SUKESH VEAULI AND ANR vs IMPERIA WISHFIELD PVT LTD

HARERA ffiGURUGRAN/ BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision: 09.05.2023 k Complaint No.

6220 of 2022 and others NAME OF THE BUILDER M/S IMPERIA WISHFIELD PRIVATE LIMITED PROIECT NAME ELVEDOR I S.

No.

Case No.

Case title Appearance 1 cR/777 6 /2022 Manju Sharma V/s Imperia Wishfield Private Limited Sh.

SushilYadav Ms.

Antara Mishra 2 cR/7033/2022 Ajay Kumar BhardwajV/s Imperia Wishfield Private Limited Sh.

Sushil Yadav Ms.

Antara Mishra 3 cR/2373/2022 Sarita Sikchi V/s lmperia Wishfield Private Limited Ms.

Shreyas Malhotra Ms.

Antara Mishra 4 cR/ 4682 /2022 Sandhya Balwada Arora V/s lmperia Wishfi e1d Private Limited Sh.

Sameer Tripathi Ms.

Antara Mishra 5 cR/ 6220 /2022 Mukesh Kumar V/s lmperia Wishfield Private Limited Sh.

Gulab Singh Jarodia MS, Antara Mishra 6 cR/ 6210 /2022 Seema Yadav an4 Manmohan Yadav V/s lmperia Wishneld Private Limited Sh.

Gulab Singh Jarodia MS.

Antara Mishra 7 cR/ 6279 /2022 Satwant Kaur and Sarabjeet Singh Sethi V/s Imperia Wishfleld Private Limited Sh.

Antara Mishra B cR/6277/2022 Shakti Singh V/s lmperia Wishfield Sh.

Gulab Singh Private Limited larodia MS- Antara Mishre 9 cR/ 6278 /2022 Aditi Paliwal V/g lmperia Wishfield Privatb Limited Sh.

Antara Mishra 10 cR/6213 /2022 Rekha Bagga and Neetu Rani Bagga V/s lmperia Wishfield Private Limited Sh.

Gulab Singh Jarodia MS, Antara Mishra Paee I of29 HARERA ffiGURUGRAII CORAM: Shri Ashok Sangwan Shri Sanjeev Kumar Arora Complaint No, 6220 of 2022 and others Member Member ORDER 1.

This order shall dispose ofthe 17 complaints titled above filed before this authority under section 31 0f the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred as "the Act"l read with rule 28 ofthe Haryana Real Estate (Rdgulation and Development) Rules,2017 (hereinafter referred as "the rules"l forviolation ofsection 11(4)(a) ofthe Act wherein it is inter alia prescribed that the promoter shall be responsib 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, Elvedor situated at Sector-3 7-C, Gurugram being developed by the same respondent/promoter i.e., M/s Imperia Wishfield Private Limited. /t 11 cRl673s l2022 Parmila Yadav V/s Imperia Wishfield Private Limited Sh.

Garvit Gupta Ms.

Antara Mishra 72 cR/7s42/2022 Durga Devi V/s lmperia Wishfield Private Limited Sh.

Ankit Bhasin Ms.

Antara Mishra 13 cR/7s43/2022 Ramesh Chander V/s Imperia Wishfield Private Limited Sh.

Antara Mishra 74 cR/7570/2022 Braj Kishore NathaniV/s Imperia Wishfield Private Limited Sh.

Mohit kumar Ms.

Antara Mishra 15 cR/7563/2022 Braj Kishore NathaniV/s lmperia Wishfield Private Limited Sh.

Antara Mishra 76 cR/4277 /2022 Sukesh Veauli and Opjinder Singh Deepak V/s lmperia Wishfield Private Limited Ms.

Shriya Singh Ms.

Antara Mishra 77 cR/4594/2022 Manish Raijada and Surbhi Raijada V/s lmperia Wishfield Private Limited Ms.

Antara Mishra Page 2 of 29 HARERA ffi GURUGRAM The terms and conditions of the buyer,s agreements fulcrum of the issue involved in all these cases pertains to failure on the part of the promoter to deliver timely possession ofthe units in question, seeking possession of the unit along with delayed possession charges.

3.

The details of the complaints, reply 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: Proiect Name and Location "ElveCor" at sector 37C, Gurgaon, Haryana.

Project area DTCP License No.

Name ofLicensee 47 2 acres 0f2012 dated 12.05,2012 valid upto 11.0S.2016 M/s Prime IT Solurions pvr.

Lro.

RERA Registration Not Registered Possession clause: 11(a). se: 11(a).

SCHEDULE FoR possEsstoN oF THE SAtD IJI, T - "The company based on its present plans and estimates and subject to alljust exceptions endeqvors to complete construction of the said building/said unit witiin a period of sixty(60) months from the date of this qgreement unless there shall be detay or faiture due to deportment delay or due to any tircumstances beyond the power anZ coitrol of thecompony or Force Mojeure condition| including but not timited to reasons mentioned in clouse 11(b) and 11(c) or due to fqilutg ofthe allottee(s) to pa! in time the Total price and other charges ond dues/payments ientioned in thisogreement or ony foilure o;n the part of the qllottee to obide by oll or anl ol the terms qnd condtions of this ogreement.,, Complaint No.

6220 of2022 and others Sr.

