ROHIT KHANNA AND JAYA KHANNA vs PROMPT ENGINEERING PVT. LTD

HARERA M-GUI?UGRAI/ BEFORE THE HARYANA REAI ESTATE REGUTATORY AUTHORITY, GURUGRAM ORDER The present complaint has been filed by the complainants/allottees under section 3L of the Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read with rule 28 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2017 fin short, the Rules) for violation of section 1l(a)(al of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provisions of the Act or the Rules and regulations made there under or to the allottees as per the agreement for sale executed inter se.

A.

Unit and proiect related details Complaint No, 2502 of 2022 Complaint no. i First date ofhearing: Date ofdecision : 1.

Sh.

Rohit Khanna 2.

Smt. faya Khanna R/o: - House No.

501, Technorats Apartments, GHS, Plot No.

2 5, Sector-56,Gurvgr am- 7220L1..

Versus M/s Prompt Engineering Private Limited Regd.

Office At: LGF-F2Z, Sushant Shopping Arcade, Sushant Lok, Phase-1, Gurugram.

CORAM: Sh.

Vijay Kumar Goyal APPEARANCE: Sh.

S,S.

Hooda [Advocate) Ms.

Shriya Takkar (Advocate) 25O2 of 2O22 25.04.2022 21.12.2023 Complainant Respondent Member Complainants Respondent 1.

Page 1 of 17 /q HARERA GURU6RAM Complaint No.

2502 of 2022 2.

The particulars of unit details, sale consideration, the amount paid by the complainants, date of proposed handing over of the possession, delay period, ifany, have been detailed in the following tabular form: S.No.

1.

Particulars Details Name ofthe proiect "M3M Corner Walk", Sector 74, GuruAram, Haryana 2,- 3.

Mture of the proiect Commercial Project Unit no. n+-lc OfO on Low-igrouna in btock + (As per annexure A4 on page 2g of complaintl 4.

Unit admeasuring area U5U.75 sq. tt. olsuper area (As per annexure 44 on page ZB of complaint] 6.

5.

Allotment letter IFor R4-LG010J 0L.02.20t9 (As per annexure A4 on page Zg gomplainll of Date of execution agreement for sale of 24.04. of 24.04.208 [As Der Dase no.65 of comnlain 7.

Possession clause 7, POSSESSION OF THE UNIT 7.7 Schedule for possession of the ltnit: The promoter agrees and understands thqt timely delivery of possession of the unit along with the car parking space(s), if any, to the Allottee and the Common Areas to the Association of Allottees or the Competent Authority, as the case may be, as provided under the Act and Rule 2(1)(fl of the Rules, 2017, is the essence of the Agreement (As per Dage no.

88 ofthe comnlainrl B.

Date of tri-partite agreement 27.01.2079 [As per page no.39 ofthe complaintl Pre cancellation notice 27.04.2027 (As per annexure R-14 on page no.

144 of replyl 10.

Cancellation notice 25.05.202r (As per annexure R-15 on page no.

145 of repM 11.

Payment plan Time linked payment plan [As per page no.

33 of comnlaintl 12.

Total sale consideration Rs.7,91,7'J,,744/- (As per annexure A on page no.33 of comDlaint) Page 2 of 17 $" HARERA ffiGURUGRAM (lnadvertently mentioned as Rs.7,79,7 7,744 / - in proceedings dated 21-.L2.2023) 13.

Total amount paid by the comDlainants Rs.28,7 5,671, / - [As per paEe no.

53-57 ofthe comolaint 74.

Percentage of amount paid \4.990/o (tnadvertently mentioned as 24.02 in POD dated 27.72.2023) 15.

Occupation certificate 37.04.202r (As per annexure R-4 on page no.

86 of reDlvl 1,6.

Offer of possession Not offered being cancelled B.

Facts ofthe complaint 3.

The complainants have made the following submissions: [.

