TESU SINGH CHAUHAN vs MS REVITAL REALITY PRIVATE LIMITED

ffiHAREna #- eunuennu 1'esu Singh Chauhan D/o Sh.

Sardar Singh Chauhan R/o: - A -1005, Sispal Vihar, AWH0 Complex, South City- ll, Sohan Road, Sector- 49, Gurugram, Haryana Versus M/s Revital Reality Private Limited.

Regd.

Office ati 1714, 11th Floor, Hemkunt Chamber, 89, Nehru Place, New Delhi- 110019 CORAM: Shri Vijay Kumar Goyal Shri Sanjeev Kumar Arora APPEARANCE: Sh. lainder Kharb (Advocate) Sh.

Bhrigu Dhami (AdvocateJ ORDER 1.

This 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)(al of the Act wherein it is inter alia prescribed that the promoter shall be responsible For all obligations, complaint No.

5844 of 2022 BEFORE THE HARYANA REALESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no. : 5a44 of 2022 Date of filing of complaint: 09.o9.2o22 Date ofdecision : 25.o4.2o23 Complainant Respondent Member Member Complainant Res pon d en t Page 1 of 29 HARERA ffiGURUGRAI/ responsibilities and functions under the provision of the Act or Rules and regulations made there under or to the allottee as per agreement for sale executed rnter se.

Unit and proiect related details The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: Complaint No.

5844 of 2022 the the A.

2. s.N.

Particulars Details 1.

Name of the project "Supertech Basera" sector- 79&798, Gurugram 2.

Project area 12.10 area 3.

Nature of project Affordable Group Housing Pro,ect 4.

RERA registered/not registered Registered vide no.

108 of 2017 dated 24.08.20L7 5.

RERA registration valid upto 31.01..2020 6.

RERA extension no.

L4 of 2020 dated 22 .06 .2020 7.

RERA extension valid upto 31.01_.2021 L DTPC License no. icense no.

163 of 2014 dated 1.2.09.20t4 164 of 2014 dated 12.09.2014 Validity status 1-1.09.2019 L1.09.20L9 Page Z of 29 ffiHARERA #" GriRriGRArv Complaint No.

5844 of 2022 Name of licensee Revital Reality Private Limited and others 9.

Date of approval of building plans 79.L2.20L4 [as per information obtained by the planning branch] 10.

Date of grant of environment clearance 22.0t.2016 [as per information obtained by the planning branchl 11.

Unit no.

303, 3.d floor, tower/block- 13, (Page no.21 ofthe complaint) 1,2.

Unit measuring 473 sq. ft.

ICarpet area) 73 sq. ft. (Balcony areaJ [Page no.21 ofthe complaint) 13.

Date of execution of flat buyer's agreement 7A.04.2076 (Page no.00 ofthe complaint) L4.

Possession clause 3,1 Possession Subject to force majeure circumstances, interuention of Stotutory Authorities, receipt of occupation certificate and Allottee/Buyer hovtng timely complied with all its obligqtions, formdlities, or documentatlon, as prescribed by the Developer ond not being in default under any part hereof and Flat Buyer's Page 3 oi 29 ffi HARERI, *e- aJRTIGRAN,I Complaint No.

5844 of 2022 Agreement including but not limited to the timely poyment of installments of the other charges as per poyment plan, Stdmp Duqt and registration chorges, the Developers Proposes to offer possession of the said Flat to the Allottee/Buyer within a period of 4 (four) years from the date of approval of building plans or grant of environment clearance, (hereinafter referced to os the "Commencement Date") , whichever is later.

The Developer also agrees to compensate the Allottee/Buyer @ Rs.5.00/- [Five rupees only) per sq. ft. of the area of the flat per monlh for ony delay in handing over possession of the Flat beyond the given promised period plus the grace period of 6 months and upto olfer letter oJ possession or actual physical possession whichever is earlier. (Page no.

24of the complaintl.

15. aintl.

15.