No Complain t No., Case Title, and Date of filing of complain t Date of apartme nt buyer agreeme nt Unit No.

Unit adme asurin Due date of Possessi on Total Sale Conside ration / Total Amount paid by the Relief Sought Page 3 of 29 HARERA GURUGRAM m;;;;;-l I ana otner, I complai nant 1. cR/7776/ 2022 Manju Sharma Imperia Wishfield Private Limited DOF: 15,03.20 2 2 Reply Status: 02.05.202 3 Not executed Allotment Letter: 76.09.207 3 4_S02 659 sq. ft.

76.09.207 8 (As per possessio n clause calculated from date of allotment letter as BBA was not executed) N )E) TSC: - Rs.

46,74,55 7/- AP: - Rs.

17,08,64 s/- Refund 2. cR/1033/ 2022 Ajav Kumar Bhardwaj Imperia Wishfield Private Limited DOF: L0.03.202 2 Reply Statusl 01.05.202 3 IR 023, Ground Floor 427 s9. ft.

06.05.201 8 TSC: - Rs.

46,74,55 1./- AP: Rs.

14,04,67 7 Refund er )ssio Letter: 06.05.201 3 II f' !. ( poss( calculated from date of allotment Ietter as BBA was not executed) Page 4 of 29 HARERA GURUGRAM I Complaint No.

62 ZO of 2022 | I and others I 3. cR/23t3 / 2022 Sarita Sikchi V/s Imperia Wishfield Private Limited DOF: 03.06.202 2 Reply Status: 07.05.202 3 I 72.03.207 ls I 8_A04, 8th FIo( Tower Evita E .( 659 sq. ft.

1t2.03. t.

1t2.03.202 TSC: - Rs.

44,92,82 3/- AP: Rs.

34,67,48 4/- Refund 4. cR/4682/ 2022 Sandhya Balwada Arora V/s Imperia Wishfield Private Limited DOF: 07.07.202 2 Reply Status: 07.05.202 3 H,I GUm RU 436 sq. ft, I t'o' 'o' A I\/.l TSC: - Rs.

34,45,7 5 6/.

AP: Rs.

29,52,27 B/- Refund l cR/6220/ 2022 Mukesh Kumar Imperia Wishfield Private Limited 72.03.201 E.0103, Cround Floor, Tower Evita 260 sq. ft L2.03.202 0 TSC: - Rs.

26,42,94 0/- AP: Rs, 20,42,65 0/- Refund Page 5 of29 31.03.201 4 .t 7_416, 11rh Floor, Tower Evita ffi& HARERA GURUGRAM L,r---"*; I ana otle.s I DOF: 79.O9.202 2 Reply Status: 02.05.202 3 6. cR/6270 / 2022 Seema Yadav and Manmoha n Yaday Imperia Wishfield Private Limited DOF: 79.09.202 2 Reply Statust 02.05.202 3 23.77.201 5 }I -{Ts { R E.003, Ground Floor, 110 sq. ft 23.71.202 0 N H TSC: - Rs.

16,01,13 AP: Rs.

7,65,732 Refund cR/6279 / 2022 Sawant Kaur and Sarabjeet Singh Sethi V/s Imperia Wishfield Private Limited E.0108, Ground Floor, Tower Evita a 260 sq. ft, 23.04.202 0 TSC: -Rs.

29,55,03 8/- AP: Rs.

L3,64,77 7/- Refund Page 6 of 29k MHARERA S* ounuennvr Complaint No.

6220 of 2022 and others HARERA DOFr 79.09.202 2 Reply Statusr 0L.05.202 3 cR/ 6277 / 2022 Shakti Singh V/s Imperia Wishfield Private Limited DOF: 28.09.202 2 Reply Status: 02.05.202 3 21.05.201 6 E.0114, Cround Floor, 260 sq. ft.

21.05.202 1 )3 TSC: -Rs.

30,30,99 0/- AP: Rs.

14,07,36 0/- Refund ra'Ia cR/621,8/ 2022 Aditi Paliwal Imperia Wishfield Private Limited DOF: 24.09.202 2 Reply Statusl 02.05.202 3 06.70.20'.

4 10.201 9 TSC: -Rs.

3L,92,97 4/- AP: Rs.

27,43,7 4 tl- Refund Page 7 of 29 HARERA GURUGRAM t.**,-""rr-rrr"-l i ana otners I 10. cR/6273/ 2022 Rekha Baga V/s Imperia Wishfield Private Limited DOF: 28.09.202 2 Reply Status: 02.05.202 3 31.01.201 4 E.029, Ground Floor, Tower Evita 315 sq. ft.

I I ER )Rl 31.01.2 01 9 TSC: -Rs.

37,92,97 4/.

27,45,9L 4/. lRefund 11. cR/6t3s/ 2022 Parmila Yadav V/s Imperia Wishfield Private Limited DOF: 27.09.202 2 Reply Statusl 07.05. usl 07.05.202 3 H, crl Not Da Not 29.0 I (As r poss n cla calc! from 7.207 ated TSC: -Rs.

35,93,25 0/- AP: Rs.

7.t ,79,7A e/- lRefund d booking as BBA was not ,M 12. cR/7542/ 2022 Durga DeviV/s Imperia Wishfield Private Limited 24.04.207 4 5-A15, sth Floor Tower Evita 659 sq. ft.

