OM PRAKASH SAINI vs ANSAL HOUSING LIMITED

ffiHARERA ti$- eunuennHr 1.

2.

Complaint No.

7374 of 2022 and 2 others.

BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM I order ieserved on' . -lrg.ro.zoz: Date of pronounc ementt 14.72.2023 NAMI PRO Shri Vijay Kumar Goyal Membcr ORDER 'l'his order shall dispose ofall the 3 complaint(s) titled as above filed before this authority in form CM under section 31 ofthe Real Estate (Regulation and Development) Acr,201,6 (hereinafter referred as "the Act") read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 201 7 fhereinafter referred as "the rules") for violation of section 1 1(4 )(aJ o[ thc Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibi lities and functions to the allottees as per the agreement for sale executed inter se between parties. 'l-hc core issues emanating from them are similar in nature and the complainant(s) in the above referred matters are allottees of the project, iME OF THE Per! !!

UECT NAME I c"""-rl- cR /7 37 4 12022 cR/ 7 378 /2022 cR/7e33/2022 ANSAL HOUSING LIMITED FROMALLY KNOWN AS ANSAL HOUSING AND CONSTRUTION LIMITED. "ANSAL HEIGHTS 86" Case title APPEARANCE Rattan Singh Saini Ansal Housing Ltd.

Shri Cagan Sharma Advocate and Shri.

Amandeep Kadyan Advocate Om Prakash Saini AnsalHousing Ltd.

Shri Gagan Sharma Advocate and Shri.

Amandeep Kadyan Advocate Vijay Kumar Chawla Ansal Housing Ltd.

Shri, Sushil Yadav Advocate And Shri.

Amandeep Kadyan Advocate Page 1 of 28 ffiHARERA #- eunuennvr 3.

7374 of 2022 and 2 others. namely, "Ansal Heights 86" fgroup housing colony) being developed by the same respondent/promoter i.e., M/s Ansal Housing Limited formally known as M/s Ansal Housing & Construction Limited.

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 of the units in question, seeking award of possessio possession and delayed possession charges along with interest. 'fhe details oF the complaints, reply to status, unit no., date of agreement, possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given in the table below: Proiect Name and aNSel, HOUitr,tc lrn "eusnr, nrrCHTS 86" Location Sector-86, Gurugram.

Possession Clause: - 31 "'fhe developer sholl offer possession of the unit any time, within o period of 42 months from the dote of execution oI the agreement or within 42 months from the dote of obtoining oll the required sanctions and opproval necessory for commencement ol construction, whichever is latet subject to timely payment uI oll dues by buyer ond subject to force mojeure circumstonces as described in clause 32.

Further, there shall be a grace petiod of 6 months allowed to the developer over ond obove the period of42 months qs qbove in offering the possession ofthe unit " Emphasis supplied Occupation certificate: - Not obtained I Due drte: 01.10.2017 (Noter 42 months from date ofstart ofconstruction i.e., 01.10.2013 being ]ate..6.""th. g."c Noter Grace period is allowed being unqualified & included while computing o rnonrns grace penoo altoweq oelng unquallleoj ] Grace period is allowed being unqualified & included while computing fii: I .:,1'il,l:'^'-*, .:I1,1i1"-'1, Yi1{.*Tl-' due date of possession. compraint No., ) calzzz+1zozz J calzsiepozil ca17933lzoz Saini V/s Ansal Chawla V/s [--, | ':]:'='.i::' ':l:ll:::' **oTi*',1 Reply status | 25.05.2023 25.05.2023 25.05.2023 '- r l cR/7374/2022 Rattan Singh Saini V/s Ansal Housing Ltd.

Page 2 of 28 --l HARERA ffiGURUGRAM Unit no.

G-1001 Ds.28 ofcomDlaint F-0406 lDe.29 ofcomDlaint F-0303 14 ofcomDla Area admeasurin 1360 sq. ft. [pg.2B ofcomplaint] 1690 sq. ft. [p9.29 ofcomplaint] 1690 sq. ft. [pg.

14 ofcomplai Date of aPartment buyer asreement 74.12.2072 [p9.25 ofcomplaint] 0t.11,.2012 [p9.26 ofcomplaint] 29.10.2012 [p9. .2012 [p9.11 ofcomp]ai offer of possession for fit outs 72.07.2022 [pg.

