PRAKASH HOSPITAL PVT LTD vs RAHEJA DEVELOPERS LTD.

ffiHARERA #- eunuenRn,t BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM CORAM: Shri Ashok Sangwan Complaint Nos. and 4236 of 2022 a\d 7846 of 2022 Ordre reserved on: 12.04,2023 Order pronounced on: 24,05,2023 Member ORDER 1, This order shall dispose ofboth the complaints titled as above filed before the authoriry under section 31 of the Real Estate (Regulation and Development) Acl,2076 (hereinafter referred as "the Act"l read with rule 28 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017 (hereinafter referred as "the rules") for violation ofsection 11(4)(al ofthe Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

2.

The core issues emanating from them are similar in nature and the complainant(s) in the above referred matters are allottees of the project, namely, "Raheja Revanta" (residential group housing colony) being Page 1of41+ NAME OF THE BUILDER RAHEJA DEVELOPERS LIMITED.

PROJECT NAME "RAHEIA REVANTA" S.

No.

Case No.

Case title APPEARANCE 1. cR/4236/2022 Prakash Hospital Private Limited v/s Raheja Developers Limited Shri Bhanu Sanoria Advocate and Shri Carvit Gupta Advocate 2. cR/1846/2022 Deepak Kumar and Deepali Soni V/S Raheja Developers Limited Shri Shashwat Prateek Panda Advocate and Shri Garvit Gupta Advocate HARERA *-@-GURUGRAI/ Complaint Nos. and 4236 of 2022 and, 1846 of 2022 developed by the same respondent/promoter i.e., M/s Raheja Developers Limited.

The terms and conditions of the agreement to sell and allotment letter against the allotment of units in the upcoming project of the respondent/builder and fulcrum of the issues involved in both the cases pertains to failure on the part ofthe promoter to deliver timely possession of the units in question, seeking award of refund the entire amount along with intertest and the compensation. pensation.

3, The details of the complaints, reply to status, unit no., date of agreement, possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given in the table below: Raheja opers Limited at "Raheja Revanta" situated in Sector 78, Gurugram, Haryana.

Possession Clause: - 4.2 Possession Time and Compensation That the Seller shall sincerely endesvor to give possession of the lJnit to the purchaser within thitty-six (36) months in respect of'TAPAS' lnclependent Floors and forty eight (48) months in respect of'SURYA TOWER'from the date oJ the execution of the Agteement to sell and aftet providing of necessary infrastructure specially roqd sewer & water in the sector by the Government, but subject tp force majeure conditions or any Government/ Regulotory authoriqt's action, inaction or omission and reasons beyond the control of the Seller.

However, the seller shall be entitled for compensdtion free grqce period of six (6) months in csse the construction is not completed within the time peiod mentioned above.

The seller on obtaining certificotefor occupotion ond use by the Competent Authorities shall hond over the Unit to the Purchaser for this occupotion qnd use and subject to the Purchaser hoving complied with all the terms ond conditions of this opplication form & Agreement To sell.

1n the event ofhisfoilure to toke over and /or occupy and use the unit provisionolly ond/or findlly ollotted within 30 days from the date of intimqtion inwriting by the seller, then the same shalllie at his/her risk and cost and the Purchaser shall be liable to compensation @ Rs.7/- per sq. ft. of the super areo per month os holding charges for the entire period of such delay...........' Proiect Name and Location PaEe 2 of +l ffiHARERA #*,eunuennu Complaint Nos. and 4236 of 2022 and 7846 of 2022 Page 3 of41 \f Sr.

No Complaint No,, Case Title, and Date of filing of complaint Reply status Unit No. s Unit No.

Date of execution of agreement to sell Due date of possession Total Consideration /Total Amount paid by the complainants in Rs- 1. cR/4236/ 2022 Prakash Hospital Limited v/s Raheja Developers Limited.

Date of Filing of complaint 24.06.2022 Reply 12.04.2023 A-041,4'h floor, admeasuring 1642.91 sq- ft. lpage no.23 ofcomplainrl I 17.05.2012 lpage no.21 ofcomplaintl 17.11.2016 (Note: - 4a date of i.e., 17.05.2072 + 6 monrhs grace period) TSC:- 1,46,57,976/- (As per payment with agreemenr to sellat page no 49 of the complain0 1,42,22,613 / - (As alleged by the complainant at page no.

12 of complain0 cR/1846/ 2022 Deepak Kumarand Deepali Soni v/s Raheja Developers Limited Date of Filingof complaint 20.05.2022 Reply 72.04.2023 lF50-03,2id floor, block- 1F50 admeasuring 1960.840 sq. fr. lpase no.

18 olcomplaintl 23.05.20"\2 lpage no.

14 oFcomplaintl 23.11,2015 (Note: " 36 months flrom date of agreement i.e., 23.05.2072 + 6 months grace periodl TSCI r,22,7 2,260 / AP: - 85,93 ,862 / - (Aspercustomer ledger dated 16-02-2027 paqe no.61of complaint) The complainants in the above complaints have sought the following reliefs: 1.

Refund of total amount paid by the complainants to the respondent company along with interest at the prescribed rate.

Note: In the table referred above, certain abbreviations have been used.

They are elaborated as follows: Abbreviation Full form TSC Total Sale consideration AP Amount paid by the allotteefs) lt I HARERA GURUGRA[i Complaint Nos. and 4236 of 2022 and 7846 of 2022 4.

The aforesaid complaints were filed against the promoter on account of violation ofthe agreement to sell and allotment letter against the allotment of units in the upcoming project of the respondent/builder and for not handing over the possession by the due date, seeking award of refund the entire paid-up amount along with interest and compensation. pensation.

It has been decided to treat the said complaints as an application for non- compliance of statutory obligations on the part of the promoter/ respondent in terms of section 34(f,) of the Act which mandates the authority to ensure compliance ofthe obligations cast upon the promoters, the allottee(s) and the real estate agents under the Act, the rules and the regulations made thereunder.

6.

The facts ofboth the complaints filed by the complainant(sl/allottee(s] are also similar.

Out of the above-mentioned case, the particulars of lead case CR/4236/2022 titled as Prakash Hospital Private Limited V/S Raheja Developers Limited are being taken into consideration for determining the rights of the allottee(s) qua refund the entire paid-up amount along with interest and others.

A.

Proiect and unit related details 7.

The particulars ofthe project, the details ofsale consideration, the amount paid by the complainant(s), date ofproposed handing over the possession, delay period, if any, have been detailed in the following tabular form: CR/4236/2022 titled as Prakash Hospital Private Limited V/S Roheja Developers Limited.

S.

N.

Particulars Details Paqe )- 4of41 MHARERA #- eunueRnvr Compla,nt Nos. and 4236 of 2022 and, 1846 of 2022 L.

Name of the project "Raheja Revanta", Sector 78, Gurugram, Haryana 2.

Project area L8.7213 acres 3.

Nature of the project Residential group housing colony 4.

