MANISH SAINI vs OCUS SKYCRAPERS REALTY LTD

ffiHARERA # eunuennlrr CORAM: APPEARANCE: Sh.

Karan Sehgal (Advocatel Sh.

Harshit Batra [Advocate] BEFORE THE HARYANA REAI ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint No, 977 of 2021 Member Complainant Respondent ORDER 1.

This complaint has been filed by the complainant/allottee under section 31 ofthe Real Estate (Regulation and Development) Act,2016 fin short, the Act) read with rule 2g of the Haryana Real Estate (Regulation and Development) Rules,2017 (in short, the Rules) for violation of section 11(al(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provisions of the Act or the laint no.: 977 of 2O2t 23.Oa.2023 16.03.2021 _- l 12.07.2023 ; Date of fi lling of complaint: Oder reserved on: Date ofpronouncemenL Mr.

Manish Saini Address: - C-2035, Ground Floor, Sushant Lok, phase Sector 43, Gurugram 1,22002, Haryana Ocus Skyscrapers Realty Lilmited Address: - C-94, First Floop, Shivalik, New Delhi- 1 l00t 7 and its office Corporate Office at Ocus Technopolis, Golf Course Road, Sector 54, Gurugram, Haryana _722OOz Complainant Respondent Shri Ashok San Page 1 ol16 ),7 Versus *HARERA S- eunuennrvr A, 2.

Complaint No.

977 of 2021 Rules and regulations made there under or to the allottees as per the agreement for sale executed inter se.

Unit and proiect details The particulars of unit, 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 ofthe project Ocus 24K, Sector 68, Badshahpur, Gurgaon 2.

Project area 4.44 acres Commercial complex 76 of 2072 dared 01.08.2012 valid up to 27 /10 /2022 3.

Nature of the proi ct 4.

DTCP license no. and validity status 5.

Name of licensee M/s Perfect Constech private Limited 6.

RERA Registered/ not registered Registered vide no. dated 1,8.09.2012 t7.09.2022 G-216.

022 G-216.

Ground floor (Page 9 of complaint) 213 sq. ft. (Page_9 of complarnt] 05.05.2014 (Page 4 of complaintl l 220 of 201.7 valid upto 7.

Unit no.

I Unit area admeasuring Date of executibn of Apartment $uy".', Agreement Page 2 ol16 HARERA ffiGURUGRAM Complaint No.

977 of2021 ?sent io all olete 'Said (60) tftri lbe rtmen t itonces of the ditions easons I 11(c) e(s) to I other tments )r ony e(s) to r and rlied) , "f I l late 4) of c"] 10 Possession clause , 11(a) Schedule for possessior I the said unit I The Company based on its pre: lplans and estimates and subject tt liust exceptions endeovors to comp I construction of the Said Building/f lUnit within a period ofstxty ( I months Irom the dote of I I agreement unless there sholl delay or failure due to deportm delay or due to ony circumston beyond the power and control of Company or Force Majeure conditi including but not limited to reqs mentioned in clause 11(b) and 11 or due to failure of the Allottee(s) pay in time the Total price and ot, charges and dues/payme mentioned in this Agreement or ( failure on the part of the Altottee(s) abide by all or any of the terms a conditions of this Agreement. (Emphasis supplie tl Due date of possession 0 5.0 5.2 019 (Calculated as 60 months from dt ofexecution of BBA i.e., 05.05.2014 Rs.

29 ,60 ,7 00 / - (As per BBA on page 10 complaint) Rs.8,58,189/- (As per cancellation letter on pa 63 of complaint) L2 Basic sale considefation 13 Amount paid qy rhe complainant Page 3 of 16 ,, t4 Occupation certificate /Completion certificate L7.07 .201.9 fPage 50 of reply) 15 Offer of possession Not offered 17.05.2019, 72.06.2014, 15.07.201 4 17.04.2075, 13.05.2015 t6 Reminder Letters 77 Cancellation Letter L8.01_.2017 (Page 58 of reply) REBA UGRAM A UR H G B.

977 of 2021 Fact ofthe complaint The complainant has made the following submissions: - i.

That in april 2013, respondent approached complainant through your channel partner/ broker M/s Uydhunik Estates, M.G. ates, M.G.