24.04.207 9 TSC: -Rs.

47,64,70 AP: Rs.

39,96,7 6 Refund Page B of29k ffiIARERA #eunuonRu Complaint No.

6220 of 2022 and others HARERA DOF: 75.72.202 2 Reply Status: 03.05.202 3 cR/7 s43 / 2022 Ramesh Chander Imperia Wishfield Private Limited DOF: 75.12.202 2 Reply Statusl 02.05.202 3 24.04.201 4 5_A10, srh Fl Tower Evita 659 sq. ft.

24.04.20t 9 TSC: -Rs.

47 ,69,A7 1/- AP: RS, 42,71,7 6 4/- Refund i. cR/7570/ 2022 Braj Kishore Nathani Imperia Wishfield Private Limited DOF: 2t.72.202 2 Reply Status: 03.05.202 3 15.0 3.2 0l 4 TSC: -Rs.

37,92,9t AP: Rs.

26,05,42 s/- Refund Rti Page 9 of 29 13.

14.

E.047, Ground Floor, Tower Evita 315 sq. ft.

15.03.201 9 HARERA GURUGllAN/ m;;;; I ana otne's I 15. cR/7s631 2n2 ?

Braj Kishore Nathani Imperia Wishfield Private Limited DOF: 27.72.202 Reply Statusl 03.05.202 15.03.201 4 * 72_Att 12th FIoor, Tower Evita 659 sq. ft.

15.03.201 9 N TSC: -Rs.

45,94,48 4/- AP: Rs.

38,7 6,1,2 s/- Refund 16. cR/42t7 / 2022 Sukesh VeauliV/s Imperia Wishfield Private Limited DOFr 20.06.202 Reply Status: 07.05.202 3 H, GI ts/ 2l I r, 1, \\ -, 1f :.

B_S02, € u {F ,Rt rh 659 sq.

09.06.202 2 TSC: -Rs.

47 ,84,86 AP: Rs.

20,84,57 Refund 17, cR/ 4s94 / 2022 Manish Raijada and Surbhi Raijada 1.0.77.207 4 3_A01, 3rd Flor Tower Evita f, 436 sq. ft.

10.11.2 01 9 TSC: -Rs.

31,68,89 6/- AP: Rs.

27,67,64 0/- Refund Page 10 of29 ffi& ffiHARERA #eunuennu Imperia Wishfield Private Limited DOF: 20.06.202 2 Reply Status: 07.05.202 3 Note: tn the table referred above certain abtevi;d;n;fra-ve bee;;;altreiii aborared as follows: Abbreviation Full form TSC Total Sale consideration AP Amount Daid bv lhe allotreefsl 4. treefsl 4.

The aforesaid complaints were filed by the complainants against the promoter on account of violation of the builder buyer,s agreement executed between the parties in respect of said units for not handing over the possession bythe due date, seeking refund ofthe totalpaid up amount.

5.

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(fJ 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.

The facts of all the complaints filed by the complainant(sJ/allottee(sl are similar.

Out of the above-mentioned case, the particulars of lead case CR/6220/2022 lvlukesh Kumar V/s tmperia Wishfield private Limited are being taken into consideration for determining the rights of the allottee(sl.

6.

Complaint No.

6220 of 2022 and others Page 11 of 29 HARERA GURUGI?AM Proiect and unit related detaill The particulars ofthe project, th( paid by the complainant(s], date delay period, ifany, have been dr CR/6220/2022 Mukesh Kumat I Comptaint No.

62 20 of 2022 I and others Letails ofsale consideration, the amour proposed handing over the possessior riled in the following tabular form: '/s Imperia Wishfield private Limitetd It 1, s.

N.

Particulars Gurgaon, 1.

Name ofthe project 2.

Nature ofthe project c 3.

Project area 4.

DTCP license r:lo. ancI 4 Iv ; 7of llid/rene dated t2.05.2012 to- 'l 1 Oq 2n1^ validity statr$ 1t Name oflicensee /s 'rime IT Solutions pvt.

Ltd.

6. - 0 sq. ft. rge no.

28 of Floor, Tower Evita camplaint) Unit no.

E, !

21 (p 8. :oII Unit area ad plaint) 9.

Allotment Letter Date of builder agreement buyer 2i g 12 q 12 .09.2013 rge no.22 ofcomplaint) 03.2015 rge no.

23 of complaint) _-_- 03.2020 10.

11.

20 10.

Due date ofpossession Page 12 of A, RERA Registered/ registered HARERA GURUGRA[/ Complaint No.

6220 of2022 and others k (due date is calculated from the date of agreement i.e., 12.03.2015) 12.

Possession clause fi-l n 11(a) Schedule for possession of the said unit The company based on its present plans and estimates and subiect to all just exceptions endeavors to complete construction of the said building/said unit within a period of sixty(60) pnonths from the date of this Fgreement unless there shall be delay or Jfailure due to department delay or due to any circumstances beyond the power and lcontrol of the company or Force Majeure Fonditions including but not limited to reasons mentioned in clause 11(b) and 11(c) or due to failure ofthe allottee(s) to pay in time the Total price and other charges and dues/payments mentioned in this agreement or any failure on the part of the allottee to abide by all or any gf the terms and conditions of this agreement.

