of consumer of the real estate sector.

It is settled principle of interpretation that preamble is an introduction of a statute and states main aims & objects of enacting a statute but at the samc timc preamble cannot be used to defeat the enacting provisions of thc Act.

Furthermore, it is pertinent to note that any aggrievcd person can filc a complaint against the promoter if the promoter contravencs or violatcs any provisions ofthe Act or rules or regulations made thereunder.

At this stagc, it is important to stress upon the definition of term allottec Lrndcr the Act, the same is reproduced below for ready reference: "2k1) "allottee" in relation to a real estate project meons the person to whom o plot, dportment or building, as the cose moy be, hos been allotted, solcl (whether os freehold or leosehold) or otherwise tronsferred by the promoLet, ond includes the pe$on who subsequently ocquires the soid allotment through sale, Lransfet or otherwise but does not include o person to whom s to whom such plot' oportment or building, os the case moy be, is given on rent;" ln vicw of above-mentioned definition of"allottee" as well as all the tcrms and conditions of the apartment buyer's agreement executed between I']age 13 ol 19 /il & HARERa #*eunuennl,t Complaint no.

7028 of 2022 promoter and complainants, it is crystal clear that the complainant is allottcc(sl as the subject unit was allotted to him by the promoter.'fhe conccpt o[ investor is not defined or referred in the Act.

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

Thus, the contcntion of promoter that the allottee being an investor is not cntitlcd to protection of this Act also stands rejected F.I F.

Findings regarding reliefsought by the complainant.

Dircct the respondent to refund the total paid up amount along with prescribed rate of interest. 'I 2. 'l'he complainant was allotted a unit bearing no.

811, vide allotment letter datcd 01.01.2013, under construction linked payment plan.'l'hereafter, a commercial space buyer's agreement was executed between the parties ot'r 29.02.2014 vide which a unit bearing no.

7 07 ,7tt' floor, having a super arca of 1 180 sq. ft. was allotted to him.

The respondent had unilaterally changcd the apartment allotted to the complainant from 811 to 707 without any knowledge or approval of the complainant.

He has paid an amount of Rs.34,70,90L/- against the basic sale consideration of Its.

I ,1 2,10,000/-.

As per clause 2.1 of the agreement, the respondent was rcquired to hand over possession of the unit within a period of 42 months from the date of approval of building plans of the commercial complex or thc date of execution of that agreement, whichever is later ("commitment period"l along with a grace period of 180 days after expiry of the commitment period for handing over of possession of the commcrcial unit. cial unit. 'l'hcrcfore, thc due date of possession comes out lo be 29.02.2078 Page 14 of19 [d &HARER, *&"eunuennnr Complaint no.

7028 of 2022 (calculated from date of execution of this agreement i .e.,29.02.2074 being latcr including grace periodJ.

13.'l'hatvide Ietter dated 23.02.2016, the respondent further made a demand of11s.51,75,5t19/- from the complainant, but it had failed to respond to the qucrics pcrtaining to the change of unit made by the complainant. 'l'hereafter, the respondent issued a cancellation letter dated 13.02.2019 vidc which it illegally threatened the complainant to forfeit 15% of the total consideration of the unit, and the balance if any shall be paid to him only after thc unit is sold off to the third party. '14. 'l'hc respondent submitted that the complainant is a defaulter and has failed to make payment as per the agreed payment plan. 'l'herefore, various reminders and final opportunities were given to the complainant ancl thcrcafter the unit was finally terminated vide lctter dated 13.02.2019.

Accordingly, the complainant failed to abide by the terms of the agreemcnt to sell executed inter-se parties by defaulting in making paymcnts in a time bound manner as per payment schedule.

Now, the qucstion before the authority is whether this cancellation is valid or not? '1 5. l'hc authority has gone through the payment plan, which was duly signed by both the parties, As per payment plan agreed between the parties, the complainant has only paid 30.960lo ofthe basic sale consideration and has paid the last payment on 24.05.2013.

Therefore, the authority is of considered view that the respondent is right in raising demands as per payment plan agreed between the parties and the complainant has failcd Page 15 ot 19 fi & HARERA #" eunuennv Complaint no.

7028 of 2022 to fulfil the obligations conferred upon them vide section 19(6) & (7J of thc Act of 2016, wherein the allottee was under obligation to make paymcnt towards consideration of allotted uni lotted unit. 'fhe respondent after giving reminders dated 12.09.2013, 04.10.2013, 23.10.2013, 26.11.201 3, '20.05.2014,04..07 .201.4,1.2.10.2015,14.06.2016,06.07 .20L6,27 .09.201,6, 1c).07.2017,20.09.2017 given notice for possession to the complainant on 30.03.201t1. llowever, the complainant has failed to take possession and clcaring the outstanding dues.

Therefore, the respondent canccllcd/terminated the unit of the complainant vide letter dated 13.02.2019. 'l'hc respondent has given sufficient opportunity to the conrplainantbefore proceedingwith termination ofallotted unit'l'hus, the fcn.nination letter dated 13.02.2079 is held valid in eyes of law.

16.

Ihc rcspondent company had obtained the part completion certificatc for the project of the allotted unit was on 16.01.2018 The respondent /promoter issued demands letter and further, issued termination /canccllation letter to the complainant.

The respondent cancelled the unit ofthc complainant after giving adequate demands notices.

F'urther, as per claLrsc 1 0 of the agreement to sell, the respondent/promoter havc ri8ht to canccl thc unit and forfeit the earnest money in case the allottcc breached thc tcrms and conditions of the agreement to sell executed bctween both tho partics.

