RABIA CHANDER AND SAMIT SHARMA vs RAHEJA DEVELOPERS LTD.

HARERA ffi GURUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Ordre reserved on: 12 O4.ZO23 Order pronounced on: 12.07.2023 NAME OF THE BUILDER RAHEJA DEVELOPERS LIMITED.

PROJECT NAME "RAHEJA'S MAHESHWARA" S.

No.

Case No.

Case title APPEARANCE 7. cR/2769/2022 Rabia Chander and Samit Sharma Vs.

Raheja Dervelopers Limited Shri PankaiChandola j Advocate and Shri Garvit Cupta Advocate I 2. cR/2364/2022 Nidhi Sharrr a and Amit Sharma Vs.

Raheia Developers Limited Shri Pankaj Chandola Advocate and Shri Garvit Gupta Advocate J 3. cR/4899 /2022 Mrs.

Santosh Numar and Mr.

Mahesh Kumar Vs.

Raheja Dr:veloPers Limited Shri lagdeep Kumar Advocate and Shri Carvit Gupta Advocate CORAM: Shri Ashok Sangwan Member ORDER 1.

This order shall dispose ofall three complaints titled as above filed before the authority under section :11 of the Real Estate (Regulation and Development) Acl,2016 (hereinafter referred as "the Act") read with rule 28 ofthe Haryana Real Estate (Regulation and Development) Rules,2017 (hereinafter referred as "the rules") for violation ofsection 11(4)(a) 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' t.V Page 1of36 Complaint Nos. and 2169 of 2022 and 2 others HARERA ffi OURUGRAI/ 3.

Complaint Nos. and 2169 of 2022 and 2 others 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 Maheshwara" Iresidential group housing colony) being developed by the same respondent/promoter i.e, M/s Raheja Developers Limited.

The terms and conditions ofthe 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 of the piomoter to deliver t deliver timely possession of the units in question, seeking award of refund the entire amount along with intertest and the compensation.

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: "Rahejo's Moheshwara", Sector 17 & 74, Sohna Msster Plqn Gurugram, Haryanq Possession Clause: - "21.

The company shall endeavour to complete the constuction of the said apartment within Forty'Eight (48) months plus/minus Twelve (72) months groce period of the dote of execution of the qgreement or environment clearance and Iorest cleorance, whichever is lqter hut subject to force moieure, political disturbances, circumstonces cosh fow mismqtch and reoson beyond thc control of the company.

However' in cose the compqny completes the construction prior to the said period oJ 4B months ptus 12 months grace period the allottee shall nottaise any objections in taking the possession ofter payment of Gross Consideration and other chargis stipuloted hereunder.

The company on obtaining certifcate of occupation ond usefor the buitdmg in which said opartment is situqted' by the competent quthorities sholl hanctover the said oportmentto the ollottee for his occupotion and use and subject to the allottee hoving complied with oll the terms ond condition of the ogreement to sell . .." + Page 2 of36 Project Name and Location ffiHARERA #- eunusnnll Complaint Nos. and 2169 of 2022 and 2 others Sr.

No Complaint ] Reply No., Case L status Title, I ,nd nate of I tilineof I complaint I Unit No.

Date of lDuedate execution of of I possesslon agreement I to sell Total Considemtion /Total Amount paid by the complainants in Rs.

7. cR121.69 /2 022 Rabia Chander and Samit Sharma Raheja Developers Limited.

Date of Fiting of complaint 31.05.2022 Reply t2.o4-2023 c 601,6fr flolJr, block C admeariuring 1098.50 sq. fL lPage o.39 ofcomplaintl 30.07. ntl 30.07.2016 lPage no.

38 ofcomplaintl 30.07.2021 (Note: - 48 agreement i,e., 30.0?.2016 + 12 months grace period) TSC:' I 42.g0,796/- I 16,43.0411.

I (As per customer ledger dated 07 .04-2023 page no.

17 ol reply) cRl236412 | 022 I Nidhi I Amit I Sharma Raheia Developers Limited Date of Filingof complaint 31.05.2022 Reply 12.04.2023 c"602,6'h block-C adme2suring 1098.50 sq. tu JPage no.

42 ofcomplaintl ;ffi1 01,08.2021 I 1t'lote: -:O I months from agreement i.e., 01.08.2016 + 12 months grace period) TSC: - 42,9O,796/- 16,43,O41/- (As percustomer ledgerdated 07.04.2023 page no.

16 ofreply) Page 3 of36 n HARERA GURUGRAM Complaint Nos. and 21.69 of 2022 and 2 otherc 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 proiect 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' 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(0 of the Act which mandates the authority to ensure compliance ofthe obligations cast upon the promoters' the allottee(sJ and the real estate agents under the Act' the rules and the 5. + Page 4 of36 3. cRl4899 /2 022 Mrs. santosh Kumarand Mr.

Mahesh Kumar Raheia Developers Limited.

Date of Filing of complaint 22.07 -2022 Reply received on 12.04.2023 c-303,3d floor, block- C admeasuring 1198.11sq. ft.

IPage no.

26 ofcomplaintl 21.09-2016 lPage no.25 ofcomplaintl 21.09.2021 (Note: - 44 months From date of agreement i.e., 21.09.2016 + 12 months grace period) TSC:' 46,56,424/- 24,60,064/- (As per customer ledgerdated 23.O6.2022 page no.

62 ot complaint) @tshave soughtthe followingreliefs: f. eliefs: f.

Refuna oftotat amount paid bythe complainants to the respondent company along with interest at the prescribed rate.

2.

Direct the respondent to pay litigation cost ffin ibbreviations have been used rhey are elaborated as follows: Abbreviation Full form TSC Total Sale consideration AP Amount paid by the allottee(sl -....'.-..-........ - "---- regulations made thereunder' HARIRA GURUGRAM The facts of all the complaints filed by the complainant[s)/allottee(sJ are alsosimilar.Outoftheabove-mentionedcase,theparticularsofleadcase CR/216g/2022, titled as Rabia Chander and Somit sharma vs' Raheia Developers Limited are being taken into consideration for determining the rights of the allottee(sJ qua refund the entire paid-up amount along with interest and others.

