DURGA DAS BHATLA AND SAKSHI BHATLA vs RAMPRASTHA PROMOTERS & DEVELOPERS PVT. LTD.

ffHARER^ ffi eunuenevr Complaint no. : First date ofhearing; Date of decision: 1.

Mr.

Durga Das Bhatla 2.

Mrs.

Sakshi Bhatla Both RR/o: - H.

No.

1.5, Saraswati Kunj, Near Vatika Tower, Gurugram- 1,22002 Versus 1.

M/s Ramprashtha Promoters and Developers private Limited.

2.

M/s Bluebell Proptech Privare Limited Both having Regd.

Office at: Plot No.

114, Sector-44, Gurugram-122002 Also, At: - C-10, C Block Market, Vasant Vihar, New Delhi- 110057 CORAM: Shri Ashok Sangwan APPEARANCE: Sh.

Venket Rao (Advocate) Ms.

Gayatri Mansa None ORDER 1.

The present complaint dated 24.03.2022 has been filed by the complainant/allottees under section 31 ofthe Real Estate (Regulation and DevelopmentJ Act, 20\6 (in short, rhe Act) read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 (in short, the Rules) for violation of section 11(4J(a) of the Act wherein it is infer Complaint No.

1190 of 2022 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM ll90 of 2022 15.07.2022 22.02.2023 Complainants Respondents Member Complainants Respondent no.

1 Respondent no.

2 Page 1 ot 34 k *HARERA # eunuennnr Complaint No.

1190 of 2022 alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the Act or the Rules and regulations made thereunder or to the allottees as per the agreement for sale executed lnfer se.

A.

Unit and proiect related details 2.

The particulars ofunit details, sale consideration, the amount paid by the complainants, date ofproposed handing over the possession, delay period, if any, have been detailed in the following tabular form: s.

N.

Particulars Details 1.

Name of the project "Skyz", Sector 37C, Village Gadauli Kalan, Gurugram 2.

Project area 60.5112 acres 3.

Registered area 102000 sq. mt.

4.

Nature of the project Group housing complex 5.

DTCP license no. and validity status 33 0f 2008 dated 19.02.2008 valid upto 18.02.2 025 6.

2.2 025 6.

Name of licensee Ramprastha Builders Pvt Ltd and 11 others 7.

Date of approval of building plans 12.04.20L2 [As per information obtained by planning branchl Date of environment clearances 21.0t.201.0 [As per information obtained by planning branch] Page 2 of 34 + S HARERi #, arnuennrvr F"n,l!hi, N".

1rrfi,0rf 9.

RERA Registered/ not registered Registered vide no.

320 of 2017 dated 77 .1o.20t7 10.

RERA registration valid up to 31.03.2019 11.

Extension applied on 26.03.2019 12.

Extension certificate no.

Date Validity HAREM/GGM/REP /RC/320/2017/ EXT/722/2019 tn principal approval on 72.06.2019 30.o3.2020 i 13.

Unit no.

E-703, 7'h floor, tower/block- E (Page no.

42 of the complaint] L4.

Unit area admeasuring 1750 sq. ft. fPage no.

42 of the complaint) 15.

Allotment letter 24.09.20-1L (Page no.71 ofthe complaint) 16.

Date of execution of apartment buyer agreement 21,.09.2071 (Page no.

38 of the complaint) '1,7 .

Date of application for allotment 06.08.2011 18.

Possession clause 15.

POSSESSION [a) Time of handing over the Possession Subject to terms ofthis clause and subiect to the Allottee having complied with all the terms and Page 3 of34 ry& HARER.

GURUGRAM F",r,philr, N"l1roorr0, I condition of this Agreement and the Application, and not being in default under any of the provisions of this Agreement and compliance with all provisions, formalities, documentation etc., as prescribed by MMPITAS'IHA.

RAMPRASTHA proposed to hand oyer the possession of the Apartment by 31.O8.2014 the Allottee agrees and understqnds that MMPRASTHA shall be entitled to q grace period of hundred and twenty days [120) days,for applying qnd obtaining the occupation certifrcqte in respect of the Group Housing Complex.

IEmphasis supplied) (Page no.

52 of the complaint) 79.

Due date of possession 37.08.20L4 [As per mentioned in the buyer's agreement] 20.

Grace period Not utilized 21.

Total sale consideration Rs.71,87 ,959 /- (As per schedule of payment page 69 ofthe complaintl 22. laintl 22.

Amount paid by the complainants Rs.63,44,97A/- (As per receipt information page no.

32 to 34 and 74 to 86 of the complaint) ) Pase 4 ot 34 v- 23. occupation certificate /Completion certificate Not received 24.

Offer of possession Not offered 25.

Delay in handing over the possession till date of filing complaint i.e., 24.03.2022 7 years 6 months and 24 days B.

3. ffiHARER #-eunuennH,r Complaint No.

7790 of 2022 Facts ofthe complaint The complainants have made the following submissions: - I.

That the real estate proiect "Skyz" situated at Sector 37D, Gurgaon Manesar Urban Complex, Gurugram (Haryanal came to the knowledge of complainants, through the authorized marketing representatives of the respondents.

They approached the complainants for and on behalf of respondents, making tall claims in regard to the project and lured them to book a unit in the aforesaid project.

II.

That on 06.08.2011, the complainants based on representations and warranties made by or on behalf of respondents booked a unit bearing no.

