SUJATA SOOD vs RAHEJA DEVELOPERS LTD.

* HARERH S-eLrnuennu Complaintno. i Date of liling complaint: First date of hearing: Date of decision: Ms.

Sujata Sood R/o: - 502, DDA SFS Flats, Pockct 2, Dwarka, Sector-9, South West Delhi-110077 Versus M/s Raheja Developers Regd.

Office at: W4D- Avenue Cariappa Marg, LL0062 CORAM: Shri Sanjeev Kumar Arora APPEARANCE: Sh.

Gaurav Rawat None Complaint No.

1650 of 2023 BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM rmplainant/allottee under Section 31 ofthe Real Estate (Regulation and Development) Act,2016 (in short, the Actl read with rule 28 of the llaryana Real Estate [Regu]ation and Developmcnt) Itulcs, 2017 [in short, the Rules) for violation of section 11[aJ (a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision ofthe Act or the rules 1650 of zo23 t4.o4.2023 21.07.2023 o6.10.2023 Complainant Respondent Member Complainant Respondent 1.

Page 1 of 17 A.

2.

RA l?AIU RE UG A UR Lr t Complaint No.

1650 of 202 3 and regulations made there under or to the allottee as per the agreement for sale executed inter se.

Unit and proiect related details The particulars of unit details, sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: l s.

N.

Particulars Details "Raheja's Maheshwara", townsh ip Known as "Raheja Aranya City" Sectors 11&14, Sohna Gurugram 1.

Name of the proiect 2.

Proiect area 9.23 acres 3.

Nature of the project Residential Plotted Colony 25 0f 201.2 dated 29.03.2012 vatid up to 28.03.2018 4.

DTCP license no, and validity status 5.

Name of licensee Aiit Kumar and 21 others 6.

RERA Registered/ not registered Registered vidr: n o.20 of 2017 dated 06.07 .2077 7.

RERA registration valid up to 5 Years form the date of revised environment clearance 8.

Area registered 3.752 acres 9.

Unit no.

A-303, 3.

A-303, 3.d floor, tower/block- A (Page no.

36 of the complainrl 10.

Unit area admeasuring 1630.33 sq. ft.

PaEe 2 of 17 HARIR ffiGURUGRAI/ 13.

Possession clause Complaint No.

1,650 of 2023 i (Page no.

36 of the complaintl 14.06.2016 [Page no.

32 ofthe complaint) 21.

The Company shall endeavour to complete the construction of the said Apartment within Fow-Eight (48) months plus/minus Twelve (72) months grace period from the dote of the execution of the Agreement or Environment Clearance and Forest Cleoronce, whichever is later but suhject to force majeure, political disturbances, circumstances cash llow mismatch and reasons beyond the control of the Company.

However, in case the Co mpany com p I etes th e con structl o n prior to the said period of 48 months plus 12 months grace period the Auottee sholl not raise ony objection in taking the possession after payment of Gross Cons[deration ond other charges stipuldted hereunder. 'fhe Compony on obtoinlng certificate Ior occupation and use for the building in which said Apartment is situated, by the Competent Authorities sholl hand over the said Ap7rtment to the Allottee for his occupotion and use ond subject to the Allottee hoving complied with alt the terms ond conditions of the Agreement to Sell.

In the event of Date of execution of agreement to sell Page 3 of17 t2.

MHARERA ffi eunuenlvr Complaint No.

1650 of 2023 t, lailure oflttoitiiio take over and/ or ctccupy and use'the said Apartment provisionally and/ or finally allotted within thirty (30) days from the date of intimation in writing by the Company, then the same shall lte at his risk and cost and Allottee shall be lioble to pay compensation @ Rs.8/- per Sq.

Ft. of the tentative Grass Area per month plus applicable nxes, if any, os holding chorges for the entire peri od of such de1oy...........

IPage no.

44 ofthe complaintJ. omplaintJ.

As per clause 21 ofthe agreement to sell, the possession of the allotted unit was supposed to be offered within a stipulated timeframe of 48 months plus/minus 12 months grace period of the date of execution of the agreement or environment tlearance and forest cleoron(e, whichever is laler.

Stnce in the present matter tho BBA incolporatcs unqualified rcason [or grace period/extended period in the possession clause.

Accordingly, the authority allo\r'/s this grace period of 12 months to the promoter at this stage.

Grace period Due date of possession 74.06.202t PaBe 4 of 17 74. ffiHARERA # eunuenRvr 5.

B.

3.

4.

Complaint No.

1650 of 202 3 (Note: - 48 months from date agreement i.e., 14.06.2076 + months grace period) 17.