Proiect and unit related details The particulars of the project, the details of sale consideration' the amount paid by the complainant(s), date ofproposed handing over the possession' delay period, if any, have beeri detailed:in the following tabular form: CR/216g/2022, titled as Rabla Chander and Samit Shorma Vs' Raheia Develoqers Limited' S.

N.

Particulars Details 1.

Name of the proiect "Raheia's Maheshwara", Sector 11 & 14, Sohna Master Plan Gurugram, Haryana 9.23 acres 3.752 acres Group housing comPlex 25 of 2012 dated 29.03.2012 valid up to 28.03.2018 I Alit Kumar and 21 others I Registered vide no.

20 ot 2017 I dated 06.07.2017 2.

Project area 3.

Registered area 4.

Nature of the Proiect 5.

DTCP license no and validity status 6.

Name of licensee 7.

RERA Registered/ not registered Complaint Nos. and 2169 of 2022 and 2 others 6.

A.

7. + 36 Page 5 of ffiHARE&\ #- eunueRRirl Complaint Nos. and 2169 of2022 and 2 others + 36 8.

RERA registration valid uP to 5 Years from the date of revised Environment Clearance 9.

Unit no.

C-601,51h floor, Tower/block- C (Page no.

39 ofthe comPlaintl 1098.50 sq. ft.

I (Page no.

39 of the comPlaint) I n.e r- 130.07.2016 I (Page no.

38 of the comPlaintl 10. laintl 10.

Unit area admeasuring 11. t2.

Allotment letter Date of execution of agreement to sell 13.

Possession clause '.7.

The companY sholl endeovour to )omplete the construction of the ;aid apartment within FortY- Eight (48) months Plus/minus Twelve (72) months grace Period of the date of execution of the agreement or environment clearance and forest clearance, whichever is ldter but subject to force majeure, politico disturbonces, circumstances cash flow mismakh and reason beYona the control of the comPanY However, in case the comqon) completes the construction prior t(' the said period of48 months Plus 1i months grace Period the allottet shall not rqised anY objections it taking the possession after paymen of Gross Conside*!9!-!!!:th: t r Page 6 of HARERA GUilUGRAM Complaint Nos. and 2159 of 2022 and 2 others nrges stlpulated hereunder.

The )mpany on obtaining certifrcate of ccupotion and use t'or the building t which said aPartment [s situated, y the competent outhorities shall and over the said a\artment to the llottee for his occu\ation and use nd subject to the allottee having omplied with all the terms and 'ondition of the agreement to ell......" cl c( Ot it b" h a o c c s (Page no.

49 of the comPlaint).

L4. lrace period As per clause 21 of the agreement I to sell, the Possession of the allotted unit was suPPosed to be offered within a stipulated timeframe of 48 months PIus/ minusl2 months grace Period of the date of execution of the ogreement or environment clearance and forest clearance, whichever is later.

Since in the present matter the BBA linco.po.ute, unqualified reason I ro. *o." period/Lxtended Period I in the Possession clause' laccordlngly, the authoritY allows ] I this grace Period of 12 months to ] I th" p.o,,o,"r rt this stage.

30.07.202r 15.

Due date of Possessiorl Page 7 of36 HARERA W-GURUGRAN,4 17.

L6. (llot", - +A months from date of agreement i.e., 30'07.2016 + 12 months grace Period) Total sale consideration Rs. ration Rs.42,90,7 96 /- (As per aPPlicant ledger dated 07.04.2023 at Page no.

17 of the reply) Rs.16,43,041/- [As per aPPlicant ledger dated 07.04.2023 at Page no.

17 of the replyJ the Amount paid bY complainant 18.

Payment PIan Installment link PaYment Plan [As per payment PIan Page no.

50 of the complaint) 19.

Occupation certificate /Completion certificate Not yet obtained Not offered 10 months and 1 daY 20.

Offer of possession 2L.

Delay in handing over the possession till date offiling complaint i.e., 3 1..05.2022 Facts of the complaint The complainants have made the following submissions in the complaint: - a.

That in the year 2016, the real estate project namely "Raheja's Maheshwara" situated at sector L1 & 14' Sohna' Gurugram' Haryana came to knowledge of the complainants' through the authorized marketing representatives of the respondent' The marketinEl-r Page B of36 Complaint Nos. and 2169 of 2022 and 2 others B.

HARERA ffi-GURUGRAII representative approached them, for and on behalf of the respondent' making tall claims with respect to the project and of the longstanding credentials of the respondent in the real estate sector' It was represented that the proiect is one of the finest and that the said unit is free from all kinds of encumbrances' b.

That relying on such false and misleading representations' assurances' brochures, and meetings, they agreed to purchase one unit bearing no C-601 in tower-C admeasuring super area 1099 sq ft ft for a total sale consideration of Rs.40,93,997/- and accordingly paid an amount of Rs.3,98,410/- and Rs.1,37,200/- through cheque bearing no' 043449 dated 07.05.2016 and 043452 dated 23 06 2016' respectively as the booking amount.

The respondent acknowledged the payment vide receipts dated 20.05.2016. c.

That the complainants opted for an Installment linked payment plan and the respective instalment was to be raised only upon achieving the proposed milestone. milestone.

The respondent at times has failed to achieve the milestone for the proiect in question and despite after knowing the same hasraisedthedemandswithoutachievedtheproposedmilestones.That since starting they have paid the entire instalment as and when demanded by it still the respondent has failed to complete the proiect as per agreed development schedule Thereafter' the respondent issued a letter dated 2 L.06.20L6, wherein they were informed that the allotment of unit no.

C-601, tower C has been approved and allotted to them' d.

