MR RAJNEESH MOHAN vs IMPERIA WISHFIELD PVT LTD

CORAM: Shri Ashok Sangwan Complaint No.

7710 of2022 and others Member HARERA ffiGURUGRAN/ BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Date of decision: 05.07.2023 ORDER 1.

This order shall dispose of the 4 complaints titled above filed before this authority under section 31 of the Real Estate (Regulation and Development) Act,2016 [hereinafter referred as "the Act"] read with rule 28 ofthe Haryana Real Estate (Regulation and Development) Rules,2017 (hereinafter referred as "the rules") forviolation ofsection 11[4)(a) ofthe Act wherein it is inter alia prescribed that the promoter shrall be Page: I of 2l L NAME OF THE BUILDER M/S IMPERIA WISHFIELD PRIVATE LIMITED PROJECT NAME ELVEDOR S.

No.

Case No.

Case title Appearance 1 cR/7710/2022 Raineesh Mohan V/s lmperia Wishfield Private Limited Ms.

Priyanka Aggarwal Ms.

Antara Mishra 2 cR/7711/2022 Ashok GandhiV/s Imperia Wishfield Private Limited Ms.

Antara Mishra 3 cR/7720/2022 Pramod Kr.

Dhawan And Seema Dhawan V/s Imperia wishfield Private Limited Ms.

Antara Mishra 4 cR/8076/2022 Ashish Mittal and Monika Mittal V/s Imperia wishfield Private Limited Ms.

Antara Mishra HARERA gGURUGRAM 3.

Complaint No.

7710 of 2022 and others 2. responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between patrties.

The core issues emanating from them are similar in nature an,i the complainant(s) in the above referred matters are allottees of the proiect, namely, Elvedor situated at Sector-37-C, Gurugram being developed by the same respondent/promoter i.e., M/s Imperia Wishfield Private Lirnited.

The terms and conditions of the buyer's agreements fulcrum of the issue involved in all these cases pertains to failure on the part of the promoter to deliver timely possession ofthe units in question, seeking refund,lfthe allotted unit. tted unit.

The details of the complaints, reply status, unit no., date of agreetment, possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given in the table below: Proiect Name and Location "Elvedor" at sector 37C, curgaon, Haryana.

Proiect area DTCP License No.

Name ofLicensee 47 2 acres of2012 dated 12.05.2012 valid upto 11.05.2016 M/s Prime IT Solutions Pvt.

Ltd.

RERA Registration Not Registered Possession Clause: Not mentioned in files as BBA has not been executed in an,/ case.

Occupation Certificate: Not obtained Sr.

No Complain t No., Case Title, and Date of filine of Date of apartme nt buyer agreeme nt Unit No.

Unit adme asurin Due date of Possessi on Total Sale Conside ration / Total Amount Relief Sought Page 2 of2l )/ HARERA b* GURUGRAM Complaint No.

7710 of 202:l and others complain t paid by the complai nant 1. cR/7770/ 2022 Rajneesh Mohan Imperia Wishfield Private Limited DOF: 09.07.202 3 Reply Status: 28.06.202 3 Not executed Booking date: 10.09.201 2 Allotment Letter: 10.01.201 d F-45 P# lra*{ .{t{ 156 sq. ft. b TSC: - Rs.

18,81,51 6/- AP: - Rs.

4,53,960 Refund 2. cR/7711./ 2022 Ashok Gandhi Imperia Wishfield Private Limited DOF: 09.07.202 3 Reply Statusl 28.06.202 3 Not executed Booking date: 79.09.207 2 Allotment Letter: 10.01.201 3 F -49 ,RU( 156 sq. ft. )Rl v A \M l5L: - Rs.

18,81,5 6/- AP: Rs 4,53,96 1 ; Rel'und Page 3 of 2l ss HARERA GURUGRAM Complaint No.

7710 of2022 and others cR/7720/ 2022 Pramod Kr.