Total sale consideration as per applicant ledger dated 31.05.2019 at page no.

70 of the complaint Rs.58,60,111/- 18.

Amount paid by the complainants Rs.

32,04,1L7 /- (as alleged by complainant) 20.

Occupation certificate /Completion certificate Not received 21.

Offer of possession Not offered of L2 __.1 Facts ofthe complaint 'Ihe complainant has made the following submissions: - That in 2014, the respondent company issued an advertisement announcing a group housing project "raheja maheshwara" was launched by respondent and thereby invited applications from prospective buyers for the purchase of unit in the said project.

That relying on various representations and assurances given by thc respondent and on beliefofsuch assurances, complainant booked a unit in the project by paying an amount of Rs.4,94,4'1,7 ,r -ui6" cheque dated 08.03.2016, towards the booking ofthe said unit bearing no.

A-303, 3"r floor, having super area measuring 1630.33 sq. ft. to the respondent dated 08.03.2016.

Page 5 of 17 *HARER s alnuennH,r 6.

7.

8.

10.

That as per the demands raised by the respondent, based on the payment plan, the complainant to buy the captioned unit timely paid a total sum of Rs. sum of Rs.

32,08,117/- towards the said unit against total sale consideration of Rs 57 ,43,0281-.

11.

That complainant visited thc office of the respondent regarding completion of project, nloney refund for the said unit '[he complainant was never informed about the delay in construction of said unit Since the complainant already paid 7 0o/o of the amount, and the delay is a 9.

1650 of 2023 'Ihat the respondent sent welcome letter dated 14.03 2016 to thc complainant providing the details of the proiect, confirming the booking ofthe unit dated 08.03.2016, allotting a unit no.

A-303, 3'd Floor, having super area measuring 1630.33 sq. ft. in the aforesaid project of the developer for a total sale consideration of the unit i.e .

Rs.57 ,43'0281-' That an agreement to sell was executed between t.he allottee and the respondent on 14.06.2016.

As per the annexure of the buyer's agreement the total sale consideration of the u nit i e.

Rs.

57 '43'0281- ' it includes EDC/lDC, PLC, Power back-up installation cost, club membership and other facilities.

That as per clause 21, that the subject to the terms hereof and to the buyer having complied with all the terms and conditions of this agreement, the company proposes to hand over possession of the apartment within a period of 48 months from the date of execution of the agreement. '[hat an agreement was cxecuted on 14.06.2016 ]'herefore, the due date of possession is calculated from the date of agreement i e' 14.06.2016.

Hence, the due date of possession comes out to be 14.06.2020.

Page 6 of l7 * HARERA ffiCunuennrr,r fqla 13. sheer distress for them demands refund of the entire amount paid by them.

1_2.

That complainant requested for the inspection of the unit as per the agreement.

Further complainant sent several reminders to the respondent but they were never able to give any satisfactory response regarding the aforesaid issues raised by the complainant. mplainant.

That the respondent has completely failed to honour their promises and has not provided the services as promised and agreed through the brochure, agreement and the different advertisements released from time to time.

Further, such acts of the lespondent is also illegal and against the spirit of RERA Act, 2016 and HREM Rules, 2 017.

That the complainant has suffered a loss and damage in as much as they had deposited the money in the hope ofgetting the said unit.

They have not only been deprived of the timely possession of the said unit but the prospective return they could have got if they had invested in fixed deposit in bank.

Therefore, the compensation in such cases would necessarily have to be higher than what is agreed in the agreemcnt.

That the respondent is guilty of deficiercy in service within the pu rview of provisions of the Real Estate (Regulation and DevelopmentJ Act, 2 016 (Central Act 16 of 2016) and the provisions of lJaryana Real Estate (Regulation and Development) Rules, 2017.

The complainant has suffered on account of deficiency in service by the respondent and as such the respondent is fully liable to cure the deficiency as per the provisions of the Real Estate (Regulation and Development) Act, 2016 (Central Act 16 of 201.6) and the provisions of Haryana Real Estate (Regulation and Development) Rules, 2017.

C.

Relief sought bythe complainant: 74.

15.

1650 of 2023 PaBe 7 ot 17 HARERA ffi.GURUGRAII complaint No.

1650 of 2023 16.

The complainant has sought following relief[s)' i.

Direct the respondent to refund the amount paid by the complainant along with prescribed rate of irterest per annum from the date of payment till rcalization.

17.

The present complaint was filed on 18.04.2023, On hearing dated 21,.07.2023 counsel for the respondent appeared and was directed to file reply in the authority with a period of tvvo week.