DTCP license no. and validity status 49 0f 2011 dated 01.06.2011 valid up to 3 L.05.2021 5.

Name of licensee $[ Ram Chander, Ram Sawroop :{qd 4 Others 6.

RERA Registered/ not registered Registered vide no.

32 of 2017 dated 04.08.2017 7.

RERA registration vali to 04.02.2023 5 Years from the date of revised Environment Clearance 8.

Unit no.

A-041, 4th floor, tower/block- A [page no.

23 of complaint] 9.

Unit area admeasuring 1642.9L sq. ft. [Page no.

23 of the complaint) 10.

Date of execution of tripartite agreement Annexed but date is not mentioned 11. tioned 11.

Date of execution of agreement to sell 77.05.20t2 (Page no.

21 ofthe complaint) 1-2.

Date of allotment letter 77 .05.2012 (Page no.

53 of the complaint) Page 5 of41 A.Y HARERA #., GURUGIIAI/ Complaint Nos. and 4236 of 2022 and 1846 of 2022 4,2 Possession Time Compensation and That the Seller shall sincerely endeavor to give possession of the Unit to the purchaser within thir\t- six (36) months in respect of 'TAPAS' lndependent Floors and forty eight (48) months in respect of'SURYA TOWER' from the dqte of the execution oI the Agreement to sell and qfter providing of necessary infrastructure speclally road sewer & water in the sector by the Government, but subject to force qjeure conditions or any Government/ Regulatory authority's action, inaction or omission and reasons beyond the control of the Seller.

However, the seller shall be entitled for compensation free grace period oI six (6) months in csse the construction is not completed within the time period mentioned above.

The seller on obtaining certificate for occupation and use by the Competent Authorities shqll hand over the llnit to the Purchaserfor this occupation qnd use and subject to the Purchaser having complied with all the terms and conditions of this application form & Agreement To sell. ln thc event ol his fqilure to take over and /or occupy ond use the unlt provisionally and/or linally allotted within 30 days from the date of intimation in writing by Pag ). v e 6 of41 13. ] Possession clause HARERA GURUGRAil/ Complaint Nos. and 4236 of 2022 and 1846 of 2022 rPage 7 o[ 41 + the seller, then the some shall lie at his/her risk and cost and the Purchaser shall be liable to compensation @ Rs.7/- per sq. ft of the super area per month as holding charges for the entire period of such de\ay........... " L4.

Grace period r,ta* Allowed As per clause 4. clause 4.2 ofthe agreement to sell, the possession of the allotted unit was supposed to be offered within a stipulated timeframe of 48 molths plus 6 months of grace period.

It is a matter of fact that the respondent has not completed the project in which the allotted unir is situated and has not obtained the occupation certificate by May 2076.

As per agreement to sell, the construction of the project is to be completed by May 2016 which is not completed till date, Accordingly, in tie present case the grace period of 6 months is allowed.

15.

Due date of possession 17.1t.2016 (Note: - 48 months from date of agreement i.e., L7.05.2012 + 6 months grace period) 16.

Sale consideration Rs.1,46,57 ,97 6 /- (As per payment plan annexed with agreement to sell at page no.

49 ofthe complaint) HARERA M-GI.]RUGRAII 17.

Amount paid by the complainant Rs.7 ,42 ,22 ,613 / - (As alleged by the complainant at page no.

12 of complaintl 18.

Payment plan Installment linked payment plan (As per payment plan annexed with agreement to sell at page no.

48 of the complaintl 19.

Occupation certificate /Completion certificate Not received 20.

Offer of possession Not offered 2L.

Legal Notice send by the complainant 15.07.2018 [Page no.

85 of the complaint) 22.

Delay in handing over the possession till date of filing of this complaint i.e., 24.06.2022 5 years 7 months and 7 days Facts ofthe complaint The complainant has made the following submissions in the complaint: - That the respondent company issued an advertisement announcing a group housing colony project "Raheja Revanta" which inrer-o1lo claimed to comprise of residential floor space, car parking space, recreational facilities, landscaped gardens etc. on a piece and parcel of land within the boundaries of Sector 78, Shikhopur, Tehsil & District Gurgaon, (Haryana) on the 18.7213 acres of land, under the license no.

49 of 2011 dated 07.06.2011, issued by DTCP, Haryana, and thereby invired applications Complaint Nos. laint Nos. and 4236 of 2022 a\d 1A46 of 2022 B.

L Pag )d e B of 41 Ll I HARIRA P- GURUGRAII from prospective buyers for the purchase of unit in the said project.

The respondent confirmed that the prorect had got building plan approval from the competent authority. b.

That the respondent attracted the public by offering the project for sale and by inviting them through various means Iike publishing various brochures, posters, advertisements etc.

The complainant, lured by those fancy offers, and advertisements decided to purchase one ofthe unit in the project as described in the following paragraphs for its personal use. c.

That the complainant while searching for a flat/accommodation was lured by such advertisements and calls from the brokers of it for buying a house in its project.

The resprindent company told about its moonshine reputation and the representative of it made huge presentations about the project mentioned above and also assured that it had delivered several such projects in the National Capital Region.

The respondent handed over one brochure to the complainant which showed the project like heaven and in every possible way tried to hold it and incited for payments. d.

That based on the various representations and assurances made by it, the complainant made an application for booking a unit in the said project.

The said unit as booked by it was offered at a total consideration of Rs.1.,43,41,391/ - of which it had already deposited an amount of Rs.7,43,22,6L3 /- to the respondent till date.

The complainant paid all the installments to the respondent as and when demanded by it. e.

That the complainant booked a unit in the project by paying an amount of Rs.14,00,000/- vide cheque no.344339 dated 28.01,.2012 rowards the booking of the said unit bearing no.

A-041, 4th FIoor, Tower-A in Sector 78, Complaint Nos. and 4236 of 2022 a\d 1846 of 2022 Pase ); 9of47 HARERA P,- GURUGRAI/ admeasuring 2165.85 sq. ft. to the respondent on 07.03. on 07.03.2012 and the same was acknowledged by it.

That the respondent confirmed the booking the said unit and also mentioning the moonshine reputation of the company and the location of project.

Further, providing the details of payment to be made by the complainant as per the instalment payment plan which required it to make payments in accordance with the completion of different stages of construction.

That the agreement to sell was executed befween the parties on 1-7 .05.2012 of the said unit having an approximate area of 2165.85 sq. ft. fapprox.) built up area on 4th flqor in tower -A bearing unit no.

A - 041, It was mentioned in clause 4.2 that the possession of the said unit would be made within 48 months from the date ofexecution ofagreement to sell, i.e.

17.05.201.6, with a grace period of Six (6J months, i.e.

U.LL.2016 and subsequently the allotment letter was issued dated 17.05.2 012 confirming the booking made by it. h.

That after the said agreement, the complainant with a bona-fide intention continued making payments on basis of the demands raised by the respondent.