That after visiting various places in Gurugram in search of a good commercial unit, the complainants came into contact with the respondent's company officials by the sales/marketing agent of the respondent, where it was informed to the complainants that the respondent's company is developing a project "M3M Corner Walk" situated at Sector-74,Gurugram and after going through the attractive brochure, the payment plan and assurance given by the officials of the respondent regarding constructing of various projects in Gurugram and other and other districts of Haryana within the stipulated peri9d.

It was intimated that project is in pre-launching stage and it would be huge benefits to the complainants as after launching of the project, the rates of the properties would soar to the great highs and by the reputation of the respondent, the complainants decided to have an accommodation in the project of the respondent. ll.

That complainants duly believed the statement of the representative of the respondent and applied for the allotment of shop bearing unit no R2-LG-016 having the super area of 696.20 sq. ft. with total sale Complaint No.

2502 of 2022 Page 3 of 17 tu ffi HARERA M GTJRUGRAM Complaint No.

2502 of 2022 consideration of Rs.1,56,04,144/-.

The complainants duly paid the booking amount of Rs.11,00,000/- vide cheque dated 02.05.2018.

That at the time of booking the authorized representative assured to issue necessary documents for the allotment of shop no R2-LG-016 within 5-7 days, thus the above-mentioned representative succeeded in their illegal design and ulterior motive to extract money by inducing the complainants to trap in sale purchase of a shop which was not at all available at that time with the respondent.

The representative of the respondent does not issue any receipt of the cheque and any documents towards the receipt of cheque for the unit.

That after receiving the allotment money no receipt/ agreement was executed with the complainants and on pursuing.it strongly by the complainants than only they received a letter dated 02.07.2018 from the respondent whereby the buyer's agreement was forwarded to the complainants, however, the complainants were surprised and shocked to see that in the said letter the number of shop allotted was mentioned as RZ LG-015 instead ofagreed and allotted R2-LG-016.

That the complainants immediately brought this fact to the notice of the concerned Relation Manager vide email daled 27.08. led 27.08.2018 of the respondent and the complainants were assured by the respondent that they will look into this and shall allot the same shop for which the advance booking amount deposited by them.

But the respondent failed to allot the shop to them.

That the complainants managed to book an appointment with Sh.

Gagan Mehta who is AGM Sales of the company, which was fixed for 30.08.2018 in M3M office.

During this meeting Sh.

Gagan Mehta informed that the unit allotted to the complainant bearing no.

R2-LG- 016 has been allotted to someone else on a higher premium and as such III, IV.

VI.

Page 4 of 17 N HARERA ffiGURUGRAII Complaint No.

2502 of 2022 the same cannot be changed under any circumstances.

The complainants were astonished to see the behavior of Sh.

Gagan Mehta as at the time of booking the unit, respondent company were behaving very nicely and after taking booking amount from the complainants, the respondent was least bothered to resolve the issues.

Keeping in view the above fact, the complainants requested Sh.

Gagan Mehta to refund the booking amount of Rs.11,00,000/- but the same was denied to them.

VII.

That the respondent duly cheated and played fraud with the complainants firstly respondent took the booking amount of the unit which was subsequently sol!.,,to lther party and further refused to refund the booking amount.

VIII.

That the respondent further played the fraud with the complainants by inducing them under pressure to save the booking amount to make an application to apply for the alternative unit in place of applied unit R2- LG-016.

IX.

That having Ieft with no other option and to save the hard-earned money the complainants bow down to the illegal demand just to save there booking amount and agreed with the respondent.

X.

That the respondent again used the helpless situation of the complainants by forcing them to take the unit bearing no.

R4 -LG-010 having super area of 850.75 sq.ft. for a total sale consideration of Rs.1,91,71,744 /-.

71,744 /-.

Needless to say, the forced allotment ofunit increased the financial burden on the complainants by Rs.35,67,000/-.

However, left with no other option, complainants agreed for change of shop no from R2 -LG-O15 to R4 -LG-O10.

