ABHISHEK JINDAL vs IREO GRACE REALTECH PVT.LTD.

* HARERA #- eLnuennM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM 6062 of 2022 C*,lplrrn, N"iO6, "f ,0r l 26.O5.2023 Abhishek findal Address: 49, 441, Punjabi Bagh West, West Delhi, Delhi-110026 Complainant Versus M/S lreo Grace Realtech Pvt.

Ltd.

Regd, Office at: 304, Kanchan House, Commercial Complex, new Delhi-110015 Karampura Respondent Shri Sani eev Kumar Arora Membcr APPEARANCE: Shri Harshit Go Aqypc.!!q lollhe cor]lp!9ina nt Shri Rahul Tha [qys!et"-' &r,Ii iu.'6 1 {" nt ORDER The present complaint dated 01.09.2022 has been filed by the complainant/allottee under section 31 of the Real Estate ( Regulatio n and Development) Act,2076 (in short, the Act) read with Rule 28 of rhe Haryana Real Estate (Regulation and DevelopmentJ Rules,2017 (in short, the Rulesl for violation of section 11(4)(al of thc Act whercin it is inrrr alia prescribed that the promoter shall be responsible for all obligatror s, responsibilities and functions under the provision of the Act or the ru|:s and regulations made there under or to the allottees as per the agreeme nt for sale executed inter se.

Unit and proiect related details 1-.

Complaint no.

Order Reserve On: Order Pronounced A.

Pagc 1 of:10 CORAM: ffiHARERA #- aJRTIGRAI/ The particulars of unit details, sale consideration, the amount p6id by the complainant, date ofproposed handing over the possession, delay period, ifany, have been detailed in the following tabular form: Particulars Details "The Corridors" at sector 67A, Curgaon, Harvana Group Housin Colon 37.5125 acres 05 0f2013 dated 21.02.2013 valid 20.02.2021, upto Complaint No.

6062 of 202 2 2.

M/s Precision Realtors Pvt.

Ltd. and 5 others Registered Registered in 3 phases Vide 37A of 2017 07.12.2017(Phase 1) vide 377 0f 201.7 dated 07.72.2077 (Phase 2J Vide 379 of 2017 dated Phase 3 30.06.2020 (for phase 1 and 2) 37.1,2.2023 [for phase 3 402, 4th floor, tower AB e no.

26 ofthe complaint) 1876.31 sq, ft. fpagerlo.-26 of therom]rlaint) 23.07 . t) 23.07 .2013 annexure R-11on 0 7.08.2 013 fannexure R2 on page no.

42 of the dated 07 12.20Q I Iqplyl _, - Date of builder buyer agreement 12.t2.201,3 (annexure R-12 on page no.62 ofreplyl I'agc 2 of 30 Nature ofthe proiect Proiect area DTCP license no.

Name of licensee RERA Registered/ not registered Validiry status Apartment no.

Unit area admeasuring Date of approval of building plan Date ofallotment Date of environment clearance e no.

54 ofre 04.04.2014 s.

N.

2. (page no.23 ofthe com 73.

Date of fire scheme approval 27.71.207+ [annexure R-14 on page 74.

Due date of possession 23.07.20t7 (Calculated from date , building plan) .

Nqlgi_Glace Letiod r! '1or 13.

POSSESSTON AN CHARGES 13.3 Sub)ect to Force defined herein and furt the Allottee having comp obligations under thc conditions of this Agreer but notlimited to the tim all dues and charges and the Allottee having conr formalities or docun prescribed by the C Company proposes t possession of the said , the Allottee within a (forty two) months fro approval of the Bu and/or fulllllment preconditions impose( ("Commitment Period" further agrees and und the Company shall ad entitled to a period r ("Grace Period"), after the said Commitment P for unforeseen delays reasonable control of the 15.

Possession clausc 76.

Total sale consideration Rs.2,7+,29,678 /- (as per payment plan on comDlaintl * HARERA #,eunuoqnM Complaint No.

6062 of2022 plaint) ot allowed.

ND HOLDINC re Majeure, as rther subject to Lplicd with all its rc terms and ement including nely paymcnt of d also sublect to mplied with all rnrcntation as Company, the to offer the I Apartment to r period of 42 om the date of uilding Plans t of the sed thereunder rd") .

The Allottee rnderstands that additionally be d of 180 days :er the expiry of t Period to allow rys beyond the the Company. page no.

82 ol o fotr cti( o no.70 of san eplyJ )n of r-!uler!q Page 3 of 30 HARERA @ cl tDl raDAr\,1 77.

Amount paid by the complainant nsZuj6,+eET (as per S0A dated 13. dated 13. no.

83 of reolvl 18.

Occupation certificate 31.0 5.2 019 [annexure R19 on oaee t9.

Offer ofpossession 73.06.2079 (annexure R20 on page 06.2 019 on page t!qZ!. of replf] no: B1 :!r"!!l , Facts ofthe complaint That the complainant believing the representations of the respondenl builder booked an apartment in the project of the respondent. 'l'hc apartment buyer agreement was duly executed between the complainanr and the respondent company on 04.04.2014 in respect of unit no.

402, fourth floor, tower A-8 at real estate project "The Corridors,,admeasuring 1876.31sq. ft super area.

That as per clause 13.3 of the apartment buyer agreement datc(l 04.04.20L4, the respondent company was liable to deliver possession of the booked unit within a period of 42 months from the date of approval ol' the building plans, The building plans of th e real estate project in qucstio n was approved by Department ofTown and Country planning, Haryana on 23.07.2013 Therefore, the due date of possession was 23.01.2017.

Ihe respondent had failed to offer possession on the due date of delivcry of possession, however the respondent had offered possession of the booked unit on 13.06.2019 after a delay of 2 years 4 months 21 day:j.

That the respondent company has failed to pay delayecl possessron charges at the prescribed rates and execute conveyance deed of the booked unit till date in favour of complainant.

Complaint No.6062 oF 2(12 2 B.

3.

4.

5.

Page 4 ol30 ffiHABEBA ffieuRueRan 6.

That the complainant had already paid Rs 2,14,16,484/-our of toral consideration as and when demanded by the respondent company timely basis.

7.

That the complainant had invested his hard-earned money in the bookrng of the unit in the proiect in question on the basis of false promises maclc by the respondent at in order to allure the complainant.

However, the respondent has failed to abide all 11. de all 11.6 the obligations of him stated orally and under the apartment buyer agreement duly executed between both the present parties.

Therefore, the present complainant is forced to file present complaint before this hon'ble authority under Section 31 of Real Estate Regulation and Development Act,2076 read with Rule 28 of Haryana Real Lstat(, (Regulation and Development) Rules.

2017 to seek redressal of tht- grievances against the respondent company.

