ATUL KUMAR VARSHNEY vs IMPERIA WISHFIELD PVT LTD

ffilAR S cr ror rr BE fA ]comntainrNo..

1768012022& )RAlri I orhers ORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY GURUGRAM Date of decision: 22.02.2023 NAME BUII )F THE DER M/S IMPERIA WISHFIELD PVT.

LTD.

PROJEC I NAME ELVEDOR s.

No. ase No.

Appearance 1 CR/ L7 68 /2022 Biswaranjan Parida V/S M/s Imperia Wishfield Pvt.

Shri Aditya Vijay Kumar Ms.

Antara Mishra 2 cR/ t7 69 /2022 Rajesh Kumar V/S M/s Imperia Wishfield Pvt.

Antara Mishra 3 CR/ 1770/2022 Atul Kumar Varshney V/S M/s Imperia Wishfield Pvt.

Antara Mishra 4 cR/ t77L/2022 Pradeep Kumar V/S M/s Imperia Wishfield Pvt, Ltd.

Antara Mishra CORAM: Shri Asho 1.

This or this a, Develc 28 oft (hereir Sangwan Member ORDER der shall dispose of all the four complaints titled above filed befor rthority under section 31 of the Real Estate (Regulation an pment) Act, 201.6 (hereinafter referred as "the Act"l read with rul re Haryana Real Estate (Regulation and Development) Rules, 201 rafter referred as "the rules"J for violation ofsection 11(4)(a) ofth ) paee t ut. ' 1-- V Complaint No.

1768 of 2022 & others 'e d le 7 te 25 Case title ffiHARERA #,eunueffi Act wherein it is inter alia prescribed that the pro oter shall be responsible for all its obligations, responsibilities and f nctions to the allottees as per the agreement for sale executed inter se b 2.

The core issues emanating from them are similar in een parties. possession of Complaint No.

1 6A of 2022 & ture and the complainant(s] in the above referred matters are allottees of the project, namely, The Elvedor situated at Sector-37 C, Gurugram b ing developed by the same respondent/promoter i.e., M/s lmperia Wis field Pvt.

The terms and conditions of the buyer's agreements fulcr m of the issue the promoter involved in all these cases pertains to.failure on the part o to deliver timely possession ofthe units in question, seekin th it al with delayed 3. delayed 3. e unrr along yed possesston charges.

The details of the complaints, reply status, unit no., date possession clause, due date of possession, total sale consj paid amount, and relief sought are given in the table below of agreement, leration, total Proiect Name and Location "The Elvedor" atsector 37C, Gurga n, Haryana.

Nature of Proiect Proiect area DTCP License No.

Name of Licensee Commercial Proiect 02 acres 47 of 20L2 dated 12/05/2012 va]lid \) M/s Prime IT Solutions Pvt rto 11.05.2016 Ltd.

Rera Registered Not Registered Possession Clause: .

11(a) Schedule for possession ofthe si The company based on its present plans and estimates and sr exceptions endeavors to complete construction of the said bu within a period of sixty(601 months from the date of this ag there shall be delay or failure due to department delay circumstances beyond the power and control ofthe company o conditions including but not limited to reasons mentioned in c 11(c) or due to failure ofthe allottee(s) to pay in time the Total charges and dues/payments mentioned in this agreement or ar id unit bject to all just lding/said unit 'eement unless :r due to any ' Force Majeure ause 11(b) and price and other y failure on the Page? of 25 HAR GURUI RA E;;;;;;; I o*'"" I part o agreer : the allottee to abide by all or any of the terms and conditions of this 1ent, Sr.

No omplai nt No., Case Title, and )ate of iling of omplai nt Unit No.

Unit adm easu ring Date of apartme nt buyer agreem ent Due date of posses sion Total Sale Consider ation / Total Amount paid by the complain ant Relief Sought 1.

E !

R/77 68 2022 iswaran ian Parida t/sM/s mperia rishfield 'vt.

DOF: 9.04.20 )) Reply: 2.70.20 22 0100, Ground Floor, Tower Evita [page no.

64 of complain 0 260. sq. ft.

77.01.20 15 77.07.2 020 TSCr - Rs.29,55,0 38 /- AP: - Rs.11,11,2 73 /- Direct the responde nt to refund the entire amounts deposite d by the complain ant together with the prescribe d rate of interest, 2. terest, 2. ( R/77 69 2022 Rajesh Kumar I/s M/s mperia /ishfield 'vt.

E.011, Ground Floor, Tower Evita (page no.

61 of complain tl 315 sq. ft.

76.L2.20 13 76.72.2 018 TSC: - Rs.32,57,8 44/- AP: Rs.

23,1,3,62+ Direct the responde nt to refund the entire amounts deposite d bv the .l Page 3 of 25 .Y * HARERA ffi,eunuennH,r HARERA Complaint No.