13.

Total sale consideration Rs.26,+2,940/- fas per agreement on page no.28 of complaintJ 14.

Amount paid by the complainant Rs.20,42,650 /- (as per statement of account dated 07.08.2018 annexed in complaint on page no.59 ofcomplaint) 15.

Occupation certificate Not obtained 16.

0ffer ofpossession Not offered Page 13 of 29 ffiHARERA SGuRUGRAT'/I Complaint No.

6220 of 2022 and others B.

Facts ofthe complaint The complainant has made the following submissions in the complaint: _ 8.

That complainant after believing the statement of the representative of respondent applied for the allotment of a shop/unit bearing no E_0103 having the super a rea of 260 sq. ft in the project elvedor retail situated at sector-37c, Gurugram with total sale consideration of Rs.26,42,940/- which including of pLC, IFMS, Electricaland othercharges.

The complainant duly paid the total consideration of Rs.20,42,650/_ 9.

2,650/_ 9.

That apart from issuing a payment receipt on different dates, the respondent company also issued an allotment letter dated ?7.09.2013 carrying the details of unit allotted and also the details of amount to be deposited by the complainant time to time as per payment plan opted by him.

10.

That the complainant deposited the required amount as per the payment plan opted by him according to the builder buyer agreement, which was executed between the complainant and the respondent company on 1,2.03.20L5 following carrying all the details of terms and conditions of the said BBA were compiled by the complainant time to time as well as the respondent company from all the time as and when it was required.

That after several requests finally the respondent agreed to execute the builder buyer agreement with the complainant and ultimately it was executed on 12.03.2015 showing the total sale consideration of Rs.26,42,940.00 /- including of fixtures & fittings, EDC & IDC, IFMS, electricity connection charges and other charges and again the respondent I.Y I PaEe 14 of 2 HARERA Complaint No, 6220 of 2022 and others ffiGURUGRAI/ assured the complainant that they have taken all necessary sanctions fbr the completion of aforesaid proiect.

12.

That as per one ofthe terms and conditions ofthe said buyer,s agreement dated 12.03.2015, in para no.11(a) it is clearly mentioned that regarding the possession of the said unit it was agreed and settled that the possession of the said unit/flat shall be handed over to the complainant within a stipulated period of 60 months from the date of builder buyer agreement dated 12.03.2015.

Hence, from the above said clause as mentioned in buyer agreement, the respondent company was duty bound to handover the physical possession of the above said unit/shop to the complainant positively up to 12.03. to 12.03.2020 and itwas told by the aurhorized person of respondent that till date they have never delayed the completion of any project they have in their hand.

That on account of not constructing the above said unit within the stipulated period of 60 months, the complainant kept on requesting the respondent company's officials to complete the construction of the said unit/shop as early as possible and handover the peaceful possession of the above said unit/shop.

All the time the respondent kept on misguiding and putting forth the complainant on one reason or the others and could not adhere to the terms and conditions as settled and agreed upon between the respondent and the complainant.

And that so much so the respondent company failed to handed over the physical possession of the above said unit to the complainant till date 14.

That due to illegal acts and conducts ofthe respondent, the complainant[s) had been suffered to great mental agony, physical harassment, financial loss, humiliation, hence the complainant is entitled to get the refund of eage 15 or Z9k ffiHARERA #arRuGRA[,l amount of Rs.20,42,650 /- deposited by the complainant with the respondent, as mentioned above along with interest.

C.

Relief sought by the complainant: - 15.

The complainant has sought following relief(s): I.

Direct the respondent to refund the amount of Rs.

20,42,650/- paid by the complainant along with interest @ 24% p.a.

16.

On the date of hearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11(al (a) ofthe act to plead guilry or not to plead guilty.

D.

Reply by the respondent The respondent has contested the complaint on the following grounds.

17.

That the complainant, after making independent enquiries and only after being fully satisfied about the project, had approached rhe respondent company for bookingof a residential unit in respondent's project 'Elvedor' located in sector-37-C, Gur -37-C, Gurugram, Haryana.

The respondent company provisionally allotted the unit bearing no.

E.0103 in favor of the complainant for a total consideration amount of Rs.

2 7 ,72,923 /- including applicable tax and additional miScellaneous charges vide booking dated 20.08.20L2 and opted the constrlrction-linked payment plan on the terms and conditions mutually agreed by them.

18.

That the said project is a commercial project which was being developed on 2 acres of land and comprises of retail and studio apartments.

The foundation of the said project vests on the joint venture/collaboration between M/s Prime IT Solutions Private Limited, a company incorporated under the provisions of Companies Act, having its registered office at B- 33, First Floor, Shivalik Colony (Near Malviya Nagarl, New Delhi-110017 .l Pase 16 of29 'V Complaint No.

6220 of 2022 and others HARERA ffiGURUGRAI/ [as One Party) and M/s Imperia Structures Pvt.

Ltd. (as Second Party), laying down the transaction structure for the said project and for creation of SPV [Special Purpose Vehicle) Company, named and titled as Imperia Wishfield Pvt.

Ltd.', i.e. the respondent company.

19.

That the role of M/s Prime IT Solutions Pvt.

Ltd. was indicated to the allottees at the time of booking the said unit, and it was conveyed that Ms Prime IT Solutions Pvt.