Despite specific directions, it failed to comply with the orders of the authority. authority. [t shows that the respondent was intentionally delaying the procedure of the court by avoiding to file written reply.

Further on the proceedings dated 08.09.2023 and 06.10.2023 none on behalf of respondent appeared' Therefore, the authority assumes/ observes that the respondent has nothing to say in the present matter and accordingly the authority proceeds with the case exParte.

18.

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 submissions made by the complainant.

D.

Iurisdiction ofthe authority 19.

The authority has complete territorial and subiect matter jurisdiction to adjudicate the present complaint fbr the reasons given below' D.I Territorialiurisdiction 20.

As per notification no.

119212017-lTCP dated 1'1.12.2017 issued by Town and Country Planning Department, Haryan:r, the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Page 8 of17 ffi HARER, #eunuennl,r Complaint No.

1650 of 2023 Gurugram district for all purposes.

In the present case, the pro,ect in question is situated within the planning area of Gurugram district.

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

D.ll Subiect-matterlurisdiction 21.

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

Section 11(4) (a) is reproduced as hereunder: Section 11 (4) The promoter shall' (o) be responsible for all obligatio:ns, responsibilities and functions under the provisions of this Act or the rules and regulotions made thereunder or to the allottees os per the ogreementfor sale, or to the association of allottees, os the cose mqy be, till the conveyonce of oll the opartments, plots or buildings, as the cose moy be, to the qllottees, or the common oreQS Lo the ossocotion afollottees ot the co ot the competent authority, as the cose m(ly be; Section 34-Functions of the Authority: 34A of the Act provides to ensure compliance ofthe )bligations cast upon the promoters, the allottees and the reol estate agents under this Act and the rules and regulations made thereuncler' 22.

So, in view of the provisions of the Act quoted abol'e, 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 adiudicating officer if pursued by the complainant al a later stage.

23.

Further, the authority has no hjtch in proceeding with the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the Hon'ble Apex Court in Newtech Promoters Page 9 of 17 *HARERA #-eunuennv and Developers Private Limited Vs State of U.P, ond Ors.2027-2022 (1) RCR (Civil),357 and reiterated in case of M/s Sano Realtors Privote Limited & other Vs Union of India & others SLP (Civil) No, 13005 of 2020 decided on 72.05.2022wherein it has been laid down as under: "86.

From the scheme of the Act of which a detoiled reference hos been made ond toking note oJpower ofodjudication delineqted with the regulotory outhori\) ond adjudicating oJficer, whot finally culls out is that olthough the Act indicotes the distinct expressions like 'refund', 'inte rest', 'pe nalty' ond 'compensation', a conjoint reoding of .

Sections 1B ond 19 cleorly maniksts that when it comes to refund of the omount, ond inLercst on the refund omounl, or clirecting payment of inrcrest for (leloyed deltvery oJ possesston, ar penolty and interest thereon, it is the regulqtory outhority whtch hos the power to exomtne and determine the outcome oIa compldtnt.

At the some time, when it comes to o question of seeking the reliej oJ adjudging compensotion ond interest thereon under Sections 12, 14, 1B ond 19, the odjudicating offcer exclusively hqs the power to determine, keeping in view the n view the collective reocling ofSection 77 reed with Section 72 of the Act. if the adjudication uncler Sections 12, 14, 18 ond 19 other thon compensation as envisaged, if extended to the adjudicating officer os prayed thot, in our view, may intend to expancl the ambit and scope ofthe powers ond functions olthe adiudicating ofjicer under Section 71 qnd that would be qgainst the mandqte of the Act 2016." 24.

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

Findings on the reliefsought by the complainant.

E.

I Direct the respondent to refund the amount paid by the complainant along with prescribed rate of interest per annum from the date ofpayment till realization. ln the present complaint, the complainant intends to withdraw from the project and is seeking return of the amount paid by her in respect of subiect unit along with interest at the prescribed rate as provided under 1650 of 2023 E.

25.

Page 10 of 17 MHARERA ffi euRueRRvr Compiaint No.

1650 of 2023 section 18(1) of the AcL Sec.

18[1) of the Act is reproduced below for ready reference. "Section 78: - Return ofamount ond compensotion 1B(1). lfthe promoter lails to complete or is unoblc to qive possesston of an opqrtment, plot, or builcling.- (a) in accordance with the tetms ofthe ogreementlor sol,? or, os the cqse may be, cluly completed by the dote specified therein; or (b) due to discontinuqnce oJ his business as o developer on occount of suspension or revocotion ofthe registration under th6 Act or for ony other reason, he shall be liable on demdnd to the allottees, in case the qllottee wishes to withdrqw from the project, without prejudice to qny other remedy ovailoble, to return the amount received by lim in respect of that apqrtment plot building, as the case moy be, with interest at such rate as may be prescribed in this be in this behalf including compensotion in the manner as provided under this Act: Provided that where qn allottee rloes not intend to withdrow from the project, he sholl be poid, by the prcnotet, interest for every month of deloy, till thc handing over ol the possessron, at such rute os ntoy be prescribed." (Enphasis supplied) 26.