Relief sought by the complainant: 8.

C.

9.

The complainant has sought the following relief: .

Direct the respondent/builder to pay delayed possession charges at prescribed rate to the complainant from due date of delivery ol' possession 23.0L.201.7 till date of final offer of possession 73.06.2079 in respect of booked unit. .

Direct the respondent to execute and register the conveyance deed of the booked unit.

D.

Reply by the respondent.

The respondent has contested the complaint on the following grounds: 10.

That the complaint is neither maintainable nor tenable and is liable to bt: out-rightly dismissed.

The apartment buyer agreement was executed c-'lptil N"i# "r ilrl_l sale ona I'ag.5 ol l|0 13.

1,4.

15.

HARERA @ ct tDt tcDAl\/ between the complainant and the respondent prior to the enactment of the Real Estate (Regulation and Developmentl Act, 2016 and the provisions laid down in the said Act cannot be applied retrospectively.

11.

That there is no cause of action to file the present complaint.

12.

That the complainant has no locus standi to file the present complajnt.

That the complainant is estopped from filing the present complaint on account ofhis own acts, conduct, omissions, admissions, acquiescence and laches.

That the complaint is not maintainable for the reason that the agreement contains an arbitration clause which refers to the dispute resolution mechanism to be adopted by the parties in the event of any dispute t.c., clause 35 ofthe buyer's agreement. agreement.

That the complainant has not approached this authority with clean hands and have intentionally suppressed and concealed the material facts in thc complaint.

It has been filed by him maliciously with an ulterior motivc and it is nothing but a sheer abuse of the process of law.

The true and correct facts are as follows: That the complainant, after checking the veracity of the project namell/, 'Corridor, Sector 67 A, Curugram had applied for allotment of an apartment vide booking application form.

The complainant agreed to bc 16. bound by the terms and conditions of the booking application fofm.

17.

That based on the said application, the respondent vide his allotment oller letter dated 07.08.2013 allotted to the complainant apartment no.

CD_Ag- 04-402 having tentative super area ol 1g76.31 sq. ft. for a total salc consideration of Rs.2,14,29,618/-.

The apartments b uyer agreement was executed between the parties on 04.04.2014. (.omplaint No.

6062 of 2l)22 Pagc 6 of 30 ffiHARERA ffi. eunueneu compldint \o. b062 or 2(rr2 18.

That thereafter, the complainant approached the respondent wjth a request for changing the existing construction linked payment plan to 'construction linked payment plan with relaxed milestones..

Thc respondent vide its letter dated 1,6.07.2015 intimated the complainant that the payment plan applicable to the unit in question stands amended/modified with the immediate effect as per the request of tlte complainant.

19.

That the respondent raised payment demands from the complainant tn accordance with the agreed terms and conditions of the allot ment as wc ll as of the payment plan.

It is submitted that vide payment request letter dated 02.09.2015, respondent had raised payment demand towards thc fifth installment for Rs.

16,72,898 .6Zf .

However, the complainanr mado the payment only after a reminder dated 29.09.2015.

9.09.2015.

The complainant is bound to pay the remaining amount towards the total sale consideration of the unit along with applicable registration charges at the applicable stage.

That the respondent vide its payment request datecl 21 .12.201 5 raised thc installment demand in respect of the seventh installment in the su n) ot R j.

L0,63,352/- and the aforesaid payment was required to be made by thc complainant on or before 1Z.0l.2016.

However, the complainarLt defaulted in making payment of the whole amount and the remaining amount was adjusted in the next paymcnt demand as arrears.

That the respondent raised payment demands from the complainant in accordance with the agreed terms and conditions of the allotment as we I as of the payment plan.

It is submitted that vide pavment request lette.r dated 14.09.2016, respondent had raised paymenr demand towards thl tenth installment for Rs.

13,82,324.99.

However, the complainant made 20.

21.

Page 7 ot 30 HARERA MGURUGRAM the part payment, and the remaining amount was adjusted in the nexr payment demand as arrears.

22.

The complainant vide his letters dated 1,3.l.t.ZOt7 and 4.t2.2017 illcgal sought cancellation of the unit and demanded to refund the amount paid by him.

The respondent vide its email dated 27.12.2077 hacl dulv intimated the complainant that he has a very limited right to cancel the unit.

The complainant is a real estate investor who on account of slump in the real estate market is trying to wriggle out of his contractual obligations.

Even otherwise as per clause 22.'1, of the apartment buyer,s agreement, the complainant has a very limited right to cancel the agreement only in the clear and unambiguous default of respondent. apa rt from this limited right, the complainant do not has any other riilht to terminate the agreement and claim refund unilaterally.

That as per clause 13. clause 13.3 ofthe agreement, the possession has to be handed over within 42 months from the date of approval of building plans ancl preconditions imposed thereunder.

The time was to be computed fronr the date ofreceipt ofall requisite approvals.

Even otherwise constructjon could not be raised in the absence of the necessary approvals.

It has been specified in sub- clause (ivl of clause 17 of the approval of building plan dated 23.07.201,3 of the said pro,ect that the clearance issued by thc Ministry of Environment and Forest, Government of lndia has to be obtained before starting the construction ofthe project.

The environmer t clearance for construction of the said project was grant ed on 12.-12.201 ,\.

Furthermore, in clause 39 of part A of the environment clearance datccj 12.12.20L3 it was stated that fire safety plan was to be duly approved by the fire department before the start of any construction work at site.

That the last of the statutory approvals which forms a part of the pr€,- conditions was the fire scheme approval which was obtained on Pagc I ol :l{) 23.

6062 o12022 24.

25.

26.

27.

28.

HARERA Complaint No.

6062 oF 2(122 ffiGURUGRAI/ I 27.1.L.201,4 andthat the time period for offering the possession, according to the agreed terms ofthe buyer's agreement, would have expired only on 27 .tt.2019.

That the respondent vide its letter dated 25.11.2016, raised a paymenr request in respect of Value Added Tax (VAT) in the sum of Rs.

65,732/_ from the complainant and the payment of the same was due on or beforc 05.L2.20L6.

However, the complainant defaulted in making the sai.i payment and the amount was adjusted in the next payment demand ;rs Arrears.

Being a customer-oriented company, the respondent issued a letter date,d 31.03.2019 intimated the complainant about the grant of credit on account of GST rebate along with interest of 1g% per annum to the 'property account' of the complainant. mplainant.

That the respondent had completed the construction of tower jn rvhjch the unit allotted to the complainant was located and has even applied for the grant of occupation certificate vide application dated 06.07.201 7.

Th e concerned authorities granted the occupation certificate for the tower jn question on 3 1.05.2019.