Clause 10 of the agreement to sell is reproduced as under for rcadv reference.

Time is the Essence of this Contrqct: Timely Poyments by the tntending Purchaser sholl be the essence ol this Agreement. lf the Intending Purchoser neglects, omits or loils lor Page 16 ol19 lil HARERl P.

GURUGRAM Complaint no.

7028 of 2022 any reqson whotsoever to pqy to the lntending Seller ony oI the instollments or other omounts due and payqble to the lntending Seller under the terms ond conditionsofthis Agreementor by respective due dqtes thereof or if the lntending Purchaser in ony other wdy foils to perform or observe ony ofthe terms and conditions on his part herein conLainecl within the time stipulated or ogreed to, the lntending Seller shall be en hall be entitled to cancel this Agreement and forfeit the l:ornest Money." 17. 'l'he respondent company had obtained the occupation certificate for the project of the allotted unit was on 16.01.2018.

The respondent/promoter issucd demands letter and further, issued terminatio n /cancellatio n letter to thc complainant.

The respondent cancelled the unit of the complainant after giving adequate demands notices.

Thus, the cancellation of unit is valid.

1t]. 'l'he issue with regard to deduction of earnest money on cancellation of a contract arose in cases of Maulo Bux VS, Union of India, (1970) 1 SCR 928 ond Sirdar K.B.

Ram Chandra Raj Urs.

VS.

Saroh C.

Urs., (2015) 4 SCC 136, and wherein it was held that forfeiture ofthe amount in case of brcach of contract must be reasonable and if forfeiture is in the nature of pc1lalty, then provisions of section 74 of Contract Act, 1872 are attached and thc party so fbrfciting must prove actual damages. nfter cancellation of allotment, the flat remains with the builder as such therc is hardly any actu;rl damagc.

National Consumer Disputes Redressal Commissions in CC l+3512019 Romesh Malhotro VS.

Emoar MGF Land Limited (deaded on 29.06.2020) ond Mr.

Saurav Sanyal VS.

M/s IREO Privote Limited (decided on 12.04.2022) ond followed in CC/2766/2017 in cose titled os Jayant Singhal and Anr.

M3M Indio Limited decided on 26.07.2022, hcld that I0(Xr of basic sale price is reasonable amount to bc forfeited in Page 17 of 19 /4. & HARER., #" ounuennvr Complaint no.

7028 of 2022 the name of "earnest money".

Keeping in view the principles laid down in the first two cases, a regulation known as the Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builder) llegulations, 11(5J of2018, was farmed providing as under- ,,5.

AMOUNT OT' EARNEST MONEY Scenorio prior to the Reql Estate (Regulations and Development) Act, 2016 wos different.

I. ferent.

I.rouds were corried outwithout dny feor qs there wos no law for the some but now, in view of the above facts ond taking into considerolion the judgements of Hon'ble Nationol Consumer Disputes Redressol Commission and the Hon'ble Supreme Court of lndio, the auLhotiLy is of the view that the forkiture qmount of the eornest money sholl not exceed more thon 10o/o of the consideration amount oJthe reql estate i.e, aportment/plot/building os the case moy be in oll cases where the cqncellqtion ofthe Jlot/unit/plot is mqde by the builcler in o unilaterol manner or the buyer intends to withclraw from the pro)ect ancl any qgreement containing ony clause contrary to the aforesaid regulotions shall be void ond not binding on the bulet." '19.

So, l<ccping in view the law laid down by the Hon'ble Apex court and provisions of regulation 11 of 2018 framed by the Haryana Real listate llegulatory Authority, Gurugram, and the respondent/bu il d er can't retain rl1orc than 1 0%o of sale consideration as earnest money on cancellation but that was not done.

So, the respondent/builder is directed to refund the amount received from the complaints after deducting 10% of the basia salc consideration and return the reaming amount along with interest at the rate of 10.75% (the State Bank of India highest marginal cost of lcnding rate IMCLIIJ applicable as on date +2%) as prescribed under rulc 1 5 of the I Iaryana Real Estate (Regulation and Development) Rules, 201 7, fiom the date of termination/cancellation 1,3.02.2019 till the actual datc of rcfund of the amount within the timelines providcd in rule 16 of the Ilaryana llules 2017 ibid.

Pa,lc 1B ol l9 /4" 20.

I.

21.

HARER. ffi GURUGRAI/ Complaint no.

7028 of 2022 Directions of the Authority llcllcc, the authority hereby passes this order and issue the following dircctions under section 37 ofthe Act to ensure compliance ofobligations cast upon the promoter as per the function entrusted to the authority u nder section 34[0: I, Complain , Complaint stands disposed of. l.'ile be consigned to registry. lt. 'l'hc respondents are directed to refund the paid-up amount of Rs.34,70,901/- after deducting the earnest money which shall not exceed the 100/o of the basic sale consideration of Rs.1,12,10,000/-. l'he refund should have been made on the date of cancellation i.e., 13.02.2079.

Accordingly, the interest at the prescribed ratc r.e., 10.75 % is allowed on the balance amount from the date of cancellation till the actual date of refund of the amount within the timelines provided in rule 16 ofthe rules,2017.

A period ol 90 days is given to the respondent to comply with the directions given in this order and failing which legal consequences would follow.

22.

I)atcd: 12.10.2023 y.1- (Viiay Kumar Goyal) Member Haryana Real Estate Regulatory Authority, Gurugram Page 19 of 19