NIRU SETIA KAPOOR vs RAMPRASTHA PROMOTERS AND DEVELOPERS PVT. LTD.

HARERA P* GURUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ORDER 1.

The present complaint has been filed by the complainant/allottee under section 31 ofthe Real Estate [Regulation and Development) Act,2016 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules,2017 (in short, the Rules) for violation of section 11(a) (aJ of the Act wherein it is 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 inter se them.

Complaint No.

7632 of 2022 Complaint no.

Complaint filed on : Date of decision N iru Setia Kapoor R/o: - 38-L, Model Town, Ludhiana, Punjab- 141002 Versus M/s Ramprashtha Developers Private Limited.

Regd.

Office at: - Plot No.

114, Sector-44, Gurugram- 722002 CORAM: Shri Ashok Sangwan APPEARANCE: Sh.

Suprateek Neogi (Advocate) Ms.

R.

Gayathri Mansa (Advocate) 1632 of 2O22 15.o4.2022 17.o5.2023 Complainant Respondent Member Complainant Respondent Page 7 al27 HARERA ffi GURUGRAM Complaint No.

1632 of 2022 A.

Unit and proiect related details 2.

The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: S.

N.

Particulars Details 1.

Name of the project Cannot be ascertained 2.

Project area Cannot be ascertained 3. plot no.

N.A, 4.

Unit area admeasuring 1700 sq. ft. fPage no.

26 of the complaint) 5.

Date of booking application N,A, 6.

Welcome letter N.A.

7.

Allotment letter N.A.

8.

Date of execution of plot buyer's agreement N.A, 9.

Possession clause N.A.

10, Due date of possession Cannot be ascertained 11.

Basic price of the plot N.A, 12.

Amount paid by the complainant Rs.15,63,000/- [As per alleged by the complainant at page no.

14 of the complaintl tl PaBe 2 of 27 ffi HARERA #* eunuenniv B, 3.

Complaint No. plaint No.

1632 of 2022 Facts ofthe complaint The complainant has made the following submissions: - a.

The present complaint pertains to the failure of the respondent/ promotor to discharge his duties and obligations under Sections 11, 12, 13 and 18 of the Act and violating the rights of the complainant herein under section 19 of the Act of 2016.

The respondent has failed to furnish details regarding the developments in the construction of the project.

Furthermore, it has failed to refund the amount paid by her towards the purchase/booking ofthe flat. b.

That the complainant had made a payment of Rs.15,63,000/- towards the booking/purchase of a flat in the residential prolect launched by it and as such is an "allottee" within the meaning ofsection 2[d) ofthe Act of 2016.

She had booked the flat for her own personal use and for the use ofher family members.

The complainant is not engaged in the business of purchasing/selling houses.

She spent her hard-earned money for booking the flat in the project proposed to be developed by it. c.

The facts leading to the filing of the complaint are as follows: - !

In the year 2012, the respondent invited applications from the general public for the allotment of flats/apartments in one of its upcoming housing pro,ects.

PaSe 3 ol27 HARER,{ W- GURUGRAV1 Complaint No.

1632 of 2022 The representatives of the respondent approached the complainant to invest money in the upcoming project and, based on these representations, he got lured to book a flat in the upcoming project.

The complainant, believing the assurances regarding the upcoming project applied for booking a flat/apartment in the said project by paying the booking amount of Rs.5,00,000/- to the respondent vide cheque no.

357270 dated 19.10.2012.

Thereafter, the respondent vide its undated letter/form confirmed the booking of the flat in the aforesaid project.

Thereafter, he has additionally paid an amount of Rs.6,63,000/- and Rs.4,00,000/- vide cheques no. heques no.357274 and 35727 L dated 12.1.1..2012 respectively towards the purchase of the flat/apartment in the upcoming proiect.

The complainant wrote a letter dated 05.07.2013 to the respondent with regards to the recently launched project i.e, "Primera" in Ramprastha City, Sector 37-D, Gurgaon and asking it to adjust the above paid amount of Rs 15,63,000/- towards the booking of flat no.

C-901 in project i.e., Primera.

That after the said letter was written, no response or any kind of update was provided by the respondent regarding the allotment ofthe said flat or the status ofthe development of the ,+ Page 4 of 27 upcoming proiect. ffi HARERA #eunuennll Complaint No.

1632 of 2022 The complainant contacted the respondent and even visited their office on numerous occasions to inquire about the allotment of her flat and the progress and status of the proiect.

However, the respondent refused to provide any details or information regarding the same.