Dhawan and Seema Dhawan Imperia wishfield Private Limited DOF: 09.07.202 3 Reply Statusl 28.06.202 3 Not executed Booking date: 10.09.201 2 Allotment Letter: 07.05.201 3 503 sq. ft.

TSCr - Rs.

57 ,23,80 AP: Rs.

4,96,000 Refund Allotment Letter: Not provided welcome Letter: 22.09.201 2 date: 05.09.201 \M TSC: - Rs.

34,45, 6/- Relund cR/8076/ 2022 Ashish Mittaland Monika Mittal Imperia Wishfield Private Limited DOFr 09.07.202 3 Reply Status: 2A.06. us: 2A.06.202 3 IRU Note: h the table referred above certain abbreviations have been used.

They are elaborated as PaEe 4 of 2 3.

G-OB 4.

F-60 436 sq. ft.

31.0 3.201 9 HARERA ffiGURUGRAII 6.

7.

7710 of 2022 and others 4.

5.

Abbreviation full form TSC Total Sale consideration the allottee(s The aforesaid complaints were filed by the complainants against the promoter on account of violation of the builder buyer's agreement executed between the parties in respect of said units for not handing over the possession by the due date, seeking refund ofthe total paid up amount.

It has been decided to treat the said complaints as an application for non- compliance of statutory obligations on the part of the promoter /respondent in terms of section 34(0 of the Act which mandates; the authority to ensure compliance ofthe obligations cast upon the promo ters, the allottee[s) and the real estate agents under the Act, the rules and the regulations made thereunder.

The facts of all the complaints filed by the complainant(s)/allottee(:;)are similar.

Out of the above-mentioned case, the particulars of lead case CR/7710/2022 Rajneesh Mohan V/s Imperia Wishfield Private Limited are being taken into consideration for determining the rights ot: the allottee(sJ.

Proiect and unit related details The particulars ofthe project, the details ofsale consideration, the amount paid by the complainant(s), date ofproposed handing over the possession, delay period, if any, have been detailed in the following tabular form: CR/7710/2022 Rajneesh Mohan V/s lmperia Wishfield Private Limited A, s.

N.

Particulars Details 1.

Name ofthe project "Elvedor" at sector 37C, Gurgaon, Haryana Page 5 of 2l L HARERA GURUGRAM Complaint No.

7710 of 202:l and others 2.

Nature of the project Commercial Project 3.

Project area 2 acres 4.

DTCP license no. and validity status 47 of 2012 dated 12.05.2072 Valid/renewed up to- 11.05.2016 5.

Name of licensee M/s Prime IT Solutions Pvt.

6. t.

6.

RERA Registered/ not registered Not Registered 7.

Unit no.

F-45 fas per latest demand letters dated 05.06.2018 and 31.08.2017 on page no.

27-29 ofcomplaint) B.

Unit area admeasuring 156 sq, ft. [as per latest demand letters dated 05.06.2018 and 31.08.2017 on page no, 27-29 of complaint) 9.

Date ofbooking 70.09.2012 (as per statement of account on page no.

13 ofreplyl 10.

Welcome Letter 22.09.201,2 (page no.

26 of complaint] 11.

Allotment Letter 10.01.2013 (as per statement of account on page no.

13 of reply) 72.

Date of builder buyer agreement Not executed 13.

Due date ofpossession Cannot be ascertained vage o or z* HARERA GURUGRAN,4 1,+.

Possession clause Not provided 15.

Total sale consideration Rs.

18,81,516/- [as per the statement ofaccount on page no.

13 of replyJ 16.

Amount paid by the complainant Rs.4,53,950/- [as per the statement of account on page no.

13 of complaint] 1,7.

Occupation certificate Not obtained 18.

Offer of possession Not offered Facts ofthe complaint The complainant has made the following submissions in the complaint: - That complainant after believing the statement of the representatlive of respondent booked a unit on 10.09.20L2 and paid a booking amount of Rs.