1 of 2022 & DOFr 29.0+.20 22 Reply: 1.2.70.20 22 complain ant together with the prescribe d rate of interest. cR/7770 2022 Atul Kumar Varshney V/s M/s Imperia Wishfield Pvt.

Ltd DOF: 29.0+.20 22 Reply: 14.10.20 22 c 70, Ground Floor, Tower 37th Avenue 315 sq. ft.

77.L2.20 76 (page no.

77.1,2.2 021 (lnadve rtently mentio ned in the TSC: 34,3t AP: - 15,8', Rs.

585 969 Direct the responde nt to refund the entire amounts deposite d by the complain ant together with the prescribe d rate of interest. {( cR/1777 2022 Pradeep Kumar V/S M/s Imperia Wishfield Pvt.

D.O.F: 29.04.20 22 Tower Evita (page no.

98 of complain tl 09.2 t TSC: 46,0 AP: - 14,02 1,02 Direct the responde nt to refund the entire amounts deposite d by the complain ant together with the Page 4 of 25 3.

4.

659 sq. ft.

72.09.20 16 Rs.

605 4.

6.

7. ffiHAR ffieunur RA RA[/ prom execu Complaint No.

1768 of 2022 & others d rate of interest. n the table referred above certain abbreviations have been used. re elaborated as follows: ation Full form tal Sale consideration ount paid by the allottee The a resaid complaints were filed by the complainants against the r on account of violation of the builder buyer's agreement between the parties in respect of said units for not handing over the po along It has compl session by the due date, seeking the physical possession ofthe unit th delayed possession charges. n decided to treat the said complaints as an application for non- /resp autho ance of statutory obligations on the part of the promoter ndent in terms of section 34(0 of the Act which mandates the ity to ensure compliance ofthe obligations cast upon the promoters, the ters, the all regula The fa ttee[s) and the real estate agents under the Acl the rules and the ions made thereunder. simil cR/1 paid b delay Ltd, a being taken into consideration for determining the rights of the allotte Is]. and unit related details Pro, The p culars ofthe project, the details ofsale consideration, the amount of all the complaints filed by the complainant(sl/allottee(sl are Out of the above-mentioned case, the particulars of lead case t/2022 BiswaranJan Parida V/S M/s Imperia Wishfield pvt. the complainantIsJ, date ofproposed handing over the possession, eriod, if any, have been detailed in the following tabular form: Notei They Abbr A. e5of25 HARERA GURUGRAl\/ CR/ 1 7 68/2 0 2 2 Biswaranj an Parida Ltd.

V/S M/s Imperia hfield Pvt.

Complaint No.

1 B of 2022 & Name ofthe project "Elvedor" at sector 3 Haryana C, Gurgaon, Nature ofthe project Commercial Project Project area DTCP license validity status no. and 47 of 2012 dated 72 /05 /2 LL.05.2016 12 valid upto Name oflicensee M/s Prime IT Solutions RERA Registered/ not registered Not registered Unit no.

0100, Ground Floor, Towe (page no.

64 of complaintl Unit area admeasuring 260 sq. ft. (page no.

54 of complaintl Date of builder agreement buyer 77.01.201,5 [page no.

5B of complaint) Due date of possession 77.0t.2020 [calculated as per possessi n clausel Possession clause 11(a) Schedule for poss said unit The company based on its and estimates and subje exceptions endeavors construction of the said ion of the present plans to all just o complete building/said Page 6 of 25 B.

HAR GURU( RA RA[/ [*"-;;;;-] I otr,ers ] p , unit within a period of sixty(60J months from the date of this agreement unless there shall be delay or failure due to department delay or due to any circumstances beyond the power and control of the company or Force Majeure conditions 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 ch d other charges and dues/payments mentioned in this agreement or any failure on the part of the allottee to abide by all or any of the terms and conditions of this agreement. (emphasis supplied) 13.

Iotal sale consideration Rs.29,55,038/- las per the agreement on page no.

54 of complaintl t4.

Amount paid by the romplainants Rs.

11,11,213l- (as per aversions of the complainant) 15.

Jccupation certificate Not obtained 16. )ffer of possession Not offered Facts Thr 7.

That 0467 t shop v later u f the complaint complainant has made the following submissions in the complaint: he complainant vide an application form bearing number IWF-R- ated L2.11.2012, applied for the allotment of a commercial retail 'hich previously had a super built up area of 421sq. ft. which was rilaterally changed to 260 sq. ft. in the project named "Elvedor". \.'- '^'' *' *HARERA S- eTuennrvr 18.

That after 25 months from the receipt of the welco respondent provided the retail buyer,s agreement (hereina as "buyer's agreement") vide a letter dated 17.01.2015.

Th agreement records his payments of Rs.