Grace period Not allowed The promoter has proposed to hand over the possession of the said flat within a period of 4 years lrom the date of approval of building plans (19.L2.2014) or grant of environment clearance, (22.0L.2016) (hereinafter referred to as the "Commencement Date"J, whichever is later and has sought further extension of a period of Page 4 of 29 TIARERA GURUGRA[/ tC".plr", ^,"=tr, "f ,r;l 6 months (after the expiry of the said time period of 4 year) but there is no provision in relation to grace period in Affordable Group Housing Policy, 2013.

As such in absence of any provision related to grace period, the said grace period of six months as sought by the respondent promoter is disallowed in the present case. 't 6.

Due date of possession 22.0L.Z020 [Note: - the due date of possession can be calculated by the 4 years from approval of building plans (19.12.2014) or from the date of environment clearance (22.07.2016) whichever is later.] L7.

Total sale consideration Rs.19,2 8,500/- [As per payment plan page no.23 of the complaint) 18.

Total amount paid by the complainant Rs.20,36,47 3 /- [As per prepossession outstanding statement dated 20.04.2022 at page no, 32 ofthe complaint] 19.

Occupation certificate Not obtained and application for OC stand made.

20.

Delay in handing over possession till the date of filing of this complaint i.e., 09.09.2022 2 years 7 months and 18 days Page 5 oF 29 HARERA ffi" GURUGRAM II.

Complaint No.

5844 of 2022 B.

3.

Facts ofthe complaint The complainant has made the following submissions: - I.

That, in pursuant to the elaborate advertisements, assurances, representations and promises made by it in the brochure circulated by them about the timely completion of this affordable group housing colony - 'Supertech Basera' with quality standards and believing the same to be correct and true, the complainant booked a flat measuring 546 sq. ft. in the said project, being flat No.

303, tower 13 in Gurugram.

Gurugram.

It was represented and assured by the respondent that the construction of the said project was initiated in 2014 afler receiving the necessary approvals from the concerned authorities, and the said flat would be constructed and handed over to the complainant by 2018, in accordance with the provisions of Affordable Group Housing Policy, 2013 issued by Government of Haryana.

That, relying upon the respondent's representations and being assured that the respondent would abide by their commitments, the complainant being the co-applicant along with his wife, in good faith booked a flat in the said proiect on 10.03.2016.

That the allotment of the said flat was confirmed to the complainant vide allotment letter dated 26.03.2016.

Subsequently, the builder buyer agreement executed berlveen III, Page 6 of 29 ffiHARERA ffi ctlRriGRANr Complaint No.

5844 of 2022 the parties on 18.04.2016, wherein the respondent mentions the Rs.19,28,500/- as the total sale consideration of the flat and assigned all the rights and benefits under the builder buyer agreement to the complainant, explicitly.

That the said builder buyer agreement, the respondent promised, assured, represented, and committed to the complainant that the project is under construction and is being developed and would be completed and the possession of flat would be handed over to the buyer by the end of 2018.

Also, under clause C of the buyer's agreement, the respondent specifically mentions that the said pro,ect is being developed and constructed.

Further, under clause D of the said agreement, the respondent projected that the said pro.iect has received approvals and sanctions including environmental clearance from the concerned authorities.

Thereafter, several efforts from the complainant were made to seek updates about the status of the possession, but due to the negligence of the respondent, there was no satisfactory response from their end. their end.

The agreement entered between the parties provided for the payment plan, and all the payments were paid to the respondent, timely.

She had assumed the money collected by the respondent from the complainant would be utilised for timely construction and possession of the flat to her by 2018.

IV, Page 7 of 29 HARERA M,GURUGRAI/ Complajnt No.

5844 of 2022 VI.

The respondent issued a false outstanding statement dated 20.04.2022, an of Rs.7 ,72,006l-, and further demanded to make this payment, or else, no dues certificate/possession of the flat will not be given to her.

She objected to the frivolous demand of the respondent as the said outstanding statement was against the Affordable Housing policy, 2013.

All the efforts of the complainant went in vain, and the respondent managed to extort Rs.58, 2L0/- on the false prelext of issue of no dues certificate to the complainant.

The Respondent has obtained the excess amount of Rs.\,66,277 /- ov€r the total sale consideration of Rs.19,28,500/- from the complainant, and stands liable for violation of builder buyer agreement.

That after obtaining non dues certificate from the respondent, she visited the construction site, but was shocked and appalled to see that the construction of the project has not been completed.

