ASHOK BINDUMADHAVAN vs RAHEJA DEVELOPER LIMITED

* HARERA S-eunuonnH,r Complaint no. : Date ofcomplaint : Date ofdecision : Ashok Bindumadhavan, R/o: - Flat 353, Princess Park Apartments, Plot 33, Sector 6, New Delhi-110075.

Complaint No.

1938 of 2022 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM L938 of 2022 02.05.2022 27 .09.2023 Complainant Versus M/s Raheja Developers Limited.

Reg.

Office: - 401A,4th floor, Bakshi House 40-41, Nehru Place, New Delhi-110019.

CORAM: Ashok Sangwan APPEARANCE: Venkat Rao (Advocate) None Respondent Member Complainant Respondent ORDER 1.

The present complaint has been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules,2017 (in short, the Rules) for violation of section 11(a) [aJ of the Act wherein it is ln ter a/la prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision ofthe Act or the rules and regulations made there under or to the allottee as per the agreement for sale executed inter se.

Page 1 of 11 HARERA Complaint No, 1,938 of 2022 ffiGURUGRAN/ A.

Unitand proiect related details 2.

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

N.

Particulars Details 1.

Name ofthe project "Raheia Atharva", Sector 109, Gurugram, Haryana 2.

Proiect area 14.812 acres 3.

Nature of the proiect Residential G ro uplggq!1g Colony 4.

DTCP license no. and validity status 257 of 2007 dated 07.11.2007 valid up to 06.11 .20L7 5.

Name of Iicensee Brisk Construction Pvt. ltd and 3 others 6.

RERA Registered/ not registered Registered vide no.90 of 2017 dated 28.08.2017 7.

RERA Registered valid up to 5 yeais from the date of revised environment clearances 8.

Unit no. .

Unit no.

F12A-01, ground floor, Tower/block F I2A P aee no.

42 of comDlaintl 9.

Unit area admeasuring 2752.64 sq. ft. (Pase no.42 ofthe comDlaint 10.

Date of execution of agreement to sell 20.02.2070 (Page no.

37 of the complaintl 12.

Possession clause 4,2 Possession Compensation "Thoi the company sholl endeavors to give possession of the Apartment to the Allottee(s) within thirty-six (36) months in cose of towers ond Thirty [30) months in case of independent floor from the date of the execution of this Agreement and after providing necessory infrastructure in the sector by the Government, but subject to force majeure, circumstonces and reqsons beyond the control "f the compony,,.........,,,,...,,." Iemphasis supplied] (Pase no.

48 of the complaint) Time and ql Page 2 of 11 ).

HARERA Complaint No.

1938 of 2022 GURUGRAM 13.

Due date of Possession 20.08.2012 tNote: - 30 months from the date of ;greement i.e., 20.02.2010] Rs.90,90,783/- Rs.81,80,193/- (As alleged by the complainant at page no.

27 of the complaid N^t ^htained 14.

Basic sale consideration as per BBA at Page 64 of complaint 15. lmount paid bY complainants the 16.

Occupation certificate Not offered s y";s 8 .ot tf,t and 12 daYs 17.

Offer of possession 18.

Delav in handing over the oossession til I filing of complaint i.e., 02.05.2022 B.

Facts of the complaint 3.

The complainant has made the following submissions in the complaint: t.

That a real estate proiect named "Raheja's Shilas" having low rise independent floors at Sector-109' Gurugram came to the knowledgc of the complainant through the marketing representatives of the respondent.

The authorised representative of the promoter allured the complainant with the brochure' advertisements' stating special characteristics of the project and by making tall claim and assurances' Il. ances' Il.