That the respondent took 1 year after receiving the money from the complainants to book a commercial unit and allotment letter was signed with the complainants on 04.09.2019.

Page 5 of 17 i{ '-' HARERA GURUGRAM Complaint No.

2502 of 2022 XI.

That on the persuasion of the respondent, the complainants eventually approached Piramal Capital & Housing Finance Ltd. in order to avail the subvention scheme for balance payment and piramal Capital & Housing Finance Ltd. sanctioned the loan vide sanction letter dated 14.12.201g.

That the respondent had issued letters pertaining to permission to mortgage, tripartite agreement which the complainants agreed and followed.

Thereafter the draft of tripartite agreement dated Zl.OL.ZO7g was shared by the respondent for affixing the signatures on the said agreement.

XII.

That complainants duly paid the payment as per the subvention payment plan amounting to Rs.28,a5,674/- i.e., Rs.l1,00,000/- through cheque dated 02.05.2018 , Rs.13,Lt,047 /_ through cheque dared 28.09.2018, Rs.438948/- and Rs.ZS,676/- through cheques dated 23.02.2019 and Rs.10,003/- through cheque dated 02.03.2019 .

XIII.

That the respondent played another fraud on the complainants by misleading them.

It was agreed that the said unit is allotted under subvention payment plan and according to which only 200/o of the basic sale price was to be paid initially and balance g0o/o was to be paid on final handover ofthe unit by piramal Capital & Housing Finance Ltd as per the tripartite agreement dated 21.01.2019.

However, the complainants were shocked to receive a demand notice dated 30.01.2019 despite sanctioning of the loan.

The respondent issued a demand notice asking the complainants for payment of Rs. ent of Rs.44,g4,gq6/_ which was unwarranted as per the terms and conditions of the subvenfion plan and tripartite agreement.

XIV.

That the respondent issued a provisional allotment letter dated 20.02.2079 to the complainants in which the payment plan and other Page 6 of 77 ffiHARERA ffi aIRUoRAN/ Complaint No.

2502 of 2022 terms and conditions were mentioned and they were only asked to sign on the dotted lines.

The agreement for sale was executed on24.04.2079.

XV.

That the complainants received a letter dated 04.09.2019 mentioning the revised payment plan which had taken them by surprise and later realized that the same was mentioned in the agreement for sale as well.

The respondent failed to disclose it to the complainants regarding the revised payment schedule.

However, when they contacted Mr.

Gaurav Garg (then Relationship Manager of the respondentl, he assured them that the payment plan would be as per the initial understanding only i.e. the remaining payments were to be made on the final handover of the unit and completion of entire project.

It is relevant to mention here that no demand notice was received by them from the respondent.

XVI.

That the complainants were astonished to see that the respondent has sent 6 tax invoices/ demand notices dated 01.04.2021 all having same invoice/demand No.

ONET /00009/2L-22, Ret No.00341 whereby a total amount of Rs.1,10,23,411/- was demanded from them and which was to be paid by 20.04.2021 i.e., within 18 days of the demand notices failing which the complainants would be burdened with 9.3070 interest per annum.

Thereafter they immediately contacted Sh.

Sumit Gaur ICurrent Relationship ManagerJ and raised their concern that as per the settled payment plan, the complainants were required to make the balance payment at the time of offer of possession.

The complainants also sent an email dated 1,5.04. ed 1,5.04.2021, to the respondent requesting them to adhere to the initial payment plan and be allowed to pay at the time of offer of final possession however the respondent failed to redress their grievance.

XVII.

That that respondent has cancelled the tripartite agreement with Piramal capital & housing finance to the complainants without any Page 7 of 17 lq HARERA ffiGURUGRAM Complaint No.

2502 of 2022 intimation therefore the respondent asked the complainants to approach ICICI Bank afresh with which the respondent has latest arrangements qua financing the units of the borrower/buyer in the proiects.

The complainants approached to the ICICI Bank and also apprise the respondent by informing them that they are in touch with ICICI Bank for financing facilities and already submitted the required documents.

