MR SANDEEP SAHANAN AND SH KRISHAN KUMAR SAHANAN vs MS ANSAL HOUSING AND CONSTRUCTION LIMITED

*HARERA #ouRuGRAM BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGMM Sandeep Sahanan R/o J8l132, Rajouri Garden, New Delhi-L10027 I versus M/s Ansal Housing & Construction Ltd..

Office address: Zna floor, Ansal Plaza, sector-1., Near Vaishali Metro Station, Vaishali, Ghaziabad, Uttar Pradesh-201010.

CORAM: Shri Ashok Sangwan APPEARANCE: Ms.

Priyanka Agarwal (Advocate) Ms.

Meena Hooda (Advocate) ORDER Complaint No.

2397 of2018 Complaint no.: 2397 of 207A Flrst date ofhearing; 27.O3.20L9 Date ofdecision: z2.o3.zoz3 Complainant Respondent Member Complainant Respondent 1.

The present complaint dated 09.01.2019 has been filed by the complainants/allottees under section 31 of the Real Estate fRegulation and DevelopmentJ Act,2076 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2077 {in short, the Rules) for violation of section 11(4)(aJ of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions as provided under the Page 1 of17 HARERA ffi GURUGRAN/ Complaint No.

2397 of 2018 provision of the Act or the Rules and regulations made there under or to the allottee as per the agreement for sale executed infer se.

A.

Unit and proiect related details 2.

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

No.

Particulars Details 7. 'Ansal Heights 86", Sector 86, Gurugram.

2.

Total area of the project 12.843 acres 3.

Group housing colony 4.

DTCP license no.

4B of 2011 dated 29.05.2011 valid upto 28.05.2017 5.

Name oflicensee Resolve Estate Pw, Ltd.

6.

Registered/not registered Not.registered 7.

Unit no.

G-1104 [pg.

18 ofcomplaint] B.

Area ofthe unit 1360 sq;,ft. [pg.

18 ofcomplaint] 9.

Date of execution of buyer's agreement 07.05.2013 [pg.

15 ofcomplaint] 10.

Possession clause 37. clause 37.

The developer shall olfer possession of the unit any time, within a period of 42 months Fom the date oI execution of the qgreement orwithin 42 months Jrom the date of obtaining all the required sanctions and approval necessary for commencement of constructiotl whichever is lqter subiect to timely Page 2 of 17 Nature of the project ffiHARERA ffi GuRucRAr'/ B.

Facts of the complaint 3.

The complainant has pleaded the complaint on the following facts: Complaint No.

2397 oF2018 payment of qll dues by buyer qnd subject to force majeure circumstances as described in clause 32, Further, there shall be a grace period of 6 months allowed to the developer over and above the period of 42 months as above in olfering the possession ofthe uniL" (Emphosis supplied) lpg.

23 ofcomplaintl 11.

Date of start ofconstruction as per customer ledger dated 02J.12078 at pg.

3p of complaint , 01.10.2 013 L2.

Due date ofpossession 01.70.2077 fNote: 42 months from date of start of conitruction i.e.,01.10.2013 being later + 6 rmonths grace period allowed being unquaiified) 13.

Delay in handing over possession till the date of filling of this complaint i.e., 09.01.2019 1 year 3 months 8 days 14.

Total sale consideration as per customer ledger dated 02.LL.2O78 at pg.

32 of complaint < s2,77,278 / - 15.

Total amount paid by the complainant as per customer ledger dated 02.11.2018 at pg.

35 of complaint < 52,28,848 / - 76.

0ffer ofpossession Not offered 77.

0ccupation certificate Not obtained Page 3 of 17 HARERA GURUGRAM Complaint No.

2397 of 2018 a.

That the complainants are a law-abiding citizen and consumer who have been cheated by the malpractices adopted by the respondent is stated to be a builder and is allegedly carrying out real estate development.

Since many years, the complainants being interested in the proiect because it was a housing proiect and the complainant had needed an own home for his family. b. family. b.

That the complainants were subjected to unethical trade practice as well as subject of hari.s-fgreJ,!!,:!,1t buyer agreement clause of escalation cost, many hidde..S.larges which will forcedly imposed on buyer at the time of possession as tactics and practice used by builder guise of a biased, aibitrirylnd one sided.

That the executed builder buyer agreement' between respondent and complainant mentioned in developer's representations, DTCP given the licence 48 of 2011 to Resolved Estate Pvt.

Limited (confirming party -1) this company was transferred his rights to Optus Corona Developers Pvt' Ltd. (confirming party-z) this company was transferred his rights to Samyak Proiects Pvt.

Ltd [confirming party-3J.