E-703, admeasuring super area of 1750 sq. ft. at total sale consideration at Rs.7 LA7 ,959 /-.

III.

That the complainants paid an amount of Rs.2,00,000/- Rs.4,01,,346/- and Rs.4,51,010/- vide cheques no.856508,856510 and 184683 on 06.08.2011, 18.08.2011 and 08.09.2011 respectively in favour of respondent/promoter and the same was acknowledged.

Page 5 of34 ffi& IV, Complaint No.

1190 of 2022 vt.

HARER,I, GUl?UGRANI Thereafter, a builder buyer agreement was executed between the parties on 21.09.2017.

That as per clause 15 of BBA, the respondents were under an obligation to complete the construction of the apartment handed over by 31.08.2014.

The total consideration ofthe booked unit of complainants was agreed to be Rs.71,87,959/-.

It was assured by the respondents that they would provide them with exclusive right to use one car parking space and undivided proportionate share in the footprint along with the booked unit. oked unit.

It was also further agreed that the respondents would be entitled to a maximum of grace period of 120 days for applying and obtaining the occupation certifi cate.

That after repetitive following, the respondent/promoter issued the allotment letter on 24.09.2017in favour of complainants and allotted with unit bearing no.

E-703, 7th floor, tower no.

E situated in the aforesaid project having ad-measuring super area 1750 sq. ft. along with exclusive right to use one parking space.

That they have made a visit to the pro.iect site of respondent's and were appalled to see that they have failed to achieve the scheduled development ofthe proiect as promised prior to booking.

Thus, being aggrieved by the misrepresentation the respondents, the complainants rushed to their office to enquire about the delay in the aforesaid project.

But the respondents did not pay any heed to the grievances raised by complainants and were unable to provide any Page 6 of 34 + RA RAM ABE URUG H G VII, VIII.

Complaint No.

1190 of 2022 satisfactory reply which clearly shows their malafide and fraudulently intention to usurp financialgains from complainants.

That the complainants somewhere in end of December 2013 visited to the office of respondent/promoter to enquire about the status of the project wherein an officer on their behalf assured that their allotted unit would be handover as promised under the buyer's agreement i.e., on or before 31.08.2014.

That the respondents have failed to comply with the terms and conditions as promised under clause 15(aJ.

The complainants till 77.07 .20L4 has already paid an amount ofRs.

56,70,486/- towards the allotted unit in the aforesaid project.

They always complied with the payments as and when demanded by respondents.

Thus, it clearly shows the misrepresentations and fraud being committed by the respondents by not adhering to the terms and conditions of buyer's agreement. agreement.

That the complainants somewhere in September 2014 made further visit to the office of respondent/promoter in order to save their hard- earned money deposited with they and to know the exact period within which they would hand over the possession ofthe allotted unit.

The respondents assured the complainants to handover the possession of the allotted unit within a short term of period and whereas no significant time period was mentioned clearly depicting the unfair trade practice on their part.

IX, )U- eaeet oru S HARERT+ #, eunuennvr Complaint No.

1190 of 2022 X.

That the complainants somewhere in between March 2015 to October 2015 raised concern for the delay in possession over the telephonic communication and also by visiting to the office of respondents and requested them to inform the status of aforesaid project and expected date of delivery.

However, no satisfactory response was ever received from the respondents, clearly showing the fraudulent and malicious intention to cheat them in order to usurp financial gains.

XI.

That the complainants have already paid a total amount of Rs.63,44,978/- against the total sale consideration.

But despite making huge payment approximately to 900/0 of the total sale consideration, the respondents have failed to handover the unit of complainants within stipulated time period as enumerated under clause 15 of the buyer's agreement.

Thus, it clearly shows that the respondents have no intention to complete the aforesaid project and fraudulently siphoned off the huge amount collected from the complainants.

XII.

That while booking the said unit and thereafter on each receipt ofthe huge instalments from the complainants, the respondents had been assuring and promising them the actual possession of the unit with all amenities/facilities as promised.

However, the said project is nothing as promised and is nowhere near of completion.

XIII. ion.

XIII.

That the respondents have acted unreasonably, arbitrarily and fraudulently just to deceive the complainants, by not providing all the amenities as promised at the time of booking and as mentioned under the agreement.

The complainants booked a unit in the +Pasesor34 HARERI.

M" GURUGRAI/ XIV.

XV.

1790 of 2022 respondent/promoter project with many hopes.

However, due to arbitrary and illegal acts of both the respondents, they are facing a great deal of trouble.

The difficulties and agony before the complainants are incomparable and undeniable, hard-earned money has been invested by them in the project, which now resulted in perpetual anguish.

That the respondents have made false assurances, false and frivolous promise to the complainants.

They have already faced a lot offinancial distress due to the malafide act of them.

The present case is a clear exploitation of innocence and beliefs of the complainants and an act of the respondents to diverse the hard-earned money collected from them illegally and also failed to hand over possession along with all the promised amenities till date.

The funds which were supposed to be utilized for the proiect have been diverted by the respondent/promoter which has caused immense loss to the complainants.

Therefore, the complainants being aggrieved by the unfair trade practice of the respondents wanted to cancel the allotted unit and further made request to them to refund the entire money i.e., Rs.63,44,978/- so far deposited in regard to allotted unit along with interest @18% from the date of each respective payments till actual realization.