Road, Gurugram, to book the unit in Respondent,s upcoming commercial projeFt "OCUS 24K" in Sector 68, Sohna Road, Gurugram.

Application form dated ZO.O4.ZOI3 was submitted by Complainant in pre-printed format provided by the Respondent, for allotment of a pommercial unit having super area measuring 19.79 square meter (213 Square feet) in the said project.

Total Sale Consideratidn was settled at Rs.

29,60,700/- and Complainant had paid Rs.

2,86,063/- as booking amount.

Complainant further paid Rs.

3,58,189/- on 06.07.2013 vidc cheque no.

556305.

Thereafter, Complainant paid Rs.2,13,g37 / to Respondent and the Buyer's Agreement was executed between the parties on 05.05.2014 wherein detailed terms and conditions of the allotment were shared first time with Complainant at such Page 4 of la L HARERA W"GURUGRANI unit was allotted on the ground floor bearing number G_216 having super area of 19.79 sq. meter (213 Square feet).

The terms and conditions of the Agreement were arbitrary and one sided however since a huge sum was already paid by the Complainant, he had no other option but to sign on the pre- printed format of Agreement. ii.

Thereafter Complainant enquired about the construction status and project details from Respondent's office but they have failed to share the requisite details with him. iii.

Since there was ho construction-in-progress at site at that time and approvals wqre to be procured for constructing the project, Complainant withheld the demands until receipt of satisfactory response from Rgspondent's side.

Since no response as to status of construction and procurement of necessary approvals was shared with Com$lainant, he was constrained to stop making the payments of demands raised by you. iv.

Despite of payment of Rs.

8,58,189/- to Respondent, Allotmenr was wrongfully cancelled by the Respondent vide cancellation letter dated 78.0\.2077 and stated rhat a sum of Rs.

1,2,26,4621- stand forfeited. forfeited.

As per cancellation letter, since Complainant had made payment ofRs.

8,58,189/- the entire amount stood forfeited and he had left with no right to claim any refund or allotment.'l'he forfeiture of the entire amount paid by Respondent is arbitrary and illegal.

C.

Reliefsought by the complainant Page 5 of 16 Complaint No.

977 of 2021 belated stage.

As per the Buyer's Agreement dated 05.05.2014, a + HARERA ffi GURUGRAI/ 4.

The complainant has sought the following relief sought: _ ll.

Direct the respondent to refund the full amount along with interest. ii.

Direct the respondent to pay legal expenses of Rs.

70,000/_.

Reply by the respondent The respondent contested the complaint on the following grounds : i.

The complainant approached some broker, M/s Adhunik Estates for investment purposes and after satisfying himself of the future prospects and with investment purposes, signed the application form on 20.04.201.3 for allotment of a Commercial Unit in project "OCUS 24K" of tfe Respondent.

It is submitted rhat after being satisfied of the terms of the terms the complainant must have signed the application form only for the investment purposes.

A provisional Unit o.

G-216 was allotted to the complainant.

977 of2021 D.

Thereafter, Buyers Agreement was signed and executed between the parties on 05.05.2014 (hereinafter referred to as the,,said Agreement"), with regard to the unir being No.

G-216 admeasuring 213 square feet (hereinafter referred to as the ,,said Unit") for a consideration of Rs.29,60,7 00 /- excluding taxes, in the project of the Respondent being "Ocus 24K" (hereinafter referred to as the "said Project"), which is earmarked as Service Apartments.

The Builder Buyer Agreement for the said Unit was executed between the parties on 05.05.2014.

The Complainant alleged contentions that the Unit of the complainants is non-existing and are not likely to be delivered in lll.

Page 6 ol 16 ffiHARERA S- eunuerw tv.

VI, Complaint No. plaint No.

977 of 2021 near future are wrong and baseless on the face of it.

Because or a combined reading of Clause 11 (a) read and Clause 14 of the Builder Buyers agreement dated 05.05.2014, the construction of the said Unit shall be completed within 66 months from the dare of execution of said Agreement.

Therefore, as per the Builder Buyers agreement dated O5.OS.ZO14, said Unit was to be completed by 05.11.2 019.

In order to deliver the said Unit to the Complainant before the time period promised, the Respondent was constructing the said Proiect at a fast pace and therefore, the same was completed in luly,20L9.lt is most respectfully submitted that the Respondent had obtained thd Occupation Certificate with respect to said Pro.iect on 1,7 .07 .2019.