60 ofcomplaint] 30.06.2022 lpg.67 ofcomplaintl 22.06.2022 2B ofcomola Total Consideration / Total Amount paid by the complainant(s) TSC: Rs.61,59,711l- AP: Rs.53,60,555i/- [As per S0A dat€d t2.01.2022 at p* 6l ofcomplaint) TSC: Rs.75,02,983/- APt Rs.64,77,a65/- (As per S0A dated 30.06.2022 at pE.

68 ofcomDlaintl TSC| Rs.?

4,25 ,287 AP: Rs.64,88,661/ (As per S0A dar 22.06.2022 arpg. of complaint) outs I IpB.

60 of complaintl lpg.

67 ol complaintl [pB.

28 ofcomplarnr] | Toral lTsc: Rs.61.59,71 r/- LTsc: Rs.75,02,983/- Tsct Rsj 4,25.2a7 /- J Consideration/ IAP: Rs.53,60,555/' IAP: Rs 64,77,865/' AP: Rs.6488.66ll- TotalAmount I I I rraidbvthe J(As per S0A dated l(As oer SOA dared l(As per SOA dated complainant(s'f t2-01 20.22 at p* 61 bo.oi.2o22 at pE 68 122.06.2022 atpe.29 or comprarnt, bfcomDlaint) lofcomplarnt) ] The complainant in the above complalnt(s) have soughtthe following reliefs: 1.

Direct the respondent to commit a fresh firm date of handing over possessron oF the I apartment since all earlier promised dates have already passed.

I 2.

Direct the respondent to rectify the ledger statement ofthe complainant showing actual I amount deposited by him as per the details provided in the complaint and the delayed J rate ofinterest shown in the statement s hall be calculated as per the provisions oIthe Act of2016 3.

The complainant has already paid delayed interest ofRs.2,64,632/- which was calculated charged by the respondent against the interest prescribed by this authority.

So, it is requested to direct the respondent to adjust the delayed interest already paid by rhe I Complaint No.

7374 of 2022 aod 2 others. ] arntl l --'l aintl aintl-t 4. complainant before issuing the final demand notice.

4.

Direct the respondent company to pay the interest amount @24yo or as prescnbed by the authority, with effect from 01.11. rom 01.11.2016 on the total amount deposited by the complainant till the dare of payment within one month ofthe date oforder passed by the authority and thereafter to pay the interest on monthly basis by 10th of each month till the actual possession ot the apartmeni to the complainant.

5, Direct the respondent to hand-over the possession of the apartment by the lresh date commltted by the respondent failinB which grant the liberty to the complainant to seek r.lund ol the .omplete amount with rnterest and compensalion.

Note: ln the table referred above, certain abbreviations have been used.

They are elaborated as follows: Abbreviation Full form TSC Total Sale consideration 4P Amount paid by the 'l'he aforesaid complaints were filed by the complainants against the promoter on account of violation of the apartment buyer's agreement executed between the parties in respect of said unit for not handing over Page 3 of28 ffiHARERA ffi ounuennvr Complaint No.

7374 of 2022 and 2 others. the possession by the due date, seeking award of possession and delayed possession charges along with interest.

5.

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

6.

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

Out of the above-mentioned case, the particulars of lead case CR/7374/2022, case titled as Rattan Singh Saini V/s Ansal Housing Ltd. are being taken into consideration for determining the rights of the allottee[s) qua possession and delayed possession charges along with interest and compensation.

A, Proiect and unit related details 7. details 7. 'l'he particulars ofthe project, the details ofsale consideration, the amount paid by the complainantIs), date ofproposed handing over the possession, delay period, if any, have been detailed in the following tabular form: CR/7374/2022, titled as Rattan Singh Saini V/s Ansal Housing Ltd. s.

N.

Particulars Details 1.

Name ofthe project "Ansal Heights,86" 2.

Project location Sector 86, Gurugram, Haryana 3.

Project area 12.843 acres 4.

Nature ofthe project Group housing colony Page 4 of 28l HARERA GURUGRAM Complaint No.

DTCP license no. and validity status 48 of 2011 dated 29.05.2011 valid up to 28.05.2017 6.

Name of licensee Resolve Estate Pvt.

Ltd.

7.

RERA registration details Not registered B, Unit no.

G- 1001 lpage no.