That notice of possession dated 13.06.2019 was also given by thc respondent to the complainant calling upon him to pay his outstanding dues mentioned in the statement of account dated ,l3.06.2019 and to obtain the possession.

As per statement of account dated 13.06,201(), complainant was liable to pay Rs.

29,2O,lOZl- which jncluded Rs.

14,17,500/- towards stamp duty charges of the apartment. .l.hc complainant was well aware about all these developments and bound to complete the documentation formalities and make payment towards thc remaining amount due.

The complainant did not come forward to takc Page 9 of 30 ffi HARERA #- arnuennnr over the possession of his unit despite a reminder dated issued by the respondent to the complainant.

29.

That the implementation of the project was hampered due to non- payment of instalments by allotees on time and several other issues also materially affected the construction and progress of the project.

Central Government's notificatjon with regard to demonetization : I'he respondent had awarded the construction of the project to one of the leading construction companies of India.

The said contractor/ company could not implement the entire project for approx.

7-B months w.e.I fiont 9-10 November 2016 the day when the central government issu(,d notification with regard to demonetization.

During this period, the contractor could not make payments to the labour in cash and as majoril.y of casual labour force engaged in construction activities in India do not have bank accounts and were paid in cash on a daily basis.

Durirrg demonetization the cash withdrawal limit for companies was capped at Rs. ped at Rs.

24,000 per week initially whereas cash payments to Iabou r on thc site of the magnitude of the proiect in question are Rs.

3-4 lakhs per dar,,.

1'l c work at site got almost halted for 7-8 months as bulk ofthe labour beirg unpaid went to their hometowns, which resulted into shortage of labou r.

Hence, the implementation of the project in question got delayed due on account of issues faced by contractor due to the said notification of central government.

I here are also studies ot Reserve Bank of India and independent studies undertaken by scholars of different institutes/universities and also newspaper reports of Reuters of the relevant period of 2016-17 on thc impact of demonetization on real estate industrv and construcrion Iabour. l )-1 2 t22 20i 2.l 2.1 t: 1i Complaint No.60 There are also studies of Reserve Bank of India and Page 10 of 30 ffi HARERA #-GURUGRAN/ Thus, in view of the above studies and reports, the said event ol- demonetization was beyond the control of the respondent.

Hence, the time period for offer of possession should deemed to be extended for 6 months on account of the above.

Orders passed by National Green Tribunal; In last four successive years i.e., 2015-2076-201,7 -2018, Hon'ble National Green Tribunal has bec,n passing orders to protect the environment of the country and especially the NCR region.

The Hon'ble NGT had passed orrlers governing the entry and exit of vehicles in NCR region.

The Hon,ble NGT has passed ordcrs with regard to phasing out the 10-year-old diesel vehicles from NCR.

Thc pollution levels of NCR region have been quite high for couple ofyears;r the time of change in weather in November every year.

The contractor ol' respondent could not undertake construction for 3-4 months in compliance ofthe orders of Hon'ble National Green Tribunal.

Tribunal.

Due to that, there was a delay of3-4 months as labour went back to their hometowns, which resulted in shortage of labour in April -May 2015, November, December 201,6 and November- December 2017, ,fhe distrir:t administration issued the requisite directions in this regard.

In view of the above, construction work remained badly affected for 6- 12 months due to the above stated major events and conditjons which werc beyond the control ofthe respondent and the said period is also requirerl to be added for calculating the delivery date of possession.

Non-Payment of Instalments by Allottees: Several other allottees were ln default of the agreed payment plan, and the payment of conEtruction linked instalments was delayed or not made resulting in badly impacting and delaying the implementation of the entire pro,ect. .

Inclement weather conditions viz.

Guruqram: Due to heavy rainfall in Gurugram in the year 2016 and unfavourable weather conditions, all the Complaint No.

6062 of 2022 Pagc 11 .rf 30 HARERA *.88" GURUGRAM construction activities were badly affected as the whole town was waterlogged and gridlocked as a result of which the implementation of the prorect in question was delayed for many weeks.

Even varrous institutions were ordered to be shut down/closed for many days during that year due to adverse/severe weather conditions.

30.

Copies ofall the relevant documents have been filed and placed on record Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission made bv the parties.

6062 or 2012 E. f urisdiction of authoriry 31.

The authority observes that it has territorial as jurisdiction to adiudicate the present complaint below. well as subject matter for the reasons give n E.

I Territorial iurisdiction 32.

As per notification no.

1./92/2017-1TCp dated .14.72.20.17 issucd by Town and Country Planning Department, the jurisdiction of Real [. of Real [.lstatc Regulatory Authority, Gurugram shall be entire Curugram District for all purpose with offices situated in Gurugram.

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

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

E.

II Subiect matter iurisdiction 33.

Section 11[a)(a) ofthe Act, Z0t6 provides thar rhe pronroter shall bi: responsible to the allottees as per agreement for sale.

Section 11(aJ[a) is reproduced as hereunder: section 11(4)(a) Page 12 of 30 HARERA ffiGURUGRAI/ Co,npUlnt No eOOiof ZttZ -l _l Be responsible for all obligotions, responsibilities ond functtons und.,r thL provisions of this Act or the rules and regulations mode thereunder or Lo the allottees as per the agreement for sale, or to the qssociqtion of allottees, as Lhe cqse moy be, till the conveyonce of oll the aportments, plots or buildings, os the case may be, to the allottees, or the common oreos to the ossociotion of allotLees or the competent outhority, as the case moy be; Section 34-Functions of the Authorityr 34(J) of the Act provides to ensure compliance of the obligotions cast upon the promoter' the ollottees ond the reol estate ogents under this Act ond the rules and regulations mode thereunder.

34.

So, in view of the provisions of the Act quoted above, the authority has complete iurisdiction to decide the complaint regarding non_compliance of obligations by the promoter leaving aside compensation wltich is to bc decided by the adjudicating officer ifpursued by the complainant at a latcr stage.

F.

Findings on the obiections raised by the respondent: F.l Obiection regarding iurisdiction ofthe complaint w.r.t the aparrmenr buyer's agreement executed prior to coming into force ofthe Act.

35. e Act.

35.

The respondent submitted that the complaint is neither maintainable nor tenable and is liable to be outrightly dismissed as the residence purchase agreement was executed between the complainant and the respondcrrt prior to the enactment ofthe Act and the provision ofthe said Act can not bc applied retrospectively.

36.

The authority is of the view that the provisions of the Act are quasi retroactive to some extent in operation and would be applicable to the agreements for sale entered into even prior to coming into operation of thc Act where the transaction are still in the process of completion.

The Act nowhere provides, nor can be so construed, that all previous agreements would be re-written after coming into force of the Act.

Therefore, thc provisions of the Act, rules and agreement have to be read and interpreted harmoniously.