Ltd. was the owner of the said Land and has been granted Licence No.47 /2012 by the Director General, Town and Country Planning, Haryana in respect of Project Land and the respondent company being an associate/Jv Company is undertaking implementation of the said project.

The involvement of M/s Prime lT Solutions Pvt Ltd has been duly acknowledged by the complainant herein and the same is an undisputed fact.

20.

That in lieu of above said understanding & promises, M/s 'lmperia Wishfield Pvt.

Ltd.' was incorporated & formed with 4 Directors & 5 shareholders.

Mr.

Pradeep Sharma and Mr.

Avinash Kumar Setia were from Ms Prime IT Solutions Pvt.

Ltd. and Mr. d. and Mr.

Harpreet Singh Batra and Mr.

Brajinder Singh Batra were from M/s Imperia Structures Pvt Ltd.

21..

That 3 out of 5 shareholders of the respondent company, to the tune of 2500 shares each, amounting to Rs.

15,00,000/- each were from M/s Prime IT Solutions Pvt.

Ltd. and remaining 2 Shareholders of the respondent company, to the tune of 3750 shares each were from M/s Imperia Structures Pvt.

22.

That the respondent company undertook the construction and development of the said pro)ect, without any obstruction and interference from any other party.

The land for execution of the said project was registered under the name of M/s Prime IT Solutions Pvt.

Ltd., which is also ,,a Page 17 of29 'Y Complaint No.

6220 of 2022 and others HARERA Complaint No.

6220 of 2022 and others ffiGURUGRAN/ the licensee or license holder of the said land.

Thus, it is evident on bare perusal of the facts and of Section 2[kJ of the Real Estate fRegulation and Development) Act,2016, which defines a ,promoter,, that the said proiect has two promoters, i.e.,, Ms prime IT Solutions pvt.

Ltd. and M/s Imperia Wishfield Pvt.

Ltd., i.e., respondent company.

23.

That in pursuance to the above-mentioned venture, M/s prime IT Solutions Pvt.

Ltd., represented and confirmed to the respondent company that Ms Prime IT Solutions pvt.

Ltd. had already procured Letter of Intent ('LOI) from the Department ofTown and Country planning, Government of Haryana, on 24.05.20LL, along with subsequent license from the Department of Town and Country planning, Government of Haryana, as necessary for setting up a commerrial project on the land admeasuring 2.00 acres in the revenue estate oFVillage Gadoli Khurd, Sector_37 C Gurugram, along with the Zoning Plan, however, the same was a planned approach to defraud the respondent company and later on itwas found to be untrue and the Ms Prime IT Solutions pvt.

Ltd. has not complied with any of the abovementioned promises & covenants.

24. nants.

24.

That the annual return of2013-2Q 14 shows the list of Directors at the time when the allotment letter was issued [mentioning that Avinash Setia and Pradeep Sharma were also Directors at that time).

25.

That on the date of allotment, Mr. pradeep Sharma and Mr.

Avinash Kumar Setia were also directors as well as shareholders of the respondent company.

26.

That in pursuance of a compromise deed dated 12.01.201,6, between Ms Prime IT Solutions Pvt.

Ltd, and the respondent company, a decree sheet was prepared on 2L.01.201,6, in a suit titled ,M/s prime IT Solutions pvt.

Ltd. v.

Devi Ram and Imperia Wishfield pvt.

Ltd.,, vide which both M/s Page 18 of29 HARERA ffiGURUGRAN/ Prime IT Solutions PvL Ltd. and the respondent company resolved to take collective decisions for implementation of the said project and that all the expenses incurred in the process, from the dedicated project account, which would be in the name of 'M/s lmperia Wishfield Limited Elvedor Account'.

27.

That the plaintiff in the above-quoted compromise deed is M/s Prime IT Solutions Pvt.

Ltd. and this confirms the active involvement/participation of M/s Prime IT Solutions Pvt.

Ltd. in the said proiect.

These clauses bring to light the fact that Ms Prime IT Solutions Pvt.

Ltd. was equally responsible for the funds collected for the execution of the said proiect and the money taken from allottees/complainant was under the access/usage/management/dispense/supervision of Ms Prime lT Solutions Pvt.

Ltd. [t is also germane to mention herein that behind the garb of nomenclature of the said bank account, M/s Prime IT Solutions Pvt.

Ltd. was also recipient of money deposited by the allottees.

28.

That in lieu ofthe above said, Ms Prime IT Solutions PvL Ltd. issued a letter dated 23.72.2021 to the Directorate of Town Country Planning, Haryana (hereinafter referred to as 'DTCP'), requesting for grant of permission to change of developer from M/d Prime IT Solutions pvt.

Ltd. pvt.

Ltd. to the respondent company, for setting up the said project, in response to which DTCP issued a letter bearing Memo N o.

LC-2571,llE(S) /2022 /1,6293 dated 09.06.2022, acknowledging the request of M/s Prime IT Solutions pvt.

Ltd. and directing terms and conditions for the same.

This also clearly depicts that Ms Prime IT Solutions Pvt.

Ltd. was/is developer for the said project at the time of allotment, thus, concretizing the involvement and liability of M/s Prime IT Solutions Pvt.

Ltd. with respect to the said project.