2B ofthe complaint] 9.

Unit area admeasuring 1360 sq. ft. super area 10.

Date of execution of flat buyer agreement 74.t2.2072 [page no.25 of complaint] 11.

Possession clause 31.

The developer sholl offer possession of the unit qny time, within o period of 42 months Irom the dote of execution of the dgreement or within 42 months lrom the date of obtaining all the required sanctions ond approval necessary for commencement of construction, whichever is later subject to timely poyment of all dues by buyer ond subject to force mojeure circumstances as described in clause 32.

Further, there shall be o grace period of 6 months allowed to the developer over ond qbove the period of 42 months as above in oJlbring the possession of the unit." (Emphosis supplied) lpage 33 of complatntl 01.10.2 013 12.

Date of commencement of construction as per {A- Page 5 of 28 HARERA GURUGRAM Complaint No.

7374 of 2022 and 2 others. customer ledger dated 16.04.2019 at pg.

58 of complaint 13.

Due date of possession 07.10.201,7 [Note: Due date calculated from date of commencement of construction i,e., 01.10.2013 being later. crace period allowed being unqualifiedl 1,4. fiedl 1,4.

Basic sale consideration as per payment annexed with the buyer's agreement at page no.

41 of the complaint Rs.53,88,844l- 15.

Sale consideration as per SOA dated 12.01.2022 at pg.

61 of complaint Rs.61,59,7 77 /- 76.

Amount paid by the complainant as per SOA dared 12.07.2022 at pg.

61 of complaint Rs.53,60,555/- 77.

Occupation certificate Not yet obtained 1B Offer of possession for fit outs 12.01,.20?2 [pg.

60 of complaint] B.

8.

Facts ofthe complaint 'l'he complainant has made the following submissions in the complaint: - a.

That in response to the advertisement of the project named Ansal Heights, 36 in Sector 86, Gurgaon by the respondent company, the complainant, booked a 2 BHK, measuring 1360 sq. ft. in the said Page 6 of 28 l ffiHARERA S-ounuennnt Complaint No.

7374 of 2022 and 2 others. project, on 22.72.2017 with a booking amount of Rs.400,000/-and at total basic sale price of Rs.54,42,159/- including taxes.

Accordingly, a flat buyer's agreement was execute d on 74.72.201.2 between both the parties.

That the payments for the flat were construction linked as par the payment plan given at Annexure 'A' of the flat buyer's agreement and till 06.08.2019 an amount of Rs.56,00,057/- including Rs.2,47,755 /- interest on delay ofpayments had been paid by the complainant.

Date wisc details of payment made by the complainant with chcque annexed with the paper book.

That according to clause 31 of flat buyer's agreement, the respondent was required to offer possession of the flat to the complainant/allottee within a period of42 months from the date ofthe agreement.

That said clause ofthe agreement is one sided and legally untenable because this clause shows that there could have been certain sanctions/approvals still pending to be obtained by the respondent at the time ofexecution of the flat buyer's agreement. agreement.

A builder cannot accept any bookings of the flats unless he has received all the sanctions and approvals related to the development of the projects and thus, the time of offering possession cannot be related to the receipt of sanctions/approvals.

FIence, the period of completion ofthe project has to be taken as within 42 months from the date of execution of the agreement, 42 months being the outer Iimit.

Secondly, the respondent has allowed himself a concession of 6 months over and above the period of 42 months.

This clause is one sided.

However, even after giving the benefit of 6 months b. c.

Page 7 of 28 ffiHARERA S-eunuennvr offered latest by 14.72.2016. d.

That even after accepting the one-sided clause of6 months concession, the time limit of offering possession of the flat has gone past by more than 64 months.

Hence, the complainant is within his rights to withdraw from the project in terms of section 18(1) of the Act. l'he complainant is further entitled to claim the refund of amount paid along with interest and compensation in terms of section 19(4J of the Act. e.

That delay in payment of any amount, due and payable by the buyer, in terms ofthe application and agreement shall attract compoundable interest at the rate of 240/o per annum, compounded quarterly.

No interest is payable by the Developer on any instalment paid early /before its due date by the buyer unless otherwise offered as a scheme by the developer." Hence, in terms of Clause 24 of the agreement, the complainant is entitled to 2470 interest compounded quarterly on refund ofamount paid by him from the date ofmaking payment till the date oF actual refund by the respondent. f.