In fact, the respondent would be providing the possession of the under constructed flat.

Unfortunately, the respondent did not properly utilise the complainant hard earned money and even after the lapse of 6 years of the date of booking, the project is yet to be completed.

That, it is unambiguously lucid that no force majeure was involved, and the project has been at a standstill since several years, precisely in the end of 2018 and it has been more than 4 VI I, Page B oF 29 HARTRA M* GURUGRAM years till the present date, therefore it cannot take a plea that the construction was halted due to the Covid-19 pandemic.

She has already made the full payment to the respondent towards the flat booked by her. ed by her.

Despite paying such a huge sum towards the unit, the respondent has failed to stand by the terms and conditions of the builder buyer's agreement and the promises, assurances, representations, etc., which the respondent made to her at the time of booking the above said unit.

VIII.

That, the complainant was constrained and left with no option but to file this present complaint seeking withdrawal from the proiect and refund of the amount paid by the complainant in respect of flat along with the interest as per Act, 2016.

Further, the complainant herein reserves their right(s) to ass/supplement/amend/change/alter any submission(sl made in the complainant and further, reserve the right to produce additional document(s) or submissions, as and when necessary or directed by this authority.

Relief sought by the complainant: C.

4.

The complainant has sought following relief(s).

Direct the respondent to refund the amount of Rs.19,28,500/- in terms of section 18(1) [a] of the AcL,2016 read with rule 15 of the rules 2017.

5844 of 2022 Page 9 ol29 HARERA M.GURUGRAI/ Complaint No.

5844 of 2022 ii.

Direct the respondent to refund the amount of Rs.L,66,577 /- as the excess amount charged by respondent in contrary to builder buyer agreement. iii.

To award interest on Rs.20,95,077 /- (Rs.19,28,500/- plus Rs.1.,66,577 /-) @24% from the date of paymenr. iv.

To direct the respondent to pay Rs.1,00,000/- towards mental agony and harassment caused by it. v.

To direct the respondent to pay litigation cost of Rs.1,00,000/-.

5.

0n the date of hearing, the authority explained to the respondent/ (a) D.

6. promoter about the contraventions as alleged to have been committed in relation to section 11[4) of the Act to plead guilty or not to plead guilry.

Reply by the respondent The respondent contested the complaint on the following grounds: - i, That on 04.09.2015, the complainant in the presence of officials of DGTCP/DC, vide draw was allotted apartment bearing no. earing no.

Flat#0303, 03.d floor, in tower- 13, having a carpet area of 473 sq. ft. (approx.J and balcony area 73 sq. ft. for a total consideration of Rs.19,28,500/- ii.

That consequentially, after fully understanding the various contractual stipulations and payment plans for the said apartment, the complainant executed the flat buyer agreement dated 18.04.2 016.

Page 10 of 29 ffi HARERA ffi eunue,ur,,r Complaint No.

5844 of 2022 That the complaint filed by the complainant is not maintainable in the authority and is filed on the false and frivolous grounds.

The bare reading of the complaint does not disclose any cause of action in favor of the complainant and the complaint has been filed with malafide intention to blackmail the respondent with this frivolous complaint.

That in view of the force majeure clause, it is clear that the occurrence of delay beyond the control of the respondent, including but not limited to the dispute with the construction agencies employed by the respondent for completion of the project is not a delay on account of the respondent for completion of the project.

That the buyer's agreement, the time stipulated for delivering the possession of the unit was on or before 4 years after obtaining the requisite approval of the building plans or environmental clearance, whichever is later.

The delivery of a proiect is a dynamic process and heavily dependent on various circumstances and contingencies.

In the present case also, the respondent had endeavored to deliver the property within the stipulated time.

The respondent earnestly has endeavored to deliver the properties within the stipulated period but for reasons stated in the reply could not complete the same. ul. iv.

Page ll of 29 HARERA P*GURUGRAI/ vl. vll.

5844 of 2022 That apart from the defaults on the part of the allottee, like the complainant herein, the delay in completion of project was on account of the following reasons/circumstances that were above and beyond the contro the control of the respondent: - .