11,11,213/- towar ofthe unit.

In respect ofthe Elvedor proiect, it was being land admeasuring 2 acres [16 Kanals) situated in the r Garauli Khurd, Tehsil and District Gurgaon in Section (hereinafter referred to as "2 Acre Land").

In the 2-acr represented that the said land was owned in part by one Mr.

Amar Singh and in the other part by M/s prime IT Sol Limited.

Owners of the 2 Acre Land had entered into a agreement and general power of attorneys in favor of Solutions Private Limited (hereinafter referred to as ,,prime Prime IT Solutions subsequently applied for and purporte license from DTCP, Haryana bearing No.

47 of 2072 dated respect of the project land, Subsequently, prime IT Solutio collaboration with the Respondent pursuant to which th being implemented.

However, actually no registered agreement was executed.

It was further represented tha plans had also been approved on 24.05. on 24.05.2011and based on s the respondent was competent and entitled to execute the 19.

That the project had remained stalled for 9 years, th accordingly made several requests to the respondent a throw some light on the actual status of the construction vide emails dared 1,2.02 .201.9 and 1,4.03.2020 but the resp provide any response Complaint No.

1 e letter, the r referred to retail buyer's the booking structed on a nue estate of 37C, Gurgaon land, it was Devi Ram, S/o tions Private collaboration /s Prime IT Solutions"). ly obtained a 12.05.2012 in s entered into proiect was collaboration development ch approvals, roject. complainant king them to f the proiect, ndent did not Page B of 25 HAR RA Complaint No.

7768 of 2022 & others sD cr rDi r 20.

That the p assu be ha 21.

That respo any d would respo comm the construction activity of the project did not even start till Nove ber 2021, the complainant again issued an email date d 09.71.2027 and for the status of the construction activity of the project and as tow n the same would starL Vide email dated 11.11.2021, the n vide an email dated 21.05.2020 enquired about the status of ject.

Finally, the respondent vide an email dated 2L.OS.2OZ0, the complainant that the possession ofthe commercial unit would ded over by end of 2021. dent provided an evading and vague response and did not provide for the starting of the proiect, but merely stated that the proiect be completed by end of 2022.

This led to the complainant again ding to the email and specifically asking that the date of ncement of construction work.

However, the respondent did not ny email in response to the complainant's email.

The complainant ide email dated 24.77.2021stated that the construction work had n resumed by the respondent. en after expiry of 9 years from the date of booking, till date only a ntary structure of one out of the several buildings forming part of iect was erected on the project land which is incapable of ion. le of ion.

Hence, the present complaint is being filed seeking the refund onsideration paid by them along with interest at the prescribed date of filing ofthe instant complaint. sought by the complainant: - mplainant has sought following relief(s): irect the respondent to refund the entire amounts deposited by the issue again not be 22.

That rudim the p posse of the rate ti C.

Relie 23.

The I. omplainant together with the prescribed rate of interest.

Page 9 of25 24.

On the date of hearing, the authority explained to th promoter about the contraventions as alleged to have bee relation to section 11( l (a) ofthe act to plead guilty or not D.

Reply by the respondent The respondent has contested the complaint on the followin 25.

That unit no.

E-0100 admeasuring 260 sq. ft. in tower- E the said commercial project, which had been allotted to by the respondent company,fon.a:total consideration 31,38,435/-, vide allotment letter/ retail buyer agr 19.01.2015 on the terms and conditions mutually agreed b 26.

The said project is a commercial project being developed land situated at Sector 37-C, Gurugram, Haryana and com and studio apartments.

The foundation of the said proi joint venture agreement executed between M/s prime IT Ltd. and Imperia Structure Pvt.

Ltd. lying down the transa for the project and for creation of SPV company, named "lmperia Wishfield Pvt.

Ltd.".

Later, collaboration agr 06.12.201,2 as executed between M/s Prime IT Solutions p (on one partJ and M/s tmperia Wishfield pvt.

Ltd. (on the terms of the said collaboration agreement, the second pa Wishfield Pvt.

Ltd was legally liable to undertake con development ofthe project at its own costs, expenses and manner it deems fit and proper without any obstruction an from any other party.

The referred collaboration agree signed by representative of M/s Prime IT Solutions priva Imperia Wishfield Pvt.

Suffice to mention here that o Page 10 of25 Complaint No.

L 68 of 2022 & respondent/ committed in plead guilty. ad guilty. grounds. ta situated in complainant mount of Rs. ement dated the parties. n two acres of rises of retail vests on the Solutions Pvt. ion structure and stvled as ement dated vate Limited cond part).

In i.e., Imperia truction and ources in the interference ent has been Limited and the relevant HARERA GURUGRAN/ HAR RA Complaint No.

1768 of 2022 & others GUR RAN/ date i. ., 06.12.2012 on which the collaboration agreement was signed, there Soluti 27.