It is relevant to mention here that surprisingly ICICI Bank . has put the business of the complainants in negative covid list and did not approve the Ioan ofthe complainants.

XVIU.

That due to respondent cancelled the pre-approved loan with Piramal Capital & Housing Finance Ltd and due to the Covid-19 the ICICI did not approved the loan amount, the iespondent took the undue advantage of the helpless situation of the complainants and with malafide intention sent a default/pre-cancellation notice dated 21.04.202L to Ihe complainants whereby the complainants were asked to pay Rs.L,19,92,245 / - on the very same day.

The respondent has indulged in unfair trade practice from the very beginning as he has taken the booking amount of the unit but failed to deliver the possession of the same.

The complainants have booked the unit under subvention scheme whereby the respondent had not only agreed to demand the payment at the time of offering the possession but also to provide Bank/NBFC of their choice.

The respondent has miserably failed to adhere to the terms and due to this the complainants have suffered mentally as well as financially.

XIX. ally.

XIX.

That, the respondent have crossed all the limits of harassing the complainants when the respondent cancelled the allotment of the unit and forfeit the amount paid by the complainants vide letter dated 25.05.2027 which was further confirmed vide mail dated 10.06.2021 by Page B of 17 ffiHARERA # aiRuGRA[/ Complaint No.

2502 of 2022 giving flimsy and vague reasons of non-adherence to the payment schedule.

XX.

That the complainants sent a legal notice dated, 22.07.202! to the respondent to refund the entire amount of Rs.28,7 5,671, / - along with interest @9.30% p.a.

However, the respondent sent a reply to the legal notice dated 02.11.2021 stating incorrect facts. y\Xt.

That instead of admitting their fault/negligence, the respondent kept on issuing reminders for illegal demand regularly, the respondent crossed all the limits by keeping aside all the provisions of law of land and without having any fear ol law of land.

XXII.

The complainants are left with no other option but to file the present complaint before the Authority.

C, Relief sought bythe complainants: 4.

The complainants have sought following relief(s): a.

Direct the respondent to refund the entire paid-up amount of Rs.ZB,75,67l/- along with interest at the rate of 24% per annum. b.

Direct the respondent to withdraw all demand notices.

D.

Reply by the respondent: The respondent has contested the complaint on the following grounds: i.

That after making independent enquiries and only after being fully satisfied about the proiect the alleged complainants approached the respondent for booking of a residential unit in the proiect 'M3M Corner Walk' being developed by the respondent. ii.

That in consideration of the booking amount paid by the complainants and their commitments to comply with the terms of the booking/allotment and make timely payments of demands the respondent allotted unit no.

R2 LG 015 in the project'Corner Walk' vide allotment letter dated 01.06.2018.

1.06.2018.

That the complainants failed Page I of 17 q HARERA Complaint No, 2502 of 2022 iii.

GURUGRAIi to make the payment pursuant to the allotment, therefore the respondent was constrained to issue a reminder letter dated 10.10.2018 to the complainants.

That the complainants vide email dated 20.10.2018 requested the respondent to substitute the allotted unit i.e.

R2 LG 015 with the unit bearing no.

R4 LG 010.

Therefore, the respondent acceding to the request of the complainants agreed to substitute the unit and an agreement for the substitution of the unit dated 22.10.201.8 was executed between the parties.

However, the complainants again failed to make the timely paym.ents and therefore the respondent was constrained to issue a pre-cancellation letter dated 26.10.2018.

That the complainants were facing some financial constraints and therefore the respondent assisted them at every stage and also helped them getting the loan application approved in order to finance the purchase of the unit bearing no.

That on 14.12.2018, the complainant's loan application was duly approved and a Ioan amount of Rs.1,13,75,000/- was sanctioned.

Thereafter, a tripartite agreement dated 21.01.2019 was executed between the parties.

That the respondent also provided the complainants with the permission to mortgage dated 30.01.2019 in respect ofthe said unit.