Shortage of labour/workforce in the real estate market as the available labour had to return to their respective states due to guaranteed employment by the Central/State Government under NREGA and JNNURM Schemes; . that such acute shortage of labour, water and other raw materials or the additional permits, licenses, sanctions by different departments were not in control of the respondent and were not at all foreseeable at the time of launching of the project and commencement of construction of the complex.

The respondent cannot be held solely responsible for things that are not in control of the respondent The respondent has further submitted that the intention of force majeure clause is to save the performing party from consequences of anything over which he has no control, It is no more res integra that force majeure is intended to include risks beyond the reasonable control of a party, incurred not as a product or result of the negligence or malfeosonce of a party, which have a materially adverse effect on the ability of such party to perform its obligations, as where non-performance is caused the the Page 12 of 29 HARERA M"GURUGRAI/ vlll.

5844 of 2022 by the usual and natural consequences of external forces or where the intervening circumstances are specifically contemplated.

Thus, in light of the aforementioned, it is submitted that the delay in construction, if any, is attributable to reasons beyond the control of the respondent and as such the respondent may be granted reasonable extension in terms of the flat buyer's agreement.

It is public knowledge., and.several courts and quasi-judicial forums have taken cognisance of the devastating impact of the demonetisation of the Indian economy, on the real estate sector.

The real estate sector is highly dependent on cash flow, especially with respect to payments made to labourers and contractors. ntractors.

The advent of demonetisation led to systemic operational hindrances in the real estate sector and whereby the respondent could not effectively undertake construction of the project for a period of 4- 6 months.

Unfortunately, the real estate sector is still reeling from the aftereffects of demonetisation, which caused a delay in the completion of the project.

The said delay would be well within the definition of'Force Majeure', thereby extending the time period for completion of the project.

That the project "Basera" is registered under the authority vide registration certificate no.

108 of 2017 d,ated 24.08.2077.

The lx.

Page 13 of 29 HARERA ffi^ GURUGRAM registration is valid till 31,.01.2021 and the respondent has already applied for due extension. x.

That the possession of the said premises was proposed to be delivered by the respondent to the allottee by 21.07.2020 being 4 years calculated from the date of issuance of environment clearance i.e., 22.07.2016 plus grace period of 6 months.

However, the said does not contemplate the force majeure circumstance that have occasioned during the last few years and thus the respondent is entitled to appropriate extension of the said possession date.

The respondent and its officials are trying to complete the said project as soon as possible and there is no malafide intention of the respondent to get the delivery of project, delayed, to the allottees.

Due to orders also passed by the Environment Pollution [Prevention & Control) Authority, the construction was/has been stopped for a considerable period day due to high rise in pollution in Delhi NCR.

That the enactment of the Act of 2016 is to provide housing facilities with modern development infrastructure and amenities to the allottees and to protect their interest in the real estate sector market.

The main intention of the respondent is just to complete the project.

The proiect is ongoing proiect and construction is going on.

5844 of 2022 xl. f 2022 xl.

Page 14 of 29 HARERA #-OURUGRAI/ to help bonafide Builders to complete the stalled projects which are not constructed due to scarcity of funds.

The Central Government announced Rs.25,000 Crore to help the bonafide builders for completing the stalled/unconstructed projects and deliver the homes to the homebuyers.

The respondent/promoter, being a bonafide buildgr, has also applied for realty stress funds for its Gurgaon based projects. xiii.

That compounding all these extraneous considerations, the Hon'ble Supreme Court vide order dated 04.11,.2019, imposed a blanket stay on all construction activity in the Delhi- NCR region.

It would be apposite to note that the'Basera' project was under the ambit of the stay order, and accordingly, there was next to no construction activity for a considerable period.

Similar stay orders have been passed during winter period in the preceding years as well, i.e,,2077-2078 and 2018-2019.

A complete ban on construction activity at site invariably results in a long-term halt in construction activities.

As with a complete ban, the concerned Iabour is laid off and the travel to their native villages or look for work in other states.

Thus, the resumption of work at site becomes a slow process and a steady pace of construction in realized after Iong period of time.

5844 of 202 2 xii.

That in today's scenario, the Central Government has also decided Page 15 of 29 HARERA GURUGRAIVI Complaint No.