After the execution ofthe buyer's agreement the complainant started paying the respondent as timely installments.

Thus, showing complete sincerity and interest in the project and the unit at that time, the complainant had paid a total sum of Rs.L,43,22,6L3/-.

Furthermore, TDS was deducted for every transaction made by it and the details of the tax deducted.

Complaint Nos. and 4236 of 2022 and,7845 of 2022 c.

Page 10 of41 HARERA ffi,OURUGRAI/ That after paying all the installments in a timely manner and as per the demand of the respondent while adhering to the agreement to sell, the possession ofunitwas still not given on the promised d ate i.e.,17.05.2076.

In this entire period, the complainant regularly enquired about the construction status.

But every time the respondent gave false hopes that the construction would complete soon. lete soon.

After more than 9 years ofbooking the unit in March 2012, the respondent has not delivered the said unit and status of the construction of the sald_unit is not known to the complainant. j.

That the entire consideration aqroirnt along with miscellaneous and additional charges and expenses was paid.

But it was subjected to unfair and clever dilatory tricks and tactics, false promises and assurances, biased agreements, ill trade practices and highly deficient services causing L immense loss to the complainant.

It has already paid 950/o of the total consideration amount of the said unit i.e., Rs.7,43,22,613/-.

But after paying the huge amountstill received nothingin return but only loss ofthe time and money invested by it.

In this entire duration of follow ups for the status and the possession of the unit, the complainant sent to the respondent a legal demand notice of the refund of amount with interest invested by it in the project.

The respondent has not replied to the notice of the complainant and did not bother to refund the money invested by it.

That the complainant despite, mailing and following it continuously did not bother to update the status of the project or refund the money back and extended the possession date without it consent.

The respondent has lost sight of realty.

The complainant had fairly booked the said unit in the year Complaint Nos. and 4236 of 2022 and 7846 of 2022 k. ,,lU- eaZe tt of +t ffiHARERA *&-eunuennnt Complaint Nos. and 4236 of 2022 ar\d 7846 of 2022 2072 and till 2027, it has no idea about the fate and future of the project while losing a major chunk ofthe lifelong savings.

Relief sought by the complainant: .

The complainant has sought following relief(s) a.

Direct the respondent to refund oftotal amount paid by the complainant to the respondent along with interest at the prescribed rate. ibed rate.

Reply by the respondent The respondent contested the complaint on the following grounds: - That the complaint is neither maintainable nor tenable and is liable to be out-rightly dismiss{d.

The'agreement to sell was executed between the parties prior to the enactment of the Act, 2016 and the provisions laid down in the said Act cannot be enforced retrospectively.

Although the provisions of the Act, 201,6 are not applicable to the facts of the present case in hand yet without prejudice and in order to avoid complications later on, the respondent has registered the proiect with the authority under the provisions ofthe Act of 2016, vide registration no.32 of 2017 dated 04.08.2017.

That the respondent is traversing and dealing with only those allegations, contentions and/or submissions that are material and relevant for the purpose ofadjudication ofpresent dispute.

It is further submitted that save and except what would appear from the records and what is expressly admitted herein, the remaining allegations, C.

9.

D.

10.

Il. k Yase rz ot +r HARERA Complaint Nos. and 4236 of 2022 and 7A46 of 2022 --,@-GURUG'IAIV lv. lll. contentions and/or submissions shall be deemed to have been denied and disputed by the respondent.

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 i.e., clause 60 of the booking application form and clause 14.2 of the buyer's agreemenL That the complainant has not approached this authority with clean hands and has intenti,onally suppressed and concealed the material facts in the present complaint.

The complaint has been filed by it maliciously with an ulterior motive and it is nothing but a sheer abuse ofthe process of law. ss of law.

The true and correct facts are as follows: o That the respondent/builder is a reputed real estate company having immense goodwill, comprised of Iaw abiding and peace- loving persons and has always believed in satisfaction of its customers.

The respondent has developed and delivered several prestigious projects such as'Raheja Atlantis' 'Raheja Atharva', and 'Raheja Vedanta' and in most of these projects large number of families have already shifted after having taken possession and resident welfare associations have been formed which are taking care ofthe day to day needs ofthe allottees of the respective projects.

Page 13 of41 HARERA P- GUI?UGRAI\/ Complaint Nos. and 4236 of 2022 and 7846 of 2022 That the project is one of the most lconic Skyscraper in the making, a passionately designed and executed proiect having many firsts and is the tallest building in Haryana with highest infinity pool and club in India.

The scale of the proiect required a very in-depth scientific study and analysis, be it earthquake, fire, wind tunneling lacade solutions, landscape management, traffic management, environment sustainabili!&.is..ervices optimization for customer comfort and puUlic heath..'ii rivdil, lr*rry and iconic elements that together make it a dream proiect for customers and the developer alike.

The world's best consultants and contractors were brought together such as Thorton Tamasetti (USAJ who are credited with dispensing world's best structure such as Petronas Towers (Malaysia), Taipei 101(Taiwan), Kingdom Tower Jeddah (world' tallest under construction building in Saudi Arabia and Arabtec makers of Burj Khalifa, Dubai (presently tallest in the world), Emirates palace Abu Dhabi etc.

That compatible quality infrastructure (external) was required to be able to sustain internal infrastructure and facilities for such an iconic project requiring facilities and service for over 4000 residents and 1200 Cars which cannot be offered for possession without integratio integration of external infrastructure for basic human life be it availability and continuity of services in terms of clean water, 4I vase r+ or +r ffiHARERA *e. aiRuGRA[/ Complaint Nos. and 4236 of 2022 and, lA46 of 2022 continued fail safe quality electricity, fire safefy, movement of fire tenders, lifts, waste and sewerage processing and disposal, traffic management etc.

Keeping every aspect in mind this iconic complex was conceived as a mixture of tallest high-rise towers & Iow-rise apartment blocks with a bonafide hope and belief that having realized all the statutory changes and license, the government will construct and complete its part of roads and basic infrastructure facilities on time.

Every custemer including the complainant was well aware and was made well cautious that the respondent cannot develop external iilfrastructure as land acquisition for roads, sewerage, water, and electricity supply is beyond the control of them.

That the complainants are real estate investor and they have booked the unit in question with a view to earn quick profit in a short period.

However, it appears that its calculations have gone wrong on account of severe slump in the real estate market, and they are now raising untenable and illegal pleas on highly flimsy and baseless grounds.

Such malafide tactics ofthe complainant cannot be allowed to succeed.

That the complainant signed and executed the agreement to sell for unit no.

A-041 and it was bound by the terms contained therein. ), fiage 15 ol4l HARERA M-GURUGRAM Complaint Nos. and 4236 of 2022 and,7846 of 2022 Despite the respondent fulfilling all its obligations as per the provisions laid down by law, the government agencies have failed miserably to provide essential basic infrastructure facilities such as roads, sewerage line, water and electricity supply in the sector where the said project is being developed. developed.