1,50,000/-.

That the complainant as per the latest demand letters dated 05.06.2018 and 3L.08.2017 the complainant was allotted a commercial unit no.

F45 admeasuring 156 sq. ft. in tower 37tt' avenue in project "3Tth avenue" located in sector 37C, Gurugram, but prior to that as per the demand letter dated 05.01.2016, the complainant was allotted with a commercial unit no.

R- 1052 at tower rubix in the same project admeasuring 157 sq. f in sector 37C, Gurugram, surprisingly prior to that as per the welcome letter dated 22-09.2012 and the payment receipts by Elvedor, the complainant was also allotted with a unit in the project "Elvedor Retail" in sector 37C, Gurugram.

Therefore, the builder in order to acquire money from the complainant, kept on deceiving the complainant. mplainant. + 1 Complaint No.

7710 of 2022 and others B.

8.

9.

Pag?

7 of 2 HARERA Complaint No.

7710 of 202i| and others ffiGURUGRAN/ 10.

That the respondent to dupe the complainant in their nefarious net did not even offer a buyer's agreement which was supposed to be signed behveen complainant and M/s Imperia Wishfield Pvt.

Ltd., but just to create a false belief that the proiect shall be completed in time bound manner and ir1 the garb of this agreement persistently raised demands due to which they 'were able to extract huge amount of money from the complainant, but it is pertinent to mention that, the agreement stands incomplete becaus€r, the complainant has neither received the physical copy nor any soft copy of the BBA till now.

11.

That the total cost of the said unit is inclusive of BSP, EDC, IDC, PLC, IFMS, Electricity and other charges, out of this, a sum of Rs 4,53,960/- was demanded and paid by the complainant, and this whole amount was paid even before signing of BBA.

12.

That the complainant had paid all the demanded installments by respondent on time and deposited Rs 4,53,950/- before execution of BBA, builder extracted more than 300/o amount which is unilateral, arbitra{/ and illegal.

After payin more than 300/o amount till 2015, the complainant stopped releasing any amount as the project is abandoned from last 6 ),ears.

13.

That respondent prima facie was presumed to have handed over the possession of a developed commercial unit within 3 years from the date of booking of the unit, but the builder failed to deliver the possession u/ithin that span.

In such matter SC has also taken view in civil appeal no(sl. !1533- 3534 of 2017 m/s.

Fortune Infrastructure appellant(s) (now known as m/s.

Hicon Infrastructure) & anr.

Versus Trevor Dlima & Ors and has talken a Page 8 of 21 ,L MHARERA #, eunuen=nrrrr view that ,,A time period of 3 years would have been reasonable for completion of the contract,l 14. ract,l 14.

That complainant visited project site many time and found that builder had not carried out development worh most importantly the super structure was also incomplete, eve was a ban d o n ed ". r, """.f ,1 I i *:ff:l1i::.,.,j: j r,,",il ffi :: The complainant tried to I n ord i n ate d er ay, b u t, #::"fi: H ;H::::,-#: ;::, ::1'::: j:: proposed any tentative di the same ro the co.r,r,rjj:r:t;:lptetion or the proiect nor courd assure 15.

That in view of the above said facts and circumstances of the case the complainant is seeking refund ofhis paid amount with interest Ull the actual payment from the respondent.

C.

Reliefsought by the complainant _ 16.

The complainant has sought following relief(s): l.

Direct the respondent to refund the entire paid amount to the complainant with interest @ 210/o p.a. calculated from the date of respective deposit till the date ofactual realization.

17.

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 11ta) (a) of the act to plead guilty or not to plead guilq,.

D.

Reply by the respondent The respondent has conteste 1g.

That the complainant, ,rr". o tn" to'o''int on the following grounds' bein g rui ry satisried about ;:H IH',T.JH":#HilI : + I Complaint No.