That the complainant had paid almost 99% the amount but the respondent did not deliver the flat till date even passing 64 months and now sending mischievous demand letter without obtaining occupation certificate, thus, causing anxiety and mental harassment to the complainant. mplainant.

The complainant also had to engage a lawyer for the purpose of processing the instant matter.

Hence, the complainant is also entitled to compensation and reimbursement of legal expenses.

7374 of 2022 and 2 others. concession to the respondent, the possession ought to have been Page I of 28 ffiHARERA ffiounuonnnt Complaint No.

7374 of 2022 and 2 others. g.

That since the complainant is genuine buyer and wanted the possession of the flat and seeking delayed possession charges on grounds of non-delivery by the respondent on time which is the essence of the buyer's agreement.

The complainant has no other option except approaching this authority for justice.

Relief sought by the complainant: 'l'he complainant has sought following relief(sJ a.

Direct the respondent to comrq'it a fresh firm date of handing over posscssion of the apartment since all earlier promised dates have already passed. b.

Direct the respondent to rectify the ledger statement of the complainant showing actual amount deposited by him as per the details provided in the complaint and the delayed rate of interest shown in the statement shall be calculated as per the provisions of the Act of 2016. c.

The complainant has already paid delayed interest of Rs.2,47,755/- which was calculated charged by the respondent against the interest prcscribed by this authority.

So, it is requested to direct the respondent to adiust the delayed interest already paid by the complainant before issuing the final demand notice. d.

Direct the respondent company to pay the interest amount @ 240/o or as prescribed by the authority, with effect from 01.11.2016 on the total amount deposited by the complainant till the date of payment within one month ofthe date oforder passed by the authority and thereafter to pay the interest on monthly basis by 1Oth of each month till the actual possession of the apartment to the complainant.

C.

9.

Page 9 of 28 ffiHARERA #"eunuennu Complaint No.

7374 of 2022 aod 2 others.

2 others. e.

Direct the respondent to hand-over the possession of the apartment by the fresh date committed by the respondent failing which grant the liberty to the complainant to seek refund of the complete amount with interest and compensation.

10.

0n the date of hearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11( ) (a) ofthe act to plead guilty or not to plead guilty.

D.

Reply by the respondent.

11.

The respondent has contested the complaint on the following grounds. a.

That the complainant had approached the answering respondent for booking a flat bearing no.

C-1001 in an upcoming project Ansal Heights, Sector 86, Gurugram.

Upon the satisfaction of the complainant regarding inspection of the site, title, location plans, etc. an agreement to sell dated 14.72.2072 was signed between the parties. b.

That the current dispute cannot be governed by the Act of 2016, because of the fact that the builder buyer agreement signed between the parties was in the year 20L2.

The regulations at the concerned time period would regulate the project and not a subsequent Iegislation i.e., the Act of 2016.

That Parliament would not make the opcration of a statute retrospective in effect. c.

That even iffor the sake ofargument, the averments and the pleadings in the complaint are taken to be true, the said complaint has been preferred by the complainant belatedly.

The complainant has admittedly filed the complaint in th eyear 2022 and the cause ofaction accrue on 14.12.2076 as per the complaint itself.

Therefore, it is Page 10 of28 ffiHARERA ffi eunueneM Complaint No.

7374 of 2022 and 2 others. submitted that the complaint cannot be filed before this authority as the same is barred by limitation. d.

That even if the complaint is admitted being true and correct, the agreement which was signed in the year 2012 without coercion or any durcss cannot be called into question today. ion today.

The builder buyer agreement provides for a penalty in the event of a delay in giving possession. tt is submitted that clause 37 of the said agreement provides for { 5/- sq. ft. per month in the super area for any delay in offering possession of the unit as mentioned in clause 31 of the agreement.

Therefore, the complainant will be entitled to invoke the said clause and is barred from approaching the Hon'ble Commission in order to alter the penalty clause by virtue of this complaint more than 10 years after it was agreed upon by both parties.

That the respondent had in due course of time obtained all necessary approvals from the concerned authorities.

The permit for environmental clearances for proposed group housing project for sector- 103, Gurugram Haryana on 20.02.2015.