5844 of 2022 xiv.

Graded response action plan targeting key sources of pollution has been implemented during the winters of 2017-18 and 2018- 2019, These short-term measures during smog episodes include shutting down power plant, industrial units, ban on construction, ban on brick kilns, action on waste burning and construction, mechanized cleaning of road dust, etc.

This also includes limited application of odd and even scheme. xv.

That the circumstances have worsened for the respondent and the real estate sector in general. n general.

The pandemic of Covid 19 has had devastating effect on the world-wide economy.

However, unlike the agricultural and tertiary sector, the industrial sector has been severally hit by the pandemic.

The real estate sector is primarily dependent on its labour force and consequentially the speed of construction.

Due to government-imposed lockdowns, there has been a complete stoppage on all construction activities in the NCR Area till July 2020. ln fact, the entire labour force employed by the respondent was forced to return to their hometowns, leaving a severe paucity of labour.

Till date, there is shortage of labour, and as such, the respondent has not been able to employ the requisite labour necessary for completion of its proiects.

The Hon'ble Supreme Court in the seminal case of Gajendra Sharma v.

UOI & Ors, as well Credai MCHI & Anr.

V.

UOI & Ors has taken cognizance of the devastating conditions of Page 16 of 29 HARERA P* GURUGRAM 7.

5844 of 2022 E.

L the real estate sector and has directed the UOI to come up with a comprehensive sector specific policy for the real estate sector.

In view of the same the pandemic is clearly a 'Force majeure' event which automatically extends the timelines for handing over possession of the apartment.

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 ...o.f these undisputed documents and submissions made by the parties. f urisdiction of the authority The authority has complete territorial and subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.l Territorialiurisdiction As per notification no.

1, /92 /201,7 -1TCP dared 14.1,2.2017 issued by Town and Country Planning Department, Haryana the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes. purposes.

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.ll Subiect-matteriurisdiction 9.

Page 17 of 29 HARERA ffi" GURUGRAM Complaint No.

5844 of 2022 10.

Section 11(4][aJ of the Act,201,6 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)(a) is reprod uced as hereunder: Section 77 (4) The promoter shall- [q) be responsible for oll obligations, responsibilities and functions under the provisions ofthis Act or the rules ond regulotions mode thereunder or to the allottees os per the agreement for sole, or to the qssociation of qllottees, os the cose may be, till the conveyance of all the apartment' plots or buildings, as the cqse may be, to the allottees, or the.common areas to the associotion ofolloLLees or the competent outhoriq/, qs the cose moy be; Section 34-Functions of .the Authoriy: 344 of the Act provides to ensure complionce of the obligations cast upon the promoters, the allottees and the real estate agents under this Act ond the rules and r eg u lations m o d e the r e u nd e r.

11.

So, in view ofthe provisions ofthe Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non- compliance of obligations by the promoter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainanl. at a later stage.

12.

Further, the authority has no hitch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the Hon'ble Apex Court in Newtech Promoters and Developers Private Limited Vs State of U.P, and Ors, 2021-2022 (1) RCR (Civil), 357 and reiteratecl in cose of M/s Sana Realtors Private Limited & other Vs Union of lndia & others SLP (Civil) No.

Page 18 of 29 ffi HARERA #, eunueruH,r F.

1,4.

13.

Complaint No. plaint No.

5844 of 2022 13005 of 2020 decided on 72.05.2022, wherein it has been laid down as under: "86.

From the scheme of the Act of which o detailed reference hos been made and taking note of power of adjudicotion delineated with the regulqtory authoribr qnd odjudicating offcer, whqt frnally cu s out is that although the Act indicates the clistinct expressions like 'refund', 'interest', 'penolty' and 'com pensdtion', a conjoint reading of Sections 18 and 19 clearly monifests that when it comes to refund of the amount, and interest on the refund amount, or directing poyment of interest fot deloyed delivery of possession, or penalty and interest thereon, it is the regulatory outhority which has the power to examine and determine the outcome ofo complaint.