Subsequently, in consideration of the complalnant's commitment to comply with the terms of the booking and make timely payments of the demands, the respondent vide allotment letter dated 20.02.2079 allotted the substituted unit bearing no.

R4 LG 010 to the complainants.

As per the terms of the allotment letter the agreement for sale was to be executed and registered in the furtherance of the allotment letter.

It is submitted that the cost of the unit as per the allotment letter dated 20.02.2019 for an area 428.73 sq. ft. was Rs.

Page 10 of17 lA, HARERA ffiGURUGRAM 1,97,31,410 /- plus other charges. r charges.

That the complainants being the allottees, on their own free will and after due understanding of the legal import and effect had opted for the specific payment plan. vi.

That thereafter the respondent sent copies of the agreement for sale to the complainants for execution vide letter dated 22.02.2019.

After having read, understood and agreed with all the terms therein, the agreement for sale was executed on 24.04.2079.

It is pertinent to mention that the agreement duly covers all the Iiabilities and rights of both the parties. vii.

That in view of the booking and commitment to make timely payments, the respondent vide letter dated 04.09.2019 offered the complainants a monthly pre-handover amount to provide them the comfort of the respondent's commitment to deliver the unit on time.

It is submitted that as per the letter dated 04.09.2019, the respondent shall pay the pre-handover amount of Rs.

23,540/- to the complainants per month from 28.02.2019 to till the date of notice of offer of possession.

The respondent in compliance of the said letter duly paid the pre-handover amounts to the complainants. viii.

That the respondent raised the demands as per the terms of the agreed payment plan and in terms of the agreement for sale.

However, the complainants failed to make the timely payments of the said demands despite the complainants commitment to strictly adhere to the payment plan.

It is submitted that the complainants failed to fulfil the contractual obligation of making timely payment which was the essence of the agreement for sale.

Therefore, the respondent was constrained to issue a pre-cancellation letter dated 21.04.2027.

The complainants despite the issuance of the pre- cancellation letter failed to make the timely payments and therefore Complaint No.

2502 of 2022 M Page 11 of 17 ffiHARERA H aIRUGRAI/ 6.

7.

Complaint No.

2502 of 2022 the respondent issued a cancellation letter dated 25.05.2021,. .05.2021,.

Pursuant to the cancellation of the unit, the complainants requested the respondent to revive the unit as they are shifting their loan in ICICI Bank for lower interest rate. ix.

That despite the non-fulfilment of the obligation of making timely payment, the respondent fulfilled its promise and completed the construction and development of the complex way before the agreed timeline and applied to the competent authority for the grant of the Occupation Certificate on 28.05.2021,.

That after due inspection and verification of each and every aspect Occupation Certificate was granted by the competent authority on 31,.08.2021.

Thus, the construction of the proiect has been completed much before the prescribed commitment period i.e., March, 2025. x.

The respondent vide an application dated, 15.L2.2023 submitted that without prejudice to its rights, to bring closure to the matter refunded an amount of Rs.1,,72,477 /- post necessary deductions vide NEFT on 27.11.2023 as full and final settlement of all the dues of the complainants.

Thus, they are not entitled to any relief whatsoever and the present complaint merits dismissal.

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 parties.

E.

Iurisdiction ofthe authority: The authority has complete territorial and subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.l Territorialjurisdiction Page 12 of 17 A ffi HARERA # GTJRUGRAI,/ Complaint No.

2502 of 2022 As per notification no.

L/92/2017-1TCP dated 14.12.2017 issued by Town and Country Planning Department, Haryana the jurisdiction of Haryana Real Estate Regulatory Authority, Gurugram shall be entire Gurugram district for all purposes.

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

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

E.II Subiect Matter iurisdiction Section 11[4)(aJ of the Act, 2016 provides that the promoter shall be responsible to the allottees as per agreement for sale.