However, if the Act has provided for dealing with certain Page 13 of 30 ffiHARERA ffi atnutnnrvr specific provisions/situation in a specific/particular manner, then that situation would be dealt with in accordance with the Act and the rules after the date of coming into force ofthe Act and the rules.

Numerous provisions of the Act save the provisions of the agreements made between the buyers and sellers.

The said contention has been upheld in the landmark judgment of Neelkamal Realtors Suburban Pvt.

Vs.IlOl ond others.

U.P 2737 of 2017) decided on 06.12.20'17 and which provides as under: "119.

Under the provisions of Section 18, the delay in handino over the possessio, would be counted from the dote mentioned in the ogreement for sale entered into by the promoter and the ollottee p or to its registration under REP.1-.

Under the provisions oI RERA, the promoter is given q focility to revise the dote of completion of prcjecL ond declare the same under Section 4- The RERA does not contemplote rewriting ofcontract between the Jlat purchaser and the promoter...

122. er...

122.

We have already discussed that obove stqted provisions ofthe RERA ore not retrospective in nature.

They moy to some extent be hqvinq o retrooctive or quosi retrooctive effect but then on that ground thL: volidity of the provisions of RF,M cqnnot be chollenged, 'lhe Parliament is competent enough to legislate law having rcUospective or retrooctive effect.

A law can be even frqmed to affect subsisting / existing controctuol rights between the porties in the larger public interest.

We do not hove qny doubt in our mind thot the RERA has been frqmed in the larger publrc intercst ofter a thorough study on(l discussion made ot the highest level by the Stonding Committee ontl Select Committee, which submitted its detoiled reports." 37.

Further, in appeal no.

173 of2019 titled as Magic Eye Developer Pvt.

6062 of2022 Vs.

Ishwer Singh Dahiya, in order dated L7.1,2.201,9 the Haryana Real Estate Appellate Tribunal has observed- "34.

Thus, keeping in view our oforesoid discussion, we ore of the conldere(l opinion thot the provisions of lhe Acl ore quosi retrooctive tq some extent in operotion ond will be opplicoble to the ogreemenls llr sale entered into even prior Lo coming mlo operotion of the A whife he tronsoction ore stll in Lhe process of completion.

Hence in cose oldeloy in the olfer/delivery of possession as per the terms ond condit$ns of the agreement for sale the allottee sholl be entitled W the interest/delayed possession chorges on the reosonoble rqte ofiiterest os provided in Rule 15 of the rules ond one sided, unfol ontl unreasonable rate of compensotion mentioned in the ogreemqnt for sole is lioble to be ignored." Page 14 ol30 ffiHARERA #,eunuennrr,r No.6062 of '20'22 38.

The agreements are sacrosanct save and except for the provisions which have been abrogated by the Act itselfl Further, it is noted that the build€,r- buyer agreements have been executed in the manner that there is no scollr left to the allottee to negotiate any of the any of the clauses contained therein.

Therefore, the authority is of the view that the charges payable under various heads shall be payable as per the agreed terms and conditions ofthe agreement subject to the condition that thc same are in accordancc u,ith tlt(, plans/permissions approved by the respective departments/competent authorities and are not in contravention of any other Act, rules and regulations made thereunder and are not unreasonable or exorbitaDt in nature.

Hence, in the light of above-mentioned reasons, the contention of the respondent w.r.t. jurisdiction stands rejected.

F.II Objection regarding complainant is in breach of agreement for non_ invocation of arbitration 39.

The respondent submitted that the complaint is not maintainable lor thc reason that the agreement contains an arbitration clause which refers to tlLc dispute resolution mechanism to be adopted by the parties in the event ol any dispute and the same is reproduced below for the ready reference: "35, Dispute Resolution by Arbitrqtion "All or ony disputes orising out or touching upon in rclotion to the terms of this Agreement or its termination including the interpretation and volidlty ofthe terms thereofond the respective rights qnd obligotions of the pqrties shall be settled amicobly by mutuol discussions foiting ,,thich the some sholt be settled through reference to q sole Arbitrotor to be oppointed by tt resolution ofthe Board of Directors of the Company, whose decision sholl be jinaland binding upon the parties.

The ollottee hereby conlrns that it sholl hove no objection to the appointment of such sole Arbitrotor even iJ thL) person so oppointed, is an employee or Advocate of the Company or t: otherwise connected to the Company and the Allottee hereby accepts on(t ogrees thot this olone sholl not constitute a ground for challenge Lo rhr: independence or importioliq) of the soid sole Arbitrotor to conduct tht) arbitration. bitration.

The arbitration proceedings sholl be governed by the Arbitration and Conciliqtion Act, 1996 or ony stotutory amendments/ moclilicdtions thereto ond shall be held ot the Companr's offices or ot u Pagc 15 of30 Complaint HARERA ffiGURUGRAN/ tilr"in-."rr-.r,- location designated by the soid sole Arbitrqtor in Gurqoon.

The languoge ol the orbitrotion proceedings ond the Aword shall be in English.

The compony and the allottee will shore the fees oJ the Arbitrotor in equal proportion".

40.

The authorify is ofthe opinion that the jurisdiction ofthe authority ca n not be fettered by the existence of an arbitration clause in the buyer's agreement as it may be noted that section 79 ofthe Act bars the jurjsdiction of civil courts about any matter which falls within the purview of this authority, or the Real Estate Appellate Tribunal.

Thus, the intention to render such disputes as non-arbitrable seems to be clear.

Section SU of the Act also says that the provisions ofthis Act shall be in addition to and not in derogation of the provisions of any other law for the time bcing in iorcc.

Further, the authority puts reliance on catena of judgments of the Ilon'blc Supreme Court, particularly in National Seeds Corporation Limited v.

M.

Madhusudhan Reddy & Anr. (2012) 2 SCC 506, wherein it has becn held that the remedies provided under the Consumer Protection Act are in addition to and not in derogation of the other laws in force.

Consequently, the authority would not be bound to refer parties to arbitration even if th€, agreement between the parties had an arbitration clause.

41.

Further, in Aftab Singh and ors. v.

Emaar MGF Land Ltd ond ors., Consumer case no, 701 of 2015 decided on 13,07.2017, the Narional Consumer Disputes Redressal Commission, New Delhi (NCDRC) has held that the arbitration clause in agreements betlveen the complainant and builder could not circumscribe the jurisdiction of a consumer.

The relevant paras are reproduced below: "49. elow: "49.

Support to the above view is qlso lent by Section 79 of the retently enacted Real Estate (Regulation ond Development) Act, 2016 (for shott "the Real Estqte Act").

Section 79 ofthe soid Act reods os follows:- "79.