At the same time, when it comes to q question of seeking the relief of odtudging compensation and interest thereon under Sections 12, 14, 18 ond 19, the odjudicoting officer exclusively hqs the power to determine, keeping in view the collective reoding of Section 71 reod with Section 72 ofthe AcL'iJ the adjudicotion under Sections 12, 14, 18 and 19 other thon compensation os envisoged, if extended to the odjudicating olficer os prayed thot, in our view, mqy intend to expqnd the ombit and scope of the powers and functions of the adjudicating ofrcer under Section 71 ond thot would be agoinst the mandote oftheAct 2016." Hence, in view of the authoritative pronouncement of the Hon'ble Supreme Court in the case mentioned above, the authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amounl Findings on the obiections raised by the respondent F.

I Obiection regarding the proiect being delayed because of force maieure circumstances and contending to invoke the force maieure clause.

From the bare reading of the possession clause of the flat buyer agreement, it becomes very clear that the possession of the apartment was to be delivered by 22,01.2020.

2,01.2020.

The respondent in its reply Page 19 of29 HARERA M- GURUGRAM pleaded the force majeure clause on the ground of Covid- 19.

The High Court of Delhi in case no.

O.M.P (I) (COMM.) No.

88/2020 & t.As, 3696-3697/2020 title as M/S HALLIBURTON OFFSHORE SERVICES INC VS VEDANTA LIMITED & ANR.

29.05.2020, held, that the post non- performance of the Contractor cannot be condoned due to the COVID-19 lockdown in March 2020 in lndia.

The Contractor was in breach since September 2019.

Opportunities were given to the Contractor to cure the same repeatedl)t.

Despite the sqme. the Controctor could not complete non-pefformance of a contract for which the deadlines were much before the outbreak itself.

Thus, this means that the respondent/promoter has to complete the construction of the apartment/buildingby 22.0L.2020.

The respondent/promoter has not given any reasonable explanation as to why the construction of the project is being delayed and why the possession has not been offered to the complainant/allottee by the promised/committed time.

The lockdown due to pandemic in the country began on 25.03.2020.

So, the contention of the respondent/promoter to invoke the force majeure clause is to be rejected as it is a well settled law that "No one can take benefit out of his own wrong".

Moreover, there is nothing on record to show that the project is near completion, or the developer applied for obtaining occupation certificate.

Thus, in such a situation, the plea with regard to force majeure on ground ofCovid- 19 is not sustainable.

5844 of 2022 Page 20 ol29 ffiHARERA #" aJRUGRAI/ Complaint No.

5844 of 2022 Findings on the reliefsought by the complainant.

G.

I Direct the respondent to refund the amount of RS.19,ZB,SO0/- in terms of section 18(1)[a] of the Act, 20L6 read, with rule 1S ofthe rules 2017.

II Direct the respondent to refund the amount of Rs.1,66,577 /- as the excess amount charged by respondent in contmry to builder buyer agreement.

G. eement.

G.lll To award interest on Rs.zO,9S,O77 /- [Rs.19,28,500/- plus Rs.1,66,577 /.) @24o/o from the date of payment.

The complainant intends to withdraw from the project and is seeking return of the amount paid by her in respect of subject unit along with interest at the prescribed rate as provided under section 18(1J of the Act.

Section.

18(1) of the Act is reproduced below for ready reference. "Section 18: - Return of qmount ond compensation 1B(1). lf the promoter fails to complete or is unable to give possession ofan apqrtment, plot, or building.- (a) in occordance with the terms of the ogreement for sole or, os the cose may be, duly completed by the dote specified thercin; or [b) due to discontinuance of his business os a developer on account of suspension or revocation of the registration under this Act or for ony other reason, he shall be liable on demqnd to the qllottees, in cose the ollottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the qmount received by him in respect ol that aportment, plot, building, as the case may be, with intetest qt such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: Provided that where on qllottee does not intend to withdrqw from the project, he sholl be paid, by the promoter, interest for every month of delay, till the honding over of the possession, ot such rote as moy be ptescribed." (Enphosis supplied) As per clause 3.1 of the booking application form provides for handing over of possession and is reproduced below: - 3.1 Possession Subject to force majeure circumstqnces, intervention of Stqtutory Authorities, receipt of occupation certifrcate and Allottee/Buyer G, 15.

16.

Page 2l of 29 HARERA M"GURUGRAI/ Complaint No.