The respondent owed a duty towards the complainant to inform her whether the said flat had been allotted to her or not and furnish regular developments regarding the construction and status of the project.

The respondent miserably failed in performing these obvious duties.

Despite repeated reminders and inquiries by her, respondent failed to provide any information regarding the status of the allotment ofthe flat thatwas to be provided to the complainant for which the booking amount had already been deposited and the status ofthe construction ofthe Project.

The complainant was kept in the dark by it without any reasonable cause indicating the respondent's malafide intent to deceive and dupe her.

On !4.0L.2020, she was constrained to send a Iegal notice to the respondent for the refund of the amount deposited with it towards the booking amount and purchase of the flat.

However, despite receiving the said legal notice, the respondent neither replied nor refunded the amount.

Page 5 of27 ffi HARESA #* eunuenRvr Complaint No. plaint No.

7632 of 2022 d.

That the respondent has completely failed in its duty as a promoter by not responding to the requests and inquiries her.

The complainant has time and again sought answers from the respondent about the status of the construction of the project after paying the booking amount.

However, the respondent has no heed to the numerous requests placed by her. e.

Till date she has been kept in the dark about the progress of the construction work.

The complainant has an apprehension that the respondent is deceiving the complainant by diverting the money paid by her for some other purpose.

The respondent with malafide intention is using the hard-earned money of the complainant to earn undue profit and cause undue loss to her.

The respondent cannot be allowed to act arbitrarily and fraudulently simply because it is in a dominant position.

I That there is absolutely no reason or iustification for the said non- compliance and disregard with respect to the complainant pleas seeking clarity and information.

The hope of the complainant has turned into anxiety and despair.

The respondent wilful denial to provide basic details regarding the allotment ofthe flat and the status ofthe project is indicative of its blatant laxity and unprofessionalism.

The respondent has illegally enriched itself at the cost of the complainant.

Page 6 of 27 HARER,{ ffi- GURUGRAM h.

That the respondent has violated his obligations as to the veracity of the advertisements and prospectus as under section 12 ofthe Act of 2016.

She had made an advance payment aggregating to Rs.15,63,000/- on the basis ofthe advertisements and prospectus of the respondent and which contained false statements.

The respondent has firstly, callously not informed the complainant about the status ofthe project and secondly, the development ofthe project has been indefinitely stalled. y stalled.

That the respondent is guilty of non-fulfilment of its duties as a promoter under enumerated under section 18 of the Act of 2016.

The respondent has not, firstly, informed the complainant ofthe status of the project despite her repeated requests; and secondly, the respondent has ignored the repeated demands of the complainant to withdraw from the project by demanding a return of the investment of Rs.15,63,000/- with interest.

As per section 18 of the Act, the respondent/promoter is Iiable to return the amount received by her with interest and pay compensation as per the provisions of the Act.

Relief sought by the complainant: C.

4.

The complainant has sought following relief(sJ: l.

Direct the respondent to refund the amount of Rs.

15,63,000/- along with interest @180/o per annum.

Direct the respondent to pay a sum of Rs.5,00,000/- towards the legal cost incurred by the complainant in the legal proceedings, Complaint No.

7632 of 2022 c.

II, Page 7 of 27 HARERA ffi GURUGRAIV 5.

1632 of 2022 D.

6.

IIL Direct the respondent to pay a sum of Rs.1,00,000/- towards immense mental agony and harassment suffered by the complainant due to the respondent negligence.

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

Reply by the respondent.

The respondent has contested the complalnt on the following grounds. t.

That the present complaint is not maintainable in its present form and the complaint is liable to be dismissed on the grounds hereunder mentioned by the respondent.

The authority has no jurisdiction to entertain the present complaint.

Therefore, this reply is without prejudice to the rights and contentions of the respondent contained in the said application. plication.

The complaint is not maintainable since the present allottee does not fall under the definition ofa complainant as defined under the Consumer Protection Act, 2019.

That the allottee has executed an apartment buyer agreement in the residential project named'Primera', being developed by the respondent/promoter located at Ramprastha City, Sector 37-D Gurugram.

She had applied for the provisional allotment of one of the residential units along with an exclusive right to use the one parking space in the said project. lt.

III, Page B of 27 ffi lARElA H eunuennvr IV.

1,632 ol 2022 That, pursuant to the said application, an allotment letter was issued to the allottee confirming the allotment of flat no.

C-901 located on 9th floor along with one parking space in block - C for a total consideration of Rs.

87,25,860 /- in the said project.