That the Respondent was not under any obligation to send any reminders to the Complainant to make the outstanding payments, it is humbly submitted that the Respondent had in fact, addressed numerous reminders to the Complainant for payment of the balance consideration with respect to the said Unit.

Despite receiving the various letter of Reminder for clearing the outstanding dues from the Respondent, the Complainant did not come forward to take over the said Unit by paying outstandinB amount.

It is submitted that when the complainant despite the above number of reminders and letters failed to pay the outstanding dues, the respondent left with no other option but to cancel the vlt.

Page 7 of 76 + HARERA P- GURUGRAM vllt, Complaint No.

977 of 2021 lx. said booking against the said allotted Unit vide cancellation lefter dated 18.01.2 017.

It is pertinent to mention here that after 2 years and 5 months of the cancellation of the said Unit, Mrs.

Ritika Saini, wife of complainant sent a letter dated 30.0S.2019 to the respondent on behalf of the Complainant and requested for revocation of the said Unit, as due to some unavoidable circumstances in their life due to which they were unable to make the payment. e payment.

In view of the above, it is submitted that the Complainant is chronic defaulterq as they have failed and neglected to make timely payments #ith respect to the said Unit despite numerous reminders addre$sed to him.

The above default has been committed by the Complainants, despite knowing the fact that timely payment of the consideration of the said Unit is essence of the said Agreem"ht ,. -r, recorded in the said Agreement at Clause No.8.

Clausb No.8 is reproduced here below for the readv reference:- L Time is the essence The Allottee(s) ogrees lhat time is the essence with respect to pqyment ol ,l t)tat Price .and other charges, deposits ond omounts poyoble by the Atiotte4rj o, p", this Agreement and/or as demqnded by the iompany iro* ti.e li'ttr" una also to perform/obserie oll the other ibtigotions olihl A ottee(i) u'naer this Agreement.

The Company is not under any obligotio'n to send ony'ri.inders 1o, the payments to be nade by the Allottee(s) as jer the schedule if poy."n-ti ona for the payments to be made as per demond ay tn" coipZiy o, Ltn", obligations to be performed by the Allottee(s).

The Complainant has very cleverly concealed the above Reminders dated 17.05.201.4, 72.06.201,4, 75.02.201,4, t2.OB.2O1+, 17.04.2075 and 13.05.2015, wherein he has been direcred ro pay Page 8 of 16 HARERA MGURUGRAM the balance payment.

Complainant has failed to make the balance payment as per the terms of the Buyers Agreement and violated the terms.

Xi.

It is further submitted that till date the Complainant has never written even a single letter to the Respondent seeking any refund or complaining agout any false promise made by the Respondent or any deficiency of services on the part of Respondent.

This present Complaint is the very first document wherein the Complainant is alleging deficiency in services, This clearly shows that the present Complainants is a sham Complaint by the Complainant to wriggle out of his obligations towards the Respondent. espondent.

Thu$, the present Complaint out to be dismissed with hea\,y cost. xii.

It is humbly submitted that the said project of rhe respondenr is ready and operational since july, 2019 and all the amenities and facilities are being provided by the respondent as they have been mentioned in the buyer's agreement dated 0 5.05,2014.

Copies of all 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 by the parties. f urisdiction of the authority The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons grven below.

977 of 2021 6.

E.

7.

Page 9 of 16 _), HARERA ffi.

GURUGRAM Compla,nt No.

977 of 2021 E.

I Territorial iurisdiction 8.

As per notification no.

1, /92 /2077 -1,TCp dated 14.12.2012 issued by Town and Country planning Department, the iurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

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

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

II Subiect matter iurisdiction 9.

Section 11(41(a) ofthe Act,2076 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 11(4)(al is reprod uced as hereunder; Section 71 (4) The promoter sho - (o) be responsl,ble for all obligations, responsibilities ond functions under the provisions of this Act or the rules ond regulotions made thereunder or to the allottees as per the agreement for sale, or to the associotion of qllottees, as the case may be, till the convg/ance of all the apartments, plots or buildings, os the coy may be, to the allottees, or the common oreas to the ossociotion of ollottees or the compete he competent outhority, os the cose nay be.