But the respondents did not even bother to refund the principal money along with interest to complainants even after huge )yvaee e or s+ ffiHARER s-eunuennnr Complaint No.

1190 of 2022 delay of more than 7 years from the due date of possession i.e., 31.08.2014.

C.

Relief sought by the complainants: 4.

The complainants have sought following relief(s): I. ief(s): I.

To direct the respondents to refund the entire amount paid by the complainants along with the interest @ 180/o per annum from the date of respective deposits till its actual realization.

Direct the respondent to pay the compensation of Rs.5,00,000/- for causing mental agony, harassment to the complainant.

Direct the respondent to pay an amount of Rs.3,00,000/- towards the cost of proceeding/litigation.

5.

Neither respondent no.2 put in appearance nor filed any reply.

Accordingly, the authority was left with no other option but to proceed ex parte on 22.02.2023 against that respondent no.

6.

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

D.

Reply by the respondent no.

1.

7.

The respondent no. t has contested the complaint on the following grounds; - i.

That at the very outset, it is most respectfully submitted that the complaint filed by the complainants is not maintainable and this authority has no jurisdiction whatsoever to entertain the present complaint due to lack of cause of action.

A PaEe lO of 34 u #HARER *&- ounuennu Complaint No.

1190 of 2022 ii.

That without preiudice to the above, it is further submitted that the complainants are not "Consumers" within the meaning of the Consumer Protection Act,2019 as their sole intention was to make investment in a futuristic project of the respondent only to reap profits at a later stage when there is increase in the value of flat at a future date which was not certain and fixed.

Neither there was any agreement with respect to any date in existence of which any date or default on such date could have been reckoned due to delay in handover of possession. iii. sion. iii.

That the complainants having full knowledge of the uncertainties involved have out of their own will and accord decided to invest in the present futuristic project, and they have no intention ofusing the said flat for their personal residence or the residence of any of their family members.

If the complainant had such intentions, they would not have invested in futuristic prolect.

The sole purpose of the complainants was to make profit from sale ofthe flat at a future date.

Now since the real estate market is seeing downfall, the complainants cleverly resorted to the present exit strategy to conveniently exit from the project by arm twisting the respondent. lt is submitted that the complainants having purely commercial motives made investment in a futuristic project and therefore, they cannot be said to be genuine buyers of the said apartment and therefore, the complaint being not maintainable be dismissed in limine. , Page 110t34 k HARERA M GURUGRAN/ Complaint No.

11.90 of 2022 lv.

That the complainants have not intentionally filed their personal declarations with respect to the properties owned and/or bought/sold by them at the time of booking of the impugned plot and/or during the intervening period till the date of filing of the complaint and hence an adverse inference ought to be drawn against them.

That the complainants have approached the respondent office in 2011 and communicated that they were interested in a project "not ready to move" and expressed their interest in a futuristic project.

It is submitted that the complainants were not interested in any of the ready to move in/near completion projects.

It is submitted that on the specific request ofthe complainants, the investment was accepted towards a futuristic project.

Now, the complainants are trying to shift the burden on the respondent as the real estate market is facing rough weather. h weather.

Therefore, the complainants cannot be said to be genuine consumer by any standards; Rather they are mere investors in the futuristic proiect.

An investor by any extended interpretation cannot mean to fall within the definition of a "Consumer" under the Consumer Protection Act,2019.

Therefore, the complaint is liable to be dismissed merely on this ground.

That the complainants have not approached this authority with clean hands and concealed the material fact that they are defaulters, having deliberately failed to make the timely payment of installments within the time prescribed, which resulted in delay payment vl.

Page 12 of 34 HARERI.

GURUGRAM charges/interest, as reflected in the statement of account.

Due the Iackadaisical attitude of the complainants along with several other reasons beyond the control of the respondent as cited caused the present unpleasant situation.

That it is due to the default of the complainants, the allotment could not have been carried out. vii.

That the respondent had to bear with the losses and extra costs owing due delay of payment of installments on the part of the complainants for which they are solely liable.

However, the respondents owing to its general nature of good business ethics has always endeavored to serve the buyers with utmost efforts and good intentions.

The respondent constantly strived to provide utmost satisfaction to the buyers/allottees.

However, now, despite of its efforts and endeavors to serve the buyers/allottees in the best manner possible, is now forced to face the wrath of unnecessary and unwarranted litigation due to the mischief of the complainants. viii.

That from the initial date of booking to the filing of the present complaint, the complainants have never raised any issues or objections.

Had any valid issue been raised by complainants at an earlier date, the respondent would have, to its best, endeavored to solve such issues much earlier. h earlier.

However, now to the utter disappointment of the respondent, the complainants have filed the present complaint based on fabricated story woven out of threads of malice and fallacy.

7190 of 2022 Page 13 of 34 HARERA P*GURUGRANI lx. x.

1190 of 2022 That this conduct of the complainants itself claims that the complainants are mere speculative investors who have invested in the property to earn quick profits and due to the falling & harsh real estate market conditions, the complainants are making a desperate attempt herein to quickly grab the possession along with high interests on the basis of concocted facts.

Further in a desperate attempt to bring forth a legal action against the respondent the complainants have generated certain fabricated documents in order to support their false contentions.