However, the complainant never showed up despite several reminders to approach the respondent with necessary documents for execution ofbuilder buyer agreement.

In fact, it is entirely due to the lackadaisical attitude of the complainant that the builder buyer agreement could not be executed till date and she by way of the present complaint is attempting to mislead this authority by representing itself as a genuine buyer.

That without prejudice to the objections raised on the grounds that the agreement between both the parties was not executed for rendering of any service, it is further submitted that the allottee has also not discharged the onus of satisfying the authority that she did not purchase the said apartment for commercial purposes.

The allottee has not disclosed the details of ownership of residential properties witfrin the NCT Region and has thus clearly not approached this authority with clean hand.

That the allottee does not fall under any of the categories oF persons/association of persons covered by the definition of Consumer as defined under section 2[5) of the Consumer Protection Act, 2019 including including a consumer.

Under section 2(7) of the Consumer Protection Act, 201,9, "Consumer" refers to a person who has purchased goods or availed services and further has been defined to oust any transaction with commercial I4\r Page 9 of 27 vt.

HARERA P, GURUGRAM VII.

VI II.

7632 of 2022 purposes.

This authority has held in catena of cases that a person whose sole objective is to make a profit in relation to its claim and not to redress any alleged inlury or the one who obtains an apartment not for his/her own residence, does not fall under the ambit of the definition of "consumer".

The object of the Act is to provide better protection to a consumer who avails the services for his own use and further to redress the injury suffered by such persons.

The Act clearly keeps out those services which are availed for commercial purposes.

Therefore, the act of the complainant clearly keeps her out from the ambit of the protection given to the consumers.

It is further submitted that the respondent reserves its rights to further argue this issue at the time ofhearidg, if necessary.

The position of a "consumer" within the lines of the Act can only be assigned to a person when certain criteria as envisaged in the said Act have been complied.

As per the facts and circumstances of the case, the complainant position run counter to the classification of a person as "Consumers" within the meaning of the Act.

Hence, in this regard the status of a consumer cannot be by any bounds labeled onto the complainant.

That the complainant has nowhere stated that the said flat is the only flat and hence an adverse inference can be drawn that she is in possession of multiple flats and the sole intent of purchasing the said flat was for investment purpose and for gaining illegaL commercial profits. l profits.

The commercial intent of the complainant is manifest from the prayer of the complaint wherein she claimed Page 70 of 27 HARERA #"GURUGRAI/ IX, exorbitant amounts by way of compensation and inflated rate ol interest without any basis and over and above the actual amount invested by her which clearly shows her intention to utilize the said flat commercialiy. 'l'hat due the lackadaisical attitude of the complainant along with several other reasons beyond the control of the respondent as cited by it caused the present delay.

If any objections to the same was to be raised the same should have been done in a time bound manner while exercising time restrictions very cautiously to not cause prejudice to any other party.

The complainant cannot now suddenly show up and thoughtlessly file a complaint against the respondent on her own whims and fancies by putting the interest of the builder and the several other genuine allottees at stake.

If at all, the cornplainant had any doubts about the project, it is only reasonable to express so at much earlier stage.

Further, filing such complaint after lapse of several years at such an internal only raises suspicions that the present complaint is only made with an intention to arm twist the respondent.

The entire intention ofthe complainant is made crystal clear with the present complaint and concretes her status of the complainant as an investor who merely invested in the project with an intention to draw back the amount as an escalated and exaggerated amount later.

Despite the best efforts by possession of the said flat promoter could not do so beyond its control.

It was Complaint No.

7632 of 2022 the promoter to hand over timely booked by the complainant, the due to reasons and circumstances only on account of the following X.

Page 71of27 ffiHARERA #, arnuennM Complaint No. plaint No.

1632 of 2022 reasons/circumstances that the project got delayed and timely possession could not be handed over to the complainant: - F The project faced various roadblocks and hindrances including approvals from different authorities which were beyond the control ofthe promoter and which in turn lead to unforeseeable delay in the construction/completion of the project and hence handing over of the possession of the flat to the complainant. > Active implementation by the Government of alluring and promising social schemes like National Rural Employment Guarantee Act ("NREGA") and lawaharlal Nehru National Urban Re4ewal Mission ("]NNURM"), further led to sudden shortage of labour/ workforce in the real estate market as the available lpbour was tempted to return to their respective States due to the guaranteed employment under the said NREGA and INNURM Schemes.

The said factor further created a vacuum and shortage of labour force in the NCR region.

