SANGEETA MATTOO vs ST. PATRICKS REALTY PVT LTD

ffi ffi HARERA GURUGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Complaint no.

641 of?OZL Date of complaint 10.02.2021 First date of hearing 22.03.202L Date of decision 04.L0.2023 1.

The present complaint has been filed by the complainants/allottees under Section 31 of the Real Estate [Regulation and DevelopmentJ Act, 2016 (in short, the ActJ read with rule 29 of the Haryana Real Estate [Regulation and DevelopmentJ Rules, 2017 [in short, the Rules) for violation of section 11[a)[a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all Complaint No.

641 of 2021' 4/ Complainants Sangeeta Mattoo & RooPak Malfoo R/O: Flat no.

202, Kendffi,V,thar; Sector Gurugram.

Vensus Respondent St.

Patricks Realty P'vt.

Ltd.

I Registered address at Aloft'Hotel; asset 58, Aero city, ho spital'ily::di stri it, I G I Airp o rt, New Delhi-110037.

Member Shri Ashok Sangwan APPEARANCE: Complainants Shri Rajan Kumar Hans Advocate Shri Amit Aggarwal Advocate Respondent ORDER Page 1 oft6 CORAM: HARERA Complaint No.641 of 2021, GUl?UGRAM obligations, responsibilities, and functions under the provision of the Act or the rules and regulations made there under or to the allottees as per the agreement for sale executed inter se.

Unit and proiect-related details The particulars of the Project, the details of sale consideration, the amount paid by the comp date of proposed handing over of the possession, and the following tabular form : any, have been detailed in the uV s.

N.

Details 1.

Name and location of the project Central Park Flower ValleY.

2.

Nature o the rroj ect Plotted colony 3.

Project a 20.225 acre 4.

DTCP license no, 07 of'2020 dated 29lanuarY 2020 5.

Name of licensee Chandiram and 3 others.

6.

RERA reg 20 dated 18.03.2020 7.

F-136 Ground Floor [Page no.25 of ReplY) 10.

Unit area admeasuring fsuper area) 1274 sq. ft. (As per page no.21 of the RePIY) 11.

Date of application for allotment 19.05.2018 fPage no. fPage no.

31 of ReplY) Page2 of 16 Particulars Unit no.

1,2.

Date of execution of BBA Not Executed 13.

Total sale consideration Rs.

1,07,66,284/- [As per page no.26 of the Reply) BSP: Rs.

84,97,726/- T4, Amount paid by the complainant Rs.

12,05,824/- 15.

Letter nrovidffi agreement for sale $ffiSr the complainants .+',"i' 26.06.201.8 (As per page no.

34 of the Reply) 16.

Request payment complai no.

35 of the Reply) : 77.

Change to 10:75 compla no.

36 of the Reply) gment of a change of 18.

Reminder lette an agreement f sent to the complainants 14.09.2018 (As per page no.

37 of the Reply) 19.

Reminder for execution and registration of BBA and possible cancellation 11.72.2018 (As per page no.

38 of the Reply) 20.

Indemnity bond and cancellation request 05.01.2019 fPage no.

30 of complaint) 03.02.2020 HARERA GUl?UGl?AM Complaint No.

641 of 2021 ,t/ Page 3 of 16 ffi ffi riqqE Wil HARERA GURUGllAM 8,05,824l- dated 30.05.2018 dri complaint No.

641 of 2021 3.

5. k.

The cost of the unit was Rs.

1,07 ,66,284 /- At the request of the complainants, the respondent agreed to the bank subvention payment plan of 10:75:15.

Where lOo/o was earnest money, 75o/o bank subvention, and t\o/o was to be paid at possession.

The respondent failed to provide any allotment letter to the complainants. (Page no.34 of complaint) 21,.

Cancellation request 12.02.2020 (Page no.

40 of complaint) 22.

E-mail by complainants requesting retention of the unit.

11..06.2020 (Page no.

39 of Reply) 23.