This letter I/Y Complaint No.

6220 of 2022 and others Page 19 of29 HARERA Complaint No.

6220 of 2022 and others ffiGURUGRAI\/ was replied to by Ms prime IT Solutions pvt.

Ltd. vide Letter dated 13.07.2022.

29.

That the said project suffered a huge setback by the act of non_cooperation of M/s Prime IT Solutions pvt.

Ltd., which proved to be detrimental to the progress of the said project as majority of the fund deposited with the above-mentioned project account by the allottees was under the charge of MIs Prime IT Solutions Pvt.

Ltd. and the said fund was later diverted by the Ms Prime IT Solutions pvt.

Ltd., Ieaving the respondent company with nearly no funds to proceed along with the said project.

30.

That on perusal of all the records submitted herein and after referring to the endless precedents, it is evident that the M/s prime lT Solutions pvt.

Ltd.,Mr.

Avinash Kumar Setia and Mr. pradeep Sharma are equally responsible towards the complainant as the respondent company.

31.

That several allottees have withheld the remaining payments, which is further severally affecting the financial health of the respondent company and further, due to the Force Maieure conditions and circumstances, which were beyond the control of the respondent company as mentioned herein below, the construction got delayed in the said project.

32.

Both the parties i.e. rties i.e., the complainant as well as the respondent company had contemplated at the very initial stage while signing the allotment letter that some delay might occur in future and that is why under the force majeure clause as mentioned in the allotment letter, it is duly agreed by the complainant that the respondent company shall not be liable to perform any or all of its obligations during the subsistence of any force majeure circumstances and the time period required for performance of its obligations shall inevitably stand extended.

It was unequivocally agreed between the complainant and the respondent company that the respondent Page20 of 29 MHARERA ff, eunuennvr company is entitled to extension of time for delivery of the said flat on account of force majeure circumstances beyond the control of the respondent company.

Firstly, owing to unprecedented air pollution Ievels in Delhi NCR, the Hon'ble Supreme Court ordered a ban on construction activities in the region from 04.11.2079 onwards, which was a blow to realty developers in the city.

The air quality index (AQ1J at the time was running above 900, which is considered severely unsafe for the city dwellers.

Following the Central Pollution Control Board (CpCB) declaring the AQI levels as not severe, the SC lifted the ban conditionally on 09.11.2019 allowing construction activities to be carried out between 6 am and 6 pm, and the complete ban was lifted by the Hon'ble Supreme Court on 14.02.2020.

Secondly, after the complete ban was lifted on 14.02.2020 by the Hon'ble Supreme Court, the Government of India imposed National Lockdown on 24.03.2020 on account of nation-wide pandemic C0VID-19, and conditionally unlocked it on 03.05.2020, However, this has left a great impact on the procurement of material and labour.

The 40-day Iockdown effective since 24.03.2020, extendable up to 03.05.2020 and subsequently to 17.03.2020, led to a reverse rnigration with workers leaving cities to return back to their villages. villages. lt is estimated that around 6 lakh workers walked to their villages, and around 10 Iakh workers were stuck in relief camps.

The aftermath of lockdown left a great impact on the sector for resuming the fast pace construction for achieving the timely delivery as agreed under the allotment letter.

3 3.

That the said project suffered a h uge setback by the act of no n-cooperation of M/s Prime IT Solutions Pvt.

Ltd., which proved to be detrimental to the progress of the said project as malority of the fund deposited with the above-mentioned project account by the allottees was under the charge of Page 2l of 29 Complaint No.

6220 of 2022 and others + HARERA complaint No.

6220 of2022 and others ffiGURUGiiAM M/s Prime IT Solutions Pvt.

Ltd. and the said fund was later diverted by the M/s Prime [T Solutions PvL Ltd, Ieaving the respondent company with nearly no funds to proceed along with the said project.

34.

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 submission made by the parties.

E.

Jurisdiction ofthe authority 35.

The authority observes that it has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.l Territorialiurlsdiction 36.

As per notification no.

7/92/2077-1TCP dated 74.72.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

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

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

E.Il Subiect matter iurisdiction 37. iction 37.

Section 11(4J(a) of the Act, responsible to the allottee as reproduced as hereunder: Section 77 (4) The promoter sholl- 2015 provides that the promoter shall be petr agreement for sale.

Section 11(4)(a) is Page 22 of 29 HARERA ffiGURUGRAM (a) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations mode thereunder or to the allottees as per the ogreement for sale, or to the association of ollottees, as the case may be, till the conveyance of all the apartments, plots orbuildings, as the case may be, to the allottees, or the common oreas to the o ssoci ation of allottees or the competent outhority, as the case may be; Section 34-Functions oJ the Authority: 34A of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estote ogents under this Act and the rules and regulqtions made thereunder.

38.

So, in view of the provisions of the Act quoted above, the authority has complete iurisdiction to decide tire complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be decided by the adiudicating officer if pursued by the complainants at a Iater stage.

F.l Obiection regarding non ioinder of M/s Prime lT Solutions Pvt' Ltd. as a party' 39.

While filing written reply, a specific plea was taken by the respondent with regard to non-joining of M/s Prime IT Solutions Pvt.

Ltd. as a party in the complaint.

It is pleaded by the respondent that there was joint venture agreement executed betlveen it and M/s Prime IT Solutions Pvt.