A large numbers of real estate projects, including the present project of the respondent, were struggling hard to cope with the construction schedules, but all in vain. ) The promoter faced extreme water shortage, completely unforeseen by any of the real estate companies, including the promoter, in the NCR region.

The respondent, who was already trying hard to cope up with the shortage of labour, as mentioned above, also faced with the acute shortage of water in the NCR region.

The said factor of shortage of water directly affected the construction of the project at the site.

To make the A.

Page 12 of 27 HARERA ffi.GURUGRANI Complaint No.

7632 of 2022 conditions worse, the Hon'ble High Court of Punjab and Haryana vide Order dated 16.07 .2012 restrained the usage of ground water and directed to use only treated water from available Sewerage Treatment Plants (hereinafter referred to as "STP"). as "STP").

As the availability of STP, basic infrastructure and availability of water from STP was very limited in comparison to the requirement of water in the ongoing constructions activities in Gurugram District.

It became difficult to timely complete the construction activities as per the schedule.

The availability of treated water to be used at construction site was very limited and against the total requirement ofwater only 10- 15%o ofrequired quantity was available at construction sites.

In furtheranca to the directions ofFlon'ble High Court oI Punjab and Hdryona, the respondent company received a Letter bearing memo no 2524 dated 01.09.2012 from the Deputy Commissioner, Gurugram, Haryana, informing to it about the complete ban on the use ofunderground water for construction purposes and use of only recycled water being permitted for the said purposes. z The respondent neither had any control over the said directions/orders from the Hon'ble High Court nor had any control over the shortage of water in the NCR region which in turn led to the delay in the completion and hence, the handing over ofthe possession ofthe flatto the complainant. > There has been a hear.y shortage of supply of construction material i.e., river sand and bricks etc. through out of Haryana, + Page 13 of 27 HARERA ffiGURUGRAI/ Complaint No.

1632 of 2022 XI. pursuant to order of Hon?le Supreme Court oI India in the case Deepak Kumar etc. v, State of Haryana (1.A.

No.

12-13 of 2 011 in SLPs (Cl nos.

19628-29 of 2009 with SLPs (C) No.

729- 73r/2071., 21833/2009, 12498-499/2070, SLp[C) CC...

L6157 /201-l & CC 78235/2071 dated 27 February 201,2) and correspondingly, the construction progress slackened.

This also caused considerable increase in cost of materials.

It is noteworthy that while multiple project developers passed on such incremental costs attributable to the above reasons to the buyers, the management ofthe promoter assured its customers that it would not and held fast on its promise ts promise by not passing on any of such costs to the buyers.

The below taple shows the project name, its size, and the current status of the project.

It can be seen that the respondent has been diligent in completing its entire project and would be completing the remaining projects in phased manner.

The respondent has completed major projects mentioned below and has been able to provide occupancy to the allottees.

S.

No Proiect Name No, of Apartments Status 1.

Atrium 336 OC received 2.

View 280 OC received 3.

Edge Tower I, l, K, L, M Tower H, N 400 160 OC received OC received + fz7 Page 14 o ffiHARERA *e-eunuow Complaint No.

1632 ot 2022 Tower-0 (Nomenclature-PJ [TowerA, B, C, D, E, F, G) 80 6+0 OC received 0C to be applied 4.

EWS 534 OC received 5.

Skyz 644 OC to be applied 6.

Rise OC to be applied 7.

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 decided on the basis of these undisputed documents and submission made by the parties as well as the written submission of the complainant.

Through a perusal of the complaint, it is pleaded that the complainant was allotted a unit in the upcoming futuristic pro.iect Curugram but while filing written reply the respondent on 06.09.2022, it referred to allotment of a plot and that too with incorrect particulars of dates of buyer's agreement and the unit details etc.

Jurisdiction of the authority The application of the respondent regarding re,ection of complaint on ground of jurisdiction stands rejected.

The authority observes that it 8.

E.

Page 15 of 27 HARERA ffi GURUGI?AM has territorial as well as subiect matter iurisdiction to adrudicate the present complaint for the reasons given below.

E.l Territoriatiurisdiction As per noufication no.

1' /92 /201,7-1TCp dated 1.4.72. ed 1.4.72.2017 issued by Town and country pranning Department, the jurisdiction of Rear Estate Regulatory Authority, Gurugram shar be entire Gurugram District fbr all purpose with offices situated in.

Gurugram.

In the present case, the project in question is situated within the planning area of Curugram District.