That in the compl lncorp office Delhi- Gener and based 28.

That Priva Ltd.

Depa menti ned that "Prime IT Solutions Private Limited", a company re common directors in both these companies i.e., in M/s prime IT ns Private Limited and M/s Imperia Wishfield pvt.

Ltd. clear reference ofthe said collaboration agreement has been given aid allotment letter/ retail buyer agreement executed between the inant and the respondent.

In the said agreement it is distinctly rated under the provisions ofCompanies Act, having its registered t B-33, First Floor, Shivalik Colony (Near Malviya Nagar), New 10017, has been granted licence No.

47 /2072 by rhe Director l, Town and Country Planning, Haryana in respect of project land respondent company is undertaking implementation of project n the basis of said collaboration agreement. n the above collaboration agreement, M/s Prime IT Solutions Limited represented and confirmed to the Imperia Wishfield pvt. at it has already obtained Letter of Intent ("L01") from the ent of Town and Country Planning, Government of Haryana on g plans ofthe said project being developed under above mentioned no.

47 of 20LZ were approved on 25.06.2013.

It is pertinent to n here that even before the execution date of above referred ration agreement between M/s Prime IT Solutions private Limited 24.05.

011 and subsequent license from the Department of Town and Coun Planning, Government of Haryana as necessary for setting up a rcial project on the land admeasuring 2. asuring 2.00 acres in the revenue fVillage Gadoli Khurd, Sector 37 C, Gurugram on 1,?.05.201,2 along e Zoning Plan. (License No.

47 of 2012, dated 12.05.2012).

The comm estate with buildi licens, menti collab Page 11 of 25 SHARERA ffi eunuennM and Imperia Wishfield Pvt.

Ltd., both these companies same management and directors.

29.

Further, it is also relevant to mention here that in terms dated 12.01.2015 a decree sheet was prepared on 21.01 titled M/s Prime IT Solutions PvL Ltd.

Vs Devi Ram & Im Pvt.

As per this compromise, both M/s Imperia Wishfie M/s Prime IT Solutions Pvt.

Ltd. apart from other points, collective decision for the implementation of the proiect a related to the pro,ect would be jointly incurred by both the dedicated project account which would be in the name Wishfield Limited Elvedor Account." 30.

That the said project suffered a setback on account of non- aforesaid JV Partner Le.

Prime lT Solutions private Limite ofthe collections received from the allottees of the project h away by said JV partner.

31.

That for the proper adjudication ofthe present complaint, that M/s Prime IT Solutions Pvt.

Ltd. be arrayed as a neces coercive order passed without hearing the said necessary cause grave prejudice to the answering respondent's righ also in contrary to admitted understanding between contained in the decree dated 21.01.2016.

32.

It was submitted that in clause 11.(a), it is mentioned and the complainant as under: "11, (a) SCflEDULE FOR POSSESSION OF THE SAID UNrTt The Company based on its present plans ond estimates and su to all just exceptions endeovors to complete construction ofthe building/Soid Unit within a period of sixty (60) months fro date ofthis agreement unless there shall be deloy or foilure d Page 12 of 25 Complaint No.

1 68 of 2022 & ere under the f compromise 016 in a suit eria Wishfield d Pvt.

Ltd. and greed to take d all expenses parties from "M/s Imperia operation by as maior part ve been taken it is necessary ry party. ry party.

Any arty is clearly and same is e parties as uly agreed by iect aid the to HAR RA Complaint No.

1768 of 2022 & others RANI epqrtment delay or due to qny circunstqnces beyond the power nd control of the Compqny or force mqjure conditions including but ot limited to reosons mentioned in clouse 11(b) qnd 11(c) or due to 'ailures of the Allotke(s) to pay in time the Total price and other harges and dues/payments mentioned in this Agreement or ony ilure on the pqrt of the Allottee(s) to abide by olt or any of the rms and conditions ofthis AgreemenL ln case there is ony delay on e part of the Allottee(s) in moking of poyments to the Company on notwithstanding rights avoiloble to the Company elsewhere in is contract, the periodfor implementqtion of the project sholl atso extencled by a spon of time equivalent to eoch deloy on the part tf the Allottee(s) Compony".

33.

In vi w of the above said, the iespondent company had intended to compl te the construction of the allotted unit on time.

It is pertinent to menti n that the respondent company had successfully completed the civil rk of the said tower/proiect, and the finishing wor( MEP work is remal ing ofthese towers, which is going on and the respondent company is willi to complete the same within next six to twelve months of period.

Howe force 34.

That grant posse the m coerct 35.

That, the re health condit ion related er, the delay in handing over the project has occurred due to certain ajeure circumstance, inter alia includes the covid-19. view of the above stated the respondent company requested for f 12 months' time o complete the said project enabling us to initiate activities within this extended period of one year.