Bar ofjurisdiction - No civil court shall hqve jurisdiction ta entertoin ony suit or proceeding in respect ofony motter which the Authority or the adjudicoting olJicer or the Appellate Tribunol is empowered by or under this Act to determine and no injunction shall be gronted by ony court or other authority in Pagc 16 oi:10 HARERA MGURUGRAIV respect of any oction taken or to be token in pu$uonce of uny power conferred by or under this Act.,' It can thus, be seen that the soid provision expressly ousts the jurisdiction ol the Civil Court in respect of dny matter which the Real f:stote Regulatorl, Authoriq), established under Sub-section (1) ([ Section 2A or the Adjudicating Officer, appointed under Sub-section (1) of Section 71 or the Reo[ Estote Appellont Tribunol estoblished under Sectton 4.] ol the Re(tt Estote Act, is empowered to determine.

Hence, in view ofthe binding dictunl of the Hon'ble Supreme Court in A.

Ayyoswomy (supra), Lhe matters/disputes, which the Authorities under the Reol listote Act are empowered to decide, are non-orbitrable, notwithstanding on Arbitrotion Agreement between the parties to such motters, which, to q lorge extent, ore similar to the disputes folling for resolution under the Consumer Act.

56.

Consequently, we unhesitotingly reject the arquments on behalf of the Builder ond hold that (rn Arbitrotion Clouse in the olore-stoted kinct ol Agreenents between the Comploinonts ond the Builder cannot circumscnbe thejurisdiction ofo Consumer Fora, notr ithstanding the omendments mode to Section B ofthe Arbitration Act." 42.

While considering the issue of maintainability of a complaint before a consumer forum/commission in the fact of an existjng arbitration clausc in the builder buyer agreement, the Hon'ble Supreme Court i me Court in case titled as M/s Emaar MGF Land Ltd.

V.

Aftab Singh in revision petition no.

2629_ 30/2078 incivil appeal no.

Z3SIZ-Z3S|3 of ZO77 decided on 10.12.2018 has upheld the aforesaid judgement of NCDRC and as provided in Article 141 ofthe Constitution oflndia, the law declared by the Supreme Court shall be binding on all courts within the territory of India and accordingly, the authority is bound by the aforesaid view.

The relevant para of the iudgement passed by the Supreme Court is reproduced below: "25.

This Court in the series of judgnents os noticed above considerd Lhe provisions ofConsumer Protection Act, 1986 os well qs Arbitrotion Act, 1996 ond loid down thot complaint under Consumer protection Act beho 0 special remedy, despite there being an orbitrotion ogreement "the proceedings before Consumer Forum hqve to go on ond no error committed by Consumer Forum on rejecting the applicotion.

There is reoson for not interjecting proceedings under Consumer protection Act on the strength on orbitration agreement by Act, 1996.

The remedy under Consumer protwtion Act is q remedy provided to o consumer when there is o defect in ony goods or services.

The complaint meons any allegation in writing made by at comploinant has also been expldined in Section 2(c) of the Act.

The remedy under the Consumer Protection Act is confined to Lomploint by consuner i, Complaint 606r.f ^,t-) PaBe 17 ot 30 HARERA M GURUGRAI/ dejined under the Act for defect or deficiencies caused by o service providet, the cheap and a quick remedy hos been provided to the consumer which is the object ond purpose ofthe Act os noticed above,', 43.

Therefore, in view of the above judgements and considering the provisions ofthe Act, the authority is ofthe view that complainants are well within right to seek a special remedy available in a beneficial Act such as the Consumer Protection Act and RERA Act, 2016 instead of going in for :rn arbitration. bitration.

Hence, we have no hesitation in holding that this authority has the requisite jurisdiction to entertain the complaint and that the dispurc does not require to be referred to arbitration necessarily.

In the light of the above-mentioned reasons, the authority is of the view that the objection of the respondent stands rejected.

F.lll Obiections regarding force maieure 44.

The respondent-promoter has raised the contention that the constructjon of the tower in which the unit of the complainant is situated, has been delayed due to force maieure circumstances such as orders passed hy National Green Tribunal to stop constructlon during 2O7S-2016-201',1- 2018, dispute with contractor, non-payment of instalment by allottees and demonetization.

The plea of the respondent is regarding various orders of the NGT and demonetisation but all the pleas advanced in this regard arc devoid of merit.

The orders passed by NGT banning construction in the NC R region were for a very short period of time and thus, cannot be said to impact the respondent-builder leading to such a delay in the completion.

The plea regarding demonetisation is also devoid of merit.

Further, any contract and dispute between contractor and thc builder cannot bc considered as a ground for delayed completion of project as the allottee was not a party to any such contract.

Also, there may be cases where allottees has not paid instalments regularly but all the allottees cannot be expecte.l to suffer because of few allottees.

Thus, the promoter respondent can not bc Pago 18 of :|0 Complaint No.

6062 oF 202 2 ffita&ERA ffi eunuenRvr given any leniency on based of aforesaid reasons and it is well settled principle that a person cannot take benefit of his own wrong.

G.

Findings on the reliefsought by the complainant. .

Direct the respondent/builder to pay delayed possession charges at prescribed rate to the complainant from due date of delivery ol' possession 23,01. ion 23,01.20L7 till date of final offer of possession 1,3.06.2019 respect of booked unit.

45.

In the present complaint, the complainant intends to continue with thc project and seeking delay possession charges at prescribed rate of interest on amount already paid by him as provided under the proviso to section 18(1) of the Act which reads as under:- "Section 78: - Return of omount qnd compensqtion 18(1). lf the promoter fails to complete or is unable to qive possession of on aportment, plot or building, - Provided thotwhere on allottee does not intend to withdrow from the project, he shall be poid, by the promoter, interest for every month ol delay, till the handing over of the possession, ot such rote os moy be prescribed." 46.

Clause 13.3 ofthe apartment buyer's agreement (in short, the agreement) dated 04.04.2014, provides for handing over possession and the sanre is reproduced below: "13.3 Subject to Force Mojeure, os deJined herein ond Jurther subJect to Lhe Allottees having complied with oll its obligotions under the terms oncl conditions of this Agreement ond not hoving defoulted under ony provision[s) of this Agreement including but not limited to the timety payment of ctll dues and charges including the tatal Sole Considerotion, registration chorges, stamp duq/ and other charges ond olso sublect to Lhe Allottees hoving complied with all formolities or documentotiotl ut prescribed by the Company, the company proposes to olfer the po.rses.r/ol] of the soid opartment to the ollottees within o period of 42 months fronl the date of qpprovol of the Building plons ond/or fulftnent ol Lhe pteconditions imposed thereunder ("Commitment period" ).

The Allottees Pagc 19 ol :i0 Complaint No.