The development of roads, sewerage, laying down of water and electricity supply Iines has to be undertaken by tlie concerned governmental authorities and is not within the power'and control of the respondent.

The respondent cannot be held liable on account of non-performance by the concerned governmental authorities.

The respondent company has even paid all the requisite amounts including the external development charges (EDCJ to the concerned authorities.

However, yet, necessary infrastructure facilities like 60-meter sector roads including 24 meter wide road connectivity, water and sewage which were supposed to be developed by HUDA parallelly have not been developed.

There is no infraskucture activities/development in the surrounding area ofthe proiect-in-question.

Not even a single sector road or services have been put in place by HUDA/GMDA/HSVP till date.

That the respondent had also filed RTI application for seeking information about the status of basic services such as road, sewerage, water, and electricity.

Thereafter, the respondent Page 16 of41 HARERA W-GU]]UGi]AIi1 Complaint Nos, and 4236 of 2022 and,1B46 of 2022 received reply from HSVP wherein it is clearly stated that no external infrastructure facilities have been laid down by the concerned governmental agencies.

The respondent can't be blamed in any manner on account of inaction of government agencies. .

That furthermore two High Tension (HT) cables Iines were passing through the project site which were clearly shown and visible in the zoning plan dated 06.06.2011.

The respondent was required to get these HT lines removed and relocate such HT Lines for the blocks/floors falling under such HT Lines.

The respondent proposed the plan ofshiftingthe overhead HT wires to underground and submitted building plan to DTCP, Haryana for approval, which was approved by the DTCP, Haryana.

It is pertinent to mention that such HT Lines have been put underground in the revised Zoning Plan. ning Plan.

The fact that two 66 KV HT lines were passing over the project land was intimated to all the allottees as well as the complainant.

The Respondent had requested to M/s KEI Industries Ltd for shifting of the 66 KV S/C Gurgaon to Manesar Line from overhead to underground Revanta Project Gurgaon vide letter dated 01.10.2013.

The HVPNL took more than one year in giving the approvals and commissioning of shifting ofboth the 66KV HT Lines.

It was certified by HVPNL Manesar that the work ofconstruction for laying of 66 KV S/C & D/C 1200 Sq. mm.

XLPE Cable (Aluminiuml of 66 KV S/C \-Yage tt or +r HAl?ERA GURUGRAII Complaint Nos. and 4236 of 2022 and 7846 of2022 Gurgaon - Manesar line and 66 KV D/C Badshahpur - Manesar line has been converted into 66 KV underground power cable in the land of the respondent/promoter project which was executed successfully by M/s KEI Industries Ltd has been completed successfully and 66 KV D/C Badshahpur - Manesar Line was commissioned on 29.03.20L5.

That respondent got the overhead wires shifted underground at its own cost and only after adopting all necessary processes and procedures and handed over the same to the HVPNL and the same was brought to the notice of District Town Planner vide letter dated 28.10.20L4 requesting to apprise DGTCP, Haryana for the same.

That as multiple government and regulatory agencies and their clearances were in involved/required and frequent shut down of HT supplies was involved, it took considerable time/efforts, investment and resources which falls within the ambit of the force majeure condition.

The respondent has done its level best to ensure that the complex is constructed in the best interest and safety of the prospective buyer's.

That GMDA, office of Engineer-Vl, Gurugram vide letter dated 03.L2.20L9 has intimated to the respondent company that the land of sector dividing rcad 77 /78 has not been acquired and sewer line has not been laid. been laid.

The respondent/promoter wrote on several age 18 of41 HARERA P-GURUGRAI,4 Complaint Nos. and 4236 of 2022 a\d 7846 of 2022 occasions to the Gurugram Metropolitan development Authority (GMDA) to expedite the provisioning of the infrastructure facilities at the said project site so that possession can be handed over to the allottees.

However, the authorities have paid no heed to or request till date.

That the construction of the tower in which the plot allotted to the l complainant is located is.8.0/o eomplete and the respondent shall hand over the possession Of th6 same to the complainant after its completion subject to the complainants making the payment of the due installments amount and on availability of infrastructure facilities such as sector road and laying providing basic external infrastructure such as water, sewer, electricity etc. as per terms of the application and agreement to sell.

The photographs showing the current status of the construction of the tower in which the unit allotted to the complaint is located.

It is submitted that due to the above-mentioned conditions which were beyond the reasonable control of the respondent, the development of the township in question has not been completed and the respondent cannot be held liable for the same.

The respondent is also suffering unnecessarily and badly without any fault on its part.

Due to these reasons the respondent has to face cost overruns without its fault.

Under these /:] Paqetsorat I HARIRA ffi GURUGRAII Complaint Nos. and 4236 of 2022 and, 7846 of 2022 circumstances passing any adverse order against the respondent at this stage would amount to complete travesty ofjustice. .

That the construction of the tower in which the floor is allotted to the complainants is located already complete and the respondent shall hand over the possession ofthe same to the complainants after getting the occupation certificate subject to the complainants making the payment of the due installments amount as amount as per terms of the application and agreement to sell. .

That the origin of the present complaint is because an investor is unable to get required return due to bad real estate market. lt is increasingly becoming evident, particularly by the prayers made in the background that there are other motives in mind by few who engineered this complaint using active social media.

That the complaint has been worded as if simpleton apartment buyers have lost their monies and therefore, they must have their remedy.

The present case also brings out how a few can misguide others to try and attempt abuse ofthe authority which is otherwise a statutory body to ensure delivery of apartments and safeguard of investment of every single customer who puts his life saving for a dream house and social securiry.

That in the present case, as compared to others in the region, the building has been standing tall and with almost 1000 workers A,f eage zo of +r HARIRA ""*@,.- GURUGRAI/ Complaint Nos. and 4236 of 2022 and, 7846 of 2022 working day and Iate night towards finishing the project to handover to the esteemed hundreds of customers in the waiting.

Some flat buyers who had invested in the hope of rising markets, finding insufficient price rise-due to delay of Dwarka expressway, delay in development of allied roads and shifting of toll plaza engineered false and ingenious excuses to complain and then used social media to make other [non-speculator] flat buyers join them and make complaints, in all probabi giving them an impression that the attempt may mean 'profit', and there is no penalty if the complaint failed. v.

That the three factors: delay in acquisition of Iand for development t1l vi. of roads and infrastructure (2J delay by government in construction of the Dwarka Expressway and allied roads; and (3) oversupply of the residential units in the NCR region, operated to not yield the price rise as was expected by a few. by a few.

This cannot be a ground for complaint for refund as the application form itself has abundantly cautioned about the possible delay that might happened due to non-performance by Government Agencies.

That amongst those who booked (as one now sees) were two categories: [1) those who wanted to purchase a flat to reside in futurej and (2J those who were looking at it as an investment to yield profits on resale.

For each category a Iower price for a Revanta type Sky )n Yaeezt or +r Complaint Nos. and 4236 of 2022 and,7846 of 2022 vll.

11.