In anwhile, the respondent company requests you to not pass any e monetary orders in this period. is period. t is relevant to mention herein that several allottees have withheld ining payments, which is further severally affecting the financial of the respondent company and further due to the force majeure ons and circumstances/reasons, which were beyond the control of the pondent company as mentioned herein below, the construction ot delayed at the said proiect.

Both the parties i.e. the complainant I Page l3 ol25 ,/\' lt' U works ffiHARERA #-eunuennvr as well as the respondent company had contemplated at stage while signing the allotment letter/agreement that so have occurred in future and that is why under the force ma mentioned in the allotment letter, it is duly agreed by the co the respondent company shall not be liable to perform a obligations during the subsistence ofany force majeure cir the time period required for performance ofits obligations stand extended. lt is unequivocally agreed between the co the respondent company that the respondent company extension of time for delivery of qhe said unit on account o circumstances beyond the control of the respondent comp alia, some of them are mentioned herein below: [i) That, the respondent company started construction project land after obtaining all necessary sancti clearances from different state/central agencies/auth getting building plan approved from the authority [all prime it) and named the project as "Elvedor Retail." company had received applications for booking of a said project by various customers and on their respondent company allotted the under-constructio units to them. (iD It is a well-known fact that there is extreme shortage o of Haryana and the construction was directly affected of water.

Further the Hon'ble Punjab and Haryana Hig Order dated 15.07.2012 in CWP No.

20032 of2009 dire treated water from available Sewerage Treatment pla referred to as "STP").

As the availability ofSTP, basic inf Complaint No. plaint No.

17 B of 2022 & e very initial e delay might eure clause as plainant that y or all of its mstances and hall inevitably plainant and is entitled to force majeure y and inter- over the said ns/approvals/ rities and after in the name of he respondent rtments in the requests, the apartments/ water in State y the shortage Court vide an to use onlv ts (hereinafter astructure and Page 14 of 25 HAR RA GURU a r (ii0 T H b b Complaint No.

1768 of 2022 & others G rgaon District, it was becoming difficult to timely schedule the nstruction activities.

The availability of treated water to be used at nstruction site was thus very limited and against the total uirement of water, only 10-150/o of required quantity was available a construction sites. ailability of water from STP was very limited in comparison to the uirement of water in the ongoing constructions activities in at, owing to unprecedented air pollution levels in Delhi NCR, the n'ble Supreme Court ordered a ban on construction activities in the rkflow.

The orders already placed on record before this Hon'ble on from November 4,2019, onwards, which was a blow to realty lopers in the city.

The Air Quality Index (AelJ at the rime was ning above 900, which is considered severely unsafe for the city d d ellers.

Following the Central Pollution Control Board (CpCBl laring the AQI levels as not severe, the SC lifted the bar ditionally on December 9,201.9 allowing construction activities to carried out between 6 am and 6 pm, and the complete ban was lifted the Hon'ble Supreme Court on 14th February, 202 0. (iv) M reover, it is also pertinent to mention here that every year the struction work was stopped / banned / stayed due to serious air ution during winter session by the Hon'ble National Green Tribunal T), and after banned / stayed the material, manpower and flow of work has been disturbed / distressed. istressed.

Every year the respondent p rh ( c pany had to manage and rearrange for the same and it almost Itiplied the time of banned / stayed period to achieve the previous m ch. \, Yasesorzs tr HARERA #-eunuennnt (vJ That, when the complete ban was lifted on 14th Febru Hon'ble Supreme Court, the Government of India i Lockdown on 24th of March, 2020 due to pandemic conditionally unlocked it in 3rd May, 2020, However, great impact on the Procurement of material and Lab lockdown in effect since March 24, which was further May 3 and subsequently to May 17, led to a reverse workers leaving cities to return back to their villages that around 6lakh workers walked to their villages, lakh workers are stuck in relief camps.

The aftermath post lockdown periods has left great impact and scars resuming the fast-paced construction for achieving the as agreed under the "Allotment Letter." (viJ The real estate sector so far has remained the w demonetization as most of the transactions that take p cash.

The sudden ban on Rs 500 and Rs 1000 curr resulted in a situation of limited or no cash in the mar in real estate assets.

This has subsequently transla fall in housing demand across all budget categorie uniqueness as an economic event, demonetization confusion, uncertainty and, most ofall, - especially wh realty sector.

No doubt, everyone was affected by this and initially all possible economic activities slowed extent, which also affected the respondent company be it daily wage disbursement to procuring construction, and day-to-day activities, since constru lot of cash payment/transactions at site for several act Page 16 of 25 Complaint No.