At last confirming party -3 makes another arrangementto iointwith respondents those all arrangements create doubt, suspicion, M/S Ansal Housing & Construction Ltd. have legal right to collect money from allotees against the unit no-G-1104, Tower G "Ansal Heights, 85", Gurugram and have legal & valid license to develop this proiect. c.

That the based-on promises and commitment made by the respondent, complainants booked a 2 BHK flat admeasuring 1360 Sq.

F! along with one covered car parking in the unit no.

G-1104, Tower-G in residential project Ansal Heights, 85", Sector 85, Gurugram, Haryana.

The initial booking amount of { 6,43,738/- was Page 4 of 17 ffiHARERA ffiGuRucRAM d.

Complaint No.

2397 of 2018 paid through cheques no-046374 and77663L dated 15.09.2011 and 30.11.2011.

That the respondent to dupe the complainants in their nefarious net even executed flat buyer agreement signed between M/s Ansal Housing & Construction Ltd. and Mr Sandeep Sahanan & Krishen Kumar Sahanan dated 07.05.2013 iust to create a false beliefthat the project shall be completed in time bound manner and in the garb of this agreement persistently railed demands due to which they were able to extract huge amount of money from the complainants. .,;,,,i . .,;,,,i .): '?

That it is pertinent mentioridd lieie that according to the statement the complainant paid a sum ol< 52,96,222/- to the respondent till March 2017 and before this builder was demanded more than 950lo amount without doing appropriate work on the said project, which is illegal and arbitrary.

That as per section 19 (6) the Real Estate (Regulation and Developmentl Act, 2016 (hereinafter referred to as the ActJ complainants have fulfilled his responsibility in regard to making the necessary payments in the manner and within the time specified in the said agreement.

Therefore, the complainants herein are not in breach of any ofits terms of the agreement.

That the complainant is palng EMI on Sanctioned home loan of { 35,00,000/- from Indian Overseas Bank which was taken for bought this flat.

And EMI of I 38,148/- create extra financial burden on complainants.

That complainants have paid all the instalments timely and deposited { 52,96,222 /- thatrespondent in an endeavour to extract money from allottees devised a payment plan under which Page 5 of 17 h. ffi ffi HARERA GURUGRAM Complaint No.

2397 of2018 l. ,. respondent linked more than 35 o/o amount of total paid against as an advance rest 50yo amount linked with the construction of super structure only ofthe total sale consideration to the time lines' which is not depended or co-related to the finishing of flat and internal development of facilities amenities and after taking the same respondent have not bothered to any development on the project till date as a whole prorect not more than 40% and in term ofparticular tower iust built a super strudlrre only Extracted the huge amount and not spend the mone{jljii?ect is illegal and arbitrary and matter of investigation.

That complainants booked€partment dated 30'11'2011 and as per flat buyer agreement builder liable to offer possession on before November 2016 so far.

16 so far.

Still builder committed new date with authority in December 2021 is impractical, unacceptable and he made his escape from the authority's legal action' That as the delivery of the apartment was due on November 2016 which was prior to the coming into offorce ofthe GST Act, 2016 i'e" 01.07.2017, it is submitted that the complainants are not liable to incur additional financial burden of GST due to the delay caused by the respondent.

Therefore, the respondent should pay the GST on behalf of the complainants but just reversed builder collect the GST from complainants and enioy the input credit as a bonus, this is also matter of investigation. k.

That The respondent has indulged in all kinds of tricks and blatant illegality in booking and drafting of FBA with a malicious and fraudulent intention and caused deliberate and intentional huge mental and physical harassment of the complainants and his family Page 6 of 17 *HARERA S aJRTJoRAN/ on builder intention. m.

That keeping in view the inail:triiced work at the construction site and half-hearted promisei ofthi: rdspondent, the chances of getting physical possession of the assured unit in near future seems bleak and that the same is evident of the irresponsible and desultory attitude and conduct of the responden! consequently iniuring the interest ofthe buyers including the complainants who have spent his entire hard earned savings in order to buy this home and stands at a crossroads to nowhere.

The inconsistent and lethargic manner, in which the respondent conducted its business and their lack of commitment in completing the project on time, has caused the complainants great financial and emotional loss.

Relief sought by the complainant: The complainant has sought following reliefs: a.

Direct the respondent to pay delay possession charges at prescribed rate of interest ftom the due date ofpossession till the actual date of handing over of possession.

Complaint No. plaint No.

2397 of2018 and new possession date given by builder also too long from now December 2027 has been rudely and cruelly been dashed the savoured dreams, hopes and expectations of the complainant to the ground and the complainant is eminently justified in seeking return ofthe entire money with interest. l.