7 Z 70 of 2O2Z and others Page 9 of it, HARERA Complaint No.

7710 of 2022 and others P*GURUGRANI company for booking of a residential unit in respondent,s project ,Elv,:dor Retail' located in sector-37-C, Gurugram, Haryana.

The respondent company provislonally allotted the unit bearing no.

Shop F-4S in favor ofthe complainant for a total consideration amount of Rs.

Lg,g1,,516/_ including applicable tax and additional miscellaneous charges vide booking dated 10.09.2012 and opted the construction-linked payment plan on the t€,rms and conditions mutually agreed by them.

19. them.

19.

That the foundation of the said project vests on the joint venture/collaboration between M/s prime IT Solutions private Limited, a company incorporated under the provisions of Companies Act, havinig its registered office at B-33, First Floor, Shivalik Colony (Near Malviya Nagar), New Delhi-110017 (as One party) and M/s Imperia Structures pvt.

Ltd. (as Second Party), laying down the transaction structure for the said project and for creation of SPV (special purpose Vehicle) Company, named and titled as'lmperia Wishfield pvt.

Ltd.,, i.e., the respondent company.

20.

That in lieu of above said understanding & promises, M/s ,lmperia Wishlield Pvt.

Ltd.'was incorporated & formed with 4 Directors & 5 shareholders.

It is pertinent to mention herein that Mr. pradeep Sharma and Mr.

Avirrash Kumar Setia were from M/s prime IT Solutions pvt.

Ltd. and Mr.

Harpreet Singh Batra and Mr.

Brajinder Singh Batra were from M/s Imperia Structures Pvt Ltd.

21.

That 3 out of 5 shareholders of the respondent company, to the tune of 2500 shares each, amounting to Rs.

15,00,000/- [rupees fifteen lacks only] erach were from M/s Prime IT Solutions pvt.

Ltd. and remaining 2 Shareholders of the respondent company, to the tune of 3 750 shares each were from .M/s Imperia Structures Pvt.

Page 10 of 21 HARERA ffiGURUGRAI/ 22.

That the said project suffered a huge setback by the act of non_cooperation of M/s Prime IT Solutions pvt.

Ltd., which proved to be detrimental tc, the progress of the said proiect as majority of the fund deposited with the above-mentioned prorect account by the allottees was under the charge of M/s Prime lT Solutions pvt.

Ltd. and the said fund was later diverted by,the M/s Prime IT Solutions pvt.

Ltd, leaving the respondent company with nearly no funds to proceed along with the said pro,ect.

Further, a case was filed with the title'M/s prime IT Solutions pvt.

Ltd. v.

Devi Ram and Imperia Wishfield Pvt.

Ltd.', pursuant to which a compromise deed dated 12.01. ted 12.01.2016 was signed between the respondent company and M/s prime IT Solutions Pvt.

Ltd. whereby the respondent company was left with the r;ole responsibility to implement the said project.

23.

That these circumstances caused monetary crunch and other predicaments, leading to delay in implementation of the said project.

Due to these complications, there was a delay in procurement of the land license and ownership by the respondent company.

However, the same has been acquired by the respondent company and the project is near to completion.

24.

That several allottees have withheld the remaining payments, which is further severally affecting the financial health of the respondent company and further, due to the force majeure conditions and circumstances, which were beyond the control of the respondent company as mentioned herein below, the construction got delayed in the said project.

Both the parties i.e., the complainant as well as the respondent company had contemplated at the very initial stage while signing the MoU that some delay might occur in future and that is why under the force majeure clause, it is duly agreed by the complainant that the respondent company shall not be liable to pertbrm any or all of its obligations during the subsistence ,t rr, a.;"rTi,i.llrT& Complaint No.

7710 of 2022 and others HARERA Complaint No.

7710 of 2022 and others ffiGURUGRAM circumstances and the time period required for performance of its obligations shall inevitably stand extended lt was unequivocally agreed between the complainant and the respondent company that the responLdent company is entitled to extension of time for delivery of the said flat on account of force majeure circumstances beyond the control ol the respondent company.