1 B of 2022 & ry 2020 by the osed National COVID-19, and is has left the ,ur.

The 40-day extended up to migration with It is estimated and around 10 of Iockdown or n the sector for timely delivery rst hit by the ace happen via ncy notes has t to be parked into an abrupt , Owing to its ought a lot of n it came to the dical measure, own to a larg to a large a great extent, nds for daily tion involves a vities.

HAR RA C a U T fr t GUR [vii) RA[/ at initially, after obtaining the requisite sanctions and approvals m the concerned Authorities, the respondent company had menced construction work and arranged for the necessary the control of the respondent company, it was extremely ry to extend the intended date ofoffer ofpossession mentioned in the all tment letter.

1768 of 2022 & others ln astructure including labour, plants and machinery, etc.

However, si ce the construction work was hated and could not be carried on in planned manner due to the force majeure circumstances detailed ve, the said infrastructure could not be utilized and the labour was o left to idle resulting in mounting expenses, without there being progress in the construction work.

Further, most of the truction material, whiih was purchased in advance, got ted/deteriorated causing huge monetary losses.

Even the plants machineries, which were arranged for the timely completion of the struction work, got degenerated, resulting into losses to the pondent company running into crores ofrupees. ing to the above said force majeure circumstances and reasons re 36.

That, beyon nece 37.

Copie record decide by the of all the relevant documents have been filed and placed on the Their authenticity is not in dispute.

Hence, the complaint can be on the basis ofthese undisputed documents and submission made arties.

E.

Jurisd n of the authority 38.

The thority observes that it has territorial as well as subiect matter adjudicate the present complaint for the reasons given jurisdi below. ion to )n''^'u''' o'" HARERA P*GURUGRAN/ E.I Territorial iurisdiction 39.

As per notification no.

1/92/2077-7TCp dated 74.72.2 Town and Country Planning Departmen! the ,urisdiction Regulatory Authority, Gurugram shall be entire Gurugram purpose with offices situated in Gurugram.

Gurugram.

In the present in question is situated within the planning area of Gur Therefore, this authority has complete territorial jurisdicti the present complaint.

E.ll Subiect matter 40.

Section 11(aJ(a) of the Act, 2016 provides responsible to the allottee as per agreement reproduced as hereunder: Section 17 (4) The promoter shall- (o) be responsible for all obligotions, responsibilities and under the provisions of this Act or the rules and regulatio thereunder or to the allottees qs per the agreement for sale, ossociation ofallottees, qs the case may be, till the conveyonce aportments, plots or buildings, os the cose moy be, to the all common oreos to the ossociqtion ofallottees or the competent a os the case mqy be; Section 34-Functions of the Authority: 344 of the Act provides to ensure compliance of the obliga upon the promoters, the allottees and the real estate agents u Actond the rules and regulotions made thereunder.

41.

So, in view of the provisions of the Act quoted above, th complete jurisdiction to decide the complaint regarding of obligations by the promoter leaving aside compensation decided by the adjudicating officer ifpursued by the compl stage.

Page 18 of25 Complaint No.

1 B of 2022 & that the pro for sale.

Se 17 issued bv of Real Estate District for all , the project gram District. n to dealwith oter shall be n 11(4J(aJ is nctions made to the s, or the ,f oll the thority, s cost der this authority has n-compliance which is to be nant at a later ffi HAR S- eunu, F.l Obie party.

42.

Whil respo asap joint v Pvt.

L them. proce cost. of bo also gi vlew respo pleas menti compl 06.t2. would the pa The fa in the Soluti paym respo RA Complaint No.

1768 of 2022 & others RA[/ n regarding non ioinder ofM/s Prime IT Solutions PW.

Ltd. as a filing written reply on 72.70.2022, a specific plea was taken by the dent with regard to non-joining of M/s Prime IT Solutions pvt.

Ltd. 'ty in the complaint. complaint.

It is pleaded by the respondent that there was nture agreement executed between it and M/s Prime IT Solutions ., leading to collaboration agreement dated 06.L2.2072 between On the basis of that agreemenl the respondent undertook to with the construction and development of the project at its own oreover, even on the date of collaboration agreement the directors the companies were common.

A reference to that agreement was en in the letter of allotment as well as buyers agreement.

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

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

But the dvanced in this regard are devoid of merit.

No doubt there is n to that collaboration agreement in the buyer's agreement but the inant allottee was not a party to that document executed on 012. lf the IT Solutions would have been a necessary party, then it ave been a signatory to the buyer's agreement executed between ies on 17.01.2015 i.e., after signing of collaboration agreement. m of merely mentioning with regard to collaboration agreement uyer's agreement does not ipso facto shows that M/S Prime IT ns Pvt.

Ltd. should have been added as a respondent.

Moreover, the ts against the allotted units were received by the dent/builder.

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

Ltd. as a respondent be sai Page 19 of 25 Complaint No.