Similarly, the approval for digging foundation and basement was obtained and sanctions from the department of mines and geology were obtained in 2012. 'Ihus, the respondents have in a timely and prompt manner ensured that the requisite compliances be obtained and cannot be faulted on giving delayed possession to the complainant, That the respondent has adequately explained the delay and the delay has been caused on account of things beyond the control of the answering respondent.

It is further submitted that the builder buyer agreement provides for such eventualities and the cause for the delay a. b.

Page 11 of 28 HARERA Complaint No.

MGURUGRAM is completely covered in the said clause.

The respondent ought to have complied with the orders of the Hon'ble High Court of Punjab and llaryana at Chandigarh in CWP No.

20032 of 2008, dated 16.07 .2012, 31.07.2072, 21..08.201.2.

The said orders banned the extraction of water, which is the backbone of the construction process. n process.

Similarly, the complaint itself reveals that the correspondence from the answering respondent specifies force majeure, demonetization and the orders of the Hon'ble NGT prohibiting construction in and around Delhi in addition to the covid 19 pandemic as the causes which contributed to the stalling of the project at crucial junctures for considerable spells. c.

That the answering respondent and the complainant admittedly have entered into a builder buyer agreement which provides for the event of delayed possession.

It is submitted that clause 32 of the builder buyer agreement is clear that there is no compensation to be sought by the complainant/prospective owner in the event of delay in possession.

12.

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 ofthese undisputed documents and submission made by the parties.

E.

Iurisdiction ofthe authority 13.

1'he respondent has raised a preliminary submission/oblection the authority has no jurisdiction to entertain the present complaint.

The objection of the respondent regarding rejection of complaint on ground of iurisdiction stands rejected.

The authority observes that it has territorial Page 72 ol28 14.

15.

HARERA Complaint No.

GURUGRA[/ as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

I Territorial iurisdiction As per notification no.

1, /92 /2017 -7T CP dated 14.12.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

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

E. plaint.

II Subiect matter iurisdiction Section 11(4)[a) of the Act, 2015 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11[4J(a) is reproduced as hereunder; Section 11 [4)'l he pronoter sholl- (a) be responsible for all obligotions, responsibilities and functions under the provisions of this Act or the rules ond regulations made thereunder or to the ollottees as per the agreement for sale, or to the ossociation of allottees, as the case may be, till the conveyance ofoll the opartments, plots or buildings,os the case may be, to the ollottees, or the common oreas to the associotion ofallottees or the competent authority, os the cose moy be; Section 34-Functions of the Authority: j4(U of the Act provides to ensure compliance of the obligations cost upon the promoters, the ollottees and the reol estate agents under this Act and the rules and regulations mode thereunder.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be 16.

Page 13 of 28 ffiHARERA fS- eunuennHl F.

1,7.

7374 of 2022 arld 2 others. decided by the adjudicating officer ifpursued by the complainants at a later stage.

Findings on the obiections raised by the respondent F.

I Obiection regarding iurisdiction of authority w.r.t. buyer's agreement executed prior to coming into force ofthe Act. 'l'he respondent has raised an objection raised the respondent that the authority is deprived of the jurisdiction to go into the interpretation ol or rights ofthe parties inter-se in accordance with the flat buyer's agreement executed between the parties and no agreement for sale as referred to under the provisions ofthe Act or the said rules has been executed inter se parties. e parties.

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

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

However, if the Act has provided for dealing with certain specific provisions/situation in a specific/particular manner, then that situation will be dealt with in accordance with the Act and the rules after the date of coming into force of the Act and the rules.

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

The said contention has been upheld in the landmark judgment of Neelkamal Realtors Suburhan Pvt.

Vs.

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

Under the provisions olSection 18, thedeloy in handing over the possession would be counted from the dote mentioned in the ogreement for sole entered into by the promoter ond the allottee prior to its registrstion under REP.1,.

Under the provisions of REP./,, PaBe 74 ol28 HARERA Complaint No.

7374 of 2022 and 2 others. *.@- GURUGRAM the promoter is given q fociliry b revise the dqte of completion of project qncl declare the same under Section 4.

The REP,!. does not contemplate rewriting ofcontrqct befween theflot purchaser and the promoter......

122.

We hove alreody discussed thot obove stoted provisions of the REpl. ore not retrospective in nature.

They may to some extent be hoving o retroactive or quasi retrooctive eJfect but then on that ground the volidity of the provisions of REP.y'. connot be challenged.