25.

Firstly, owing to unprecedented air pollution levels in Delhi NCR, the Hon'ble Supreme Court ordered a ban on construction activities in the region from 04.11.2019 onwards, which was a blow to realty developers in the city. the city.

The Air Quality Index (AQI) at the time was running above 900, which is considered severely unsafe for the city dwellers.

Following the Central Pollution Control Board (CPCB) declaring the AQI levels as not severe, the SC lifted the ban conditionally on 09.11.2019 allowing construction activities to be carried out between 6 am and 6 pm, and the complete ban was lifted by the Hon'ble Supreme Court on 74.02.2020 26.

Secondly, after the complete ban was lifted on 14.02.2020 by the Hon'ble Supreme Court, the Government of India imposed National Lockdolvn on 24.03.2020 on account of nation-wide pandemic COVID-19, and conditionally unlocked it on 03.05.2020, However, this has left a great impact on the procurement of material and labour.

The 40-day lockdown effective since 24.03.2020, extendable up to 03.05.2020 and subsequently Io17.03.2020, led to a reverse migration with workers leaving cities to return back to their villages.

It is estimated that around 6lakh workers walked to their villages, and around 10 lakh workers were stuck in relief camps.

Aftermath oflockdown left a great impact on the sector for resuming the fast-paced constructlon for achieving the timely delivery as a.greed under the allotment letter.

Page 12 of 21 I HARERA Complaint No.

7710 of 2022 and others c6 cr rDI taDAt\/ 27.

That initially, after obtaining the requisite sanctions and approvals from the concerned Authorities, the respondent company had comme:nced construction work and arranged for the necessary infrastructure including labour, plants and machinery, etc.

However, since the construction work was halted and could not be carried on in the planned manner due to the force majeure circumstances detailed above, the said infrastructure (ould not be utilized and the labour was also left to idle resulting in mounting expenses, without there being any progress in the construction lvork' Further, most ofthe construction materialwhich was purchased in adl'ance got wasted/deteriorated ca iorated causing huge monetary Iosses.

Even the plants and machineries, which were arranged for the timely completion of the construction work, got degenerated, resulting in huge losses to the respondent comPanY.

28.

That on account of above-mentioned circumstances, in addition to certain force majeure developments, the respondent company was not able to complete the said proiect.

29.

That despite all the impediments faced, the respondent company was still trying to finish the construction ofthe said Proiect and managed to complete the civil work ofthe said tower/project, and the finishing work, leavinlg only the MEP work of the towers under progress, which is estimated to be completed by the year 2025 and the respondent company shall be handing out physical possession of the said unit to the complainant' 30.

That the complainant is not entitled to the relief prayed for because the complainant has miserably failed to bring to the notice of this hon'ble authority any averment or document worth its salt which could form a basis for this hon'ble authority to consider the complaint under reply which is totally devoid of any merit in law.

The complainant himself has violated the , Paee 13 ol2t\( HARERA Complaint No.

7710 of 2022 and others M GURUGI1AN/ agreed terms by not making timely payment and not making payment for full consideration ofthe said unit and hence are not entitled to get any relief.

The instant complaint is an abuse of process of law.

31.

Copies of all the relevant documents have been filed and placed on the record.

Their authenticity is not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submission rnade by the parties.

E. lurisdiction ofthe authority 32.

The authority observes that it has territorial as well as subiect matter jurisdiction to adjudicate the present complaint for the reasons given br:low.

E.l Territorialiurisdiction 33.

As per notific ation no.

1/92/2077-7TCP dated 74.72. ted 74.72.2077 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 Di:;trict.

Therefore, this authority has complete territorial jurisdiction to deal with the present complaint.

E.ll Subiect matter iurisdiction 34.