1 B of 2022 & HARERA P* GURUGRAIV 43.

The respondent-promoter has raised the contenti]on that the construction of the tower in which the un it of the complainbnt is situated, has been delayed due to force majeure clrcumstances such {s orders ofthe NGT, High Court and Supreme Court, demonetisation, govd. schemes and non-payment of instalment by different allottee of the prolect but all the pleas advanced in this regard are devoid of merit.

Fifst of all, the possession of the unit in question was to be offered by 17.0 [.2020. .0 [.2020.

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

Moreover, .or" ff the events mentioned above are of routine in nature happening an{ually and the promoter is required to take the same into consideration \^,1hile launching the project.

Thus, the promoter respondent cannot be givefr any leniency on based ofaforesaid reasons and it is well settled princlpl{ that a person was must and the authority can proceed in its absence ln view of the provision contained in Order 1 Rules 4 (b) and 9 ofCode of Clivil procedure, 19 08.

F.ll Obiection regarding force maieure conditions: cannot take benefit of his own wrong.

G.

Entitlement ofthe complainant for refund: same is reproduced below for ready reference: "Section 78: - Return of amount and compensation (iJ Dlrect the responileht to refund the entire amounts de$osited by the complainant together with the prescribed rate of interdst.

44.

In the present complaint, the complainant intends to withlraw from the proiect and is seeking return of rhe amount paid W tn"n| in respect of subiect unit along with interest as per section 18(f) of tle Act and the Page 20 of 25 ffi HAR ffi ctlRrx til 45.

Claus handi 46.

The situat flat bu per p the u agree h RA Complaint No.

1768 of 2022 & others RAN/ 1, ol (' 1). lf the pronoter foils to complete or is unable to give possession ofan rtment, plot or building.- in occordonce with the terms of the agreement for sole or, as the cose may be, duly completed by the date specifred therein; or due to discontinuance of his business as o developer on account of suspensior or revocation of the registrotion under this Act or for any other reason, shall be liable on demand ta the allottees, in case the allottee wishes withdrow from the project, without prejudice to ony other remedy iloble, to return the qmount received by him in respect of thot rtment, plot, building, as the case mqy be, with interest ot such as mqy be prescribed in scribed in this beholf including compensation in the m nner as provided under this Act: vided that where an ollottee does not intend to v,)ithdrow from the tject, he sholl be paid, by the promotcr, interest for every month ofdelot, the honding over ofthe possession, at such rate as may be prescribed." (Emphosis supplied) 11 (a) of the buyer's agreement provides the time period of over possession and the same is reproduced below: 1(a) Schedule for possession of the sqid unit compony bosed on its present plans qnd estimates and subject to I just exceptions endeavours to complete construction of the said ilding/said unit within a pertod of six,tt(60) months from the ,te of this qgreement unless there shall be delay or t'ailure due to partment delqy or due to any circumstonces beyond the power ond trolofthe company or Force Mojeure conditions including but not ited to reosons mentioned in clause 11A) and 11(c) or due to ilure of the allottee(s) to pay in time the Total price and other rges ancl dues/pqyments mentioned in this agreement or ony ilure on the part of the allottee to obide by all or any of the terms d conditions ofthis qgreement. mplainant had booked the unit in the project named as "Elvedor" at Sector 37-C for a total sale consideration ofRs.

29,5 5,038/-.

The er agreement was executed betlveen the parties on 17.01.2015.

As session clause L1 (a) of the buyer's agreement, the possession of it was to be handed over within 60 months from the date of ent (17.01.2015).

The due date for handing over of possession to ov COMCS ut to be 17.01.2020. k pacezrorzs ff HARERA ffieunuennH,r under: 47.

The occupation certificate/completion certificate of the prJject where the unit is situated has still not treen obtalned by the responlent-promoter.

The authority is of the view that the allottee cannot be exbected to wait endlessly for taking possession of the allotted unit and fol which he has paid a considerable amount towards the sale considelation and as observed by Hon ved by Hon'ble Supreme Court of lndia in lreo Grace Realtech pvt.

Vs.

Abhishek Khanna & Ors., civil appeal no.

5785 of 2019, decided on 11.01.2021. '.....The occupa!ion certifrcote is not avoiloble even as on dfite, which cleorly omounLs to deficlengl ofservrce.

The ollottees conhot be made to wait indefrnitely for possession of the apartm{nts allotted to them, nor can they be bound to toke the apartmentl in Phase I of the project.......

48.

Further in the judgement of the Hon'ble Supreme Court ff India in the cases of Newtech Promoters and Developers private Lirhited Vs State of U.P. and Ors.2021,-2022(1) RCR (c ), 357 reiterated fn case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLp (Civil) No.

13005 of 2020 decided on L2.05.2022, it waf observed as ''25.