That the complainants communicate with respondent and asked for delayed possession respondent show problem of financial crunch other side builder extracted huge amount from complaints and given loan to others, and project development abundant create suspicion lffifl llrrrill C.

4.

Page 7 of 17 HARERA ffieunuonRvt 5. complaint No.

2397 of 2018 D.

On the date of hearing, the authority explained to the respondent/promoter about the contravention as alleged to have been committed in relation to section 11(4J [a) ofthe Act to plead guilty or not to plead guilty.

Reply filed by the resPondent.

The respondent has contested the complaint on the following grounds: a.

That the respondent is a Public Limited Company registered under the Companies Act, Indraprakash, 21 B its registered office at 605, Road, New Delhi-l10001.

The e respondent through its dulY authorized representative namqd Mr.

Vaibhav Chaudhary whose -1r ,i, authority letter is attached -herdwith.

The above said proiect is related to license no.48 of 2011 dated 29.05.2017' received from the Director General, Town & Country Planning, Haryana, Chandigarh IDGTCP) over the land measuring an area of 12 a43 acres falling in the revenue estates of village Tikampura, District Gurugram and is the part ofSector-86 of Gurugram'Manesar Urban Development Plan-2021. b.

That the relief sought in the complaint by the complainant is based on false and frivolous grounds and he is not entitled to any discretionary relief from this hon'ble authority as the person not coming with clean hands may be thrown out without going into the merits of the case. the case.

However, the true facts of the case are that the land under the proiect is owned and possessed by the respondent through its subsidiary M/s Optus Corona Developers Pvt' Ltd. having its registered office atJ-181, Sake!

New Delhi & M/s Samyak Page 8 of17 SHARERA ffiGuRUGRAM Complaint No.

2397 of 2018 Proiect Pvt.

Ltd., having its registered office at 111, first floor, Antrikh Bhawan, K.G Marg & New Delhi. c.

That it is submitted that the complaint is not maintainable and tenable under the eyes of law, as the complainant has not approached the hon'ble authority with clean hands and not disclosed the true and material facts relating to this case of complaint.

The complainant, thus, have approached the hon'ble authority with unclean hands and suppressed and concealed the material facts and proceedings which has direct bearing on the very maintainability of purpoi6d''ibmplaint and if there had been disclosure of these ma proceedings the question of entertaining the presenl coriplaint would have not arising in view of the case law titled as S,P, Chengalvaraya Naidu Vs, Jagan Nath reported in 1994 (l) SCC Page-l, in which the Hon'ble Apex court of the land opined that non-disclosure of material facts and documents amounts to a fraud on not only the opposite party, but also upon the hon'ble authority and subsequently the same view was taken by even Hon'ble National Commission in case titled as Tata Motors Vs, Baba Huzoor Maharal bearing RP No.2562 of 2012 decided on 25.09.2013. d.

That without prejudice to the aforesaid and the rights of the respondent, it is submitted thatthe respondent would have handed over the possession to the complainants within time had there been no force majeure circumstances beyond the control of the respondent, there had been several circumstances which were absolutely beyond and out of control of the respondent such as orders dated 16.07.2012, 31.07.20L2 and 21.08.2012 of the Page 9 of17 ffi ru HARERA GURUGRAM Complaint No. plaint No.

2397 of 2018 Hon'ble Puniab & Haryana High Court duly passed in civil writ petition no.20032 of 2008 through which the shucking/extraction of water was banned which is the backbone of construction process, simultaneously orders at different dates passed by the Hon'ble National Green Tribunal restraining thereby the excavation work causing air quality index being worse' maybe harmful to the public at large without admitting any liability Apart from these the demone.tization is also one of the main factors to delay in giving possession lii th9 home buyers as demonetization caused abrupt. stoppage ofryqrt in many proiects the payments especially to workers to oi{ly by liquid cash' The sudden restriction on withdrawals led the re$ondent to be unable to cope with the Iabour pressure.

However, the respondent is carrying its business in letter and spirit of the agreement as well as in compliance of other local bodies ofHaryana government as well as government of Haryana or the Centre government, as the case may be' Copies of all the documents have been filed and placed on record' The authenticity is not in dispute.

Hence, the complaint can be decided on the basis of theses undisputed documents.

Jurisdiction of the authority The authority observed that it has territorial as well as subiect matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.l.

Territorial iurisdiction As per notification no.

7/92/20L7 -1TCP dated 74.12.2017 issued by Town and Country Planning Department, the iurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all Page 10 of 17 E.

8.

7.

9.

HARERA MGURUGRAM Complaint No.