E.

L2, HAl?ERA @ alrDlrcDA[/ m!cli \_/u l\ u \./ l\/ vvl Scaper was an accepted offer even before tendering any money and bilaterally with full knowledge and clear declarations by taking on themselves the possible effect of delay due to infrastructure.

That in the present case, keeping in view the contracted price, the completed fand lived-inJ apartment including interest and opportunity cost to the respondent may not yield profits as expected than what envisaged as possible profit. mpleted building structure as also the price charged may be contrasted with the possible profit's v/s cost of building investment, effort and intent.

It is in this background that the complaint, the prevailing situation at site and this response may kindly be considered.

The present complaint has been filed with malafide motives and the same is liable to be dismissed with heavy costs payable to the respondent.

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 submissions made by the parties.

Jurisdiction of the authority The authority has complete territorial and subject matter iurisdiction to adjudicate the present complaint for the reasons given below E. n below E.l Territorialiurisdiction )_'V PaEe22 ol4l HARERA ffi GURUGRAII Section 11(4J(a) of the Act, responsible to the allottee as reproduced as hereunder: Complaint Nos. and 4236 of 2022 a\d 1846 of 2022 t4.

13.

As per notific atlon no.l/92 /2017-1TCP dated 14.12.2017 issued by Town and Country Planning Department, Haryana the iurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes.

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

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

E.II Subiect-matterluris 2016 provides that the promoter shall be per agreement for sale.

Section 11(aJ(a) is Section 71 (4) The promoter sholl' (a) be responsible Jor all obligotions, responsibilities and functions under the provisions of this Act or the rules and regulations made thereundei or Lo the ailottees is pc, the ogreement for sale, or to the association ofdllottees, as the cose may be, till the conveyqnce oJoll the apartments, plots or buildings, asthe case may be, to the ollottees, or the common areasto the ossociation of qllottees or the competent authority, as the cose may be; Section 34-Functions of the Authority: 34A of the Act provides to ensure compliance of the obligations cast upon the promoters, the ollottees qnd the real estate agents under this Act ond the rules and regulations made thereunder' 15.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be \{ Pase zz ot cl HARERA Complaint Nos. and 4236 of 2022 at\d 7846 of 2022 ffi- GURUGRAM decided by the ad,udicating officer if pursued by the complainants at a later stage.

16. stage.

16.

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 and Developers Private Limited vs State of ll.P. ond Ors.

2027-2022 (7) RCR (Civil), 357 and reiterated in case of M/s Sana Bealtors Private Limited & other Vs Union of Indio & others SLP (Ctvil) 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 detailed reference has been made ond taking note of power of odjudicatton delineated with the regulotory authoriry ond odiudicating officer,whatfinolly culls out is thot although the Act indicotes the distinct expressions like 'refund', 'interest', 'penalty' qnd 'compensation', a conioint reading of Sections 18 qnd 19 clearly manifests thatwhen itcomesto refund ofthe qmount, and interest on the refund amount or directing pqyment of interest for deloyed delivery of possession, or penalty and interest thereon, it is the regulqtory outhority which hos the power to examine and determine the outcome of a complaint.

At the same time, when it comes to a question ofseeking the reliefof odjudging compensation and interest thereon under Sections 12' 14, 18 and 19, the adjudicating oJficer exclusively has the power to determine, keeping in view the collective reading of Section 71 read with Section 72 of the Act, if the adjudication under Sections 12, 14, 18 qnd 19 other than compensation os envisaged, if extended to the odjudicoting oflicer as proyed that, in our view, may intend to expqnd the ombit ond scope ofthe powers and functions ofthe adjudicating officer under Section 71 and thatwould be against the mandqte ofthe Act 2016." 17.

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

PaEe 24 of +l HARFRA Complaint Nos. and 4236 of 2022 and,1a46 of 2022 @ AIIDIIADAI\/ @@ \-/ul\vvlv lrvl F.

Findings on the obiections raised by the respondent F.l.

Obiections regarding the complainant being investor.

18.

The respondent has taken a stand that the complainant is the investor and not consumer, therefore it 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 ofthe Act states that the Act is enacted to protect the interest of consumers of the real estate sector.

The authority observes that the respg,rlgent.is correct in stating that the Act is enacted to protect the interest oi ionsumer of the real estate sector' It is settled principle of lnterpretation that the preamble is an introduction of a statute and states main aims & objects of enacting a statute but at the same time, 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 the promoter 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 buyer, and it has paid total amount of Rs.1,42,22,613 / -to the promoter towards purchase of an apartment in its proiect.

At this stage, it is important to stress upon the definition ofterm allottee under the Act, the same is reproduced below for ready reference: "2(d) "attottee" in relation to o real estote project meqns the person to whom a plot, opartment or building, os the case moy be, has been allotted, sold (whether as freehold or leasehold) or otherwise tronsferred by the promoter, and includes the person who 15, eage zs or+r HARERA W-GURUGRAII4 Complaint Nos. laint Nos. and 4236 of 2022 and,1846 of 2022 subsequently acquires the said qllotment through sale, transkr or otherwise but does not include o person to whom such plot' apartmentor building, as the case moy be, is given on renti' 'l 9. ln view of above-mentioned definition of "allottee" as well as all the terms and conditions of the apartment buyer's agreement executed between promoter and complainants, it is crystal clear that the complainant is allottee(sl as the subject unit was allotted to it by the promoter.

The concept of investor is not defined or referred in the AcL As per the definition given under section 2 of the Act, there will 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 29.01.201'g in appeal no.

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

Vs.

Sarvapriya Leasing (P) Lts.

And anr. has also held that the concept ofinvestor is not defined or referred in the Act.

Thus, the contention of promoter that the allottees being investor is not entitled to protection ofthis Act also stands rejected.

F.

II Obiection regardlng iurisdiction ofauthority w.r.t. buyer's agreement executed prior to coming into force ofthe Act.

20.

Another objection raised the respondent that the authority is deprived of the jurisdiction to go into the interpretation ol or rights of the parties inter-se in accordance with the flat buyer's agreement executed between the parties and no agreement for sale as referred to under the provisions ofthe Act or the said rules has been executed inter se parties.

The authority is ofthe view that the Act nowhere provides, nor can be so construed, that Page 26 of 41 I HARIRA Complaint Nos. and 4236 of 2022 and 7846 of 2022 GURUGRAII all previous agreements will be re-written after coming into force of the Act.

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

However, if the Act has provided for dealing with certain specific provisions/situation in a specific/particular manner, then that situation will be dealt with in accordance with the Act and the rules after the date of coming into force of the Act and the rules.

Numerous provisions of the Act.save the provisions of the agreements made between the buyers and setleis; The said contention has been upheld in the landmark judgment of Neelkamal Realtors Suburban Pvt' Ltd' Vs.

UOI and others. (WP 2737 of 2077) decided on 06.12.2017 which provides as under: "119.