That the complainant's primary prayer for handing over the possession of the said plot is entirely based on imaginary and concocted facts by the complainants and the contention that the respondent was obliged to hand over possession within any fixed time period from the date of issue of provisional allotment letter is completely false, baseless and without any substantiation; whereas in realty the complainants had complete knowledge of the fact that the zoning plans ofthe layout were yet to be approved and the initial booking dated 06.08.2011 was made by them toward.s a future potential project and, hence, there was no question of handover of possession within any fixed time period as falsely claimed by the complainants; hence the complaint does not hold any ground on merits as well.

That further the respondent/promoter has applied for the mandatory registration ofthe project with the authority but however xl.

Page 14 of 34 HARERi, ffi GURUGRAN/ xI.

1790 of 2022 the same is still pending approval on the part of the authority. authority.

However, in this background that by any bound of imagination, the respondent cannot be made liable for the delay which has occurred due to delay in registration of the project with the authority.

Since there was delay in zonal approval from the DGTCP, the same has acted as a causal effect in prolonging and obstructing the registration of the project under the Act for which the respondent is in no way responsible.

The approval and registration are a statutory and governmental process which is out of power and control of the respondent.

This by any matter offact be not counted as a default on the part of the respondent.

There is no averment in the complaint which can establish that any so-called delay in possession could be attributable to the respondent as the finalization and approval of the layout plans has been held up for various reasons which have been and are beyond the control of the respondent including passing of an HT line over the layout, road deviations, depiction of villages etc. which have been elaborated in further detail herein below.

The complainants while investing in a plot which was subject to zoning approvals were very well aware of the risk involved and had voluntarily accepted the same for their own personal gain.

There is no averment with supporting document in the complaint which can establish that the respondent had acted in a manner which led to any so-called delay in handing over possession Page 15 of34 ffiHARER/ *@-eunuenRl,,l xlll. xtv.

1190 of 2022 of the said flat.

Hence the complaint is liable to be dismissed on this ground as well.

The respondent/promoter was owner of vast tracts of undeveloped land in the revenue estates ofVillage Basai, Gadauli Kalan and falling within the boundaries of Sectors 37C and 37D Gurugram also known as Ramprastha City, Gurugram.

Gurugram.

That the authority is deprived of the jurisdiction to go into the interpretation of, or rights of the parties inter-se in accordance with the apartment buyer's agreement signed by the complainants /allotment offered to him.

It is a matter of record and rather a conceded position that no such agreement, as referred to under the provisions of said Act or said Rules, has been executed between the parties.

Rather, the agreement that has been referred to, for the purpose ofgetting the adjudication of the complaint, is the apartment buyer's agreement dated 21.09.2011., executed much prior to coming into force of said Act or said Rules.

The adiudication of the complaint for possession, refund, interest and compensation, as provided under sections 12, 14, 18 and 19 of said Act, has to be in reference to the agreement for Sale executed in terms of said Act and said Rules and no other agreement.

This submission of the respondents inter alia, finds support from reading of the provisions of the said Act and the said Rules.

Thus, in view ofthe submissions made above, no reliefcan be granted to the complainants.

Page 16 of34 ffi HARERA #, eunuennv Complaint No.

1190 of 2022 xv.

That thereafter Ministry of Finance, Government of India in the wake of CoVID-19 pandemic has invoked Force Majeure and thereby extended the timelines for completion of real estate projects by 6 months period starting from February 2020. xvi.

That on November 06,2019, the Honorable Finance Minister had announced that the Union Cabinet has cleared a proposal to set up a special window in the form of AIF to provide priority debt financing for the completion ofstalled housing projects.

Accordingly, SWAMIH (special window for funding stalled affordable and middle-income housing proiect) [nvestment Fund was created for this purpose. xvii.

That approximately, there are about 1600 stalled projects across top cities in the country and in this regard, the union cabinet approved the setting up of Rs. up of Rs.25,000 Crores alternative investment funding (AIFS).

The sponsor of the fund is the Secretary, Department of Economic Affairs, Ministry of Finance, Government of India on behalf of Government of India. xviii.

That, accordingly, SWAMIH F'und was created by the Government of India to provide priority debt financing for the completion of stalled housing projects that are in the Affordable and Middle-lncome Housing projects category.

The fund has been set up as Category II AIF (Alternate Investment Fund) debt fund registered with SEBI.

The fund is being managed by SBI Caps Ventures with investments from the Ministry of Finance and other marquee investors like LIC, SBI etc. !

UPase 17 of 34 HARERq GURUGRAM Complaint No.

7190 of 2022 It has a corpus of Rs.

12,500 Crore with a green-shoe option of another Rs.12,500 Crore. xix.

That the respondent/promoter has been sanctioned funding facility to the tune of approx.

296 Crores for the completion of all the projects.

The disbursement in respect of project Primera has already been received in January 2021.

That SWAMIH and the respondent are in the final legs for the release of funds for the project Skyz. xx.

That majority ofthe homebuyers ofthe project i.e., Skyz approx.

S0o/o are not interested in obtaining refunds and the respondent /promoter is approaching each and every homebuyer to ensure that any grievance that they may have been resorted amicably.

The respondent with reasonable certainty states that it has the confidence and faith of a large number of homebuyers who are absolutely dependent on it for the delivery oF their homes and the respondent is duty bound to project their interest. xxi.

The projects in respect of which the respondent has obtained the occupation certificates are described as hereunder: - S.

No Proiect Name No. of Apaftments Status 1.

Atrium 336 OC received 2.

View 280 OC received Page 18 of 34 HARERA ffi" GUI?UGRAN/ 8.