5844 of 2022 hoving timely complied with all its obligations, t'ormalities, or documentation, as prescribed by the Developer and not being in defqult under any pqrt hereof and Flat Buyer's Agreement, Agreement, including but not limited to the timely poyment oI installments of the other chorges as per payment plon, Stamp Duty and registrotion charges, the Developers Proposes to offer possession of the sqid Flat to the Allottee/Buyer within o period of 4 (Jour) yeors from the dote oI qpprovsl of building plans or grant of environment cleqronce, (hereinafter refeffed to os the "Commencement Dqte") , whichever is later.

The Developer olso ogrees to compensate the Allottee/Buyer @ Rs.5.00/- (Five rupees only) per sq. ft. of the oreo of the flot per month for ony delay in honding over possession of the Flat beyond the given promised period plus the grqce period oI6 months dnd upto olJer letter of pQssessipn or qctudl physical possession whichever is earlier".

17.

At the outset, it is relevant to comment on the preset possession clause of the agreement wherein the possession has been subjected to all kinds of terms and conditions of this agreement and application, and the complainant not being in default under any provisions of this agreement and compliance with all provisions, formalities and documentation as prescribed by the promoter.

The drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour of the promoter and against the allottee that even a single default by the allottees in fulfilling formalities and documentations etc. as prescribed by the promoter 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 clause in the buyer developer agreement by the promoter is just to evade the liability towards timely delivery of subject unit and to deprive the allottee of his right accruing Page 22 of 29 HARERA W*GURUORAI/ Complaint No.

5844 of 2022 after delay in possession. ossession.

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

18.

Admissibility of refund along with prescribed rate of interest: The complainant is seeking refund the amount paid by her at the rate of 240lo interest per annum.

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

Rule 1.5 has been reproduced as under: Rule 75.

Prescribed rqte of interest lProviso to section 72, section 78 and sub-section (4) and subsection (7) oI section 191 (1) For the purpose of proviso to section 12; section 18; and sub- sections (4) ond (7) of section 19, the "interest ot the rote prescribed" shall be the State Bqnkoflndia highest morginal cost oflending rate +20/6, Provided thot in cose the State Bank oflndia morginal cost oflending rate (MCLR) is not in use, it shqll be replqced by such benchmark lending rotes which the Stote Bank of lndia may Jix from time to time for lending to the general public.

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

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

Consequently, as per website of the State Bank of India i.e., httns://sbi.co.in, the marsinal cost of lendinp rate fin short.

MCI-Rl as 19.

Page 23 of 29 HARERA &D At tDt tcDAt\/1 Complaint No.

5844 of 2022 on date i.e., 25.04.2023 is 8.7Oo/o, Accordingly, the prescribed rate of interest will be marginal cost of len dingrate +20/o i.e., lO.7Oo/o.

21.

7Oo/o.

On consideration of the circumstances, the documents, submissions and based on the findings of the authority regarding contraventions as per provisions of rule 28(1), the authority is satisfied rhat rhe respondent is in contravention of the provisions of the Act.

By virtue of clause 3.1 of the agreement executed between the parties on 18.04.201-6, the possession of the subject apartment was to be delivered within stipulated time within 4 years from the date of approval of building plan i.e. (79.1,2,2014) or grant of environment clearance i.e. (22.07.201,6) whichever is later, Therefore, the due date of handing over possession is calculated by the receipt of environment clearance dared 22.01,.20L6 which comes out to be 22.01,.2020.

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

Therefore, the due date of handing over possession comes our to be 22.07.2020.

22.

Keeping in view the fact that the allottee/complainant wishes to withdraw from the project and is demanding return of the amount received by the promoter in respect of the unit with interest on failure of the promoter to complete or inability to give possession of the unit in accordance with the terms of agreement for sale or duly completed by the date specified therein, the matter is covered under section 18(1J ofthe Act of 2016.

Page 24 of 29 ffi& 23.

HARERA GURUGRAM Complaint No.

5844 of 202 2 The due date of possession as per agreement for sale as mentioned in the table above is 22.01.2020 and there is delay of 2 ]zears 7 months and 18 days till the date of filing of the present complaint.