Forfeiture by the respondent of the deposited by complainants further d raised by respondent: /- 05.09.2020 [Page no.

41 of complaintJ Facts of the compla The respondent cam located in sectors 2 complainants booker A pre-printed applic rt: up with the project "Central Park Flower Valley" , 30, 32, Sohna, Gurugram.

0n 18.05.2018, the a unit by paying Rs.

4,00,0 00 /-. [ion form was given to the complainants which Page 4 of 16 4.

HARERA Complaint No. plaint No.

641 of 2021 GUl?UGl?AM The Complainants have already paid over t1,.2o/o of the agreed amount i.e.

Rs.

72,05,824/- to date to the respondent, details of the payment is given below.

S.N Cheque no. & date Amount 1.

Cheque no.00971.4.

ICICI Bank on 31.03.2018 4,00,000/- 2.

Cheque no.

8,05,824/- Rs.12,05,824/- :le respondent ap ,e execution ofrtl rntravention of evelopment Act)j ; mentioned in entioned thereir the rov : sale value even befo nent which is in dire ;tate (Regulation ar n form and the The r, the e: contri Devel Asm menti tore rect and terms therein, isional and subject to a "definitive docu of the terms and stark incongrui to both parties.

In the 199th Report of the Law Commission of India on'Ilnfair (Procedural & Substantive) Terms in Contract' itwas stated that "A contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties".

Page 5 of 16 TOTAL 9. ffiHARERA ffi.* anLrcRAM 10.

The complainants waited patiently but even after agreeing on the 1.0:75:15 payment plan at the time of the booking, the respondent was not committed to its words, and the complainants were forced to write multiple letters to remind the respondent to comply with the commitment, and provide the 10:75:15 payment plan instead of L5:75:15 payment Plan.

11.

The complainants wanted the house to live peacefully with family, and could not wait for more so they asked the company to cancel the unit in September 20LB (Within Four Months of the Booking), as they were fed up with the delayed tactics of the respondent.

Onthe guidance and insistence of the respondent, and on the pretext of formalities, the complainants filed the cancellation letter and Indemnity bond for the cancelation of the unit on 05.01.20L9.

The complainants were committed by the staff that their entire earnest money would be refunded back.

13. back.

13.

The entire year went by and the complainants waited patiently for the unit cancellation and for refund proceeds from the company, but the respondent did not budge and did not even provide any reply on the matter even after many follow-ups and numerous visits to it office.

14.

Even after many months passed the complainants did not hear anything from the respondent and they again reminded the respondent and provided them the cancellation request again on 2B.0B.2020,which was the third time in the last 20 months.

Complaint No.641 of 2021 Page 6 of t6 r ffi ffi fiido w{i HARERA Complaint No.641 of 2021 GURUGI?AM 15.

On 05.11.2020 the respondent replied through an email in which the complainants were informed that all their earnest money was getting forfeited and they were further asked to shell out Rs.

1,24,985 f - for the cancellation of the unit.

16.

The complainants were not happy with the functioning of the company and the delay they were making and that is why the unit was cancelled before the execution of the builder-buyer agreement.

Further, after the cancellation of the unit, the respbndent has already re-alloted this unit to some other client.

17.

The respondent acted in contravention t.o section 12 of the said act and has caused damage to the complainants by providing incorrect and false statements in the application form and allotment letter, and has failed to execute even the apartment buyer's agreement after booking the apartment.

Further, the respondent also acted in contravention of section 11[4) of the said act.

18.

That as per section 1B of the RERA Act, 2016, the promoter is liable to refund the amount and pay interest at the prescribed rate of interest and compensation to the allottees of an apartmetrt, building, or project for a delay or failure in handing over such possession as per the terms and agreement of the sale.

C.

Relief sought by the complainants: 19.

The complainants have sought the following relief[s): i. ief[s): i.

Direct the respondent to refund the entire amount of the earnest money. .v PageT of 16 HARERA Complaint No.