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

Section 11(4)(aJ is reproduced as hereunder: section 71 (4) The promoter shall- (a) be responsible for oll obligations, responsibilities ond lunctions under the provisions of this Act or the rules ond regulations mode 1 PaEe 14 of 2 *HARERA #-eunuennl'rr Complaint No.

7710 of 202:l and others thereunder or to the allottees as per the agreement for sale, or to the ossociation ofollottees, os the case mqy be, till the conveyqnce of all the aportments, plots or buildings, as the case may be,tothe allottees, or the common areos to the associotion ofollottees or the competent authority, os the case may be; Section 34-Functions of the Authority: 34A of the Act provides to ensure compliance of the obligotions cost upon the promoters, the allottees ond the reol estote ogents under this Act ond the rules and regulations mqde thereunder.

35.

So, in view of the provisions of the Act quoted above, the authoriqr' 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 Iater stage.

F, Findings on the oblection raised by respondent F.l Obiection regarding non loinder of M/s Prime IT Solutions Pvt.

Ltd. as a party.

36.

While filing written reply, a specific plea was taken by the respondent with regard to non-joining of M/s Prime IT Solutions Pvt.

Pvt.

Ltd. as a party 1n the complaint.

It is pleaded by the respondent that there was ioint venture agreement executed between it and M/s Prime IT Solutions Pvt.

Ltd., leading to collaboration agreement dated 0 6.L2.2012belween them.

On the basis of that agreement, the respondent undertook to proceed with the construction and development ofthe proiect at its own cost.

Moreover, even on th" date of collaboration agreement the directors of both the companies were common.

So, in view of these facts, the presence of M/s Prime [T Solutions Pvt.

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

However, the pleas advanced in this regard are devoid of merit.

No doubt there is mention to that collaboration agreement in the buyer's agreL'ment r Page 15 ol2l Y ffiHARERA ffieunueRnv Complaint No.

7710 of 2022 and others but the complainant allottee was not a party to that document executed on 06.12.2012.If the Prime IT Solutions would have been a necessary party, then it would have been a signatory to the buyer's agreement.

The factum of merely mentioning with regard to collaboration agreement in the bu'y'er's agreement does not ipso facto shows that M/S Prime IT Solutions Pvt.

Ltd. should have been added as a respondent.

Moreover, the payments agirinst the allotted units were received by the respondent/builder.

So, taking into consideration all these facts it cannot be said that joining of M/s Prinre IT Solutions Pvt.

Ltd. as a respondent was must and the authority can proceed in its absence in view of the provision contained in Order 1 Rules 4 (b] and 9 of Code of Civil Procedure, 1908.

F.ll Obiection regarding force maieure conditions: 37.

The respondent-promoter has raised the contention that the constru,:tion of the tower in which the unit of the complainant is situated, has been delayed due to force majeure circumstances such as orders ofthe NGT, High Court and Supreme Court, govt. urt, govt. schemes and non-payment of instalment by different allottee of the pro)ect but all the pleas advanced in this regard are devoid of merit.

First of all, the possession of the unit in question was to be offered within 3 years from the date of booking as it a reasonable time period.

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

Moreover, some of the events mentioned above are of routine in nature happening annually and the promoter is required to take the same into consideration 'r'r'hile launching the proiect.

Thus, the promoter respondent cannot be give:n any Ieniency on based of aforesaid reasons and it is well settled principle that a person cannot take benefit of his own wrong. ),, Page 16 of21 Complaint No.

7710 of 2022 and others G.

38. ffiHARERA H aiRuGRAN/ Findings on the relief sought by the complainant I.

Direct the respondent to refund the entire paid amount to the complainant with interest @ 210l0 p.a. calculated from the date of respective deposit till the date of actual realization.

In the present complaint, the complainant intends to withdraw from, the project and is seeking return of the amount paid by them in respe(lt of subject unit along with interest as per section 18(1) ofthe Act and the same is reproduced below for ready reference: "Section 78: - Return of amount andcompensation 1B(1).