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

E.lI Subiect matter iurisdiction Section 11(4)(aJ of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 11(4)(aJ is reproduced as hereunder: Section 11 li) rhe promoter shrtt- (o) , be responsibte for oll obligotions, responsibilities and fun.rnh. unqer lhe provisions of this Act or the rules ord ,egutotiins-.idi thereunder or to Lhe aliottees os per the og*".*, f;; ,;'l;, ;;;;1;; ossociation of ollottees, os lhe cose may be, tilt the converor.o ni )it t he o pa rtm e n Ls, plot s or b u i ld i ng s, a s t ieii:r; ;;; ;r:,';;;; ;;;rii":: or the common oreos to the osiciouon ofilb;;;;";;;;;;;;;;';:;;; outhori\t, aS the Case may be; Section 34-Functions of the Authotity: 34(f) ofthe Act provides to ensure compliqnce ofthe obligotions cost upon the promoters, the allottees qni the ,""i"r;r; ;:g;;;;";rd* this Act and the rules and regulotions made th"rerndii."-.'- ""-"' 9.

10.

PaEe 76 of 27 I complaint No.

1632 of 2022 I mIAURA *ru" eunuennll 11.

So, in view ofthe provisions ofthe Act quoted above, the authority has complete lurisdiction to decide the complaint regarding non- compliance of obligations by the promoter Ieaving aside compensation which ls to be decided by the adjudicating officer if pursued by the complainant at a later stage.

12.

Further, the authority has no hitch in proceeding with the complaint and to grant a rerief of refund in the present matter in view of the judgement passed by the Hon,ble Apex Court in Newtech promoters and Developers private Liinited Vs State oflt,p, and Ors, ( and Ors, (Supra) and reiteroted in case of M/s Sana Realtors private Limited & other Vs Union of India & others SLp (Civit) No.

73005 of 2020 decided on 12,05,2022wherein it has been laid down as under: ','86.

From the scheme of the Act of which o detoilcd relerence hos been mode and taking note oI power of odjudicotion delneoted wlth tne regutobry.outhoriql and odjudicating officer, whoL finolly cu s out is thot qlthough the Act indicates tie iistinct "rpunioi, tii" 'refund , 'interest', penolty'and compensation', o con iotnt reod inq o[ secLtons 18 and .19 clearly mqnifests thqt when it cones Lo refun-d i1 Lhe.omount, and i.nterest on the refund omount, or direaing poynenL ol interest lor deloyed delivery of possession, o, penrlty oii iirer"rr lhereon, it h the regulolory outhority which has ihe power to examine and determine the outcome oI o com plant.

At the so me time, wnen tt comes to o question o[ seekrng the relief of odjudging compensation and interestthereon under Sections 12, ti, uioni 6, t,he adiudicadng oflicer exclusively has the powei * a*ir:rin", Kceptng tn view the collective reoding oJ Section 7I reod wiLh SecL/r,n 72.of the Act. if the odjudication under Sections 12, l+, rc oni jS other. than compensation ds envisqged, if extended to the adjudtcoLing olicet os proyed that, n our view, may intencl to expand lhe-omb ond scope of the powers ond lunctions il Lhe adpdicartng officer under Section 71 and that wouicl be agoin'st the ionaot" i1 the Act 2016." Page 17 of 27 r llomplainr No.

1632 of 2022 HARERA M.GURUGRAM 13.

Hence, in view of the authoritative pronouncement of the Hon,ble Supreme Court in the cases mentioned above, the authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

F.

Findings on the obiections raised by the respondent , IJ Obiections regarding the complainanr being investor. r+. estor. r+. r ne respondent has taken a stand that the compla'inant is the investor and not consumer and therefore, ahe is not entitled to the protection of the Act and thereby not entitled to file the complaint under section 31 of the Act.

The respondent also submitted that the preamble of the Act states that the Act is enacted to protect the interest of consumers of the real estate sector.

The authority observes that the respondent is correct in stating that the Act is enacted to protect the interest of consumer of the real estate sector.

It js settled principle of interpretation that the preamble is an introduction ofa statute and states main aims & objects ofenacting a statute but at the same me the preamble cannot be used to defeat the enacting provisions of the Act.

Furthermore, it is pertinent to note that any aggrieved person can file a complaint against the promoter if he contravenes or violates any provisions ofthe Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions of the apartment buyer,s agreement, it is revealed that the complainant is a buyer and paid total price of Rs.1S,63,000/_ to the promoter towards purchase of a unit in the project of the promoter.

At \ Page 18 ol27 I Complainr No.

1632 ot2022 I HARERA M" GURUGRAIU Complaint No.