Ltd., leading to collaboration agreement dated 06.12.2012 between them.

On the basis ofthat agreement, the respondent undertook to proceed with the construction and development of the proiect at its own cost.

Moreover, even on the date of collaboration agreement the directors of both the companies were common. re common.

So, in view of these facts, the presence of M/s Prime IT Solutions Pvt.

Ltd. as a respondent before the authority is must and be added as such.

However, the pleas advanced in this regard are devoid of merit.

No doubt there is mention to that collaboration agreement.

V Page 23 of 29 Complaint No.

6220 of 2022 and others HARERA ffiGURUGI1AM Complaint No.

6220 of 2022 and others in the buyer's agreement but the complainant allottee was not a party to that document executed on 06.12.2012.[f the Prime IT Solutions would have been a necessary party, then it would have been a signatory to the buyer's agreement executed betlveen the parties on 12.03.2015 i.e., after signing of collaboration agreement.

The factum of merely mentioning with regard to collaboration agreement in the buyer's agreement does not ipso facto shows that M/S Prime IT Sotutions Pvt.

Ltd. should have been added as a respondent.

Moreover, the payments against the allotted units were received by the respondent/builder.

So, taking into consideration all these facts it cannot be said that joining of M/s Prime IT Solutions Pvt.

Ltd. as a respondent was must and the authority can proceed in its absence in view of the provision contained in order 1 Rules 4 (b) and 9 of Code of Civil Procedure, 1908.

F,ll Obiection regarding force maleure conditions: 40.

The respondent-promoter has raised the contention that the construction of the tower in which the unit of the complainant is situated, has been delayed due to force majeure circumstances such as orders ofthe NGT, High Court and Supreme Court, demonetisation, govt. schemes and non-payment of instalment by different allottee of the project but all the pleas advanced in this regard are devoid of merit.

First of all, the possession ofthe unit in question was to be offered by 12.03.2020.

Hence, events alleged by the respondent do not have any impact on the project being developed by the respondent. espondent.

Moreover, some of the events mentioned above are of routine in nature happening annually and the promoter is required to take the same into consideration while Iaunching the project.

Thus, the promoter respondent cannot be given any leniency eage z+ or zek HARERA ffiGURUGRAI\/ on based of aforesaid reasons and it is well settled principle that a person cannot take benefit ofhis own wrong.

G.

Findings on the reliefsought by the complainant I.

20,42,650 /_ paid by the complainant along with interest @ 240/o p.a.

41.

In the present complaint, the complainant intends to withdraw from the project and is seeking return of the amount paid by them in respect of subject unit along with interest as per section 1B(11 of the Act and the same is reproduced below for ready reference; "Section 78: - Return ofamountand compensation 18(1).

Ifthe promoter fails to complete or is unable to give possession of an apartment, plot, or building.- (o)in occordance with the terms of the agreement for sole or, as the case may be, duly completed by the date specilied therein; or (b)due to discontinuance oJ his business os a developer on account oJ suspension or revocotion of the registration under this Act or for any olher reoson, he shall be liable on demand to the allottees, in case the ollottee wishes to withdraw from the project, without prejudice to ony other remedy avoilable, to return the amount received by him in respect of thot apartmenC plot, building, as the cose moy be, with interest at such rqte os msy be prescribed in this beholf including compensotion in the monner as provided under this Act: Provided that where on allottee does not intend to withdraw from the projec| he shall be paid, by the promoter, interest for every month ofdetoy, till the honding over ofthe possession, qt such rate as may be prescribed.,' (Emphosis supplied) 42. plied) 42.

Clause 11(aJ of the buyer's agreement provides the time period of handing over possession and the same is reproduced below: 11(a).

Schedulefor possession ofthe said unit "The company based on its presant plons and estimotes and subject to all exceptions endeavors to complete construction of the soid building/said unit within a period of sixty (60) months ftom the dote of this agreement unless there shatl be deloy or foilure due to depqrtment delqy or dueto any clrcumstonces beyond the power and control of company or force majeure conditions including but not Complaint No.

6220 of2022 and others Page 25 of29k HARERA complaint No.

6220 of 2022 and others MGURUGRAM limited to reasons mentioned in ctause 11(b) and 11(c) or due to failure of the allottee(s) to pay in time the totol prici and other c-horges and dues/payments mentioned in this Agreement or any failure on the port ofthe Allottee(s) to abide by all or ony ofthe terms and conditions of this Agreement.,, 43.

The complainant had booked the unit in the project of the respondent company situated at sector 37-C for a total sale consideration of Rs.26,42,940 /-.The buyer's agreement was executed between the parties on 12.03.2015.

As per possession clause 11(a) of the buyer,s agreement, the possession ofthe unit was to be handed over by within 60 months from the date of agreement.

The due d4te for handing over of possession comes out to be 72.03.2020.

44.

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 allottee cannot be expected to wait endlessly for taking possession of the allotted unit and for which he has paid a considerable amount towards the sale consideration and as observed by Hon'ble Supreme Court oflndia in lreo Grace Realtech pvt.

Vs.

Abhishek Khanna & Ors,, civil appeal no.

5785 of 2019, decided on 71..01.2021. ".....