As per clause 21 ofthe agreement to sell provides for handing over of possession and is reproduced below: 21.

The compony shall endeavour to complete the- construction of the soid apartment within Forty-Eight (48) months plus/minus Twelve (12) months grace period ofthe date of execution of the agreement or environment clearance and forest clearonce, whichever is lqter but subject to Jorce majeure, politicol disturbonces, circumstonces cash flow mismatch and reoson beyond the control of the company.

However, in case lhe cornporty cornpletes the cotlstruction pnur to the soid period oj 48 months plus 12 months groce period the allottee shqll not rqised qny objections in toking the posseston after payment oJ Gross Consideretion and other chorges stipulated hereunder.

The compony on obtqinin(t certificate of occupation and use for the building in which saicl apqrtment is sltuqted, by the competent authorities shall hand over the said apartment to the allotteefor his occupation ond use ond subject Page 11 of 17 ffiHARER ffi arnuennHr Complaint No.

1650 of 2023 to the allottee having compliecl with oll the terms and condition of the agreement to se11......." 27.

At the outset, it is relevant to comment on the preset possession clause of the agreement wherein the possession has been subjected to providing necessary infrastructure specially road, sewer & water in the sector by the government, but subject to force majeure conditions or any government/regulatory authority's action, inaction or omission and reason beyond the control of the seller. he seller.

The dralting of this clausc 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 allottee in making payment as per the plan may make the possession clause irrelevant fbr the purpose of allottee and the commitment date for handing over possession looses its meaning.

The incorporation of such a clause in the agreement to sell by the promoter is just to evadc the liability towards the timely delivery of subject unit and to deprive thc allottce of his rLght accruing aftcr delay in possession.

This is just to comment as to how the builder has misused his dominant position and drafted such a mischievous clause in the agreement and the allottee is left with no option but to sign on the dotted Iines.

28.

Due date of handing over possession and admissibility of grace period: As per clause 21 of the agreement to sell, the possession of the allotted unit was supposecl to be oflered within a stipulated timeframe of 48 months plus/minusl2 months groce period of the date of execution of the agreement or environment cleurance and forest clearance, whichever rs loter.

Since in the present matter the BBn incorporates unqualified reason for grace period/extended period in Page 12 of 17 29.

HARERA GURUGRAM the possession clause.

Accordingly, thc authority allows this grace period of 12 months to the promoter at this stage.

Admissibility of refund along with prescribed rate of interest: The complainant is seeking refund the amount paid by her at the prescribed rate of interest.

However, the allottee intends to withdraw from the project and is seeking refund ofthe amount paid by her in respect ofthe subject unit with interest at prescribed rate as provided under rule 15 ofthe rules.

Rule 15 has been reproducccl as under: Rule 75.

Prescribed rate ofinterest- lProviso to section 72, section 7B and sub-section (4) an. on (4) an.l subsection (7) ofsection 191 (1) l'or the purpose of proviso to secLion 12; secLion 1B; and sub' sections (4) and (7) oJ section 19, the 'interest ot the rate prescribed" shall be the State Bonk of lndio highest mqrginal cost oflending rqte +20k.: Provided that in cqse the State Bank of lndio marginol cost of lending rate (MCLR) is not in use, it shall be reploced by such benchmark lending rates which the Stote Bonl< of lndia moy fix from time to time for lending to the general pul,lic.

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.

Consequently, as per website of the State Eiank of India i.c., https://sbi.co.in, the marginal cost of lending rate (in short, MCLR) as on date i.e., 06.10.2023 is 8.75%o.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2o/o i.e., L0,75o/o.

0n consideration ofthe circumstances, the documents, submissions and based on the findinSs of the authority regarding contraventions as pcr provisions of rule 28(1), the authority is satisfied that the respondent is in contravention of the provisions of the Act.

By I'irtue of clause 21 of 30.

31.

32.

1650 of 2023 Page 13 of17 ffi HARERA ffiGURUGRAN/ Complaint No.

1650 of 2023 the agreement to sell executed between the parties on 14.06.2016, the possession of the subject unit was to be delivered within a period of 4 B months from the date of execution of buyer's agreement which comes out to be 14.06.2020.