6062 of 2022 *HARERA S- eunuennll further agrees qnd understands thqt the compony shall odditionally be entitled to a period of 18A days ("Grqce Period"), ofter the expiry of the said Commitment Period to allow for unlbreseen deloys beyond reasonable control oI the company.' 47. pany.' 47.

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

I'he apartment buyer's agreenrcnl lays down the terms that govern the sale of different kinds of properties like residentials, commercials etc. between the buyer and builder.

It is in thc interest of both the parties to have a well-drafted apartment buyer's agreement which would thereby protect the rights of both the builder and buyer in the unfortunate event of a dispute that may arise.

It shoulcl oc drafted in the simple and unambiguous language which may be understoorl by a common man with an ordinary educational background, It should contain a provision with regard to stipulated time of delivery of possession of the apartment, plot or building, as the case may be and the right of the buyer/allottee in case ofdelay in possession ofthe unit.

In pre-RERA perioci it was a general practice among the promoters/developers to invariably draft the terms of the apartment buyer's agreement in a manner that benefited only the promoters/developers.

It had arbitrary, unilateral, and unclear clauses that either blatantly favoured the p ro m oters/develo pers or gave them the benefit of doubt because of the total absence of clarity over the matter.

48.

The authority has gone through the posscssion clause of the agrccnleDt.

At the outset, it is relevant to comment on the pre-set possession clause ol' the agreement wherein the possession has been subjected to all kinds ol' terms and conditions of this agreement and the complainant not being in default under any provisions ofthis agreements and in compliance with :ll provisions, formalities and documentation as prescribed by the promotcr.

Complaint No. plaint No.

6062 o12022 Page 20 of 30 ffiH #-eURUGRAM ARERA E':yy!:: The drafting ofthis clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promotcr itnd against the allottee that even a single default by the allottec in fultilling formalities and documentations etc. as prescribed by the promoter nray make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning. .l.h(, incorporation of such clause in the apartment buyer,s agreement by the promoter is just to evade the liabiliry towards timely delivery ofsubject unit and to deprive the allottee of his right accruing alter delay in possessir:Ir.

This is just to comment as to how the builder has nrjsused his dominilnt position and drafted such mischievous clause in the agreement and the allottee is left with no option but to sign on the dotted lines.

49.

The respondent promoter has proposed to handover the possession or thc subject apartment within a period of 42 months from the date of approval of building plans and/or fulfilment of the preconditions rmposed thereunder plus 180 days grace period for unforeseen delays beyond thc reasonable control ofthe company i.e,, the respo nd e n t/p romoter.

50, The counsel for the respondent promoter argued that the due date of possession should be calculated from the date of fire scheme approval which was obtain ed on27.1L.2014,as it is the last oFthe statutory approvals which forms a part of the preconditions.

The authority is of the viclv th:rl the respondent has not kept the reasonable balance between his own rights and the rights of the complainant/allottee.

The respondent has acted in a pre-determined and preordained manner.

51.

0n a bare reading of the clause 13. clause 13.3 of the agreement, it becomes apparently clear that the possession in the present case is linked to thc "fulfillment ofthe preconditions,,which is so vague and ambiguous in itsclI Nowhere in the agreement it has been defined that fulfillment of r,vhich Page 21 of 30 HARERA P-,GURUGRAI/ condltions forms a part of the pre-conditions, to which the due dat. or. possession is subjected to in the said possessio.l crause. rf the said possession clause is read in entirety the time period of handing over possession is onry a tentative period for compretion of the construction or the flat in question ancl the promoter is ajming to extend this time perjocl indefinitely on one eventuality or the other.

Moreover, the said clause is an inclusive clause wherein the ,,fulfilment of the preconditions,, has br:en mentioned for the timely delivery of the subject apartment.

It seems to bc just a way to evade the liability towards the timely delivery of the subjcct apartment.

According to the established principles oflaw and the principles of natural justice when a certain glaring illegality or irregularity comas to the nouce of the adiudicator, the adjudicator can take cognizance of the same and adjudicate upon it.

The inclusion of such vague and ambiguous types of clauses in the agreement which are totally arbitrary, one sided anr.1 totally against the interests ofthe alottees must be ignored and discard:cl in their totality.

In the light of the above-mentioned reasons, the authority is ofthe view that the date ofsanction of building plans ought to be ta ken as the date for determining the due date of possession of the unit in qucstion to the complainant.

52.

By virtue of apartment buyer,s agreement executed between the partjrs on 04 04.2014, the possession of the booked u nit was ro be delivered ,,r,fth in 42 months from the date ofapproval of building plan (23.07.2013) rvhich comes out to be 23.01.201.

23.01.201.7 along with grace period of 1g0 days which rs not allowed in the present case.

53.

Here, the authority is diverging from its earlier view i.e., earlier thc authority was calculating/assessing the due date of possession from datL, approval of firefighting scheme [as it the last of the statutory approval which forms a part of the pre-conditions) i.e., 2z .7 r.2074 andthe same was Complaint No, 6062 of 2022 PaEc 22 of 30 MHARERA ffieunuennrrl also considered/observed by the Hon,ble Supreme Court in Civjl Appcal no.

57BS of 2019 titled as ,IREO Grace Realtech pvt.

Ltd. v/s Abhishek Khanna and Ors., 54.

On 23.07.2013, the building plans of the projefi were sanctioned by rhL.

Directorate of Town and Country planning, Haryana.

Clause .j of the sanctioned plan stipulated that an NOC/ ciearance from the fire authority shall be submitted within 90 days from the of issuance of the sanctroneci building plans.

Also, under section 15(21 and [3) ofthe Haryana Fire Servicc 4ct,2009, it is the duty ofthe authority to grant a provisional NOC with in a period of 60 days from the date submission of the application. ,l.he delay/failure of the authority to grant a provisionar Noc cannot br. attributed to the developers.

But here the sanction building plans stipu latcd that the N0C for fire safety [provisional) was req uired to be obtained wjth in a period of 90 days from the date of approval of the building plans, lvhich expired on 23.10.2013.It is pertinent to mention here that the developcrs applied for the provisional fire app roval on 24.I0.2013 (as contented by t hc respondents herein the matter of Civil Appeal no.

57g5 of 2019 titled as 'IREO Grace Realtech pvt.

Ltd. v/s Abhishek Khanna and Ors.) atter rhc expiry ofthe mandatory 90 days period got over.

The application filed wts deficient and casual and did not provide the requjsite.

The respondcnts submitted the corrected sets ofdrawings as per the NIIC-200S fire schcnre only on 13.10. on 13.10.2014 [as contented by the respondents herein the nratter ]l Civil Appeal no.