The unqualifted right of the alto ee to seek refund reflrred Under Section 18(1)(o) ond Section 19(4) ofthe Act is not depen/ent on ony contingencies or stipulotions thereof. lt oppears thol the legislature hos consciously provided this right ofrefund on der./,and os on unconditionol obsolute righl to the allottee, if the prodoter fails lo give possession of the opqrtmenl, ptot or buildmg withih he tme stipuloted under the terms of the ogreement regardtets oJ unloreseen events or slay orders oI the Court/Tribunal, which is in eiLher way not ottributoble to lhe ollottee/home buyer, the promoter is under on obligotion to refund the amount on derlond wilh interest at the rate prescribed by the Stote Governrlent including compensotion in the monner provided under Lhe Actlrih the proviso that if the ollottee does not wish to withdraw lronl Lhe project, he sholl be entitled lor interest for the period oI delot lt honding over possession ot the rote prescribed.' Complaint No.

1768 of 2022 & PaEe 22 of 25 ffiHAR #- cllRll 49.

The functi regul unabl agree Accor withd availa intere 50.

This includ adjud 72 51.

Admi sectio allo of the intere has b RA RAM Complaint No. plaint No.

1768 of 2022 & others u nder romoter is responsible for all obligations, responsibilities, and ns under the provisions of the Act of 2016, or the rules and ions made thereunder or to the allottee as per agreement for sale ection 11(4)(a) ofthe Act.

The promoter has failed to complete or to give possession of the unit in accordance with the terms of ent for sale or duly completed by the date specified therein. ingly, the promoter is liable to the allottee, as the allottee wishes to w from the pro.iect, without prejudice to any other remedy le, to return the amount reaeived by him in respect ofthe unit with t at such rate as may be prescribed. without preludice to any other remedy available to the allottee g compensation for which allottee may file an application for ng compensation with the adjudicating officer under sections 71 & with section 31(1) of the Act of 2016. sibility of refund along with prescribed rate of interest: 'l.he 18 ofthe Act read with rule 15 ofthe rules provide that in case the intends to withdraw from the project, the respondent shall refund mount paid by the allottee in respect of the subject unit with at prescribed rate as provided under rule 15 ofthe rules.

Rule 15 n reproduced as under: 15.

Ptescribed rute oI intercst- [ptoviso to section 12, section lB ond b-section (4) ond subsection (7) ol section l9l 1) Fot the purpose ol ptoviso to section 72; section 78; ond sub-sections '4) ond (7) ol section 19, the "interest ot the rote presc bed,, sholl be the qte Bonk of lndio highest moqinol cost of lending rote +2%.: rovided thot in cose the Stote Bonk of tndio morginol cost of lending rote MCLR) is not in use, it sholl be rcploced by such benchnork lending rotes ich the Stote Bonk of lndio moy fix lrcm time to time for lending to the enerolpublic." Page 23 of 25 ffi HARERA ffieunuenaHr 52.

The legislature in its wisdom in the subordinate legisla provision of rule 15 of the rules, has determined the pre interest. interest.

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

53.

Consequently, as per website of the State Bank https://sbi.co.in, the marginal cost of lending rate Iin sho date i.e.,22.02.2023 is 8.70o/o.

Accordingly, the prescribed will be marginal cost of lending rate +20/o i.e., 10.70o/0.

54.

The authority hereby directs the promoter to return the a by him i.e., Rs.

1,1,1,1,213 /- with interest at the rate of 10.

H.

Bank of India highest marginal cost df lending rate (MCL on date +2yo) as prescribed under rule 15 of the Harya (Regulation and Development) Rules, 2017 from the date o till the actual date of refund of the amount within the tim in rule 16 ofthe Rules ibid.

Directions of the authority 55.

Hence, the authority hereby passes this order and issue directions under section 37 of the Act to ensure complianc cast upon the promoter as per the function entrusted under section 34(fl: The respondent/promoter is directed to refund the of 64,14,904/- respectively paid by the complain four complaints) along with prescribed rate of inte p.a. as prescribed under rule 15 of the Haryan PaEe 24 of 25 Complaint No.

1 68 of 2022 & on under the cribed rate of legislature, is nterest, it will of lndia i.e., MCLR) as on ate of interest ount received 0olo (the State applicable as Real Estate each payment ines provided the following of obligations the authority ntire amount ts (in all the est @ 10.70% Real Estate ffi HAR ffi eunui RA Complaint No.

1768 of 2022 & others IRegulation & Development) Rules, 2017 from the date of each payment till the 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. ecision shall mutatis mutandis apply to cases mentioned in para 3 57.

The mplaints stand 58.

Files consigned to regi 56.

This ofthis HARERA GURUGRAI -tr\.

GRAI -tr\.t a I PaEe 25 ofZs Haryana Real Estate Regulatory Authority, Datedt 22 .02 .2023