1632 of ZO22 this stage, it is important to allottee under the Act, the reference: stress upon the definition of the term same is reproduced below for ready "2(d) ,,allottee,,in relqtion to a reol estate project meons the person to whom o plot, apartment or building, o, nu rori.iv i,.no, rc"n ollotte_d, sold (whether os freehoid or t"oriioii lr''o,tn"r.ir" tra.nsferred by the promoter, and includes th'e person who subsequently ocquires the soid ollotment tnrorgi ro[,-iron11", o, otherwise but does not include o percon tii wioi" si.,cn pbt, apartment or building, qs the cose ma, be, is eiven on rent." In view of above-mentioned definirion ,ir;iiiiii"" : r. iii"" : r."*el as alt the terms and conditions of the provisional receipt, it is crystal clear that the complainant is an allottee as the subject unit was allotted to her by the promoter.

The concept of investor is not defined or referred in the Act As per the definition given under section 2 of the Act, there wi be "promoter" and ,,allottee,,and there cannot be a party having a status of "investor".

The Maharashtra Real Estate Appellate Tribunal in its order dated, 29.01_.2079 in appeal no.

0006000000010557 titled as M/s Srushti Sangam Developers pvt, Ltd.

Vs.

Sarvopriya Leasing (p) Lts.

And anr. has also held that the concept of investor is not defined or referred in the AcL Thus, the contention of promoter that the allottee is being an investor is not entitled to protection of this Act arso stands rejected.

G.

Findings on the reliefsought by the complainant G.

I Direct the respondent to refund the entire amount of Rs.15,63,0O0/- paid by the complainant along with lByo interest per annum.

Page 79 of 27 HARERA ffi GUIIUGI?AM 15.

The complainant submits that she paid an amount of Rs,15,63,000/_ to the respondent/promoter in the year 2012.

The respondent confirmed the amount received and promised the allotment ofa unit admeasuring 1700 sq. ft. in any of its future upcoming project located in Gurugram.

Thereafter, till date, the respondent has miserably failed to specjfy the proiect as well as unit number where 1700 sq. ft. has been allotted.

On 1,4.01_.2020, the complainant sent a legal notice that neither the allotment letter and nor the plot buyer,s agreement has been executed till date and to which the respondent did not respond.

The compiainant tired of the neglectful behavior of the respondent filed the present complaint pleading for refund along with interest before this authority.

16 The respondent vide reply dated 06.09. ted 06.09.2022 submitted that the complaint is time barred by limitation as the complainant made the payment in the year 2012, and thereafter she never came forward for filling up booking application form and buyer,s agreement.

Accordingly, the complaint is liable to be reiected.

Moreover, the complainant was aware from the very inception that she was making payment w.r.t. future pro.iect which was not yet launched.

17.

Before coming to the facts of the case, it is to be seen as to the receipt issued by the respondent/promoter falls within the definition of agreement, as per section 2(e) of the contract Act, 1g7Z and which provides that: Page 2O of 27 I Complarnr No.

1632 of2022 I ffiIARERA #. eunuonnM "Every promise and, euery set of promise formin.q the con siderat i on fo r eac h ot he i is o n aoie[m;;;.:-, -,',,,,t 18.

Further, section 1.0 of the act defines the conditions under which the agreement made fall with the definition of contract and the same provldes as under: ,,All agreements ore controcts if they ore made by the lree consent of porties c_ompeteni- to -*ntrorr,-Jol o,'iorlut considerorion ond w,ith i .tawlut otlict ini li" ,"r,il,un expressly declored ro be votd.,.

19.

There is a large number of cases coming to the notice of the authority wherein the bujlder had taken. the whole or partial amount of money and only issued receipt against the alrotment of a plot either in the exiting or in its upcoming proiect at Gurugram.

Neither it issued any allotment letter nor executed any builder buyer,s agreement.

Even in some cases, the builder accepted more than 50 lacs either in cash or through cheque and promising to allot an apartment/plot in the upcoming or existing projects and then vanishing or not taking any further steps with regard to either allotment of the u nit of the property in any proiect or refunding the amount received. received.

The horders of those receipt/allotmenB are harassed lot failing to act on the basis of the documents issued by the developer and to initiate any civil or criminal action against the builder.

This position existed in pre- Rera cases as after Act of 2016, a promoter is obligated to comply with the provisions of the Act and follow the same while receiving any money against allotment of unit and execution of builder buyer agreement.

PaEe 2l of 27 I Complainr No.

1632 of 2OZ2 I HARERA ffi.GURUGRAM 20.