21. ".....The occupation certificate ls not ovaitable even os on date, which clearly amounts to defrciency ofservice.

The allottees cqnnot be.mqde to wait indefinitely for possession of the aportments ollotted to them, nor can they be bound to take the apartments in Phase 1 of the project...,...,, 45.

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.2O2|-ZOZZ(1) RCR (c ), 3S7 reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLp Page 26 of 29 UAREEA M GURUGRAM fCivil) No.

13005 of 2020 decided on L2.05.2022,it was observed as under: .,25.

The unqualified rir u d ", t; ;; ; ;; ; ;;:r ;i ;i 1!' "{: : i: : i ; ;;:; i ;;: ;",,tr I ";{:r"::, on any contingencies o t"e"ri,,i" i','{ r',r,zir:;,:.' !y!"':" ::.' h"reof t t o ppeo r s tha t rhe as an unconditionat ,ulilJ!|!f! !!,::*:^of refund on demond fo is -to.s i ve p o s se ss i * "f ,, ni r pZ,i ri r i, r,Zi i"", ) i";,,i,r li X,iff " ii[ nme stipulated under t *n*,i"ii"i,i"",,;i'.:, :"' "?1,: :".:!-r.e,e n.en t riso rd t ess of either way not otrribuLohip -,: ;;:':,i::l-'_'::,rat, whtch is in promoter is under a, of t,g,inr-rr.r"ni;r,;.;l;Z:;, :rJ;:^::; with interest at the ra ,rrt ra irs io, i"r;io'n",'!.!l"tn't"a bv he stqte Government ,n" p-ii* ,nii iiii;; ;i;:,2:"1:::::[:;:;r:: :i!r;;f ff;;1 project, he sha be entit) 'n,i a i is i,;,i";;i;,'::,f:,'::: ;:::{:;:!e. pe r i a ct or d e t oy ti t t 46.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunde under se*ion 1 1 r4x"j "r thl;;H: r::::il:;ffiffi" :: unable to give possession of the unit in accordance with the terms of agreement for sare or duly compreted by the date specified therein. d therein.

Accordingly, the promoter is liable to the allotteg as the allottee wishes to withdraw from the proiect, withqut preiudice to any other remedy available, to return the amoul interest ar such .r," ". ,r, o"'r*:"jved by him in respect ofthe unit with 47.

This is without prejudice to any other remedy avairable to the alottee including compensation for which allottee may file adjudging compensation with the adjudicating officer 72 read with section 31(1J of the Act of 2016. ran application for under sections 71 & 48.

Admissibility of refund arong with prescribed rate of interest: The section 1g of the Act read with rule 15 of the rules provide that in case the . r ase Zz ot zl Complaint No.6220 of 2022 and others ffiIABEBA Hounuennvr allottee intends to withdraw from the proiect, the respondent shall refund of the amount paid by the allottee in respect of the subject unit with interest at prescribed rate as provided under rule 15 ofthe rules.

Rule 15 has been reproduced as under: "Rule 75, tuesc bed rute ol interest- lproviso to section 12, section 18 dnd sub-section (4) dnd subsection (Z) of section lgl (1) For the purpose ol ptoviso to section 72; section 1g: ond sub_sections (a) ond (7) of section 79, the "intetest ot the tote prescribed,, sholl be the Stote Bonk of tndia hjghest moryinol cost of Iendinq rcte +2%.: Provided thot in cose the Stote Bonk of tndio moryinol cost ol lending rute (MCLR) is not in use, it sholl be replaced by such benchmork lending rctes which the Stote Bonk ol tndio moy fix from tithe to time fot lendino to the generol public." 49.

The legislature in its wisdom in the subordinate legislation under the provision of rule 15 of the ruies, 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.

50.

Consequently, as per website of the State Bank of India i.e.

India i.e., https://sbi.co.in, the marginal cost of lending rate (in short, MCLR) as on date i.e.,09.05.2023 isB.TOo/0.

Accordingly, the prescribed rate ofinterest will be marginal cost of lending rate +20/o i.e., 'J.0.700/o.

51.

The authority hereby directs the promoter to return the amount received by him i.e., Rs.20,42,650 /- with interest at the rate of 107 0o/o (the State Bank of India highest marginal cost of lending rate (MCLRJ applicable as on date +2%J as prescribed under rule 1S of the Haryana Real Estate (Regulation and Development) Rules, Z017 from the date ofeach payment till the actual date of refund of the amount within the timelines provided in rule 16 ofthe Rules ibid.

H.

Directions ofthe authority Complaint No.

6220 of 2022 and others Page28 of 29 ff HARERA HGURUGRAT,/ Haryana Real Estate Regulatory Autlority, Dared: 09.05.2023 52.

Hence, the authority hereby passes this order and issues the folowing 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[fJ: i.

The respondent/promoter is directed to refund the entire amount paid by the complainants in a, the above-mentioned cases arong with prescribed rate ofinterest @ 10.70y0 p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation & Developmentl Rules,2017 from the date ofeach payment till the date ofrefund of the deposited amount. ii.

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

53.

This decision shall mutatis mutandis apply to cases mentioned in para 3 ofthis order.

54.

The complaints stand disposed of.

55.

Files be consigned to registry.

Member Complaint No.

6220 of 2022 and others Gurugram umar Arora) Page 29 of29