IJnder the provisions of Section 18, the delay in handing over the possession would be counted fTom the date mentioned in the ogreement for sole entered into by the promoter qnd the allottee prior to its registrotion under REM, llnder the provisions of REM, the promoter is given o faciliqt b revise the date of completion ofproject ond declore the same under Section 4.

The REM does not contemplote rewriting of contract between the lot purchaser ond the promoter.. ...

122.

We hqve olready discussed thot above stated provisions of the RERA ore not retrospective in nature.

They moy to some extent be howng o retroactive or quasi retroactive effect but then on that ground the volidi0) of the provisions of REP.1- cannot be challenged The Parlioment is competent enough to legislqte lqw hqving retrospective or retroactive effect.

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

We do not hove any doubtin our mind thot the REM has beenframed in the larger public interest ofter a thorough study and discussion made at the highest level by the Standing Committee ond Select Committee, which submitted its detailed reports." \f Page 27 of 41 HARERA Complaint Nos. and 4236 of 2022 and 1846 of 2022 @ A] IDI !ADA[/ mi!

F vul\vvl\r \ vr 21.

Also, in appeal no.

173 of2019 titled as Mag ic Eye Developer Pvt' Ltd, Vs. ' Ltd, Vs.

Ishwer Singh Dahiya, in order dated 17 'L2.2019 the Haryana Real Estate Appellate Tribunal has observed- "34.

Thus, keeping in view our oforesaid discussion' we are of the considered opinion that the provisions of the Act ore quosi retrooctive to some extent in operation ond will be ooDlicable to the agreements for sale enterecl into even prior to coming into oDerotion ofthe Act where the transaction are still in the Drocess of completion, Hence in case of deloy in the offer/delivery of possessio1 as Per the terms and conditions of the agreement for sale the oltriiee shilll.be entitled to the interest/deloyed pissession charges on thdieqsonable rate of interest as provided in Rule 15 of the rules and one: iiCel,' unfair ond unreosonable rote of compensation mentioned in the agreement for sole is lioble to be ignored." 22.

The agreements are sacrosanct save and except for the provisions which have been abrogated by the Act itself.

Further, it is noted that the agreements have been executed in the manner that there is no scope left to the allottee to negotiate any ofthe 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 of the agreement subject to the condition that the same are in accordance with the plans/permissions approved by the respective departments/competent authorities and are not in contravention of any other Act, rules, statutes, instructions, directions issued thereunder and are not unreasonable or exorbitant in nature.

Obiection regarding agreements contains an arbitration clause which refers to the dispute resolution system mentioned in agreement F.I II Page ZB of 47 IIARERA Complaint Nos. and 4236 of 2022 and 7846 of 2022 P-GURUGRAI/ 23.

The agreement to sell entered into beBveen the two side on U.05.201.2 contains a clause 14.2 relating to dispute resolution between the parties. e parties.

The clause reads as under: - "Allor ony disputes arising outor touching upon in relation to the terms of this Application/Agreement to Sell/ Conveyance Deed including the interpretation and validiry ofthe terms thereofond the respective rights ond obligotions of the parties shall be settled through orbitration.

The orbitration proceedings sholl be governed by the Arbitration ond Conciliation Act, 1996 or eny stotutory omendments/ modncqtions thereoJ for the time being in firce, The orbitration proceedings shall be held ot the oflce ofthe seller in New Delhi by a sole orbitrator who sholl be appointed by mutual consent ofthe parties. lfthere is no consensus on appointment of the Arbitrator, the mdtter will be referred to the concerned court for the some. ln case of any proceeding, reference etc. touching upon the orbitrAbr subject including any aword, the territorial jurisdiction of the Courts shqll be Gurgaon as well as of Punjob ond Haryanq High Court at Chandigqrh".

24.

The authority is ofthe opinion that the jurisdiction ofthe authority cannot be fettered by the existence of an arbitration clause in the buyer's agreement as it may be noted that section 79 of the Act bars the jurisdiction 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.

Also, section 88 ofthe Act 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 being in force.

Further, the authority puts reliance on catena of judgments of the Hon'ble Supreme Court, particularly in National Seeds Corporotion Limited v.

M.

Madhusudhan Reddy & Anr. (2012) Z SCC 506, wherein it has been held that the remedies provided under the Consumer Protection fiage 29 of 4t HARERA ffi OURUGRAII Complaint Nos. laint Nos. and 4236 of 2022 and 1,846 of 2022 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 the agreement between the parties had an arbitration clause.

Therefore, by applying same analogy the presence of arbitration clause could not be construed to take away the jurisdiction of the authority.

25.

Further, in Aftab Singh and ors. v.

Emaar MGF Land Ltd and ors,, Consumer case no.

701 of 2075 decided on 13,07,2017, the National Consumer Disputes Redressal Commission, New Delhi (NCDRC) has held that the arbitration clause in agreements beflveen the complainants and builders could not circumscribe the jurisdiction of a consumer.

The relevant paras are reproduced below: "49.

Support to the aboveview is also lent by Section 79 ofthe recently enocted Reol Estate (Regulotion and Development) Act,2016 (for short "the Real Estate Act").

Section 79 ofthe soid Act reads os follows: ' "79.

Bor of jurisdiction - No civil court shall have iurisdiction to entertoin ony suitor proceeding in respect ofany matter which the Authority or the adjudicating ofJicer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance ofony power conferred by or under this Act." It can thus, be seen that the said provision expressly ousts the jurisdiction ofthe Civil Courtin respectofony matterwhich the RealEstate Regulotory Authority, estqblished under Sub-section (1) of Section 20 or the Adiudicating Olficer, appointed under Sub-section (1) of Section 71 or the Real Estote Appellant Tribunol estoblished under Section 43 of the Reol Estote Act, is empowered to determine.

Hence, in view ofthe binding dictum ofthe Hon'ble Supreme Court in A. ourt in A.

Ayyaswamy (supra), the matters/disputes, which the Authorities under the Real Estate Act are empowered to decide, are non-arbitrable, notwithstonding qn Arbitration Agreement between the parties to such motters, which, to a !rage:o or+r HARERA P- GURUGRAM Complaint Nos. and 4236 of 2022 and, \846 of 2022 lorge extent, ore similar to the disputes falling for resolution under the Consumer Act.

56.

Consequently, we unhesitatingly reject the arguments on behalf of the Builder qnd hold that an Arbitration Clquse in the qfore-stated kind of Agreements between the Complainants and the Builder cqnnot circumscribe the jurisdiction ofo Consumer Fora, notwithstqnding the amendments made to Section I ofthe Arbitration Act." 26.

While considering the issue of maintainability of a complaint before a consumer forum/commission in the fact of an existing arbitration clause in the builder buyer agreement, the hon'ble Supreme Court in case titled as M/s Emaar MGF Land Ltd, V.

Aftab Singh in revision petition no.

2629-30/2018 in civil appeol no.

23512-23513 of 2017 decided on 70.12.2078has tpheld 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 paras are of the iudgement passed by the Supreme Court is reproduced below: "25.