641 of 202t GUl?UGl?AM ii.

Direct the respondent to pay interest at the scheduled rate of interest from the date of the actual payment till the date of the actual refund.

D.

Reply by respondent: 20.

The complainants vide application form dated 19.05.2018 applied for allotment of an independent floor no.

F-136, ground floor in the project of the respondent, and opted'for,a'Bank Subvention Payment plan'.

The complainants at the time of, the application form paid the booking amount of Rs.

1.2,05,824l- vide two cheques dated 18.05.2018 and 30.05.2018 for an amount of Rs.

4,00,000/- and Rs.B,05,B24l- respectively.

The total cost for the independent floor was Rs.1,07,6 6,284 / - excluding applicable taxes.

2L.

Pursuant to the application form, the respondent sent a welcome letter dated 20.05.2018 to the complainants.

22.The respondent vide letter dated 26.06.2018 provided the agreement to sell to the complainants and apprised the complainants that as per RERA, the agreement to sell shall be registered and only upon registration the apartment will stand allotted to them.

The agreement to sell is as per the draft approved uncter RERA Registration No.

95 of 201.7.

23.

On request of the complainants, the respondent agreed to the bank subvention plan of 10:75:L5 vide e-mail dated 06.09.2018.

24.The respondent vide letter dated 14.09.201t\ again provided the agreement to sell to the complainants and apprised them that as per .t/ Page 8 of16 HARERA ffi.GURUGRAM canceled.

RERA, the agreement to sell shall be registered and only upon registration the apartment shall stand allotted to them.

25.

The respondentvide letter dated 17.L2.2018 wrote to the complainants stating that time and again they have requested them to get the floor buyer agreement executed and registered. egistered.

It was further mentioned that in case they don't provide the signed agreement for registration and execution within a wegh i.e. by L8.72.2018, the booking will be Complaint No.

641 of 20Zl 26.Thecomplainants vide letter dated t2.02.2020 (which was admittedly submitted to the Respondent on 28.08.2020J, wrote to the respondent seeking cancellation of the apartment due to personal reasons and provided requisite documents.

2T.Thereafter the complainants vide email dated 11,06.2020 informed the respondent that they want to retain their apartment/unit and requested the respondent to provide the original copy of the old contract and other documents given for cancellation but the second part of the email dated 71,.06.2020 w.r.t. return of documents given for cancellation is completely false and concocted as no such document was ever given by them to the respondent before 28.08.2020.

28.

That the present complaint suffers from suppressio veri and suggestio fatsi,lt is settled law that when a litigant suppresses material facts and states false facts before a judicial authority, such conduct is tantamount to playing fraud upon such judicial authority.

Therefore, such a litigant, Page 9 ofL6 u ffiHARERA ffi GURUoRAM as under: Actual Amount paid excluding Tax (A) Taxes @ LZo/o (B) Amount(Rs.) (A+B) Rs.357142 Rs.42B5B Rs.400000 Rs.719486 Rs.86338 Rs.805824 Rs.

10,76,628 Rs.

1,29,196 Rs.12,05,824 Therefore, the actual amount paid to the respondent by complainants is Rs.

L0,76,628/- which is 1.00/o of the total price indicated in the application form and thus, is in terms of'section 13 of the Act.

30.

The booking amount is forfeitable in terms of clause B of the application form as well as Regulation 5 of Haryana Real Estate Regulatory Authority Gurugram [Forfeiture of eetrnest money by the Builder) Regulations, 201-8.

Further, the complainants have withdrawn from the complaint No. plaint No.

641 of 2021 who approaches any judicial authority with unclean hands, disentitles themselves to any relief whatsoever.

29.

Further, the allegation of the complainants that the respondent has taken an amount of Rs. \2,05,824/-, which is 11,.2o/o of the total amount and is in contravention to Section L3 of the Act is completely baseless and misleading.

The total tentative price mentioned in the application form is Rs.1,07,66,284/- and of the said amount will amount to Rs :+"" !0,76,628.40/-.tt is to O. the complainants have paid an amount of Rs.