2397 of 2018 purpose with omces 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 jurisdiction to deal with the present complaint.

E.II.

Subiect matter iurisdiction 10. iction 10.

Section 11(4)[a) of the Act,2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(41[a) is reproduced as hereunder: Section 77(4)(o) section 77 :. 'r'. :ni' ''a.. (4) The promoter shott- (a) be responsible for all obligationt responsibilities and functions under the provisions oJ this Act or the rules ond regulations made thereunder or to the alloftees as per the agreement for sale, or to the ossociation oI allottees, as the case moy be, till the convqrunce ofqll the opartments, plos or buildings, as the case may be, to the allottees, or the common areas to the association of ollottees or the competent outhori6), as the case mqy be; Section 34.Functions ol the AuthoriA.

344 of the Act provides to ensure compliqnce of the obligotions cast upon the promotert the allottees and the reol estqte qgens under this Act qnd the rules and regulotions made thereunder.

11.

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

F.

Findings on the relief sought by the complainant.

F.l, Direct the respondent to pay delay possession charges at prescribed rate of interest from the due date of possession till the actual date ofhanding over ofpossession, Page 11 of 17 ffiffi HARERA GURUGRAM Complaint No.

2397 of2018 12. ln the present complaint, the complainant intends to continue with the project and is seeking delay possession charges interest on the amount paid.

Proviso to section 18 provides that where an allottee does not intend to withdraw from the proiect, he shall be paid, by the promoter' interest for every month of delay, till the handing over of possession' at such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules. the rules. "section 18: - Return oJ amount ond compensation 1B(1).

If the promoter faib/!9/;glg1k? or k unable to give possession of an opartment plot, or buildl"{S;,-,1,'r$ ' """'il"rii'ii"tn* *nrr" o, iti-,1ii"'lo"t not intend to withdraw from the projecl he shatt be paid, by t79 pl9\9ter, interest for every month of delay, ii tne handing over of tlie posiissioa at such rate os may be prescribed." 13.

Clause 31 of the agreement to sell provides for handing over of possession and is reproduced below: "31.

The developer shall offer possession of the unit any time, within a period of 4i months lrom date of execution ol agreement or within 42 monihs lrom the date of obtaining all the required sonctions and apprival necessary for commincement of constructio't, whichiier is later subiect to timely payment of qll the dues by buyer and subject to force-maieure circumstonces as described in clause 32' Furthei, there shalt be a grace period oI 6 months allowed to the ileveloper over and above the period of 42 months as obove in offering the possession of the unit" 14.

At the ouiset, it is relevant to comment on the pre-set possession clause of the agreement wherein the possession has been subiected to all kinds of terms and conditions of this agreement and application, and the complainants not being in default under any provisions of this agreement and compliance with all provisions, formalities and documentation as prescribed by the promoters.

The drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favour ofthe promoter and against the PaEe 12 of 17 *HARERA # arRuGRAr,/ Complaint No.

2397 of2018 allottee that even a single default by the allottee in fulfilling formalities and documentations etc. as prescribed by the promoters may make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning. s meaning.

The incorporation of such clause in the flat buyer agreement by the promoters are iust to evade the liability towards timely delivery of subject unit and to deprive the allottee of his right accruing after delay in possession.

This is just to c:nm:q: 1: to how the builder has misused his dominant position and drafted luch mischievous clause in the agreement and the allottee is l;ft i;iiirlno option but to sign on the dotted lines.

Admissibility of grace peribd: The promoter has proposed to hand over the possession of the apartment within a period of 42 months plus 5 months from date ofagreement or the date ofobtaining all the required sanctions and approval necessary for commencement of construction whichever is later.

The authority calculated due date of possession according to clause 31 of the agreement dated 07.05.2013 i.e., within 42 months from date of start of construction i.e., 01.10.2013 being later.

Since in the present matter the BBA incorporates unqualified reason for grace period/extended period of 6 months in the possession clause subject to force maieure circumstances.

Accordingly, this grace period of 6 months shall be allowed to the promoter at this stage.

15.

Admissibility of delay possession charges at prescribed rate of interest Proviso to section 18 provides that where an allottee does not intend to withdraw from the proiect, he shall be paid, by the promoter, interest for every month of delay, till the handing over of possession, at Page t3 of 17 ffi HARERA ffi,eunuenRl,,t Complaint No.

2397 of 2018 such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules.

Rule 15 has been reproduced as under: "Rule 75.