If the promoter fails to complete or is unable to give possession ofan apartmenL plot, or building.- (a)in accordance with the terms of the ogreementfor sole or, as the cose may be, duly completed by the date specifred therein; or (b)due to discontinuance of his busiress os a developer on occount of suspension or revocation of the registrotion under this Act or for any other reason, he sholl be liable on demqnd to the allottees, in cose the ollottee wishes to withdraw Jrom the project, without prejudice to qny other remedy ovailable, to return the amount received by him in respect of that ct of that apartment, plot, building, as the case may be, with interest at such rate as mqy be prescribed in this behalf including compensotion in the manner as provided under this Actr Provided thot where on qllottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month ofdelay, till the handing over ofthe possession, ot such rate os may be prescribed." (Emphosis supplied) However, in the present matter no BBA has been executed betlveen the parties therefore the due date of possession cannot be ascertained.

A considerate view has already been taken by the Hon'ble Supreme Court in the cases where due date of possession cannot be ascertained then a reasonable time period of 3 years has to be taken into consideration.

It was held in matter Fortune Infrastructure v.

Trevor d' lima (2078) 5 SCC 442 : (2078) 3 SCC (civ) 1 and then was reiterated in Pioneer llrban land & lnfrastructure Ltd, V, Govindan Raghavan (2079) SC 725 -: + 1 39.

Page 17 of 2 HARERA Complaint No.

7710 of2022 and others M GURUGRAI/ "Moreover, q person cqnnot be mode to woit indefinitely for the possession of the flats ollotted to them and they are entitled to seek the refund of the omount pqid by them, along with compensation.

Although we qre awore of the fact that when there wos no delivery period stipuloted in the qgreement, a reasonable time hos to be token into considerotion. tn the focts and circumstances of this case, a time period of 3 yeors would have been reasonable for completion of the controct i.e., the possession was required to be given by last quarter of 2014.

Further there is no dispute os to the foct that until no\r there is no redevelopment ofthe property, Hence, in view ofthe obove discussion, which draw us to an irresistible conclusion that there is deJiciency of service on the part of the appeltonts and accordingly the issue is answered." 40. ered." 40.

Accordingly, the due date ofpossession is calculated as 3 years from the date ofbooking i.e., 10.09.2012.

Therefore, the due date ofpossession comes out to be 10.09.2015.

41.

The occupation certificate/completion certificate of the project where the unit is situated has still not been obtained by the respondent-promoter.

The authority is ofthe view that the allottee cannot be expected to wait endlessly for taking possession of the allotted unit and for which he has paid a considerable amount towards the sale consideration and as observerl by Hon'ble Supreme Court of India in Ireo Grace Realtech pw.

Ltd, Vs.

Abhishek Khanna & Ors,, civil appeal no.

S7B5 of 2079, decidecl on 1,7.0t.202t. ".....The occupation certificate is not ovailable even os on date, which cleorly amounts to deficiency of service.

The allottees cannot be made to woit indefinitely for possession of the apartments oltotted to them, nor can they be bound to toke the apartments in Phase 1 of the proj ect......." 42.

Further in the iudgement of the Hon'ble Supreme Court of India in the cases of Newtech Promoters and Developers private Limited Vs State of U.P. and Ors.2O2|-2OZZ(1) RCR (c ), 3S7 reiterated in case of M/s Sana Realtors Private Limited & other Vs Union of India & others SLp k 1 Page 18 of2 HARERA Complaint No.

7710 of 2022 and others ffiGURUGRAM (Civil) No.

13005 of 2020 decided on t2.05.2022, it was observed as under: "25.