The due date of possession as per clause 3.1 of the flat buyer's agreement i.e., 4 years from the date of approval of building plans (19.12.2014) or grant of environment clearance, (22.07.2016) (hereinafter referred to as the "Commencement Date"J, whichever is later which comes out to be 22.01.2020.

It is pertinent to. tinent to.mention over here that even after a passage of more than 2.7 years neither the construction is complete nor an offer of possession of the allotted unit has been made to the allottee by the builder.

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

24.

Moreover, the occupation certificate/completion certificate of the project 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 of India in Ireo Grace Realtech Pvt, Ltd.

Vs, Abhishek Khanna & Ors., civil appeal no.

5785 of 2019, decided on 17.01.2027 Page 25 ot 29 HARERA P* GURUGRAI/ "....

The occupotion certqcotu is not ovqiloble even as on date, which clearly omounts to deJiciency of seryice.

The allottees cannot be mode to woit indef;nitely for possession of the opartments qllotted to them, nor cqn they be bound to toke the oportments in phose 1 of the project......." 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, and reiterated in case of M/s Sona Realtors Private Limited & other Vs Union of India & others (supra) it was observed as under: - 25.

The unquolfied right of the allottee to seek refund referred lJnder Section 18(1)(a) snd Siction 19(41of the Act is not dependent on any contingencies or stipulations, thereof. lt appeors thot the legislature has consciously provided this right of refund on demand as an unconditionql absolute right to the qllottee, if the promoter fails to give possession of the apsrtment, plot or building r building within the time stipulated under the terms of the ogreement regardless of unforeseen events or stay orders of the Court/Tribunal, which is in either woy not attributoble to the ollottee/home buyer, the promoter is under an obligation to relund the omount on demond with interest at the rote prescribed by the State Government including compensation in the monner provided under the Act with the provlso thot iI the allottee does not wlsh to withdraw from the project, he sholl be entitled for interest for the period of delay till handing over possession at the rate prescribed," 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[4)(a] of the Act.

The promoter has failed to complete or is unable to give possession of the unit in accordance with the terms of agreement for sale or duly completed by the date Complaint No.

5844 of 2022 25.

26.

Page 26 of 29 ffiL]AREBA *ffi" eunueRRvt Complaint No.

5844 of 2022 specified therein.

Accordingly, the promoter is liable to the allottee, as he wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of the unit with interest at such rate as may be prescribed.

27.

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

As such, the complainant is entitled to refund of the entire amount paid by her at the prescribed rate of interest i.e., @ 70.7 0o/o p.a. (the State Bank ol India highest marginal cost of lending rate (MCLR). applicable as on date +ZVo) as prescribed under rule 15 of the Haryana Real Development) Rules, 2017 From the date actual date of refund of the amount within Estate (Regulation and of each payment till the the timelines provided in rule 16 ofthe Haryana e Haryana Rules 2017 ibid.

G. lV.

To direct the respondent to pay Rs.1,00,000/- towards mental agony and harassment caused by it G.V.

28.

The complainant is seeking above mentioned relief w.r.t. compensation.

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

67 45-67 49 of 20Zl 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,L8 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation & litigation Page 27 of 29 HARERA ffi"GURUGRAN1 Complaint No.

5844 of 2022 expense shall be adjudged by the adjudicating 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.

H, Directions of the authority 29.

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: nl.

The respondent/promoter is directed to refund the amount i.e., Rs.20)6,a73/- received by it from the complainant along with interest at the rate of L0;70o/o p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Rules, 20L7 from the date of each payment till the actual date of refund of the deposited amount.

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

The respondent is further directed not to create any third-party rights against the subject unit before full realization of the paid- up amount along with interest thereon to the complainant and even if, any transfer is initiated with respect to subject unit, the unit, the Ii.

Page 28 oi 29 I ffiHARERA ffi aJRTrcRAM receivables shall be complainant.

Complaint stands disposed File be consigned to Haryana Real Estate Dated: 25.04.2023 Complaint No.

5844 of 2022 utilized for clearing dues of allottee/ !,1-. (Vilay Kuriiar Member rity, Gurugram 30.

31.

T.I A l lrl' O'JNU NA garll& I Member Page 29 of29