This Court in the series of judgments as noticed obove considered the provisions of Consumer Protection Act, 1986 as well os Arbitrotion Act, 1996 and loid down thot complaint under Consumer Protection Act being q special remedy, despite there being an arbitrotion ogreement the proceeclings before Consumer Forum hqve to go on ond no error committed by Consumer Forum on rejecting the application.

There is reason for not interjecting proceedings under Consumer Protection Act on the strength on qrbitration ogreement by Act, 1996.

Act, 1996.

The remedy under Consumer Protection Act is o remedy provided to a consumer when there is a defect in any goods or services.

The complqint means ony allegation in writing mode by a complainant hos qlso been exploined in Section 2(c) of the Act, The remedy under the Consumer Protection Act is confined to complaint by consumer qs defrned under the Act for defect or deficiencies coused by a service provider, the cheap and a quick remedy hos Page 31 of 41 Complaint Nos. and 4236 of 2022 ard,1846 of 2022 27.

G, ffiHARERA #- eunuennHl been provided to the consumer which is the object and purpose of the Act as noticed obove," Therefore, in view of the above judgements and considering the provision of the Act, the authority is of the view that complainants are well within their rights 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 an arbitration.

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

Findings on the reliefsought by the iomplainant' G.L Direct the respondent.to refund of total amount paid by the complainant to the respondent along with interest at the prescribed rate.

In the present complaint, the complainant intends to withdraw from the project and is seeking return of the amount paid by it in respect of subject unit along with interest at the prescribed rate as provided under section 18(11 of the Act.

Sec.

18(1) of the Act is reproduced below for ready reference. "Section 78: - Return of amount and compensation 1B(1). lf the promoter fails to complete or is unqble to give possession of on apartment plot, or building.- (a) in accordonce with the terms of the ogreement for sale or, as the case may be, duly completed by the dote specified therein; ot (b) due to discontinuance of his business as a developer on account of s count of suspension or revocation of the registration under this Act or lor any other reoson, he shall he liable on demdnd to the sllottees, in cose the allottee wishes to withdrqw from the project, without preiudice to any other remedy availoble, to return the amount received by him in respect of that qpartment, plot' building, as the case mqy be, with interest qt such rqte as may be Page 32 of41 HARERA Complaint Nos. and 4236 of 2022 and 1846 of 2022 ffi OURUGRAII prescribed in this beholfincluding compensation in the manner as provided under this Act: Provided that where on ollottee does not intend to withdraw fron the project, he sholl be paid, by the promoteL interest for every month ofdelay, till the hqnding over ofthe possession, at such rqte qs may be prescribed." (Emphosis supplied) 29.

As per clause 4.2 of the agreement to sell dated 17 .05.201.2 provides for handing over of possession and is reproduced below: 4,2 Possession Time and Compensation That the Seller shqll sincerely endeavor to give possession of the Unit to the purchoser within thirty-six (36) months in respect ol'TAPAS' Independent Floors and forty:etght (48) months in respect of'SURYA TOWER'from the date of the'execution ofthe Agreement to sell and after providing of necessary infrastructure specially road sewer & water in the sector by the Government, but subject to force majeure conditions or any Government/ Regulqtory authority's action, inaction or omission and reasons beyond the contol of the Seller.

However, the seller shqll be entitled for compensation free grace period of six (5) months in case the construction is not completed within the time period mentioned above, The seller on obtaining certificate for occupotion ond use by the Competent Authorities shqll hand over the Unit to the Purchaser for this occupation ond use ond subiect to the Purchqser having complied with all the tPrms and conditions of this application form & Agreement To sell. t To sell.

In the event of his failure to tqke over and /or occupy and use the unit provisionally and/orlnally allotted within 30 doys from the date of intimation in writing by the seller, then the same shqll lie at his/her risk and cost ond the Purchoser shall be liable to compensotion @ Rs.7/- per sq. fi. of the super orea per month as holding charges for the entire period of such de\ay........,.." 30.

At the outset, it is relevant to comment on the preset possession clause of the agreement wherein the possession has been sub)ected to providing necessary infrastructure specially road, sewer & water in the sector by the government, but subiect to force majeure conditions or any government/regulatory authority's action, inaction or omission and \-rase :s of +r ffiHARERA #- eunuennlir Complaint Nos. and 4236 of 2022 and,7846 of 2022 reason beyond the control of the seller.

The drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour ofthe promoter and against the allottee that even a single default by the allottee in making payment as per the plan may make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning.

The incorporation of such a clause.in the agreement to sell by the promoter is just to evade the liability towards timely delivery of subject unit and to deprive the allottee of his right accruing after delay in possession.

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

31.

Due date of handing over possession and admissibility of grace period: As per clause 4.2 of the agreement to sell, the possession of the allotted unit was supposed to be offered within a stipulated timeframe of 48 months plus 6 months of grace period, in case the construction is not complet ot complete within the time frame specified.

It is a matter of fact that the respondent has not completed the project in which the allotted unit is situated and has not obtained the occupation certificate by May 201-6.

However, the fact cannot be ignored that there were circumstances beyond the control of the respondent which led to delay incompletion of \-eacez+ or +t Complaint Nos. and 4236 of 2022 and, 1846 of 2022 the project.

Accordingly, in the present case the grace period of 6 months 32.

HARERA ffi GURUGRAII is allowed.

Admissibility of refund along with prescribed rate of interest: The complainants are seeking refund the amount paid by it at the prescribed rate interest.

However, the allottee intends to withdraw from the project and is seeking refund ofthe amount paid by it in respect ofthe subject unit with interest at prescribed rate as proyided under rule 15 of the rules.

Rule l5 has been reproduced as under: Rule 75, Prescribed rote ofintereSt lProvbo to section 72, section 78 qnd sub-section (4) qnd subsection (7) of s;ition 191 (1) For the purpose ofproviso to section 72; section 1B; ond sub-sections (4) and (7) of section 19, the "interest at the rate prescribed" sholl be the State Bank of lndia highest morginal cost oflending rate +20k.: Provided that in cose the State Bankoflndia mqrginal cost oflending rate (MCLR) is not in use, it sholl be reploced by such benchmark lending rates which the State Bonk of lnclia may fx from tine to time for lending to the general public.

The legislature in its wisdom in the subordinate legislation under the provision of rule 15 of the rules, has determined the prescribed rate of interest.

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

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 on date i.e., 24.05. e., 24.05.2023 is 8,70o/o, Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2o/o r.e.,lO,7oo/o.

33, 34. l5+age :s or+r HARERA #,GURUGRAII Complaint Nos. and 4236 of 2022 and 7846 of 2022 35, 0n consideration of the circumstances, the documents, submissions and based on the findings of the authority regarding contraventions as per provisions ofrule 28(1), the authority is satisfied that the respondent is in contravention of the provisions of the Act.