L2,05,8241".,,vrHttii',1'ffiiltides tax@!2o/o, which is explained ,V Page 10 of 16 HARERA Complaint No.

641 of 20Zl GURUGt?AM allotment of their own volition, without any cause or warrant, therefore, the respondent is entitled to forfeit the entire booking amount paid by the complainants, which as explained hereinabove comes to 10% of sales consideration for the independent floor in question. )urisdiction of the authoritY: 31.

The plea of the respondents regarding lack of jurisdiction of Authority is rejected.

The authoritY subject matter jurisdiction it has territorial as well as the present complaint for the reasons given below.

E.

I Territorial As per notificati ted 1,4.12.2017 issued by jurisdiction of Real Estate Regulatory Auth ntire Gurugram District for all purposes wi m.

In the present case, the project in question i planning area of Gurugram district.

Therefo rritorial jurisdiction to deal with the Section 11(a)[a) of the Act,20!6 provides that the promoter shall be responsible to the allottee as per the agreement for sale.

Section 11(4)(a) is reproduced as hereunder: Section fi@)(a) Town and Coun .lr'- Page 11 of 16 ffi ffi riq4a wi ffiHARERA ffiGIJRuGRAM Be responsible for all obligations, responsibilities, ond functions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sole, or to the association of allottees, as the case may be, t may be, till the conveyance of all the apartments, plots or buildings, os the case may be, to the allottees, or the common areas to the associqtion of allottees or the competent authority, as the case may be; Section 34-Functions of the Authority: 34(fl of the Act provides to ensure compliance with the obligations cast upon the promoters, the allottees, and the real estate agents under this Act and the rules and regulations made thereunder.

So, given the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non- compliance of obligations bf_1h9 ploT,oter leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainant at a later stage.

F.

Entitlement of the complainant for refund: F.I Direct the respondent to refund the entire amount of the earnest money.

32.

The complainant booked a floor bearing no.

F-136 on the ground floor, admeasuring super area of 1274 sq. ft. in the said project vide an application form dated 19.05.2018 for a total sale consideration of Rs.1,07,6 6,284/- and the complainant has paid a sum of Rs.12,05,8241' in all.

The builder-buyer agreement was not executed between the parties.

On perusal of the pleadings &: documents submitted by the parties, it becomes evident that the respondent sent various reminders to the complainants for the execution of the agreement to sell on 2 6.0 6.2OtB, 1.4.09 .20 1 B, and 1,t.1,2.201 B.

Furthermo re, th e respond ent Complaint No.

641 of 2021 Page 12 of 16 ffiHARERA ffi GURuoRAM agreed to the request of the complainants to change the payment plan.

In spite of all this, the complainants did not come forward to execute the agreement to sell.

Thereafter, cancellation requests dated 1,2.02.2020 was made by the complainants, and cancellation request cum indemnity bonds dated 05.01.2019, and 03.02.2020 were signed by them in favor of the respondent.

However, on 1,1,.06. n 1,1,.06.2020, the complainants again wrote to the respondent requesting retention of the same unit.

Hence, the earlier request of the complainants for cancellation was superseded by it.

Thereafter, the respondeht canceled the unit on 05.09.2020 on account of non-payment.

33.

Section 1B(1) is applicable only in the eventuality that the promoter fails to complete or is unable to give possession of the unit in accordance with the terms of the agreement for sale or duly completed by the date specified therein.

34.

This is an eventuality where the promo,ter intends to deliver the unit but the allottee wishes to withdraw from the project and demands a return of the amount received by the promoter in respect of the unit.

The allottee, in this case, filed this application/conrplaint on 10.02.2021. after the unit had been canceled.

In the instant case, no BBA has been executed between the parties even though the respondent-builder gave multiple reminder letters to the complarinants for the execution of the agreement to sale i.e.

1,4.09.201,8 and 11,.1,2.2018.