That on 30.07.2016, an agreement to sell was executed for the aforesaid unit between the parties Whereby the parties entered into an understanding regarding the allotted unit bearing no' C-601' the said,-\r Page 9 of36 Complaint Nos. and 2169 of 2022 and 2 others HARERA s clrDlrcDA[/ .@ft \_/vt\v\.,/tv uYl agreement spelled out the terms and conditions regarding the said allotment, the payment schedule and the due date of delivery' e.

That as per the clause 21 of the agreement, the respondent was under the obligation to handover the possession of the unit within 48 months along with grace period of L2 months from the date of execution of the said agreement.

That there has been no event of unforeseen circumstances or force maieure which may have delayed delivery of possession.

Therefore, the idate of handing over of the possession was 30-7.2020.

However, no possession was delivered on the agreed date as mentioned in the agreement ,,i nJ* tn" proiect has been abandoned by it.

It is pertinent to note that it is almost 68 months from the date of execution of the agreement but till date construction is nowhere near completion.

Thattill date onlythe excavation ofthe said proiecthas been done, in all likelihood the said proiect has been abandoned' and the respondent has no intentions of completing the same That in such a scenario continuing in the said project is only causing more mental agony and financial distress to tJtem as they are in ey are in complete trust deficit regarding the commitments and hollow promises ofthe respondent' i That the agreement is completely unfair, one sided and an unreasonable one.

Thay were forced to sign the agreement as they were left with no choice but to sign the agreement as they had already invested a major portion of money in the said proiect and the respondent was in a dominant position.

Therefore, to safeguard their hard-earned money the complainant had no choice but sign on the dotted Iine' g.

That on the one hand, as per clause L6 of the agreement entitled the respondent to charge 12016 of interest in case of delay in making- Complaint Nos. and 2169 of 2022 and 2 others Page 10 of 36 \ HARERA P- GURUGRAI,4 payments by the complainants whereas on the other hand' Clause 21 of the agreement provides that the respondent shall pay to Allottee compensatory Iease rental per month (or part thereoO at the rate determined by an international IPC The respondent being in dominant position has compelled the complainants to execute the agreement having arbitrary clauses.

The clauses ofthe agreement are arbitrary and one sided, thus, on the same parity, complainants shall be entitled for interest @ 120lo p.a. on the payment received by it with regard to the unit' the possession of which has not been handed over' h.

That on 08.11..2017, the respondent on false pretext raised a demand of Rs.6,22,911/- which was supposed to be raised upon completion of foundation of the proiect.

However, the foundation work was not even started by it at the site of the proiect' That the said demand was completely false and misleading to extract the hard-earned money ofthe allottees.

That aggrieved by the demand raised by it without achieving the particular stage of construction (i'e', on completion of foundationl' they vide email daled 12-17. led 12-17.20!7 raised their concern over the demand being raised by the respondent on false and misleading statements and requested the respondent to withdraw the same as no development activities are ongoing since long at the site of the project' That in response, the respondent on 13 11'2017 specifically accepted and admitted that the said demand was raised without achieving the particular milestone' The respondent further provided unsatisfactory response by' making excuse of ban on construction activities by NGT.

However, the respondent was supposed to complete the foundation work prior to the date of ban imposed by the NGT Thev )'\- Page 11 of 36 Complaint Nos. and 2169 of2022 and 2 others HARERA P-GURUORAI\I1 again on 1,5.7L.2017, requested the respondent to withdraw the said demand and raise the same upon completion of foundation However' no satisfactory response was ever received from the respondent' i.

That on visiting the site ofthe proiect they found that the project has not been developed as per the development plan and it is way behind the agreed development schedule.

They also visited the office of the respondent and raised their concern over the non-development of the proiect as per the terms oftthe dgTeeinent However' all the concern of the complainants fell in deaf ears of the respondent The respondent with matafide intention has raised all the demands without achieving the particular stage of construction'which is violation ofthe terms ofthe agreement; however, the respondent did not care about the same The tactic of the respondent was to dupe and retain the complainant in the project is crystal clear by their act of raising of demands without developing the particular stage of the project as per the terms of the agreement which is in violation of the terms and conditions of the agreement as well as schedule of payment' The present case is a clear exploitation of innocence and beliefs of the complainants and an act of the respondent to retain the co ain the complainants hard-earned money in illegal manner, j.

That they were regularly approaching the respondent and was also paying visits to the office for asking about the status of the proiect and date for handing over of possession, but no heed was paid to the concerns raised by them.

Despite the repeated requests made by them' it failed to redress the grievances of the complainants and continued to raise reminders without completing the requisite development work of Page 12 of36 Complaint Nos. and 2169 of 2022 and 2 otherc HARERA ffi CllDlICDAI,I rdh ft \-/ul\v\-,/r\r nvl the proiect.

As on date, no one at the office of the respondent was addressing the concerns of the complainants and the proiect has been completely abandoned and the respondent has siphoned off the money paid by the complainants for its own purposes' k.

That while booking the said unit and thereafter on each receipt of the huge instalments from the complainants, the respondent had been assuring and promising the complainants the actual possession of the unit with all amenities/facilities as promised However, it is pertinent to note that the said project is nothing as promised and has been abandoned.

The respondent has.u$erly failed to fulfil his obligations to deliver the possession in'time or iefund the money along with the interest and has caused mentdl agony, harassment, and huge Iosses to the complainants, hence the present complaint' Relief sought by the complainants: - The complainants have sought fbllowing relief(sJ a.

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

Direct the respondent to pay litigation cost' D.

Reply bY the respondent 1.0.

The respondent has filed a reply dated 72'04'2023 and contested the complaint on the following grounds: - I.

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

The agreement to sell was executed between Complaint Nos. and 2169 of 2022 and 2 others 2016 and the Provisions C, 9. the parties prior to the enirctment of the Act, laid down in the said Act cannot be enforced retrospectivelY.

Although / eag" rr orci V HARERA ffi GURUGRAM the provisions of the Act, 2016 are not applicable to the facts of the present case in hand yet without preiudice and in order to avoid complications later on, the respondent has registered the pro'ect with the authority under the provisions of the Act of 2016' vide registration no.2o of 2017 dated 06.07 .2017 .