Section 11(4J(a) is reproduced as hereunder: Section 77..,.. (4) The promoter shall- (o) be responsible for all obligationt responsibilities and functions under the provisions of this Act or the rules and regulotions mode thereunder or to the allottees as per the agreement for sqle, or to the ossociation of ollottees, as the case moy be, till the conveyance of all the qpartments, plots or buildings, as the case moy be, to the allottees, or the common areas to the ossociation of qllottees or the competent outhority, as the cose may be; Section 34- Functions of the Authorigt: 344 of the Act provides to ensure compliance oI the obligotions cast upon the promoters, the allottees and the reol estote agents under this Act and the rules and regulqtions made thereunder, 8.

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

F.

Findings on the relief sought by the complainants: F.l Direct the respondent to refund the paid-up amount of Rs.2A,7 5,67 L/ - at the rate of 24o/o per annum 9.

The complainants booked a unit No R2-LG-016 having the super area of 696.20 sq. ft. with total sale consideration of Rs.1,56,04,1 44 /- in the project named " M3M Corner Walk' at Sector-74,Gurugram.

The & Page 13 of 17 ffiHARERA # euRuenRvr Complaint No.

2502 of 2022 complainants received a letter dated 02.07 -2018, they were surprised and shocked to see that in the said letter the number of shop allotted was mentioned as R2 LG-015 instead of agreed and allotted R2-LG-016.

R2-LG-016.

The complainants vide email dated 28.08.2018 informed the respondent that letter dated 02.07.2078 contains the allotted unit no. as R2 LG-0i.5 instead of the originally allotted R2-LG-O16 and requested to send the corrected agreement letter to proceed further.

But the respondent sent an allotment letter dated 04.09.2019 contains another unit no.

R4 LG-010 and the complainants accepted the same.

The agreement for sale was executed between the complainants on 24.04.201,9 and the complainants paid a total amount of Rs.28,75,677/- against total sale consideration of Rs.L,9L,71,144 /- 10.

The occupation certificate was received by the respondent from the competent authority on 31.08.2021.

However, the complainants defaulted in making payment of the outstanding amount as per the payment plan and therefore the respondent was constrained to issue a pre-cancellation letter dated 27.04.2021, requesting the complainants to comply with their obligations.

However, despite repeated follow ups and communications and even after the issuance of the pre-cancellation Ietter the complainants failed to act further and comply with their contractual obligations and therefore the allotment of the complainants was finally terminated vide letter dated 2 5.05.2021.

11.

The counsel for respondent submitted an application on 15.12.2023 along with a statement of account dated 21,.1,1.2023 to bring on the record that an amount of Rs.1,,72,144/- has been paid to the complainants as full and final settlement of all the dues of the complainants.

The same fact has been contended by the counsel for the respondent during proceedings dated 21.12.2023 that the complainants Page 14 of 17 N HARERA ffi GURUGRAIU 1,2.

2502 of 2022 73. are not entitled to any refund as amount mentioned above has already been paid to the complainants.

The counsel for the complainants vide proceedings dated 27.72. ted 27.72.2023 stated that the financial institution has disbursed the loan amount to the respondent and they have paid 80% of the sale consideration.

But there is no document placed on record to prove this contention of the complainants.

So the total amount paid by the complainants comes to Rs.28,75,671/-.

0n consideration of documents available on record and submissions made by both the parties, the authority is of the view that on the basis of provisions of allotment, the complainants had paid Rs.28,75,671/- against the total sale consideration of Rs.1,91,71,144/-.

The respondent/builder sent a demaid letter dated 01.04.2021 which is to be payable on or before 20.04./027 as per payment plan mentioned in the allotment letter, before issuing a pre-cancellation letter dated 2L.0+.2021 asking the allottee to make payment of the amount due but the same having no positive results and ultimately leading to cancellation of unit vide letter dared 25.05.2021.

Further, section 19[5) of the Act of 2016 casts an obligation on the allottee to make necessary payments in a timely manner.