5785 of 2019 titled as .IREO Grace Realtech pvt.

Ltd. v//s Abhishek Khanna and Ors.), which reflected the laxity of the developers in obtaining the fire NOC.

The approval of the fire safety scheme took more than 16 months from the date of the building plan approval i.e., fronr 23.07.2013 to 27.ll.Zot4.

The builders failed to give any explanation fc,r the inordinate delay in obtaining the fire NOC.

6062 of 2022 Page 23 oi 30 HARERA M" GURUGRAiU Complaint No.

6062 of2022 55.

In view ofthe above the authority changed its stand and diverged from its previous view of calculating the due date of possession from the date of fire N0C as the complainant/allottee should not bear the burden of mistakes/ laxity or the irresponsible behavior of the developers/respondents ancl seeing the fact that the developers/respondents did not even apply for thc fire NOC within the mentioned time frame of 90 days, It is a well settled law that no one can take benefit out of his own wrong.

In light 0f thc abovc- mentioned facts the respondents/ promoters should not be allowed to tal<c benefit out of his own mistake just because of a clause mentioned i.e., fulfilment of the preconditions even when they did not even apply for thc same in the mentioned time frame.

In view of the above-men tiono.l reasoning the authority has started to calculate the due date of possession from the date of approval of building plans.

Admissibility ofgrace period: The respondent promoter had propose.d to hand over the possession of the apartment within 42 months lrotn thc date of sanction of building plan and/or fulfilment of the precondirions imposed thereunder which comes out to be 23.01.2017.

The responclent promoter has sought further extension for a period of 1g0 days after thc expiry of 42 months for unforeseen delays in respect of the said project. . project. .l he respondent raised the contention that the construction of the proiecL vv.rs delayed due to /o rce majeure conditions including demonetizathn and thc order dated 07 .04.2075 passed by the Hon,ble NGT including others.

57.

Demonetization: It was observed that due date of possession as pcr the agreement was 23.0-1.2077 wherein the event ofderronetizatjon occurrc(l in November 201,6.

By this time, major construction of the respondents, project must have been completed as per timeline mentioned in [he agreement executed between the parties.

Therefore, it is apparent that demonetization could not have hampered the construction activities of thc Page 24 ot :10 HARERA MGURUGRAM respondents' proiect that could lead to the delay of more than 2 yea rs.

Th u s, the contentions raised by the respondents in this regard are rejected.

58.

Order dated 07.O4.ZOLS passed by the Hon,ble NGT: The order tjated 07.04.2075 relied upon by the respondent promoters states that "ln these circumstonces we hereby direct stqte of U.p., Noido oncl Greoter NOIDA Authoriry, HUDA, itote of Horyono,oii iCi., o"tt,i ,, immediotely direct stoppoge of constiuctiin octiv,ittis- oJ att the buildings sho\un in the report'os well os o, oii"r' ,ii"r'rn"r"r"r, construction is being carried on in violation to the direction oJ NC,l. os well os the MoEF guideline of 2A10.,, 59.

A bare perusar of the above makes it apparent that the above-said order was for the construction activities which were in violation of the NC.l direction and MoEF guideline of 2010, thereby, making it evident that it thc construction ofthe respondents,proiect was stopped, then it was due to thc fault ofthe respondent itselfand cannot be allowed to take advantage ot its own wrongs/faults/deficiencies.

Also, the allottee should not be allowed to suffer due to the fault of the respondent/promoter. /promoter.

It may be stated that asking for extension of time in completing the construction is not a statuto ry right nor has it been provided in the rules.

This is a concept which has bcen evolved by the promoter themselves and now it has bccome a very common practice to enter such a clause in the agreement executed between the promoter and the allotee.

It needs to be emphasized that for availing furthrlr period for completing the construction the promoter must make out or establish some compelling circumstances which were in fact beyond his control while carrying out the construction due to which the completjon r)f the construction of the project or tower or a block could not be complcted within the stipulated time.

Now, turning to the facts of the present case the respondent promoters has not assigned such compelling reasons as to wh\, and how they shall be entitled for further extension of time 180 days jn Complaint No.

6062 of 2022 Page 25 of 30 ffiIAEEBA S* eunuennvr Complaint No.

6062 of 2022 delivering the possession of the unit.

Accordingly, this grace period of I ll0 days cannot be allowed to the promoters at this stage.

60.

Admissibility of delay possession charges at prescribed rate of interest: The complainant is seeking delay possession charges at thc ratc of L80/o p.a. however, proviso to section I g provides that where an allottec does not intend to withdraw from the project, he shall be paid, by thc promoter, interest for every month of delay, till the handing over ol possession, at such rate as may be prescribed and it has been prescribecl under rule 15 ofthe rules.

Rule 15 has been reproduced as under: Rule 75, Prescribed rdte of interest- [proviso to section 12, section lB and sub-section (4) dnd subsection (7) of section 1gl A) For the purpose of proviso to section 12; section 1g; and suh sectiotls (4) and (7) of section 19, the "interest at the rate prescribed', shall be the State Bank of lndia highest marginot cost ol lending rote +2%. rote +2%.

Provided thot in cose the Stote Donk of ln(lio morginal cost t)l lending rate (MCLR) is noL in use, it shalt be replacetl by suci benchmark lending rotes which the StoLe Ronk tf Indn moy fix ]iont time to time Ior lending to the generol public.

61.

The legislature provision of rule in 15 its wisdont in the subordinate legislation undcr :he of the rules, has determined the prescribed ratc ol interest.

The rate ofinterest so determined by the legislature, is feasonable and if the said rule is followed to award the interest, it will ensure unifbrnr practice in all the cases.

The Haryana Real Estate Appellate Tribunal in Emaar MGF Land Ltd. vs.

Simmi Sikka observed as under: - . "64.

Taking the case from another ongle, the allottee was only enqtled to the delayed possession charges/interest onty ot the rote oI Rs.1i/- pOr sq. ft. p.er month os per clouse 18 of the Buyer's Agreement for the period pf siuch delay; whereos, the promoter wos entitled to interest @ 2irk pe, innun, compounded.at the time of every succeeding instolment for the qeloyed payments. -The lunctions of the Authority/Tribunal ore to sdfeguqrd the interest of the aggrieved person, moy be the altottee or the pioiofir.

The rights ofthe porties are to be bolonced and must be equitable.

The prbmoler connot be allowed to take undue advontage ofhis dominote position ond to exploit the needs of the homer buyers.

This Tribunal is duty bound to take into consideration the legislotive intenl i.e., Lo protecL thi inrcrest ol thr Page 26 of 30 HARERA P.

GURUGRAM Complaint No.

5062 of 2022 consumers/qllottees in lhe reol e ote sector.