Prescribed rate of interest' IProviso to section 72, section 78 and sub-section (4) and subsection (7) of section 791 (1) For the purpose of provlso to section 12; section 18;.. tion 18;..and sub' iictions G) and [h of section 19, the "interest at the rate pres$ibed" shall be the Siaie Bank of Indio highest morginal cost of lending rate +2%: Provided thot in case the State Bank ollndia marginal cost oflending rate (MCLR) is not in use, it sholl be reploced by such benchmark -lending rates which the Stote Bonk of India moy fix from time to time for lending to the general public." fO. fhe lJgisiature in its wisdo!!. ill\thq.!u.bordinate legislation under the provision of rule 15 of the rui!$rifrg letermined the prescribed rate of interest.

The rate of interest/so determined by the legislature, is reasonable and if the said rule-is foliola;ed to award the interest, it will ensure uniform practice in all ttie cases.

17.

Consequently, as per website of the State Bank of lndia i.e., https://sbi.co.in. the marginal cost oflending rate (in short, MCLRJ as on date i.e., 22.03.2023 is 8.70%.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2% i.e.,10.700/o.

18.

The definition ofterm 'interest'as defined under section 2(za) ofthe Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: "(za) "interest" means the rates of interest payable by the promoter or the allottee, as the case may be, Explanation, -For the purpose ofthis clause- (i) the rate of Interest chorgeable from the allottee by the promoter, in case of default, shall be equol to the rate oI interest which the promoter shall be liable to pay the allottee, in cose of defaulL (ii) the interest payable by the promoter to the allottee shall be from the date the promoter received the amount or any part thereoftill the dqte the amount or part thereof and interest thereon is refunded and the Page 14 of 17 SHARERA ffiGuRucRAru Complaint No. plaint No.

2397 of2018 interest poysble by the allottee to the promoter shall be from the date the allottee delaults in payment to the promoter till the dqte it is paidi, 19.

Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate i.e., 1r},7|o/o by the respondent/promoter which is the same as is being granted to the complainants in case of delayed possession charges.

20.

On consideration ofthe documents available on record and submissions made regarding contravention of p-rovisions of the Act, the authority is satisfied that the respondent is.ih'dci)rtravention ofthe section 11(4)(a) of the Act by not handing overlossession by the due date as per the agreement.

By virtue of clause ii.dftf," agreement executed between the parties on 07.05.2013, tfr$o33i*$on of the subject apartment was to be delivered wlttrin aZ moir'tli fiom date of start of construction i.e., 01.10.2013 being later.

The period of42 months expired on0I.04.2017.

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

Therefore, the due date of handing over possession is 01.70,2017.

The respondent has not yet offered the possession of the subject apartment.

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

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

As such the allottee shall be paid, by the promoter, interest for every month of delay from due date of possession i.e.,0t.70.2077 till the actual handing over of the possession or offer of possession after receipt of OC plus two months whichever, is earlier, at Page 15 of17 HARERA ffieuRuenRvt Complaint No.

2397 of2018 prescribed rate i.e., 10. i.e., 10.70 % p a' as per proviso to section 18[1) ofthe Act read with rule 15 ofthe rules' G.

Directions of the authoritY 21.

Hence, the authority hereby passes this order and issue the following directions under section 37 of the Act to ensure compliance of obligations casted upon the promoters as per the functions entrusted to the authority under section 34[f]: i.

The resPondent is dire terest at the Prescribed rate of 10.70% p.a. for every mo t delay from the due date ofpossession i.e., 01.10.2017 till the actualhanding over ofthe possession or offer of possession after receipt.ofpC plus two months whichever' The arrears of such interest accrued from 01 10'2017 till the date of order by the authority shall be paid by the promoter to the allottee within a period of 90 days from date of this order and interest for every month of delay shall be paid by the promoter to the allottee before 10ft ofthe subsequent month as per rule 16(2) ofthe rules' The complainants are directed to pay outstanding dues' if any' after ad)ustment ofinterest for the delayed period' The rate of interest chargeable from the allottee by the promoter' in case ofdefault shall be charged at the prescribed rate i 'e',70 '7 0o/oby the respondent/promoter which is the same rate of interest which the promoters shall be liable to paythe allottee, in case ofdefault i e ' the delayed possession charges as per section 2(zal ofthe Act' The respondent shall not charge anything from the complainants which is not the part of the agreement.

However, holding charges shall not be charged by the promoters at any point of time even after Page 16 of17 tI. t1l. tv.

HARERA E GURUGRAM being part ofagreement as per law settled in civil appeal no.

3864-3889 /2020, 22.

Complaint stands disposed of.

23.

File be consigned to registry.

Haryana Real Dated:22.03.2023 Complaint No.

2397 of 2018 by Hon'ble Supreme Court Authority, '., a-t (Ashok PaEe 17 of 17 !