Hence, cancellation of the unit in view of the terms and conditions of the payment plan annexed with the allotment letter dated 04.09.2019 is held to be valid.

The issue with regard to deduction of earnest money on cancellation of a contract arose in cases ofMaula Bux VS, Union of India, (7970) 1 SCR 928 and Sirdar KB.

Ram Chandra Raj Urs.

VS.

Sarah C.

Urs., (2015) 4 SCC 136, and wherein it was held that forfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of section 74 of Contract Act, 1872 are attached and the party so forfeiting must prove actual damages.

After cancellation lq, Page 15 of 17 HARERA M GUI?UGRAM of allotment, the flat remains with the builder as such there is hardly any actual damage.

National Consumer Disputes Redressal Commissions in CC/a35/2079 Ramesh Malhotra VS. lhotra VS.

Emaar McF Land Limited (decided on 29.06.2020) and lt[r.

Saurav Sanyal VS.

M/s IREO private Limited (decided on 12.04.2022) and followed in CC/2766/2072 in cose titled as Jayant Singhal and Anr.

VS, MSM India Limited decided on 26.07,2022,held that 10% of basic sale price is a reasonable amount to be forfeited in the name of "earnest money".

Keeping in view the principles laid down in the first two cases, a regulation known as the Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builderJ Regulations, 11[5) of 2018, was farmed providing as under- "5, AMOUNT OF EARNEST MONEY Scenorio prior to the Real Estate (Regulations and Development) Act, 2016 was dilferent, Frauds were carried out without any feor as there was no low for the same but now, in view of the above facts qnd toking into consideration the judgements ofHon'ble National Consumer Disputes Redressal Commission and the Hon'ble Supreme Court of Indiq, the authority is of the view that the forfeiture amount of the eqrnest money shall not exceed more than 1oo/o of the consideration amount of the real estote i.e, apurtment /plot /building as the case may be in oll cases where the cancellation of the flat/unit/plot is made by the builder in o unilaterol manner or the buyer intends to withdrow from the project and any ogreement contoining ony clause contrary to the aforesoid regulqtions shall be void qnd not binding on the buyer." So, keeping in view the law laid down by the Hon'ble Apex court and provisions of regulation 11 of 2018 framed by the Haryana Real Estate Regulatory Authoriry Gurugram, the respondent/builder can't retain more than 1070 of sale consideration as earnest money on cancellation but that was not done.

So, the respondent/builder is directed to refund the amount received from the complainants i.e., Rs. i.e., Rs.28,75,6711- after deducting 100/o of the basic sale consideration as earnest money and the amount paid by the respondent as pre-handed over and return the remaining amount along with interest at the rate of 10.85% (the State Complaint No.

2502 of 2022 L4, 15. b/ Page 16 of 17 MHARERA # eunueRRu Complaint No.

2502 of 2022 Bank of India highest marginal cost of lending rate (MCLRJ applicable as on d.ate +20/o) as prescribed under rule 15 of the Haryana Real Estate [Regulation and Development] Rules, 201,7, from the date of termination/cancellation 25.05.2021 till the actual date of refund of the amount within the timelines provided in rule 16 of the Haryana Rules 20L7 ibid.

G.

Directions of the Authority: 16.

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 functions entrusted to the Authoriw under Section 34(f) of the Act of 2016: il The respondent/promoter is directed to refund the amount i.e., Rs.28,75,671/- received by him from the complainants after deduction of 10% of the consideration amount as earnest money and the amount already paid by the respondent as pre-handover along with interest on such balance amount at the rate of 10.85% p.a. from the date of cancellation i.e., 25.05.2027 till the actual date ofrefund ofthe amount. ii] A period of 90 days is given to the respondent-builder to comply with the directions given in this order and failing which legal consequences would follow.

17.

Complaint stands disposed of.

18.

File be consigned to the registry. \ t- 2)-2 (Viiay Kumar coyal) Member Haryana Real Estate Regulatory Authority, Gurugram Dated:21.72.2023 Page 77 of 17