The Porliament is competent enough to legislote low hoving retrospective or retrooctive effecL A low can be even fromecl to oJfect subsisting / existing contractuol rights between the parties in the lorger public interesL We do not have ony doubt in our mind thot the REM has been fromed in the lqrger public interest ofter a thoroug a thorough study and discussion mode at the highest level by the Standing Committee ond Select Committee, which submitted its detoiled reports." 18.

Also, in appeal no.

173 of 2019 titled as l4agic Eye Developer Wt.

Ishwer Singh Dahiya, in order dated 17 .12.2019 the Haryana Real Estate Appellate Tribunal has observed- "34.

Thus, keeping in view our oforesaid discussion, we are of the considered opinion that the provisions of the Act ore quost retrooctive to sone extent in operotion ond will be opplicable to the ogreements for sqle entered into even prior to coming into operqtion of the Act where the trqnsaction are still in the process oI completion.

Hence in cose of delay in the offer/delivery of possession as per the terms and conditions of the agreement for sale the allottee shqll be entitled to the interest/delayed possesson chorges on the reasonable rote of interest os provided in Rule 15 of the rules and one sided, unfair and unreasonoble rote of compensotion mentioned in the ogreement for sale is liable to be ignorecl." 'l'he agreements are sacrosanct save and except for the provisions which have been abrogated by the Act itself.

Further, it is noted that the agreements have been executed in the manner that there is no scope left to the allottee to negotiate any of the clauses contained therein.

Therefore, the authority is of the view that the charges payable under various heads shall be payable as per the agreed terms and conditions of the agreement subject to the condition that the same are in accordance with the Page 15 of 28 MHARERA ffi,euRuenRHr Complaint No.

7374 of 2022 and 2 others. plans/permissions approved by the respective departments/competent authorities and are not in contravention of any other Act, rules, statutes, instructions, directions issued thereunder and are not unreasonable or exorbitant in nature.

F.

II Objection regarding maintainability of complaint.

19. laint.

19. '[he counsel for the respondent has raised an obiection that the complaint is barred by limitation as the complainants have approached the respondent in the year 2012 to invest the projects of the respondent situated in Gurugram.

The respondent further submitted that the complainants has admittedly filed the complaint in the year 2022 and the cause ofaction accrued on 2016.

20.

On consideration of the documents available on record and submissions made by the party, the authority observes that the buyer's agreement w.r.t. the villa was executed with the allottee on 1,4.L2.2072.

As per clause 31 of the buyer's agreement, the possession ofthe subject plot was to be offered with in a period of42 months plus 6 months from date ofagreement or the date of commencement of construction which whichever is later.

The authority calculated from the date of construction i.e., 01.10.2013, which comes out to be 01.10.2017.

21.

However, the said project ofthe allotted unit is an ongoing project, and the respondent/promoter has failed to apply and obtaining the OC/CC till date.

As per proviso to section 3 of Act of 201.6, ongoing projects on the date of this Act i.e., 28.07.20t7 for which completion certificate has not been issued, the promoter shall make an application to the authority for Page 16 of 28 ffiH ffie ARERA Complaint No.

URUGRAiV registration of the said proiect within a period of three months from the date of commencement of this Act and the relevant part of the Act is reproduced hereunder: - Provided that projects thot are ongoing on the dote of commencement of this Act ond for which the completion certificate has not been issued, the promoter shall make on opplication to the Authority for registration of the soid project within a period of three months from the dote olcommencement ofthis Act: 'l'he legislation is very clear in this aspect that a proiect shall be regarded as an "ongoing project" until receipt of completion certific n certificate.

Since no completion certificate has yet been obtained by the promoter-builder with regards to the concerned project.

Moreover, it is observed that despite passing a benchmark of due date on 01.10.2017, till date it has failed to handover the possession ofthe allotted unit to the complainant and thus, the cause of action is continuing till date and recurring in nature.

The authority relied upon the section 22 of the Limitation Act, 1963, Continuing breaches and torts and the relevant portion are reproduce as under for ready reference: - 22.

Continuing bresches snd torts- ln the case of o continuing breach of controct or in the case oI o continuing tort, o fresh period of limitation begins to run ot every moment of the time during which the breoch or the tort as the cose may be, continues, Keeping in view the aforesaid facts and legal position, the objection with 22.