The clouses of the Buver,.s Agreement entered inb between the porties ore one-sia.i',,r,rit7)'^,t rnreosonqble with respect to the groni of interert f., ainia ,i*",."" There ore various other clauses in the Buye;;;";r;;;;;; i;;;"::,:,:,,:" sweeping powers rc the promorcr rc concetihe ,ttir."r, ,ri'i,,),,',i'. amount poid. ount poid.

Thus, Lhe terms ond conditrcns ol the Buyer, eir"iirii)r'r"d 09.05.2014 ore ex-facie one-sided, unyoir ond unreoionitii "ri"ril"rr'r", sholl constitute the unfoir trade practice on the port ofthe p,rom;;;;. i;;;; rypes oI-discriminqtory terms ond conditio* "irn" s'ry;,{ eg,ir"."ri'r"itt not be finol ond binding." 62.

Consequentl, as per website of the State Bank of India Le., the marginal cost of lending rate (in short, MCLR) as on date 08.09.2023 is 8.7S%.

Accordingly, the prescribed rate of interest will be marginal cost of lending ra te +20/o i.e.,10.75 % per annum.

63.

The definition of term ,interest, as defined under section 2 [za) of the Act provides that the rate of interest chargeable from the allottee by thc promoter, in case ofdefault, shall be equal to the rate ofinterest which thc promoter sharl be riable to pay the alottee, in case of defaurt.

The rerevant section is reproduced below: "(za) "interest" meqns the rates of interest poyable by the promoter or the ollottee, as the cose moy be.

Ex.plonatrcn. _ Fot the purpose of Ih is t louse_ (t) the rote oltntere5t chargeobte lrom the ollottee by the promoter. t case of default, sho be equol to the rote of ritere{t whtch the promoter shall be liable to poy the ollottee, n c:ose o1 defoult; (i0 the interest poyobte by the piomoter ro the a tt"ir" " 'rioit-i" 1r._ ,n" dote the promoter received the amount or ony port iheriol titt the date the amount or port thereof and tnterest th'ereon t refunaea, ona the interest payable by the ollottee to the pro.ot", ,iott'i" 1ro^ tn" dote the olloxee defoulx in poyment to th" proior"r' ,iti in" aor" i, is paid;" 64.

Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., 10.75o/o by the respondent/promotcr which is the same as is being granted to the complainant jn case of dclav possession charges.

Page 27 ol30 65.

7 ol30 65.

On consideration ofthe circumstances, the evidence and other record and submissions made by the parties, the authority is satisfi# that the respondent is in contravention of the provislons of the Act.

Qy virtue of apartment buyer's agreement executed between the parties on 04.04.2014, the possession of the booked unit was to be delivered within 42 months from the date ofapproval of buildin g plan (23.07.2073) which c{mes out to be 23.01.2017 (i dated 08.09.2023J.

The grace period of 180 days is not allowed in rhe present complaint for the reasons mentioned above.

Accordingly, nrrn- compliance ofthe mandate contained in section 1l (al tal rcad with proviso to section 18(1) of the Act on the part of the respondent is establishecl.

As such the complainant is entitled to delayed possession charges at thc prescribed rate of interest i.e.,10.75o/o p.a. for every month of delay on Lhc amount paid by them to the respondent from due date of possessjon dated 08.09.2023J till offer of possession of the booked unit i.e., 13.06.2 01 9 plus two months which comes out to be 13.0g.2019 as per the provrso to section 18(1)(a) ofthe Act read with rules 15 ofthe rules. .

66.

With respect to the conveyance deed, the provision has been made under clause 14 of the buyer's agreement and the Section 17 (1) of the Act deals with duty of promoter to get the conveyance deed executed and the samc is reproduced below: MHARERA S eUngennU I co,ot.rn, ro. eoiior z,rz, "77.

Transkr oI title.- (1).

The promoter sholl execute a registered conveyance deed in favour of the ollo ee olong with the undtvtcled proporuonote title in the common oreas to the associqtion of tie ottottees or the competent authority, osthe cose may be, ond hond over the physicol possession ofthe plot, qpartment ofbuilding, as the cose moy-be, to Pagc 28 of il0 i.e.,23.01. .e.,23.01.2017 ffi HARERA #-eunuennH,r the ollottees and the common areas to the ossociation of the ollottees or the competent outhoriq), os the cose may be, in i reol estote project, and the other title documents pertoinng thereto within specifred period os per sonctioned plans as proviied under the locql laws: Provided that, in the absence ofany locol low, conveyonce deed n favour of the allottee or the ossociotion of the olloxees or the competent outhority, os the cose may be, under this section sholl be carried out by the promoter within three months from dote oI issue of occupancy certif co te." 67.As the respondent builder has obtained the OC of the unit on 31.05.2019 and has offered the possession to the complainant on 13.06.2019..t.he respondent/ promoter is directed to get the conveyance deed ofthe allotte,d unit executed in the favour of complainant in term of section 17 [1) of thc Act of 2016 on payment of stamp duty and registration charges as applicable.

H.

Directions ofthe authority 68.

Hence, the authority hereby passes this order and issues thf following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority unrler section 34(0: The respondent is directed to handover physical possession of rhc subject unit within 60 days from the date of this order as occupation certificate of the project has already been obtained bl, it from the competent authoriry.

The respondent is directed to pay interest at the prescribed rate,ol.

70.7 5o/o p.a. for every month of delay from the due date of possession i.e., 23.01.201,7 tili offer of possession of the bookcd unit after obtaining occupation certiFicate plus two months j.e., 13.08.2019 as per the proviso to section 18(1)[a) of rhe Act reaci with rules 15 of the rules. ll. complaint No.

6062 of 202 2 PaBe 29 ol 30 trHARERA S-eunuennvr The respondent is directed to pay arrears of in within 90 days from the date of order. iv. order. iv.

The complainant is also directed to pay the outstandi after adiustment ofdelay possession charges.

The rate of interest chargeable from the allottees by in case ofdefault shall be charged at the prescribed by the respondent/promoter which is the same ra which the promoter shall be liable to pay the allo default i.e., the delayed possession charges as per se the Act.

The respondent/ promoter is directed to get the ter is di of the allotted unit executed in the favour of complain section 17(1) of the Act of 20L6 on paymenr of sta registration charges as applicable. vii.

The respondent shall not charge anything from the which is not part of the builder buyer agreement.

Complaint stands disposed of.

File be consigned to registry.

HJ&' ftl :ltt Haryana Real Estate Regulatory Authority, Gurugram Dated: 08.09.2023 69.

70.

Complaint No. of 20 22 ues, if any promoter, .e.,10.7So/a of interest in case of n 2 (za) of ance deed in term of duty and plaina n t Pagc 30 ot :10