1190 of 2022 E.

9.

3.

2 E.

Edge Tower I, J, K, L, M Tower H, N Tower-O (Nomenclature- P) (Tower A, B, C, D, E, F, G) 400 160 BO 640 OC received OC received OC received OC to be applied 4.

EWS 534 OC received 5.

Skyz 684 OC to be applied 6.

Rise 322 OC to be applied 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 thebasis ofthese undisputed documents and submission made by the parties. f urisdiction of the authority The respondent has raised a preliminary submission/objection the authority has no jurisdiction to entertain the present complaint.

The objection ofthe respondent regarding reiection of complaint on ground of jurisdiction stands reiected.

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

E.l Territorial iurisdiction Page 19 of34 \f HARERA SH GURUGRAII Complaint No.

1190 of2022 10.

As per notification no.1/92 /201,7- lTCP dated 14.12.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram District, therefore this authority has complete territorial iurisdiction to deal with the present complaint.

E.I I.

Subiect matter jurisdiction 11.

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

Section 11(4)(a) is reproduced as hereunder: Section 11 il1 rhe promoter shall- (a) be responsible for all obligations, responsibilities ond functions under the provisions ofthis Act or the rules qnd regulotions made thereunder or to the allottees as per the agreement for sole, or to the ossociotion of ollottees, as the case may be, till the conveyqnce ofall the opartments, plots o s, plots or buildings, os the case may be, to the ollottees, or the common areas to the associotion ofallottees or the competent authority, as the case moy be; Section 34 -Functions of the Authority: 344 of the Act provides to ensure complionce of the obligotions cast upon the promoters, the ollottees and the reol estate agents under this Act ond the rules and regulotions made thereunder.

12.

So, in view of the provisions of the 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 complainants at a later stage.

Page 20 of 34 HARER'.' ffiGURUGRAN/ Complaint No.

1190 of 2022 13.

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 iudgement passed by the Hon'ble Apex Court in Newtech Promoters and Developers Private Limited Vs State of U.P. and Ors.

2021-2022(7) RCR(C),357 dnd reiterated in case of M/s Sana Reoltors Private Limited & other Vs Union of India & others SLP (Civil) No.

73005 of 2020 decided on 12.05.2022wherein it has been laid down as under: "86.

From the scheme of the Act of which a detoiled reference hos been made and toking note ofpower ofadjudicotion delineotecl with the regulatory authoriEt ond adjudicoting oJficer, whot linolly culls out is that although the Act indicates the distinct expressions like 'refund', 'interest', 'penalry' ond'compensotion', o conjoint reading of Sections 18 ond 19 cleorly manifests thotwhen it comes to refund of the amount,ond interest onthe refund omount, or directing poyment ofinterestfor delayed delivery of possession, or penolty and interest thereon, it is the regulatory outhoriry which has the power to examine ond determine the outcome ofqcomplaint. complaint.At the some time, when it comes to a question of seeking the relief of odjudging compensation ond interest thereon under Sections 12, 14, 1B ond 19, the adjudicating olfrcer exclusively hos the power to determine, keeping in view the collective reoding ofSection 71 rescl with Section 72 of the Act if the adjudicotion under Sections 12, 14, 18 and 19 other than compensation qs envisaged, if extended to the adjudicoting olficer os prayed that in our view, may intend to expand the ambit and scope ofthe powers ond Iunctions ofthe odjudicating offrcer under Section 71 ond thot would be ogoinst the mondote of the Act 2016." 14.

Hence, in view of the authoritative pronouncement of the Hon'ble Supreme Court in the cases mentioned above, the authority has the lurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

F.

Findings on the objections raised by the respondent.

I Obiection regarding the complainants being invcstors, Page27 of 34 ffi HARER, #* anuennnlr Complaint No.

1190 of 2022 15.

The respondent has taken a stand that the complainants are the investors and not consumers, and therefore, are not entitled to the protection ofthe Act and to file the complaint under section 31 ofthe AcL The respondent also submitted that the preamble of the Act states that the Act is enacted to protect the interest ofconsumers ofthe real estate sector- The authority observes that the respondent is correct in stating that the Act is enacted to protect the interest of consumers of the real estate sector.

It is settled principle of interpretation that preamble is an introduction of a statute and states main aims & ob,ects of enacting a statute but at the same time, the preamble cannot be used to defeat the enacting provisions of the Act. f the Act.

Furthermore, it is pertinent to note that any aggrieved person can file a complaint against the promoter if it contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions of the apartment buyer's agreement, it is revealed that the complainants are buyer and paid total price of Rs.63,44,978/- to the promoter towards purchase ofan apartment in the proiect of the promoter.

At this stage, it is important to stress upon the definition ofterm allottee under the Act, the same is reproduced below for ready reference: "2(d) "allottee" in relotion to a real estote project means the person to whom o plot apartment or building, os the case may be, hos been allotted, sold (whether as freehold or leosehold) or otherwise tronsferred by the promoter, ond includes the person who subsequently acquires the said allotment through sale, tronsfer or otherwise but does not include a person to whom such plot, apartment or building, os the cose mqy be, is given on rent;" + ge22o Pa t 34 & HARER #,eunuennl,,r Complaint No.

1190 of 2022 ln view of above-mentioned definition of "allottee" as well as all the terms and conditions of the apartment application for allotment, it is crystal clear that the complainants are allottees as the subject unit was allotted to them by the promoter.