Section 34-Functibns oI the Authority: 34(fl of the Act provides to ensure complionce of the obligatrcns cost upon the promoters, the ollottees qnd the real estote agents under this Act ond the rules and regulotions made thereunder.

10.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non- compliance of obligations by the promoter leaving aside compensation Page 10 of 16 )- HARERA M.GURUGRAM Complaint No.

977 of 202'l which is to be decided by the adjudicating officer if pursued by the complainants at a later stage.

11.

Further, the authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the Hon,ble Apex Court in Newtech promoters ond Developers private Limited Vs State of U.p. ond Ors.

2020_2021 (1) RCR (C), 357 and reiterated in case of M/s Sana Realtors private Limited & other Vs llnion of India & others SLp (Civil) No.

13005 of 2020 decided on 72.0S.2022wherein it has been laid down as under: "86.

From the scheme of the Act of which a detoiled reference ho\ been mode ond toking note oI power of adjuclicotion delneoLed wtLh the regulotory outhority ond adjudicoting offcer, whot finally culls out is thot qlthough the Act indicates the distinct expressions like 'refund', 'interest', 'penolty, ond ,compensation', o conjoint reoding of Sections 18 ond 19 clearly monifests that when it comes to relu nd of the amount, and interest on the refund omount, or directino poymenl of interest for delo))ed delivery oJ posse<spn. ot penulty ond tnterest thereon, it ts the regulotory outhonty whi,h ho\ thc power to exomine dnd determine the outcome ofa comploint.

At the same time, when it comes to a question of seeking the relief oJ odjudging compensation and interest thereoi under iections tZ, li, 1. tZ, li, 1.8 qnd 19, the adjudicoting off;cer exclusively has the power to determine, keeping in view the collective reading ofSection 71 reod with Section 72 ofthe Act. if the adjudication u;der Sections 12, 11, 1B.and 19 other thdn compensqtion as envisqged, ij extended to the adjudicating offrcer as proyed thot, in our view, mov intend to expand the ambit ond scope of the powers ond lunitons o1 the odjudicating officer under Section 71 and thot woulcl be ogainit the mandate ofthe Act 2016." Hence, in view of the authoritative pronouncement of the Hon,ble Supreme Court in the cases mentioned above, the authority has thc jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

Findings on the reliefsought by the complainant 72.

F.

Page 11 of 16 L HARERA M GURUGRAI/ Complaint No.

977 of2021 i.

Direct respondent to pay Iegal expenses of Rs.

7 O,0OO /_ 13.

The complainant was allotted unit no.

G_21,6, Ground floor in the pro.iect "Ocus 24K, Sector-69,, by the responden t- builder for a basic sale consideration of Rs.

29,60,700/_ and he has paid a sum of Rs.

8,58,789/- which is approx.

2go/o of the basic sale consideration.

A builder buyer's agreement dated 05.05.2014 was executed between parties and according to the clause 11(a) of the BBA, the due date of possession comes to be 0S.0S.2019.

The complainant failed to pay amount due against thd allotment unit.

14.

As per clause 8 of the builder buyer agreement the complainant was liable to make the payment as per the payment plan and the relevant clauses of the builder buyer agreement are reproduced under for ready reference: L Time is the essehce The Allotue(s) agrees thot time is the essence with respect to payment of,,Totol _Price ond other chorges, deposits and amounts poyoit"iyin" Allottee(s) as per thlf Agreement ond/or os demandea bv ine coioonu Irom tim,e to time aid olso to perform/observe o the rve o the oiher obligotiois oJ.the Allottee(s) under this AgreemenL The Compony $ not unZ", ory o.b,ttgotion.to send ony reminders for the pqyments to be mode by tie Allottee(s) os per the schedule of payments ond for the poyments'to be mocl-e as per demand by the Compony or other obligotrcns to be perlormed by the Alt\ttee(s).

15.

The respondent issued reminders on 17.05.201g, 12.06.2014, 75.07.2074, 1,7.04.201,5 and 13.05.2015 thereafter, issued cancellation Ietter i.e., 1-a.01.2077 to the complainant.

The Occupation Certificate Page 12 of 76 HARERA ffiGURUGRAM Complaint No.