Il.

That the complaint is not maintainable for the reason that the agreement contains an afbitration clause which refers to the dispute resolution mechanism to be adopted by the parties in the event of any dispute i.e., clause 59 of the b}yer's agreement' lll.

That the complainants have'not approached this authority with clean hands and has intentionally suppressed and concealed the material facts in the present complainL The present complaint has been filed by him maliciously with an ulterior motive and it is nothing but a sheer abuse of the process of law The true and correct facts are as follows' > That the respondent is a reputed real estate company having immense goodwill, iomprised of law abiding and peace-loving persons and has always believed in satisfaction ofits customers The respondent has developed and delivered several prestigious proiects such as'Raheja Atlantis', 'Raheja Atharva"'Raheja Shilas' and 'Raheja Vedanta' and in most of these proiects large number of families have already shifted after having taken possession and Complaint Nos. and 2169 of 2022 and 2 others ) Page 14 of36 HARERA ffi GURUGRAM resident welfare associations have been formed which are taking care ofthe day to day needs ofthe allottees ofthe respective projects' > That the complainants, after checking the veracity of the project namely, 'Raheja's Maheshwara', Gurugram had applied for allotmen r allotment of a unit vide booking application form' On the basis of the representations of the complainant, the respondent allotted unit bearing no.

C-601 to the complainants The complainants agreed to be bound by the terms ind eonditions of the booking application form.

The complainants were aware from the very inception and had acknowledged in clause 2 of application form that the plans as approved by the concerned authorities are tentative in nature and that the respondent might have to effect suitable and necessary alterations in the layout plans as and when required That the complainants are real estate investors and not "customers" who had booked the unit in question with a view to earn quick profit in a short period.

However, it appears that their calculations have gone wrong on account ofsevere slump in the real estate market and is now raising untenable and illegal pleas on highly flimsy and baseless grounds.

Such malafide tactics of the complainants cannot be allowed to succeed. \.

Complaint Nos. and 2169 of 2022 and 2 others Page 15 of 36 & HARERA P-GURUGRAM ) That the possession of the unit is supposed to be offered to the complainant in accordance with the agreed terms and conditions of the buyer's agreement.

The use of expression 'endeavour to give the possession' in clause 2L of the buyer's agreement clearly shows that the company has merely held out a hope that it would try to give the possession of the complainant within a specified Ume However' no unequivocal promise was made to theqrolqective buyer's that possession ofthe unit would be deliverdd at thd end of a particular period' That in view of clause 25 of the agreement, the delay in the completion of the proiect was not attributable towards the respondent as while the initial foundation work was bring laid down' it was put on hold under the instructions of the National Green Tribunal due to SMOG' It is submitted that the delay was timely conveyed to the complainant. mplainant. [t is submitted that the said proiect would be completed by the year 2023' That during entire 2020 and, 202\ and till date due to covid pandemic the entire sector was impacted and as such the period of over 2 years should in any case not to be counted while computing any alleged delay.

The pandemic period clearly comes within the ambit of "force maieure." I/Y Complaint Nos. and 2169 of2022 and 2 others Page 16 of36 HARERA ffi c|D|cl]Al\l Rr Qi \-/\Jl\vvr\I nvl > That the respondent would hand over the possession of the apartment as soon as the construction work is complete subiect to availability of basic external infrastructure such as water' sewer' electricity etc. as per terms of the appllcation and agreement to sell and the grant of the occupational certificate by the authorities Due to the above-mentioned conditions beyond the reasonable control of the respondent, the unit allotted to the complainant has not been offered 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 fau,lt.

Under these circumstances the passing any adverse order against the respondent at this stage would amount to complete tra!esty ofiustice' > That every complaint hz,s to be decided according to law' but there is a benchmark (the larar), which a authority applies to the facts in order to discern (and adjudicate) what was the obligation' and if there is any deficiency in intent, effort or delivery as claimed but then facts have to reach the record completely and accurately 'l'hat variation in the economic situation and the upturns and the downturns or unfulfilled expectations ofa few cannot form the basis or an excuse to feign deficiency in service delivery t Complaint Nos. and 2169 of 2022 and 2 others PaBe 17 of 36 ffiHABERA #- eunuennvt Complaint Nos. laint Nos. and 2169 of 2022 and 2 others ) That the three factors: (1J delay in acquisition of land for development of roads and infrastructure (2) delay by government in construction of the Dwarka Expressway and allied roads; and (3) oversupply of the commercial units/shops in the NCR region, operated to not yield the price rise as was expected by a few. l'his 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' 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. f urisdiction of the authority The authority has complete 'territorial and subiect matter iurisdiction to adjudicate the present complaint for the reasons given below' E,I Territorialiurisdiction As per notificatio n no.7/92 /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 proiect in question isl /r 11.

E.

13.

12.

Page 18 of 36 Complaint Nos. and 2169 of 2022 and 2 others 15. ffiHARERA S- arnuennnl situated within the planning area of Gurugram district' Therefore' this authority has complete territorial jurisdiction to deal with the present complaint.

E.It Subiect-matteriurisdiction 14.

Section 11(a)[al of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale section 11(4)(a) is reproduced as hereunder: Section 77 ii1 rn" pro^ou, snatl- (a) be responsible for all obligotions, responsibilities a.nd. ties a.nd.functions iia", tn" provisions of this Act or the rules and regulations made thereunder or to the ailottees os per the ogreement for sale' or to the ,iociotion o7 attoaees, as the case msy be, till the conveyo.nce of oll the opirt^"r*, pto* o, buildings' os the case moy be, to the allottees' or the c'ommon oreos to theassociation of allottees or the competent authority' as the case maY be; Section 34-Functions of the Authority' 34A of the Act provides to ensure compliance of the obligotions cost ipii ti" pro.oi"rt, the ollottees and the real estate qgents under this ict ond the rules ond regulations mode thereunder' 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 which is to be decided by the adludicating officer if pursued by the complainants at a Iater stage.