But the document/receipt so issued in favour of a person can be termed as an asreement for sale to drag the developer before RERA Authority and compelling him to fulfil his obligations against rhe holder of that document.

It is arso pertinent to mention in many cases that the alottee has been sleeping over his rights which is evident from the fact that after payment of an amount, he did not make any effort to get the agreement executed; and having no proofofany request or reminder in this regard made by the allotee to the promoter.

However, the promoter is duty bound to explain the reasons for which he has kept such a huge amount for so long considering the fact that the promoter company is not a bank or non- banking financial company (NBFC).

In case of failure on the part ofpromoter to give an explanation, it shall be liable to refund the principal amount deposited by the allotee.

21 [n the present complaint, the complainant intends to withdraw from the project and is seeking return of the amount paid by her in respect of sub,ect unit along with interest at the prescribed rate as provided under section 18(11(bl ofthe Act. sec.

18(1)(bJ ofthe Act is reproduced below for ready reference. "S^ec,tion 78: - Return oJ qmount and compensqtion 1B(1). lfthe promoter foils to complete or ii unoble to give possession of an oportment, plot, or building. building.- (o ) in occ,ordo nce wiLh the Lerms of Lhe ogt eement [or so le or, os the case ,, ,may be, duly completed by the date spectfied lheretn; or (bl due to discontinuance of hts business os o developer on oL.ount of y:!.r:::?l ot revot qtion oJ Lhe regtstroLton ura), nis ii o, Si qny otner reqson.

Page 22 of 27 I Complainr No.

1632ot2022 I HARERA ffi.GURUGRAM he shall be liable on dem.qnd to the allottees, in cose the qllottee wishes. to withdraw from the project, without preiudic; tn ,r,v otnq remedy ovaitabte, to return ti.e imount ,".iii,"i iy'iirri ,l',i""r"r, of.that apartment, ptot buinins, ii iie iii"',irii[,,*,in Ln*u at such rate * ^ot -!" oiesy!\d i, ii,i uln,ii" i,la,a i,s compensotion in Lhe manner as provided under th$ ALr: provided thqt where on qltottie ao", ,oo inr"rl,i-ro"*ithdrow from the projecr, he sholl be poid, by-the promoter, int"r"rtf.i"u"ry' ^lnin oJ a"hy, till the honding over oFthe possession, ot surn ,o,t" or-iiy i" piescribed.,, (Emphasis supplied) 2 2 Admissibility of refund arong with prescribed rate of inrerest: The complainant is seeking refund the amount paid by her at the prescribed rate of interest 1B%.

However, tle allottee is seeking refund of the amount paid by her with interest at.prescribed rate as provided under rule 15 ofthe rules.

Rule 15 has been.reproduced as under: Rule 15. prescribed rate ol interest- lproviso to section 72, section 7g dnd sub-section (4) and subsection i71 of ,"irtioiiit ' '-,"" (1) For the purpose oJ prowso ti ,"riio, 1i,'iri,o" 18; ond sub_ sections (4) and (Z) of section 19, the ,,interest o, ,n" ,rr" prescribed', shqll be the State Bank oI tndiq highest marginol cost o ending rote +20k.: provided that in case the Stote Bank oI lndia morainol cost of lending rote (MCLR) is not in use, it shoit be ,eptocia oy ,urn benchmark lending rates which the Stare Bon* fi ii,i moy 1i, from time to time for lending to the generol pubtic- 23.

The legislature in its wisdom in tnJsuUriinate 'l.gi. ate 'l.gi.ir,ion under rhe provision of rule 15 ofthe rules, has determined the prescribed rate of interest.

The rate of interest so determined by the legislature, is reasonable and ifthe said rule is followed to award the interest. it will ensure uniform practice in all the cases.

24.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLRJ as Page 23 of 27 I Complainr No.

1532 of2022 I ffiIIARERA ffieunuenntil on date i.e., 1.7.05.2023 is g.70o/o, Accordingly, rhe prescribed rate of interest wlll be marginal cost o f lending rals +1o76 i.e., :r}.7}o/o.

25.

The definition ofterm ,interest, as defined under section 2 (za) ofthe Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: "(za) "interest,, means the rates ofinterest poyoble by the promoter or the allottee, as the case may be.