The concept of investor is not defined or referred in the Act.

As per the deFinition given under section 2 of the Act, there will be "promoter" and "allottee" and there cannot be a party having a status of "investor".

The Maharashtra Real Estate Appellate Tribunal in its order dated 29.01.2019 in appeal no.0006000000010557 titled as M/s.trushti Sangam Developers Pvt- Ltd.

Vs.

Sarvapriya Leosing (P) Lts.

And anr. has also held that the concept of investor is not defined or referred in the Act.

Thus, the contention ofpromoter that the allottees being investors are not entitled to protection of this Act also stands rejected. rejected.

II Obiection regarding iurisdiction of authority w.r.t. booking application form executed prior to coming into force ofthe Act.

16.

Another contention of the respondent is that authority is deprived of the jurisdiction to go into the interpretation of, or rights of the parties inter- se in accordance witl the booking application form executed between the parties and no agreement for sale as referred to under the provisions of the Act or the said rules has been executed inter se parties.

The authority is ofthe view that the Act nowhere provides, nor can be so construed, that all previous agreements will be re-written after coming into force of the Act.

Therefore, the provisions of the Act, rules and agreement have to be read and interpreted harmoniously.

However, if the Act has provided for dealing with certain specific provisions/situation in a specific/particular I/ \<-- Page 2Yof34 HARERh ffi GURUGRAI/ manner, then that situation will be dealt with in accordance with the Act and the rules after the date of coming into force of the Act and the rules.

Numerous provisions of the Act save the provisions of the agreements made between the buyers and sellers.

The said contention has been upheld in the landmark judgment of Neelkamal Realtors Suburban Pvt, Ltd.

UU and others. (W.P 2737 of 2017) decided on 06.12.2017 which provides as under: "119.

Under the provisions of Section 18, the deloy in honding over the pos.resslon would be counted from the dote mentioned in the ogreement for sole entered into by the promoter ond the ollottee prior to its registration under RERA.

Under the provisions of REM, the promoter is given a focility to revise the date of completion of project and declare the some under Section 4.

The RERA does not contemplate rewriting of contract between the llot purchqset and the promoter....

122.

We have already discussed that above stoted provisions ofthe REM are not retrospective in noture. in noture.

They may to some extent be hoving a retrooctive or quosi retrooctive effect but then on thot ground the validiry of the provisions of REp.1. cannot be challenged.

The Parliament is competent enough to legislote low hoving retrospective or retroqctive elfect.

Alaw con be even framed to affect subsisting / existing controctuol rights between the porties in the larger public interest.

We do not hove ony doubt in our mind that the REM hos been fromed in the lorger public interest ofter a thorough study and discussion made at the highest level by the Standing Committee ond Select Committee, which submitted its detoiled reports." Complaint No.

1790 of 2022 17.

Also, in appeal no.

173 of 2019 titled as Magic Eye Developer Pvt.

Ltd.

Ishwer Singh Dahrya, in order dated 17 .'12.201.9 the Haryana Real Estate Appellate Tribunal has observed- "34.

Thus, keeping in view our oforesoid discussio4 we are of the considered opinion that the provisions of the Act are quasi retroo(live to some exlenL in operolrcn ond will be opplicoble Lo Lhe ogreementstor sole entered tnto even prrcr Lo coning into operotrcn oflhe AcL where lhe uonsoction ore slill m the process ofcomplelion.

Hence in cose oI deloy in lhe oller/deltvery ol possession os per Lhe lerms and condilion5 ol the ogreement lor sale the ollottee sholl ber\-lr Page 24 olb4 I.IARERA P*GURUGRAI/ Complaint No. ll90 of 2022 entitled to the interest/delayed possession chorges on the reqsonable rote of interest qs provided in Rule 15 of the rules ond one sided, unfair ond unreasonable rate ofcompensotion mentioned in the ogreementfor sole is lioble to be ignored." 18.

The agreements are sacrosanct save and except for the provisions which have been abrogated by the Act itsell Further, it is noted that the builder- buyer agreements have been executed in the manner that there is no scope left to the allottee to negotiate any of the clauses contained therein. d therein.

Therefore, the authority is of the view that the charges payable under various heads shall be payable as per the agreed terms and conditions of the agreement subject to the condition that the same are in accordance with the plans/permissions approved by the respective departments /competent authorities and are not in contravention of any other Act, rules, statutes, instructions, directions issued thereunder and are not unreasonable or exorbitant in nature G.

Findings on the relief sought by the complainants G.

I To direct the respondents to refund the entire amount paid by the complainants along with the interest @ 180/0 per annum from the date of respective deposits till its actual realization.

19.

The complainants intend to withdraw from the pro,ect and are seeking return of the amount paid by them in respect of subject unit along with interest at the prescribed rate as provided under section 18(1) of the Act.

Sec.

18(11 of the Act is reproduced below for ready reference. "Section 18: - Return ofamount qnd compensotion 1B(1). lf the promoter fails to complete or is unable to give possession ofon aportment, plot, or building.' (o). in occordonce with the tetms ofthe ogreement for sole or, os the case moy be, duly completed by the dole speciiied therein; or Page 25 of34 ^ HARERA P* GURUGRAM Complaint No.