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 1 Page 19 of 36 L6.

HARERA ffi- GURUGRAI/I passed by the Hon'ble Apex Court in Newtech Promoters and Developers Private Limited vs State oJ u.P. and Ors.

2021-2022 (1) RCR (civil)' 357 dnd reitprated in case of M/s Sana Realtors Private Limited & other Vs llnion of India & others SLP (Civit) No' 13005 of 2020 decided on 72,05,2022wherein it has been laid down as under: "86.

From the scheme of the Act of which o detailed reference hos been made ond toking note oI power of adjudicotion delineated with the regutatory autho:rity ond ;djudica-iiltg ofrcer, what lnal.ly culls..outis that aiithough-the Act i;dicates ihe disiihct expressions like 'refund",'interest'' 'penallty' and 'compensationt o ciiloint reading of Sections 18 ond 19 it"arty ^ani1"sts tiat when itcomesto refund ofthe omount a-nd interest on tie refund amount or directing poyment of interest. interest.for delqyed delivery oipossession, or penolty and interest thereon' i-t is the regulotory authoiity which hos the power to exomine and determine the outcome of a comploint At the some time, when it comes to o question-of seeking the relief of adjudging compensotion qnd interest thereon under Sections 12' 14, iti ond 1b, the adludicuting oJficer exclusively hos the. power to determine' keeping in iiew the cillective reoding ofsection 71 reod with sirition zi olin" irt if the adjudication under sections 12' 14'.18 and 19 other thon 'compensotion as envisoged, if extended to the .odjudicoting officer os prayed that in out view,;oy intend to expand the ombit ond iiope ol tie powers ond functionsofthe adiudicqting officer .under section 71 ond that would be ogainsl: the mondqte of the Act 2016 " lT.Hence,inviewoftheauthoritativepronouncementoftheHon'bleSupreme Courtinthecasementionedabove,theauthorityhasthejurisdictionto entertain a complaint seeking refund of the amount and interest on the refund amount.

F.

Findings on the obiections raised by the respondent - F.I.

Obiections regarding the complainant being investor' ra. if,e ."sponaent has iaken istand th't the complainants are investors and not a consumer.

Therefore, they are not entitled to the protection of the Act and is not entitled to file the complaint under section 31ofthe Act The r)Y PaSe 20 of 36 Complaint Nos. and 2169 of 2022 and 2 others ffiHARERA #- eunuennll Complaint Nos. and 2169 of 2022 and 2 others respondent also submitted that the preamble of the Act states that the Act is enacted to protect the interest ofconsumer ofthe real estate sector' The authority observes that the respondent is correct in stating that the Act is enacted to protect the interest of the consumers of the real estate sector' It is settled principle of interpretation that the preamble is an introduction of a statute and states main aims & obiects of enacting a statute but at the same time the preamble cannot bg uied to g uied to defeat the enacting provisions of the Act.

Furthermore, it is peidlrenlto note that any aggrieved person can file a complaint againsttlie promilter ifhe contravenes or violates any provisions of the 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 they are buyers and paid total price of Rs.16,43,041/- to the promoter towards purchase of an apartment in its project.

At this stage, it is important to stress upon the definition of term allottee under the Ac! the samer is reproduced below for ready reference: "2(d) "altottee" in relation to a reol estate project meons the perso.n to whom a plot qpartment '2r building, os the cose may be' hos been oltotted, sold (whether os freehold or leasehold) or otherwise transferred by the promoter, ond includes the person who subsiquentty icquires the said ollotment through sale' tronsfer or otherwise 'but does not include o person to whom such plot' oportment or building, as the cose moy be, is given on renti' ln view of above-mentioned definition of "allottee" as well as all the terms and conditions ofthe apartment application for allotment, it is crystalclear that the complainants are allottee as the subject unit was allotted to them by the promoter.

The concept of investor is not defined or referred in the 1 - ,Y Page 21 of 36 19.

HARERA ffi GURUGRAM Act.

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 29.01.2019 in appeal no.

0006000000010557 titled as M/s Srusftti Sangsm Developers PvL Ltd.

Vs.

Sarvapriya Leasing (P) Lts' And anr' has also held that the concept of investor is not defined or referred in the Act.

Thus, the contention of promoter that the allottee being an investor is not entitled to protection of this Aat also stands rejected. rejected.

F. ll Obiection regarding iurisdlction ofauthority w.r't buyer's agreement executed prior to coming into force ofthe Act' 20.

Another obiection raised the respondent that the authority is deprived of the jurisdiction to go into the lnterpretation of, 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 Theauthority is of the view that the Act nowhere provides, nor can be so construed, that 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.

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 \-h Page22 of 36 Complaint Nos. and 2169 of2022 and 2 others HARERA P-GURUGRAII made between the buyers and sellers The said contention has been upheld in the landmark judgment of l\Ieelft amal Realtors Suburban WL Ltd' Vs' IlOl and others. (W.P 2737 of 2017) decided' on 06'12 2017 which provides as under: "119.

IJnder the provisions of Section 18, the deloy in handing over the possession would be counted from the date mentioned in the ogreement 'for sale entered into by the promoter and th9 -!!o.tte: prior to its 'registration under REM.

Under the provisions of REpl, the promoter is gi;en a facility to revise the date of completion ofproiec.t and declore the same under Section 4.

The REP./...does not contemplote rewriting of controcL between the Ilot purchaser ond the promoter"" ' 122. r"" ' 122.

We hove already discussed thqqabove stoted provisions of the REM ore not retrospective in nloture'ihey mqy to some extent be having a retrooctive or quosi retf(;active elfedt but then on thotground the validity of the provisions of REF#- cannot be challenged The Porlioment is iompet"nt erough io tegislote low hoving retrospective .or retrooctive elfeit.

Alaw canbeevenfruned to olfect subsisting / existing controctual iights between the poiies in the lorger public interest We.do not have aly doubtin our miid thot the REPd has been framed in thelarger public inierest affer a thorough study ond discussion mode ot th.e highest level by the Sianding Comiittee ind Select Committee' which submitted its detailed reqorts," 21.