23.

24. regard to the complaint barred by Iimitation is hereby rejected.

Obiection regarding delay in completion of construction of proiect due to force maieure conditions.

T" III Page 17 of 28 ffiHARERA #- eunuennHl Complaint No.

7374 of 2022 and, 2 others.

25. 'Ihe respondent-promoter alleged that grace period on account of force majeure conditions be allowed to it.

It raised the contention that the construction of the project was delayed due to force majeure conditions such as demonetization, and the orders of the Hon'ble NGT prohibiting construction in and around Delhi and the Covid-19, pandemic among others, but all the pleas advanced in this regard are devoid of merit. 'Ihe flat buyer's agreement was executed between the parties on 14.12.2012 and as per terms and conditions of the said agreement the due date of handing over of possession comes out to be 01.10.2017.

The events such as and various orders by NGT in view of weather condition of Delhi NCR region, were for a shorter duration of time and were not continuous as there is a delay ofmore than three years and even some happening happening after due date ofhanding over ofpossession.

There is nothing on record that the respondent has even made an application for grant of occupation certificate.

Hence, in view of aforesaid circumstances, no period grace pcriod can be allowed to the respondent/builder.

Though some allottees may not be regular in paying the amount due but whether the interest of all the stakeholders concerned with the said project be put on hold due to fault of some of the allottees.

Thus, the promoter- respondent cannot be given any leniency on based of aforesaid reasons. lt is well settled principle that a person cannot take benefit of his own wrongs.

Page 18 of 28 ' _l HARERA Complaint No.

7374 of 2022 and 2 others. y in construction due to outbreak of Covid-19 is concerned, GURUGRAI\/ As far as dela 27.

G.

Hon'ble Delhi High Court in case titled as M/s Halliburun Offshore Seruices lnc.

V/S Vedanta Ltd. &Anr. bearing no, O,M. p @ (Comm.) no, 88/ 2020 and LAs 3696-3697/2020 dated 29.05.2020 has observed thar- "69.

The post non-performonce of the Contractor cannot be condoned due to the COVID-19 lockdown in Motch 2020 in lndia.

The Controctor wos in breoch stnce September 2019.

Opportunities were given to the Contractor to cure the some repeotedly.

Despite the same, the Contractor could notcomplete the Project.'l'he outbreak of q pqndemic connot be used as on excuse for non- performonce of o contract for which the deadlines were much before the outbreak itself." The rcspondent was Iiable to complete the construction of the project and the possession of the said unit was to be handed over by 01.10.2017 and is claiming benefit of lockdown which came into effect on 23.03.2020 whereas the due date ofhanding over ofpossession was much prior to the evcnt of outbreak of Covid-19 pandemic. pandemic.

Therefore, the authority is of the view that outbreak of a pandemic cannot be used as an excuse for non- performance of a contract for which the deadlines were much before the outbreak itselfand for the said reason, the said time period is not excluded while calculating the delay in handing over possession.

Findings on the reliefsought by the complainant.

G.l Direct the respondent to commit a fresh firm date ofhanding over possession of the apartment since all earlier promised dates have already passed.

G.ll Direct the respondent to hand-over the possession of the apartment by the fresh date committed by the respondent failing which grant the liberty to the complainant to seek refund of the complete amount with interest and compensation.

I'he respondent is legally bound to meet the pre-requisites for obtain ing an occupation certificate from the competent authority.

The promoter is duty Page 19 of28 ffiHARERA ffi eunuennvr Complaint No.

7374 of 2022 and 2 others. bound to obtain OC and hand over possession only after obtaining OC as pcr scction 17 of the Act.

Since the respondent has offered the possession for fit outs letter to the complainant without obtaining 0C from the competent authority accordingly, the said letter is invalid.

As per possession clause, the due date of possession was 01.10.2017, and even after a passage of more than 6.2 years neither the construction is complete nor valid offer of possession of the allotted unit has been made to the allottee by the builder.

Further, there is no document on record from which it can be ascertained as to whether the respondent has applied for occupation certificate/part occupation certificate or what is the status of construction of the project.

The authority observes that the complainant/ 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. ideration.

In view of the above, the respondent is directed to provide a revised date of completion of the project where the unit allotted to the complainant is situated with in a period of 30 days from the date of this order.