1190 of 2022 (b). due to discontinuance of his business as o developer on occount ofsuspension or revocation ofthe registration under this Act or for any other reason, he shall be liable on demqnd to the qltottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy avoilable, to returu the amount received by him in respect of that spartment plot, building, as the case may be, with interest qt such rate as mqy be prescribed in this behalf including compensotion in the manner os provided under this Act: Provided that where an ollottee does not intend to withdrqw from the project, he sholl be paid, by the promoter e promoter. tnterestfor every monti of delay, tillthe handing over ofthe possession, ot such rate as may be prescribed.,, (Emphosis supplied) 20.As per clause 15(a) of the apartment buyer agreement provides for handing over of possession and is reproduced below: "75.

POSSESSTON (a) Time ofhanding over the possession Subject to terms ofthis clouse and subject to the Allottee having complied with oll the terms ond condition of this Agreement and the Application, ond not heing in defoult under qny ofthe provisions of this Agreement ond complionce with oll provisions, formalities, documentotion etc., qs prescribed by MMPRASTHA.

MMPMSTHA proposed to hand over the possession of the Apartment by 37.08.2074 the Allottee ogrees ond understands that MMPMSTHA sholl be entitled to agroce period ofhundred ond twenql days (120) days, for applying and obtaining the occupotion certificote in respect of the Croup Housing Complex." 21.

The authority has gone through the possession clause of the agreement and observes that this is a matter very rare in nature where builder has specifically mentioned the date of handing over possession rather than speci8/ing period from some specific happening of an event such as signing of apartment buyer agreement, commencement of construction, approval of building plan etc.

This is a welcome step, and the authority appreciates such firm commitment by the promoter regarding handing Page 26 of 34 mHAllERr, #" eunueRRvr Complaint No.

1190 of 2022 over of possession but subject to observations of the authority given below.

22.

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 complainants not being in default under any provisions of these agreements and compliance with all provisions, formalities and documentation as prescribed by the promoter. 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 allottees and the commitment date for handing over possession loses its meaning.

The incorporation of such clause in the buyer's agreement by the promoter is iust to evade the liability towards timely delivery of subject unit and to deprive the allottees of their right accruing after delay in possession.

This is just to comment as to how the builder has misused his 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.

23.Due date of handing over possession and admissibility of grace period: The promoter has proposed to hand over the possession of the apartment by 31.08.2014 and further provided in agreement that promoter shall be entitled to a grace period of 120 days for applying and Yacezt ott+rf HARERI ffi.

GURUGRAM Complaint No.

1190 of 2022 obtaining occupation certificate in respect ofgroup housing complex.

As a matter of fact, the promoter has not applied for occupation certificate within the time Iimit prescribed by the promoter in the apartment buyer's agreement.

As per the settled law, one cannot be allowed to take advantage of his own wrongs.

Accordingly, this grace period of 120 days cannot be allowed to the promoter at this stage.

24.

Admissibility of refund along with prescribed rate of interest: The complainants are seeking refund the amount paid by them at the rate of 1870.

However, the allottees intend to withdraw from the project and are seeking refund of the amount paid by them in respect of the subject unit with interest at prescribed rate as provided under rule 15 of the rules. the rules.

Rule 15 has been reproduced as under: Rule 15, Prescribed rate ofinterest- fProviso to section 72, section 78 and sub-section (4) and subsection (7) of section 191 (1) For the purpose of proviso to section 12; section 18; ond sub- sections (4) ond (7) of section 19, the "interest at the rote prescribed" shqll be the State Bonk of Indio highest marginol cost oflending rate +20k.: Provided thot in case the State Bank of lndia marginol cost ollending rote (MCLR) is not in use, it shall be reploced by such benchmark lending rates which the Stote Bank of lndia may fix from time to time for lending to the generol public.

25.

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.

26.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate [in short, MCLR) as on Pace zs of 341\ - v * HARERJ #.eunuerw Complaint No.

1190 of 2022 date i.e.,22.02.202 3 is 8.70%0.

Accordingly, the prescribed rate ofinterest will be marginal cost of lending rate +20/o i.e., 1.O.7Oo/o.

27.

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 ofdefault, shall be equal to the rate ofinterestwhich the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: "(zo) "interest" meons the rates ofinterest poyoble by the promoter or the allottee, as the case may be.

Explanotion. -For the purpose ofthis clouse- O the rate of interest chargeoble from the allottee by the promoter, in cose of default, shqll be equol to the rote of interest which the promoter shall be liqble to pay the qllottee, in case ofdelault; ( delault; (i0 the interest pqyoble by the promoter to the allottee sholl be from the date the promoter received the omount or any part thereoftill the dote the omount or part thereof ond interest thereon is refunded, ond the interest poyable by the ollottee to the promoter shall be from the dote the allottee defaults in payment to the promoter till the dote it is poidi' 28.

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 that the respondent is in contravention of the provisions of the Act.

By virtue of clause 15(a) of the buyer agreement, the due date of possession was specifically mentioned in the apartment buyer agreement as 31.08.2014.

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

Therefore, the due date ofhanding over possession is 31.08.2014, 29.

Keeping in view the fact that the allottees/complainants wish to withdraw from the proiect and are demanding return of the amount received by the promoter in respect of the unit with interest on failure of the promoter to Pase}9 of 34\ "\- ffi HARERA *s- aJRUGRAT'/ Complaint No.

7190 of 2022 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( 1) of the Act of 2 016.

30.