That the complainant believing on such false representation and claims booked an independent floor bearing no' IF12A-01' on ground floor for a total sale consideration of Rs 90'90'783/- in the said project on 05.10 2009 Thereafter' on 20 02 2010 a flat buyer agreement was executed between the parties for the said apartment' Ill, That as per clause 4 2 of the agreement' the payments were to be made according to a construction linked plan and possession of the apartment was to be handed over within a period of 30 months fronl the date of execution of the said agreement which comes out on or Page 3 of 11 v HARERA *o*eunuonRu *- ' i"i"." 20.08.2012, and if the company fails to complete construction and provide necessary infrastructure then a compensation of Rs'7/- per sq.ft. of the super area per month for entire period of delay was to be paid.

However, no such payment has been made till date' lV.

That in order to comply with the payment of the instalment for the respective apartment in the aforesaid proiect' the complainant had obtained a housing loan of Rs'75'00'000/- from LIC Housing Finance Limitedon30.032010andsinceyear20L0'thecomplainanthas been paying monthly instalment of Rs 66'975/- without any delay against the same V.

That the respondent has failed to hand over the possession as per the terms of buyer's agreement' However' it has raised several demands without achieving the particular stage of construction which is in complete contravention to the agreed schedule of payment' VI.

That since starting the complainant herein had been running fronr pillar to post for getting the possession ofthe apartment despite after being burdened under the monthly EMI's towards the loan sanctioned for the respective apartment' vll.

That the complainant has always paid the instalment payments as and when demanded by the respondent' but the respondent being in dominant position has always taken advantage of the money deposited by him and has delayed the possession for ession for almost six years' Vlll.Thatthetermsandtheconditionsprovidedundertheagreementare one-sided, unfair and arbitrary in nature and are drafted merely to protect the interest of the respondent' lX.

That the respondent had been evidently failed to provide possession even after taking considerable amount against the total sale consideration ) Page 4 of 11 Complaint No.

1938 of 2022 C.

4.

GURUGRAM - That the complainant has made numerous requests and reminders for providing possession of the unit, but the same were left unanswered.

Hence, as per above mentioned facts and averments' the complainant is entitled to receive interest on delay possession of the apartment as provided under the Act and any such amount for monetary loss and mental agony, hence the present complaint Relief sought bY the complainant: The complainant has sought following relief(s)' i.

Direct the respondent to deliver the possession of apartment [An application for amendment of relief was filed on 29 08 2022 and the same was allowed vide order dared 79'07 2023)' ii.

Direct the respondent to pay the compensation of Rs 10'00'000/- on account of mental agony, harassment and Rs 2'00'000/ on account of litigation charges to the complainant' Despite due service and putting in appearance through AR' the respondent company failed to file any written reply even after several opportunities given.

Therefore, the defence of the respondent was struck offvide proceeding dated L9'07 2023 ' 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. lurisdiction of the authority The authority has complete territorial and subject matter jurisdiction to adiudicate the present complaint for the reasons given below Territorial iurisdiction HARERA D.

I As per Town r Complaint No.

1938 of 2022 notification no. cation no.

7/g2lzO77-7TCP dated 14'12'2017 issued by and Country Planning Department, Haryana the jurisdiction of 5.

6.

D.

7.

8.

Page 5 ol 11 ^- HARERA GURUGRAM Complaint No.

1938 of 2022 Haryana Real Estate Regulatory Authority, Gurugram shall be entirc Gurugram district for all purposes ln the present case, the proiect in question is situated within the planning area of Gurugram district' Therefore, this authority has complete territorial jurisdiction to deal with the Present comPlaint.

II Subiect'matter iurisdiction 9.

Section 11,(41(a) 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 17(4)(a) Be responsibie for all obligations, responsibilities and functions under'the provisions of this Act or the rules ond regulotions mode thereunder or to the ollottees as per the ogreement for sqle' or to the ossociqtion ofollottees, as the case moy be, till the conveyonce ofall the apartments' ptots or buildings, as the case may be' to the illottees, or the common areos to the ossociotion of qllottees or the competent outhoriry, qs the cose may be; Section 3 4'F unctions oJ lhe Auth ority: 34A of the Act provides ro ensure complionce of the obligotions cait upon the promoters' the ollottees ond the real estate ogents undei this Act and the rules and regulations mode thereunder' 10.