Also, in appeal no.

173 of2019 titled as Mogic Eye Developer Pvt' Ltd' vs' lshwer Singh Daftiya, in order dated 77 'L2'2079 the Haryana Real Estate Complaint Nos. and 2169 of 2022 and 2 others Appellate Tribunal has observed- "34.

Thus, keeping in view our aforesoid discussion' we ore of the considered opinion;hoithe provisions ofthe Act arc quosi retroac-tive to some extent ii operation oniwill be app[icoble to the agreements for sole enterul:it1g even prior to coming inLo oDerotion of Lhe Acl where the tron|oclion are iit i tn" prouu of comDletion Hence in cose of d.elay in the ifr/a"tu"ry oI possession os per the terms ond. conditions, of the iir,!"irr, n, i"i the qllottee siolt be entitled to the interest/delaved )"oorirrio, ,norg"t on thct reosonable rote of interest os provided in Rule '15 of the rutis ond one sided' unfair ond unreaso.nable ,rate of ii^p"nrotio, mentionetl in the agreement for sale is liable to be ignored." ,\, f36 Page 23 o HARIRA P- GURUOI?AI/ The agreements are sacrosanct save and except for the provisions which have been abrogated by the Act itself. ct 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 contr?vention of any other Act, rules, statutes' instructions, directions issued thereunder and are not unreasonable or exorbitant in nature.

F.III Obiection regarding agreements contains an arbitration clause which referJ to tfie dispute resolution system mentioned in agreemenL The agre"ement to sell entered into between the parties on 30 07 2016 contains a clause 59 relating to dispute resolution betlveen the parties The clause reads as under: - 22.

Complaint Nos. and 2169 of 2022 and 2 olhers 23. "All or ony disputes arising outor touching upon in relation to.the tern:s of this epptication/Agr""i"rt to Sell/ Conveyance Deed including t.he iiterpreiation and validity ofthe terms thereofand the respective righ.ts and obligotions of the parties sholl be settted through orbitration' The. arbitration prociedings sholl be governed by the Arbitotion ond Conciliation Act 1996 or ony statutory amendments/ modificotions thereof for the time being in force The orbitrotion proceedings sholl be. held at the oJftce of the s,ller in New Delhi by a sole arbitrator who shall be appointed by mutuol cttnsent oJ the porties lf there is no consensus on appo;ntment oS the Arbitrator, the matter will be rekrrcd to the concerned couit for the same. ln case of any proceeding, reference etc-- touching upon tie arbitrotor subject including ony oword, the territorial Page24 of 36 HARERA Complaint Nos. laint Nos. and 2169 of2022 and 2 others ffi c|DrcDA[/ xih rm \-/vl\vvl\I \lvl jurisdiction of the Courts shall be Curgoon os well qs of Punjab and Haryonq High Court otChandigarh"' 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 ofcivil courts about any matter which falls within the purview ofthis 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 Iaw for the time being in force.

Further, the authority puts reliance on catena of ludgments of the Hon'ble Supreme Court, particularly in ivdtiondl Seeds Corporation Limited v.

M.

Madhusudhan Reddy & Anr' (2012) 2 SCC 506' wherein it has been 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 the agreement betlveen 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" 707 of 2075 decided on 73'07.2077, the National Redressal Commission, New Delhi (NCDRC) has held p Consumer case no, Consumer DisPutes Page 25 of 3 HARERA Complaint Nos. and 2169 of 2022 and 2 others #-GURUGRAII that the arbitration clause in agreements between the complainants and builders could not circumscribe the iurisdiction of a consumer' The relevant paras are reproduced below: "49. elow: "49.

Support to the oboveview is also lent by Section 79 of the recently enocted Reql Estate (Regutation ond Development) Act 2016 (for short "the Reol Estate Act").

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

Bqr oI iurisdiction - No civil court sholl hove iurisdiction to entertoin ony suit or proceeding in respect of any matter which the Authority or the adjudicoting officer or the Appellote Tribunol is empowered by or under this Act to determine ond no injunction sh;ll be gronted by any court or other outhority in respect of ony action t;ken or to be taken in pursuance of ony power conferred by or under this Act," It cqn thus,be seen thotthe soid provision expressly ousts theiurisdiction ofthe Civil Courtin respect of qny motterwhich the Real Estote Regulatory Authority' estoblished under Sub'section (1) of Section 20 or the Adjudicoting Officer' appointed under Sub-section (1) of Section 77 or the Real Estote Appellant iiibunot established under Section 4g of the Real Estate Act is empowered to determine.

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

Auoswamy (supra), the matters/disputes' which the Authorities under the Reol Estate Actore empowered to decide, are non'arbitroble' notwithstanding an Arbitratlon Agreement betu'een the parties to such motters' which' to o large extent, ari similor to tlle disputes falling for resolution under the Consumer Act. '56.

Consequently, we unhesitotingly rcject the arguments on beholf of the Builder s;d hold that an Arbitration Clquse in the ofore-stated kind of Agreements between the Complainants and the Build.er conno.t circumscribe t;e jurisdiction ofo Consumer Fora' notwithstqnding the omendments mode to Section B ofthe Arbitqtion 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 Courtin case titled as M/s Emaar MGF Land Ltd.

Land Ltd.

V' Aftab Singh in revision petition no' 2629-g0/2078 in civit appeal no.

23572'23513 ol 2077 decided on 10.12.2078hastpheld the aforesaid judgement ofNCDRC and as provided Page 26 of 36 HARERA M GURUGRAII in Article 141 of the Constitution of India, the law declared by the Supreme Court shall be bindlng on all courts within the territory of lndia 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 iudgments as noticed obove considered the provisions of Consumer Protection Act, 1986 as well os Arbitrotion Act, 1996 and laid down that complaint under Consumer Protection Act being a special remedy, despite there being on orbitrotion agreement the proceedings before Consumer Forum have to go on dnd no error committed by Consumer Forum on rejecting the application.