The due date of possession as per agreement for sale as mentioned in the table above is 31,08.2014 and there is delay of 7 years 6 months 24 da-vs on the date offiling ofthe complaint.

31.

The authority has further, observes that even after a passage of more than 7.6 years till date neither the construction is complete nor the offer of possession of the allotted unit has been made to the allottee by the respondent/promoter. /promoter.

The authority is of the view that the allottees cannot be expected to wait endlessly for taking possession of the unit which is allotted to them and for which they have paid a considerable amount of money towards the sale consideration.

It is also pertinent to mention that complainants have paid almost 88% of total consideration till 2016.

Further, the authority observes that there is no document place on record from which it can be ascertained that whether the respondent has applied for occupation certificate/part occupation certificate or what is the status ofconstruction ofthe project.

In viewof the above-mentioned fact, the allottee intends to withdraw from the project and is well within the right to do the same in view ofsection 18(1J ofthe Act,2016.

32.

Moreover, the occupation certificate/completion certificate of the proiect where the unit is situated has still not been obtained by the respondent /promoter.

The authority is of the view that the allottee cannot be expected to wait endlessly for taking possession of the allotted unit and Page 30 ot 34,.V HARERIi #" GURUGRAIU Complaint No.

1190 of 2022 for which he has paid a considerable amount towards the sale consideration and as observed by Hon'ble Supreme Court of lndia in Ireo Grace Realtech WL Ltd, Vs, Abhishek Khanna & Ors., civil appeal no, 5785 of 2019, decided on 77.07.2021 "....

The occupation certficatu is not ovoiloble even as on dote, which cleorly amounts to delciency ofservice.

The allottees connot be made to wait inclefnitely for possession of the apartments allotted to then, nor can they be bound to take the aportments in Phose 1 of the project......." 33.

Further, the Hon'ble Supreme Court of tndia in the cases of Newtech Promoters and Developers Private Limited Vs State of U.P. and Ors, (supra) reiterated in case of M/s Sana Realtors Private Limited &other vs Union of India & others SLP (Civil) No.

73005 of 2020 decided on 12.05.2022. observed as under: - 25. der: - 25.

The unqualified right of the allottee to seek refund referred Under Section 19(1)(q) and Section 19(4) of the Act is not dependent on ony contingencies or stipulotions thereof. lt oppeors thot the legisloture hos consciously provided this right of refund on demand as an unconditionql obsolute right to the allottee, if the promoter foils to give possession oJ the aportment plot or building within the time stipuloted under the terms of the agreement regordless ofunforeseen events or stay orders ofthe Court/Tribunal, which is in either way not ottributable to the ollottee/home buyer, the promoter is under an obligation to refund the amount on demand with interest qt the rate prescribed by the Stote Government including compensotion in the manner provided under the Act with the proviso thot iI the qllottee does not wish to withdraw from the project, he shqll be entitled for interestfor the period ofdelay till handing over possession at the rate prescribed." 34.The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2076, or the rules and Pace 3t or 3a ) O HARERA GURUGRAII Complaint No.

1190 of 2022 regulations made thereunder or to the allottee as per agreement for sale under section 11(4)[a).

The promoter has failed to complete or unable to give possession of the unit in accordance with the terms of agreement for sale or duly completed by the date specified therein.

Accordingly, the promoter is liable to the allottee, as the allottee wishes to withdraw from the proiect, 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.

35.

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

As such, the complainants are entitled to refund of the entire amount paid by him at the prescribed rate ofinterest i. nterest i.e., @ 10.70% p.a. (the State Bank of India highest marginal cost of lending rate (MCLRJ applicable as on date +20lo) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Rules,2017 from the date of each payment till the actual date of refund of the amount within the timelines provided in rule 16 of,the Haryana Rules 2017 ibid.

G.

Direct the respondent to pay the compensation of Rs.5,00,000/- for causing mental agony, harassment to the complainant, G.IIL Direct the respondent to pay an amount of Rs.3,00,000/- towards the cost of proceeding/litigation.

IV.

To direct the respondent to pay compensation to the complainant, as may deem fit and proper, for causing financial loss due to loss of appreciation and opportunity that has occurred an account of misrepresentation on the value of the unit 36.

The complainants are seeking above mentioned relief w.r.t. compensation.

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

6745-6749 of 2021, ),V Page 32 of 34 HARERA ffi,GURUGRAI/ Complaint No.

1190 of 2022 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 & Iitigation charges under sections 1.2,14,18 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation & litigation 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.

Therefore, the complainants are advised to approach the adjudicating officer for seeking the relief of compensation.

H.

Directions ofthe authority 37.

Hence, the authority hereby passes this order and issues the following directions under section 37 ofthe Act to ensure compliance ofobligations cast upon the promoter as per the function entrusted to the authority under sectio der section 34(fJ: The respondent/promoter is directed to refund the amount i.e., Rs.63,44,978 /- received by it from the complainants along with interest at the rate of 10.700l0 p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation and Developmentl Rules, 20L7 from the date ofeach payment till the actual date ofrefund ofthe deposited amount.

Page 33 of34 ,v HARERI, ffiGURUGRAIX complaint No.

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. iii.

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 complainants and even il any transfer is initiated with respect to subject unit, the receivables shall be first utilized for clearing dues of allottee-complainants.

38.

Complaint stands disposed oi 39.

File be consigned to registry.

Datedi 22.02.2023 Regulatory Authority, Gurugram ( H k Page 34 of34