The unqualified right of the allottee to seek refund rekrred Under Section 1B(1)(a) and Section 19(4) ofthe Act is not dependent on any contingencies or stipulations thereof. lt appears thot the legislature has consciously provided this right of refund on demand os an unconditional absolute right to the allottee, if the promoter fails to give possession of the opartment, plot or buiiding within the time stipulated under the terms of the agreement regordless of unforeseen events or stay orders of the Court/Tribunol,-which is in either woy not attributable to th able to the ollottee/home buyer, the promoter is under an obligation to reJund the amount on demand with interest at the rate prescribed by the State Government including compensation in the manner provided under the Act with the proviso that if the allottee does not wish to withdraw from the project, he sholl be entitled for interest for the period of delay ti honding over possession ot the rate prescribed." 43.

The promoter is responsible for all obligations, responsibilities, and functions under the provisions of the Act of 2016, or the rules and regulations made thereunder or to the allottee as per agreement for sale under section 11[4)(a] of the AcL 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 wish€,s to withdraw from the proiect, without prejudice to any other remedy available, to return the amount received by him in respect ofthe unit lvith interest at such rate as may be prescribed.

44.

This is without prejudice to any other remedy available to the alloEtee including compensation for which allottee may file an application for adjudging compensation with the adjudicating officer under sections 71 & 72 read with section 31(1) of rhe Act of 2016.

45.

Admissibility of refund along with prescribed rate of interest; ,Ihe section 18 of the Act read with rule 15 of the rules provide that in case the, Page 19 of 2l HARERA Complaint No.

7710 of 202:l and others ffiGURUGRAM allottee intends to withdraw from the proiect, the respondent shall refund of the amount paid by the allottee in respect of the subject unit with interest at prescribed rate as provided under rule 15 ofthe rules.

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

Prescribed rcte ol irrtercst- [proviso to section 72, section 7g ond sub-section (4) ond subsection (7) ol section lgl (1) For the purpose of proviso to section 72; section 18; and sub_sections (l) ond (7) of section 79, the,.intetest ot the tote prescdbed,, sholl be the Stote Bonk of lndio highest morginol cost ol lendinq tute +2%.: Ptovided thot in cose the Stote Bonk of tndio moryihot cost of lending rute (MCLR) is hot in use, it sholl be replqced by such benchmark lending rotes which the Stote Bonk of tndio may jix lrom time to tine for lending to the generol public." 46.

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 legislaturr:, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases.

47.

Consequently, as per website of the State Bank of India i.e., https://sbi.co.in, the marginal cost of lending rate [in short, MCLRJ as on date i.e.,05.07.2023 isB.70o/o.

Accordingly, the prescribed rate ofinterest will be marginal cost of lending rate +Zo/o i.e.,10.7Oo/o.

48.

The authorify hereby directs the promoter to return the amount received by him i.e., Rs.

4,53,960/- with interest at the rate of lO.7 0o/o fthe State Bank of India highest marginal cost of lending rate (MCLR) applicab.Le as on date +2%J as prescribed under rule 15 of the Haryana Real E!;tate (Regulation and Development) Rules, Z017 from the date ofeach paynnent till the actual date of refund of the amount within the timelines provided in rule 16 ofthe Rules ibid.

H, Directions ofthe authority + 2t PaEe ZO of HARERA MGURUGRAI/ Complaint No.

7710 of 202i| and others 49.

Hence, the authority hereby passes this order and lssues the follor,ving directions under section 37 ofthe Act to ensure compliance ofobligations cast upon the promoter as per the function entrusted to the authority unde ority under section 34(0: i.

The respondent/promoter is directed to refund the entire amount paid by the complainants in all the above_mentioned cases allong with prescribed rate ofinterest @ 10.70% p.a. as prescribed under rule 15 of the Haryana Real Estate (Regulation & Development) Rules, 2017 from the date ofeach payment till the date ofrefund of the deposited amount. ii.

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.

50.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order.

51.

The complaints stand disposed of.

52.

Files be consigned to registry. (Ashok Mr Haryana Real Estate Regulatory Authority, Gurugram Dated: 05.07.202 3 PaEe 2l ofZl