Explonotion. _For the purposeofthis clause_ {tJ the rote ol interest cha.rgeoble from the alloltee by Lhe promoLer, in cose of default, shall be equit to tn" ,ot" o1 iii"r"iinirn tn" promoter sholl be lioble to poy the ollottee, in cose oliifautt (i, the interest poyabte by th; p;r;;;"r-;-;i;' "iii"i iii,iio, f,". the dote the promoter received the omount or inj pirt iier"oytitt the dote the amount or part thereof ora iniriiit- tn"r"o, i, refunded, and the interest payable by ie ottott"" ti it," iro^otq sholl be from the dote the allouei dejoutts in poyli"i, to tn" promoter tillLhe dote it is paidi, 26.

The authority after considering ihe iacts stated by the parties and the documents placed on record is of the view that the complainant is well within her right for seeking refund under section 18(1)(b) of the Act, 2016.

27.

2016.

The instant matter falls in the category where the promoter has failed to allot a plot/unit in its any of the upcoming project as detailed earlier despite receipt of Rs.15,63,000/- made in the year 2012.

So, the case falls under section 18t11(bl ofthe Act of 2016.

In the instant matter, even after lapse of 10 years from the date of payment till the filling of complaint, no buyer,s agreement has beel ,Y page 24 of 27 28.

HARERA ffi-GURUGI?AI/ Complaint No.

1.632 of 2022 executed inter- se parties.

Therefore, the due date ofpossession cannot be ascertained, and the complainant cannot be expected to wait endlessly for her unit/prot for which he has paid a considerabre amount towards the sale consideration and as observed by Hon,ble Supreme Court of India in Ire o Grace Realtech pvt.

Ltd, Vs.

Abhishek Khanna & Ors., civil appeal no, STBS of 2079, decided on 1t.01.202t "....

The.occupation certifcote is not ovatloble even os on dorc, which clea.rly amounts to deficiency of service. rn', otiii"i ,onnu a" mocle to wqit in.de/initety for po.ssiSsion oS the aportieni ollouea to tnemt nor cen they be bound to toke the apartments in phase 1 oj the project.....,.', 29.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunder or to the allottee as per agreement for sale under section 11(a)(a].

The promoter has failed to comprete or unabre to give possession ofthe unit in accordance with the terms ofagreement for sale or duly completed by the date specified therein.

Accordingly, the promoter is liable to the allottee, as she wishes to withdraw from the proiect, without preiudice to any other remedy available, to return the amount received by him in respect of the unit with interest at such rate as may be prescribed. rescribed.

30 Accordingly, the non-compliance of the mandate contained in section 11(41(a) read with section 18(1)tb) of the Act on the part of the respondent is estabrished.

As such, the comprainant is entitled to refund ofthe entire amount paid by her at the prescribed rate ofinterest i.e., @,,Y Page 25 of 27 HARERA P*GURUGI?AI/ 10.700/o p.a. (the state Bank of Indra highest marginar cost ot rending rate (MCLR) applicable as on date +2o7o1as prescribed under rule 15 of the Haryana Real Estate (Regulation and DevelopmentJ Rules,2017 from the date of each payment till the actual date of reiund of the amount within the timelines provided in rule 16 of the Haryana Rules 20t7 ibid. c. lI Cost oflitigation 31.

The complainant is seeking above mentioned relief w.r.t. compensation.

Hon'ble Supreme Courtoflndia in civil appeal nos.6745-6749 of2021 titled as M/s Newtech promoters and Developers pvL Ltd.

V/s State of Up & Ors, (supra), has held that an allottee is entitled to claim compensation & litigatlon charges under sections 12,14,1g and section 19 which is to be decided by the ad.iudicating officer as per section 71 and the quantum of compensation & litigation expense shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.

The adjudicating officer has exclusive iurisdiction to deal with the complaints in respect of compensation & Iegal expenses.

H.

Directions ofthe authority 32' Hence, the authority hereby passes this order and issues the folowing directions under section 37 of the Act to ensure compliance of Page 26 of 27 tr4;N"r63r"rttl HARERA M-GURUGRAM obligations cast upon the promoter as per the function entrusted to the authority under section 34[0: i.

The respondent/promoter is directed to refund the amount i.e., Rs.15,63,000/- received by it from the complainant along with interest at the rate of 1-0.2 0o/o p.a.

0o/o p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Rules, 2017 from the date of t till the actual date of refund of the deposited amount. ii.

A period of 90 respondent to comply with the directions given in this order and lailing which legal consequences would follow.

Complaint stands disposed of.

File be consigned to registry Datedt 1,7.05.2023 33.

K,&rqxR f\llnl tr.nn \7LJ I\ ULTI (ts Regulatory Authority, Gurugram PaEe 27 of 27 Complainr No.

7632 of 2OZ2