By virtue of clause 4.2 of the agreement to sell dated form executed between the parties on 17.05.2072, the possession of the subject unit was to be delivered within a period of 48 months from the date ofexecution ofbuyer's agreement which comes out to be 17.05.2016.

As far as grace period is concerned, the same is allowed for the reasons quoted above.

Therefore, the due date of handing over of possession is L7.LL.20L6.

Keeping in view the factthat the allottee/complainant wishes to withdraw from the project and demanding return of the amount received by the promoter in respect of the unit with interest on failure of the promoter to complete or inability to give possession of the plot in accordance with the terms of agreement for sale or duly completed by the date specified therein.

The matter is covered under section 18(1) of the Act of 2016.

The due date of possession as per agreement for sale as mentioned in the table above is days on the date of filing of the complaint.

The authority has further, observes that even after a passage of more than 5.7 years till date neither the construction is complete nor the offer ofpossession ofthe allotted unit has been made to the allottee by the respondent/promoter.

The authority 36. \{aercot+r TARIRA M-GURUGRAM is of the view that the allottee cannot be expected to wait endlessly for taking possession of the unit which is allotted to it and for which they have paid a considerable amount of money towards the sale consideration. ideration.

It is also pertinent to mention that complainant has paid almost 97o/o of lotal consideration till 2016.

Further, the authority observes that there is no document place on record from which it can be ascertained that whether the respondent has applied for.occqpation certificate/part occupation certificate or what is the status of construction of the project.

In view of the above-mentioned fact, the allottees intend to withdraw from the proiect and is well within the right to do the same in view of section 18(1J ofthe Act, 2016.

38, Moreover, the occupation certificate/completion certificate of the proiect where the unit is situated has still not been obtained by the respondent /promoter.

The authority is of the view that the allottees cannot be expected to wait endlessly for taking possession ofthe allotted unit and for which he has paid a considerable amount towards the sale consideration and as observed by Hon'ble Supreme Court of India in lreo Grace Realtech Pvt.

Ltd.

Abhishek Khanna & Ors., civil appeal no.

5785 of 2019, decided on 71.07.2027 "....

The occupation certificote is not ovailqble even es on dote, which cleorly qmounts to deficiency of service.

The allottees cannot be made to wait indefinitely for possessior of the aportments ollotted to them, nor can thq/ be bound to take the aportments in Phqse 1 of the project......." Complaint Nos. and 4236 of 2022 and,7846 of 2022 age 37 of 41 HARERA @ cilDrcDAr\/ id.iM vul\L/\Jl\/ \lv Complaint Nos. and 4236 of 2022 and 1846 of 2022 39.

Further in the judgement of the Hon'ble Supreme Court of India in the cases of Newtech Promoters and Developers Private Limited Vs State of U,P, and Ors, (supra) reiterated in case of M/s Sana Realtors Private Limited & otherVs Union oflndia & others SLP (Civil) No.

73005 of2020 decided on 12.05.2022. it was observed 25. served 25.

The unqualilied right of the ollottee to seek refund referred Under Section 1B(1)(a) and Section 19(4) of,the Act is not dependent on any contingencies or stipulations thereEf,'lt appears that the legisloture hos consciously provided this right of.tgflild on demand as an unconditional obsolute right to the allotae, lf thiiiitthoter fails to give possession ofthe aportment, plot or building within the time stipuloted under the terms of the agreement regardless of unforeseen events or stoy orders of the Court/Tribunol, which is in either woy not ottributable to the ollottee/home buyer, the promoter is under an obligation to relund the omount on demand with interest ot the rote prescribed by the Stote Government including compensqtion in the monner provicled under the Actwith the proviso that ifthe ollottee does notwish to withdraw from the project, he shall be entitted for interest for the period of delay till honding over possession ot the rate prescribed." 40.

The promoter is responsible for all obligations, responsibi]ities, 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(41[a].

The promoter has failed to complete or unable to give possession of the unit in accordance with the terms of agreement for sale or duly completed by the date specified therein.

Accordingly, the promoter is liable to the allottee, as the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the 46aee se or+r HARERA ffiOURUGRAII Complaint Nos. and 4236 of 20ZZ and, 1846 of 2022 amount received by it in respect of the unit with interest at such rate as may be prescribed.

41.

Accordingly, the non-compliance of the mandate contained in section 11[4] [a] read with section 18(1J of the Act on the part of the respondent is established. tablished.

As such, the complainant is entitled to refund of the entire amount paid by him at the prescribed rate of interest i.e., @ 10.70o/o p.a. (the State Bank of India highest .rnarginal cost of lending rate (MCLR) applicable as on date r2%) as pr'escribed under rule 15 of the Haryana Real Estate [Regulation and Development) Rules, 2017 from the date of each payment till the actual date of refund of the amount within the timelines provided in rule 16 ofthe Haryana Rules 2017 ibid.

42.

In the complaint bearing no.

CR/1A46/2O22, the following additional reliefs are sought by the complainants, G. ll Direct the respondent to pay an amount ofRs.2,00,000/- as litigation expenses.

C.III Direct the respondent to pay the alternate accommodation being rented by the complainants siice the promised date ofpossession of Rs.35,00,000/- 43.

The complainants are seeking above mentioned reliefw.r.t. compensation.

Hon'ble Supreme Court of India in case titled as M/s Newtech Promoters and Developers PvL Ltd.

V/s State of Up & Ors.

2021-2022(1) RCR (C), 357 held that an allottee is entitled to claim compensation & Iitigation charges under sections 12,14,18 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation & litigation expense shall be adjudged by the adjudicating A\f Page 39 ol 4l HAl?ERA BS c|D|aDA[/ iit!

F \-,, t/ l\ V \./ l\, \lV I Complaint Nos. and 4236 of 2022 and,1846 of 2022 officer having due regard to the factors mentioned in section 72.

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

Directions ofthe authority 44.

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 th*ilqcti,on entrusted to the authority under section 34(0: . on 34(0: .':r,r'i ll The respondent/promoter is directed to refund the amount received by it from each of the comilainant[s) along with interest at the rate of 10.70% p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation and Developmentl Rules, 2077 from the date of each payment till the actual date ofrefund ofthe deposited amount.

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.

The respondent is further directed not to create any third-party rights against the subject unit before full realization of the paid-up amount along with interest thereon to the complainants, and even if, any transfer is initiated with respect to subject unit, the receivable shall be first utilized for clearing dues of allottee/complainant. ll. ut. + Y^g" +o or +r Complaint Nos, and 4236 of 2022 and 1A46 of 2022 mentioned in of this order para 3 shall cases L copl /to fied plv rtif app cerl Haryana ReaI Estate Regulatory Autho ffiHARERA #GURuGRAI,I 45.

This decision shall mutatis mutandis this order.

46.

Complaints stand disposed of.

True placed in the case file of each matter.

47.

File be consigned to registry.

Date 24.05.2023 HARERA QURUGRAM m # ;ql ( ..?\1 3W Page 41 of41