There is reoson for not interiecting proceedings under Consumer Protection Act on the strength on arbitration agreement by Act, 1996, The remedy under Consumer Protection Act is o remedy provided to o consumer when there is o defect in ony goods or services.

The complaint means ony allegation in writing mode by a complainont hos olso been explained in Section 2 (c) of the Act.

The remedy under the Consumer Protection Act is confined to complaint by consumer as defined under the Act for defect or defrciencies caused by a service provider, the cheap ond a quick remedy has been provided to the consumer which is the obiect and purpose of the Act os noticed above," 27.

Therefore, in view ofthe above iudgements 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 ofgoing in for an arbitration. bitration.

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.

G.

Findings on the reliefsought by the complainant.

G.l.

Direct the respondent to refund of total amount paid by the complainant to the respondent along with interest at the prescribed rate. ) Complaint Nos. and 2169 of2022 and 2 others Page 27 of 36 HARERA W-GUIIUGRAM 28.

In the present complain! the complainants intend to withdraw from the project and are seeking return of the amount paid by them in respect of sub,ect unit along with interest at the prescribed rate as provided under section 18[1) ofthe Act.

Sec.

18(1"J ofthe Act is reproduced below for ready reference.

Complaint Nos. and 2169 of 2022 and 2 others "section 18: - Retum of qmount ond compensotion 18(1). lf the promoter foils to complete or is unable to give possession of on oportment, plot, or building.- (o) in occordance with the terms olthe Agreement for sale or, os the case may be, duly completed by the date spedfred therein; or (b) due ti discintinuance of his businiss as o developer on account of suspension or revocqtion'oJ ihe regitqation under this Act or for any other reqson, he shall betioble on demqnd to the allottees' in case the ollotteewishes to withdraw from the project, without preiudice to any other remedy ovoilable, to return the omount received by him in respect of thot opsrtment, plot' buitding, qs the cqse may be, with interest at such rate os may be prescried in this behalf including compensqtion in the monner as provided under this Act: Provided that where qn allottee does not intend to withdraw from the project, he shall be pqid, by the promoter, interest for every month ofdelay, 'till the honding over ofthe possession, ot such rote os may be prescribed " (Emphosis supPlied) 29.

As per clause 2l of the agreement to sell dated 30.07. ted 30.07.201'6 provides for handing over of possession and is reproduced below: 27.The company sholl endeavour to complete the construction of the said aportment within Forty-Eight (48) months plus/minus Twelve (72) months grace period of the dqte of execution of the agreement or environment cleqrance and Jorest cleorance, whichevet is later but subiect to t'orce maieure' political disturbances, circumstances cosh flow mismatch ond reoson beyot;d the control of the compony' However' in cose the company completes the construction prior to the soid period of 48 months plus 72 months gtace period the qllottee shall not roised qny obiections in toking the possession ofter poyment of Cross Considerotion ond other chc'rges stipuloted hereunder- The company on obtaining certificote of occupotion and use for the building in whrch soid Aa opartm;ft is;ituated, by the competent quthorities sholl hand over the ' \l Page 28 of36 HARERA Complaint Nos. and 2169 of 2022 and 2 others ffi GURUGRAM soid apartment to the allottee Jor his occupation and use ond subiect to the allottee having complied with oll the terms and condition of the ogreement to se11,......" 30.

At the outset, it is relevant to comment on the preset possession clause of the agreement wherein the possession has been subjected 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 reason beyond the control of thet!il6r.

The drafting of this clause and incorporation of such conditions ard'nbt only vague and uncertain but so heavily loaded in favour ofthe promoterand 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 se ment to sell by the promoter is just to evade the liability towards timely delivery of subiect unit and to deprive the allottee ofhis 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 left 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 21 of the agreement to sell, the possession of the allotted unit was supposed to be offered within a stipulated timeframe of 48 months plus/minusl2 months grace period of the dote of execution) _ <v Page 29 of 36 HARERA W-GUiIUGRAM of the agreement or environment clearance and forest clearance' whichever is later.

Since in the present matter the BBA incorporates unqualified reason for grace period/extended period in the possession clause.

Accordingly, the authority allows this grace period of .l 2 months to the promoter at this stage.

32.

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

However, the allottees intend to withdraw from the project and are seeking refund ofthe amount paid by them in respect of the subiect unit with interest at prescribed rate as provided under rule 15 ofthe rules.

Rule 15 has been reproduced as under: Rule 75.

Prescribeil rate oI interest- IProviso to section 72' section 78 qnd sub'secaion (4) ond subsection (7) ol section 191 -(i - - ior ri" prrpose ofproviso'to'section 12; section 78; ond sub-sections (4) ond (7)' ofieaion 19, the "interest ot the rote pr.escribed" sholl be the stqti i)aik of tndia Nghest morginol cost oflending rate +20k: Provided that in cosi the *at; Bsnk of tndio morginol cost oflending rate (MCLR) is not in use, it shotl be reploced by such benchmork lendiig rotis which the Stqte Bank of tndio moy fix from time to time for lending to the gener the general Public' 33.

The legislature in its wisdom in the subordinate legislation under the provision of rule l'5 of the rules, has determined the prescribed rate of interest.Therateofinterestsodeterminedbythelegislature'is reasonable and if the said rule is followed to award the interest' it will ensure uniform practice in all the cases ) \- Complaint Nos. and 2169 of2022 and 2 others Page 30 of 36 Complaint Nos. and 2169 of 2022 and 2 others https://sbi.co.in. the marginal cost of lending rate (in short, MCLR) as on date i.e.,72.07 .2023 ts 8,7Oo/o.

Accordingly, the prescribed rate of interest 35.

Jb.

HARERA Gs AL IDI ICDA[,,l @!ffi \-/ U l\ V\./ l\I \lv I 34.

Consequently, as per website of the State Bank of India i e ' will be marginal cost of lending rate +20/o i.e.' LO,7Oo/o.