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

Therefore, the due date of handing over of possession is L4.06.2021.. .06.2021..

Keeping in view the fact that the allottee/com plainant wishes to withdraw from the project and demanding return of the amount received by the promoter in respect of the unit with interest on faiiure of the promoter to complete or inability to give possession of the plot jn 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 2016.

The due date of possession as per agreement for sale as mentioned in the table above is 14.06.2021 and there is inordiltate delay.

Till date neither the construction is complete nor has the olfer of possession of the allotted unit been made to the allottee by the respondent/promoter.

The authority is ofthe view that the allottee cannot be expected to warr endlessly for taking possession of the unit which is allotted to it and for which they have paid a considerable amount ofmoney towards the sale consideration.

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 of construction of the project.

In view of the above-mentioned fact, the allottees intend to withdraw from the project and is well within the right to do the same rn view of section 18( 1) of the Act, 2 016.

33.

34.

Page 14 of 17 ffi HARERA **is" eunuennnt 35.

Moreover, 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 of the view that the allottees cannot be expected to wait endlessly for taking possession of thc allotted unit and for which he has paid a considerable amount towards the sale consideration and as observed by Hon'ble Supreme Court of India in Ireo Grace Realtech PvL Ltd.

Vs, Abhishek Khanna & Ors., civil appeal no.

5785 of 2019, decided on 77,01.2021 "....

2021 "....

The occupotion certiJicote is not avoiloble even as on dqte, which clearly omounts to deficiency of service- The allottees cannot be made to wait indeJinitely for possession ofthe opartments ollotted to them, nor can they be bound to toke the apartments in Phase 1 of the project.......".

36.

The judgement of the Hon'ble Supreme Court of India in the cases o/ Nevttech Promoters and Developers Private Limited Vs State of U.P. and Ors, (suprd) reiterated in cose of M/s Sano Realtors Privote Limited & other Vs Union of India & others SLP (Civil) No.

13005 of 2020 decided on 12.05.2022. it was observed 25.

The unqualified right of the allottee to seek refund ,.eferred llnder Section 1B(1)(a) and Section 19(4) ofthe Act is not dependent on any contingencies or stipulotions thereof. lt appeors thot the legislature has consciously provided this right of refund on demqnd os an unconclitional absolute right to the qllottee, if the promoter foils to give possession of the oportment, plot or building within the time stipulated under the terms ofthe agreement regardless ofunforeseen events or stoy orders ofthe Court/Tribunol, which is in either woy noL ottributable to the allottee/home buyer, the promotet is under an obligation to rei)nd the omount on demand with interest ot the rote prescribed by the State Covernment including compensation in the monner provided under the Act with the proviso tho, if the allottee does not wish to withdraw from the project, he sholl be entitled t'or interestfor the period ofdelay till handing over possession atthe rate prescribed." Complaint No.

1550 of 202 3 Page 15 of 17 8 HARERA #, ounuennH,r 38. 'Ihe promoter is responsible for all obligations, respo nsibil ities, and functions under the provisions of the Act of 2076, or the rules and regulations made thereunder or to the allottee as per agreement for sale under section 1f(al(a).

1f(al(a).

The promoter has failed to complete or is 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 she wishes to withdraw from the project, without prejudice to any other remcdy available, to return the amount received by him in respect of the unit with interest at such rate as may be prescribed.

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

As such, the complainant is entitled to refund an amount of Rs.

32,08,1L7 /- paid by her at the prescribed rate of interest i.e., Gi 10.750/o p.a. (the State Bank of India highest marginal cost of lending rate (MCLR) applicable as on d a1s +2o/o) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Developmentl 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.

Directions of the authority Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the funcl.ion entrusted to the authority under section 34(l): 39.

1650 of 2023 Page 16 of 17 ffi HARERA ffiounuennlrr 40.

47.

Complaint No. t650 of 2023 i.

The respondent/promoter is directed to refund the amount i.e., Rs.

32,08,117 /- received by it from the complainant along with interest at the rate of l0.7So/o p.a. as prescribed under rule 1 5 of the Haryana Real Estate (Regulation and Developmentl Rules, 2017 from the date ofeach payment till the actual date ofrefund of the deposited amount. i.

A period of 90 days is given to the respondent to comply with the directions given in this ing which legal consequences would follow. ld follow.

Complaint stands dis File be consigned Dated: 06.10.20 Haryana Real Estate Regulatory Authority, Gurugram HARTN PaEe 77 ot 77 .Q^,"s"-t--- (Sagidev Kumar Arora)