There was reluctance on the part of the complainants to sign the agreement to sell.

The complainant further requested that the unit be canceled through a cancellation request dated 12.02.2020.

Iiection 1B[1) gives two options Complaint No.

641 of 2021 Page 13 of 16 q/ ffiHARERA ffi,arRllcrlRttlt to the allottee if the promoter fails to complete or is unable to give possession of the unit in accordance with the terms of the agreement for sale or duly completed by the date specified therein: ti) Allottee wishes to withdraw from the projec! or (ii) Allottee does not intend to withdraw from the project 35.

The Hon'ble Apex court of the land in cases of Maula Bux Vs.

Union of India (1973) 7 SCR 928 and Sildar K.B Ram Chandra Rai Urs Vs.

Sarah C.

Urs, (2015) 4 SCC 73f,,r,nd followed by the National Consumer Dispute Redressal Commission, New Delhi in consumer case no.

2766/2017 titled as Jayant Singhal and Anr. l and Anr.

Vs, M/s MsM India Ltd. decided on26.07.2022,took a view that fbrfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in nature of penalty, then provisions of Section 74 of Contract Act, 1872 are attracted and the party so forfeiting must prove ;rctual damages.

After cancellation of allotment, the flat remains with the builder as such there is hardly any actual damage.

So, it was held that 10% of the basic sale price is a reasonable amount to be forfeited in the name of earnest money.

Keeping in view, the principles llaid down by the Hon'ble Apex court in the above-mentioned two cases, rules with regard to forfeiture of earnest money were framed and known as Haryana Real Estate Regulatory Authority Gurugram [Forfeiture of earnest money by the builder) Regulations, 2018, which provides as under- ,,5.

AMOUNT OF EARNEST NIONEY Scenario prior to the Real Estate (Regulations and Development) Act, 2076 was different.

Frauds were carried out without any fear as there was no law for the same but now, in view of the above facts ond taking Complaint No.

641 of 2027 .4/ Page 14 of 16 ffiHARERA ffiGURUGRntr,t into consideration the judgements of Hon'ble Notional Consumer Disputes Redressal Commission and the Hon'ble Supreme Court of India, the authority is of the view that the forfeiture omount of the eornest money shall not exceed more than 10o/o of the consideration amountof the real estate i.e. apaftment /plot /building as the case may be in all cases where the cancellotion of the flat/unit/plot is made by the builder in a unilaterol manner or the buyer intends to withdraw from the project and any agreement containing any clouse contrary to the aforesaid regulations shall be void and not binding on the buyer.

36.

Keeping in view, the , ,af.oresaid legal provision, the respondent/promotor is dUPi fund the paid-up amount after ,.

HrJ,1.\-{4r% deductingL}o/o of the sale cd$,ffiffion and shall return the amount 1,0.02. nt 1,0.02.2021 till the actual date of refund of the amount within the timelines provided in rule 'J,6 ofthe Haryana Rules 2017 ibid.

H.

Directions of the Authority: Hence, the authority hereby passes this order ancl issues the following directions under Section 37 of the Act to ensure compliance with obligations cast upon the promoters as per the functions entrusted to the Authority under Section 34(0 of the Act of 201,6. i.

The respondent is directed to refund the paid-up amount of Rs.

12,05,8241- after deductingl0o/o of the sale consideration with interest at the prescribed rate i.e., 1,0.750/o p.a.as prescribed under rule 15 of the Haryana Real Estate Complaint No.

641 of 2027 Page 15 of 16 HARERA Complaint No' 641 of 2021 GU11UGl?AM (Regulation and DevelopmentJ Rule s,2017,on such balance amount' from the date of final cancellation of unit i'e' 05'09'2020' A period of 90 days is given to the respondents to comply with the directions given in this order failing which legal consequences would follow.

37.

Complaint stands disPosed of' 38.

File be consigned to the , Gurugram Page 16 of 16 Haryana Real Estate Regule Dated: O4,l