On consideration of the circumstances, the documents, submissions and based on the findings of the authority regarding contraventions as per provisions ofrule 28(1), the authoriry is satisfied that the respondent is in contravention of the provision5:of thq.

Act By virtue of clause 21 of the agreement to sell dated form executg-d between the parties on 30 07 2016' the possession ofthe subject unitwas to be delivered within a period of48 months from the date of execution of buyer's agreement which comes out to be 30.07.2020.

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 30.07 .2021-.

Keeping in view the fact that the allottee/complainant wishes to withdraw from the project and demar'iding return of the amount received by the promoter in respect ofthe 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' 37.

2016' 37.

The due date of possession as per agreement for sale as mentioned in the table above is 30'07.2021 and there is delay of 10 months and 1 day on Page 31 of36 HARERA Complaint Nos. and 2169 of 2022 and 2 others ffi crD!rnDA[/ Rr,4 \-/Ul\UVlv llvl the date of filing ofthe complaint.

The authority has further, observes that even after a passage of more than 1.11 years till date neither the construction is complete nor the offer of possession ofthe allotted unit has been made to the allottee by the respondent/promoter.

The authority 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 mor,Iey towards the sale consideration lt is also pertinent to mention that coryplainelt has paid almost 380/0 of total consideration till 2017.

Further, the authority obseryes that there is no document place on record from which it can be ascertained that whether the respondent has ap,plied for occupation certificate/part occupation certificate or what'is the status of construction ofthe project ln view of the above-mentioned fact, the allottees intend to withdraw from the project and is well within the right to do the same in view of section 18(1) oftheAct,2016.

38.

Moreover, the occupation ceitificate/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 considerahle amount towards the sale consideration and as observed by Hon'ble Supreme Court of India in lreo Grace Realtech Page 32 of 36 Project...,.." Further in the iudgement of the Complaint Nos. and 2169 of 2022 and 2 others Hon'ble Supreme Court of tndia in the "..., The occupation certifrcote is not available even Qs on date' which clearly amounts to deficiency of service. f service.

The allottees connot be mocle to woit indefrnitely for possession of the opartments ollotted to them' nor con thE/ be bound to toke the oportments in Phose 1 of the 39. cases ofNewtech Promoters and Developers Private Limited Vs State of II,P. and Ors. (supra) reiterated in case of M/s Sana Realtors Private HARERA S-GURUGI]AM Pvt.

Ltd.

Abhishek Khanna & Ors., civil appeal no' 5785 of 2079' ilecided on 77.01.2027 Limited & other Vs llnion of lndia & others SLP (Civil) No' 73005 o12020 decided on L2.05.2022. it was observed 25.The unquolified right of the oltottee to seek refund rekrred Under Section 1B(1)(o) ond Section 1g(4) of the Act is not dependent on any contingencies or stipulotions thereol lt qppedrs that the legisloturc hos consciously provided this right of refund on demand os an unconditionol absolute right to the oltottei, iS thepromoter foils to give possession of the opartment, plot or building within the time stipuloted under the terms of ihe ogreemert regordless oJ unforeseen events or stay orders of the CouriTTribunol, which is in either woy not ottributoble to the allottee/home buyer, the $romoter is under on obtigation to refund the omount on demand with interest ot the rote prescribed by the Stote Government including compensation in the monner provided under the Actwiththe proviso that ifth'' allottee does not wish to withdrow from the proiect, he shall be entitled for interestfor the period ofdelay till honding over possession ot the rate prescribed " 40.

The promoter is responsible for all obligations' responsibilities' and functions under the provisions of the Act of 2016' or the rules and regulations made thereunder or to the allottee as per agreement for sale under section 11[4J(a].

The promoter has failed to complete or unable to \a Page 33 of 36 HARERA Complaint Nos. laint Nos. and 2169 of 2022 and 2 others P-OURUGRAM 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 amount received by it in respect of the unit with interest at such rate as may be prescribed.

41.

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

As such, the complainglts are entitled to refund ofthe entire amount paid by them at the prqscribed rate of interest i e ' @ 10 70o/o p'a' (the state Bank of lndia highest marginal cost of lending rate (MCLR) applicable as on date +270J as prescribed under rule 15 of the Haryana Real Estate fRegulation 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 ol the Haryana Rules 2017 ibid' G.

Il Direct the respondent to pay litigation cost 42.

The complainants are seeking above mentioned relief w'r't compensation' Hon'ble Supreme Court of lndia in case titled as M/s Newtech Promoters and Developers WL Ltd.

V/s State ofllp & Ors' 2027'2022(7) RCR (C)' 35TheldthatanallotteeiSentitledtoclaimCompensation&litigation charges under sections 12,14,18 and section 19 which is to be decided by the adiudicating officer as per section 71 and the quantum of compensation & litigation expense shall be adjudged by the adiudicating4 Page 34 of36 HARIRA ffi c|DrcDA[/ rdir m \-/ul\vvr\, \lY I 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 & legal expenses' F.

Directions ofthe authority 43. hority 43.

Hence, the authority hereby passes this order and issues the following directionsundersection3ToftheActtoensurecomplianceofobligations cast upon the promoter as per the fuRction entrusted to the authority under section 34[[): i.

The respondent/promoter iedlreeted to refund the amount received by it from each of the complainant(s] along with interest at the rate of 10.70% p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017 from the date of each payment till the actual date of refund of the deposited amount' 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 llt. would follow.

The respondent is further directed not to create any third-party rights against the subiect 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 subiect unit, the receivable shall be first utilized for clearing dues of allottee/complainan'' Aa Complaint Nos. and 2169 of2022 and 2 others Page 35 oF36 ffiHABEBA #- eunuen,qll Complaint Nos. and 2169 of2022 and 2 others 44.Thisdecisionshallmutatismutandisapplytocasesmentionedinpara3of this order.

45.

Complaints stand disposed of' True certified copy of this order shall be placed in the case file of each matter' 46.

File be consigned to registry' Dated: 12.07 .2023 HARERA 6URUGRAh4 Gurugram Page 36 of36