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 adjudicating officer if pursued by the complainant at a later stage.

E.

Findings on the reliefsought by the complainant E,I Direct the respondentto deliver the possession ofapartment' 11. tment' 11.

In the present complaint, the complainant intends to continue with the project and is seeking delay possession charges as provided under the proviso to section 18[1) ofthe Act.

Sec 18(1J proviso reads as under' Page 6 of 11 1.2. ffiHARERA ffieunuenntr,r 14. "section 78: - Return ol amount and compensation 1.8(l). tf th" pro^or"r ioils to complete or is unoble to give possession of on aportment, Plot, or building, - Provided thot where an ollottee does not intend to withdraw from the project, he sholl be pqid, by the promoter, interest for every month ofdeloy' 'till'the handing over ofthe possession, at such rate os moy be prescribed " Article 4.2 of the agreement to sell provides for handing over of possession and is reproduced below: 4.2 Possession Time and Compensation "That the compony sholl endeovors to give possession ofthe Apartment to the Atlotrc;G) \T ithin thirtt'six (36) months in cose of towers ond Thirry G0) months in case oI independent Jloor Fom the dqte ol the i*icuiion of this Agreement ond ofter providing necessory infrastructure in the sector by the Government" b.ut subject,Lo force maieure, circumstances and reasons beyond the control of the company-- " Payment of delay possession charges at prescribed rate of interest: Proviso to section 18 provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter' interest for every month ofdelay, till the handing over ofpossession' at such rate as may be prescribed and it has been prescribed under rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 75' Prescribed rste oJ interest- [Proviso to section 72' section 18 and sub-section (4) snd subsection (7) oJ section 191 O For the pirpose of proviso to section 12; section 18; and sub' sections (4j ond (7) of section 19' the nterest ot the rote prescribei'; sholl be the Stote Bonk of lnd@ highest moratnol cost of lending rote +20/0. ote +20/0.: Provided that in cose the Stote Bonk of lndia morginal cost of lending rate (MCLR) is not in use' it sholl be reploced by such benchlmark linding rates which the State Bank of lndio may frx from time to time for lending to the generol 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. -'v' Complaint No.

1938 of 2022 13.

Page 7 o( 77 ffiHARERA #* eunueRRvt Complaint No.

1938 of 2022 15.

Consequently, as Per website of the State Bank of lndia i.e., https://sbi.co.in, the marginal cost of lending rate [in short' MCLR) as on date i.e., 27.09.2023 is 8.75olo.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +20lo i'e' ' lO'75o/o' 16.

The definition ofterm 'interest' as defined under section 2(za) ofthe Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee' in case of default' The relevant section is reproduced below: "(za) "interest" meons the rotes ofhbrest payoble by the promoter or the allottee, os the case moY be ExDlanotion -For the purposeofthis clouse- iii the rate of inte;e chargeobte from the allotLee by the promoler' ' ' in case oi default shatl be equol to the rote of nterest whtch tne promoter sholl be liable lo poy the ollottee' in case ol d,elo,u.tt " (i0 the interest payable by the promoter to the allottee sh.o,ll be lrom the dote the promoter received the omount or any port thereof till the doLe the omount or pon thereof and interesl therPon i\ refunded, and the interest poyable by the-ollottee to the pr. to the pr.omoter sialt be from the date the ollottee defoults in poyment to the promoter till the dote it is Poidi' Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate ie', 10'750/o by the respondent/ promoter which is the same as is being granted to it in case of delayed possession charges.

On consideration of the circumstances, the documents' submissions made by the parties and based on the findings of the authority regarding contravention as per provisions of rule 28[2)' the Authority is satisfied that the respondent is in contravention of the provisions of the Act By virtue ofclause 28(aJ ofthe agreement executed between the parties on 20.02.2010, the possession ofthe subject apartment was to be delivered within 30 months from the date of execution of buyer's agreement' Therefore, the due date of handing over possession was 20 08 2012' 17.

18.

Page I of 11 u.