977 of 2021 for the project of the allotted unit was granted on 17 .0Z.ZOl9. lt is evident from the above-mentioned facts that the complainant paid a sum of Rs.

8,58,189/- against basic sale consideration of Rs.

29,60,700/- of the unit allotted to him.

The complainant has failed to adhere to the terms and conditions of the builder buyer agreement.

The respondent cancelled the unit of the complainant with adequatc notices.

Thus, the cancellation of unit is valid.

17.

The Hon'ble Apex court of the land in cases of Moula BuxVs. llnion of India (1973) 7 SCR 928 and Sirdar K.B Ram Chandra Raj Urs Vs.

Sarah C.

Urs, (2015) 4 SCC 736, and followed by the National Consumer Dispute Redressal Commission, New Delhi in consumer case no.2766/2017 titled as layont Singhal and Anr, Vs.

M/s M3M India ttd. decided on 26.07.2022, took a view that forfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in nature of penalty, then provisions of Section 74 of Contract Act, 1,97 2 are attracted and the party so forfeiting must prove actual damages.

After cancellation of allotment, the flat remains with the builder as such there is hardly any actual damage.

So, it was held that 10% of the basic sale price is reasonable amount to be forfeited in the name of earnest money. est money.

Keeping in view, the principles laid down by the Hon'ble Apex court in the above mentioned tvvo cases, rules with regard to forfeiture of earnest money were framed and known as Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builderJ Regulations, 2018, which provides as under- Page 13 of 16 )./ HARERA M"GURUGRAI/ "5.

AMOUNT OF EARNEST MONEY Scenario priu to the Reol Estote (Regulations ond Development) Act, 2016 wqs different.

Frouds were carried out without any feqr os there wos no law for the same but now, in view of the obove focts and taking into consideration the judgements of Hon'ble Notionol Consumer Disputes Redressal Commission and the Hon,ble Supreme Court of lndio, the quthority is of the view thot the forleiture omount of the eqrnest money shall not exceed more thon 7|o/o of the consideration qmount ofthe reol estote i.e, apartment /plot /building qs the cqse may be in all coses where the cancellation of the flat/unit/plot is mode by the builder in q unilqterol monner or the buyer intends to withdraw from the project and any ogreement contoining any clause contrary to the qforesoid regulations shall be void ond not binding on the buyer.

Keeping in view the aforesaid legal provision, the respondent/promotor directed to refund the paid-up amount after deducting 10% of the basic sale consideration and shall return the amount along with interest at the rate of 1,0.7 So/o (the State Bank of India highest marginal cost of lending rate (MCLR) applicable as on date +20/o) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Rules, 2077, from the date of cancellation i.e., 1.8.01.20i.7 till the actual date of refund of the amount within the timelines provided in rule 16 ofthe Haryana Rules 2017 ibid.

F.ll.

70,000/_ 19.

The complainant in the aforesaid head is seeking relief w.r.t compensation. pensation.

Hon'ble Supreme Court of lndia, in case titled as M/s Newtech Promoters and Developers pvt.

Ltd.

V/s State of llp &Ors. (Civil appeal nos.

67 45-67 49 of 2 021, decided on 11.1 1.20211, has hetd that an allottee is entitled to claim compensation under sections 12, Complaint No.

977 of 2021 18.

Page 14 of 15 )- ffiHARERA Harnuennvr Complaint No.

977 of 2021 14, L8 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation shall be adjudged by the adjudicating officer having due regard to the factors mentioned in section 72.

Therefore, the complainant is advised to approach the adjudicating officer for seeking the relief of compensation.

G.

Directions ofthe authority 20.

Hence, the authority hereby passes this order and issues the 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 under se(tion 34(f): The respondent is directed to refund the paid-up amount of Rs.

8,58,189/- after deducting 10% of the basic sale consideration of Rs.29,60,700/- with interest at the prescribed rate i.e., 70.75t% p.a. on such balance amount, from the date of cancellation i.e., 18.01.2017 till the actual date ofrefund. ii.

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

21.

Complaint stands disposed of.

22.

File be consigned to registry.

Ashok (Mem Authority, Gurugram Haryana Real Estate Regula Page 15 of 16 *HARERA ffi eunuennvr Dated: 23.08.2023 complaint No.

977 of 2021 Page 16 of 16