1938 of 2022 GURUGRAM The respondent has failed to handover possession of the subject apartment till date of this order.

Accordingly, it is the failure of the respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period The authority is ofthe considered view that there is delay on the part of the respondent to offer of possession of the allotted unit to the complainant as per the terms and conditions of the buyer's agreement dated 20.02.2010 executed between the parties' Further, no OC/part OC has been granted to the pro,ect.

Hence, this project is to be treated as on-going proiect and the provisions of the Act shall be applicable equally to the builder as well as to the allottee' 19.

Section 19(10) of the Act obligates the allottee to take possession of the subiect unit within 2 months from the date of receipt of occupation certificate.

In the present complaint, the occupation certificate is yet not obtained. obtained.

The respondent shall offer the possession of the unit in question to the complainant after obtaining occupation certificate' so it can be said that the complainant shall come to know about the occupation certificate only upon the date of offer of possession' Therefore, in the interest of natural justice, the complainant should be given two months time from the date of offer of possession This two months of reasonable time is being given to the complainant keep ing in mind that even after intimation of possession practically they have to arrange a lot of logistics and requisite documents including but not Iimited to inspection of the completely finished unit but this is subiect to that the unit being handed over at the time of taking possession is in habitable condition.

It is further clarified that the delay possession charges shall be payable from the due date ofpossession i'e ' 20'08 2012 Page 9 of 11 Complaint No.

1938 of 2022 20.

HARERA @ cr rDl raDA[/ till the expiry of 2 months from the date of offer of possession or actual handing over of possession, whichever is earlier.

Accordingly, it is the failure of the promoter to fulfil its obligations and responsibilities as per the agreement dated 20.02.2 010 to hand over the possession within the stipulated period.

Accordingly, the non- compliance of the mandate contained in section 11(4)(a) read with proviso to section 18(1) of the Act on the part of the respondent is established.

As such, the allottee shall be paid, by the promoter, interest for every month of delay from due date of possession i .e.,20.02 2012 till the date of offer of possession plus 2 months or actual handing over of possession, whichever is earlier; at prescribed rate i e., 10.7570 p a as per proviso to section 18(1) of the Act read with rule 1 5 of the rules' E.tl Direct the respondent to pay a compensation of Rs.10,00,000/' on account of mental agony, harassment, and Rs. t, and Rs.2,00,000/- on account oflitigation charges to the complainant.

The complainant is also seeking relief w.r't. compensation and litigation expenses.

Hon'ble Supreme Court of India in civil appeal nos.

6745- 6749 of 2027 titled as M/s Newtech Promoters and Developers Pvt' Ltd.

V/s State of Up & Ors. (supra),has held that an allottee is entitled to claim compensation &litigation 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 adiudicating 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.

Therefore, the complainant is advised to approach the 2L. {t- Page l0 of .l f HARERA Complaint No.

1938 of 2022 cs cr rDr tcDA[/ @ @ \-,/ur\v\,/r\/ nvr adiudicating officer for seeking the relief of compensation and litigation expenses.

F.

Directions ofthe authority 22.

Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(0: i.

The respondent is directed to pay interest to the complainant against the paid-up amount at the prescribed rate of 10.75% p a' for every month of delay from the due date of possession ie, 20.02.2012 till actual handing over of possession or offer of possession plus two months, whichever is earlier, as per section 18(1J of the Act of 2016 read with rule 15 of the rules; ii.

The arrears ofsuch interest accrued from 20.02.2012 till the date of order by the authority shall be paid by the promoter to thc allottees within a period of 90 days from date of this order and interest for every month ofdelay shall be paid by the promoter to the allottees before 1Oth of the subsequent month as per rule 16(2J ule 16(2J ofthe rules; iii.

The respondent shall not charge anything from the complainant which is not the part ofthe agreement to sell.

23.

Complaint stands disPosed of.

24.

File be consigned to registry. (Ashok Sa Memb Haryana Real Estate Regulatory Authority, Gurugram Dated:27.09.2023 Page 11 of 11