Further, in case the respondent fails to handover possession of thc subject unit to the complainant by the revised committed date of completion, the complainant/allottee is at liberty to file the complaint seeking refund of the entire amount paid by him along with interest as per provisions of the Act of 2076.

C.lll Direct the respondent to rectiry the ledger statement of the complainant showing actual amount deposited by him as per the details provided in the complaint and the delayed rate of interest shown in the statement shall be calculated as per the provisions of the Act of 2016.

G.lV The complainant has already paid delayed interest of Rs.Z,47,755 / - which was calculated charged by the respondent against the interest prescribed by this authority.

So, it is requested to direct the Page 20 of 28 ffiHARERA S- eunuennvr Complaint No.

7374 of 2022 and 2 others. respondent to adjust the delayed interest already paid by the complainant before issuing the final demand notice.

29.

The above two reliefs are being dealt with together.

The definition ofterm 'interest'as defined under section 2(za) ofthe Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case of default.

The relevant section is reproduced below: "(zct) "interest" means the rotes of interest poyable by the promotet or the ollottee, os the case moy be.

Lxplanotion. -For the purpose of this clause- [i) the rate of interest chqrgeoble from the ollottee by the promoter, in case of defoult, shall be equol to the rate of interest which the promoter shall be liable to pay the ollottee, in cose ofdefault; (ii) the interest payoble by the pro by the promoter to the ollottee shall be from the dctte the promoter received the omount or an! part thereof till the date the omount or part thereof and interest thereon is refunded, qnd the interest payable by the allottee to the promoter shollbefrom the dote the ollottee defaults in poymentto the promoter tillthe dote ir is paidi' 30. 'l'herefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., lO,75o/o by the respondent/promoter which is the same as is being granted to the complainant in case of delayed possession charges.

In the present matter the respondent issued offer of possession for fit outs dated 72.07.2022 wherein the respondent has charged delay payment interest for an amount of Rs.75,503/- and according to point 7 of the notes of the letter it is clearly mentioned that the interest is calculated @ SBI MCLR as applicable from time to time plus 2% p.a.

Accordingly the respondent is right in charging the interest on delay payments as no documentary proof is provided by the complainant in lieu of the interest charged more than the prescribed rate of interest.

G.V.

Direct the respondent company to pay the interest amount @24olo or as prescribed by the authority, with effect from 01.11.2016, on Page 2l of 28 HARERA Complaint No.

GURUGl]A[/ the total amount deposited by the complainant till the date of payment within one month of the date of order passed by the authority and thereafter to pay the interest on monthly basis by 10rh ofeach month till the actual possession of the apartment to the complainant.

31.

In the present complaint, the complainant intends to continue with the project and is seeking delay possession charges interest on the amount paid.

Proviso to section 18 provides that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of possession, at such rate as may be pr may be prescribed and it has been prescribed under rule 15 ofthe rules; "Section 78: - Return ofamount qnd compensation 1B(1). lf the promoter fails to complete or is unable to give possession of on oportment, plot, or building. - (o) in accordance with the terms of the agreement for sale or, os the case moy be, duly completed by the date specified therein; or (b) clue to discontinuance of his business qs o developer on account of suspeDsion or revocation of the registration under this Act or for any other reoson, he sholl be liable on demqnd to the allottees, in cose the allottee wishes to withdraw from the project, without prejudice to any other remedy qvqilable, to return the amount received by him in respect ol thot apartment, plot, building, as the case may be, with interest at such rate os may be prescribed in this behalf including compensqtion in the monner as provided under this Act: Provided that where on allottee does not intend to withdrow from the project, he shall be paid, by the promoter, interest for every month of delqy, till the handing over of the possession, at such rate as mq! be prescribed." (Emphasis supplied) 32, Clause 31 of the apartment buyer agreement (in short, agreement] provides for handing over of possession and is reproduced below: "31.

The developer sholl offer possession ofthe unit ony time, within a period of 42 months from the date of execution of the ogreement or within 42 months Irom the date of obtaining oll the required sanctions qnd approval necessory for commencement of construction, whichever is later subject to timely payment ofall dues by buyer and subject toforce Page 22 of 28 ffiHARERA #*eunuerw 33.

7374 of 2022 aod 2 others. mojeure circumstonces qs described in clquse 32.

Further, there shqll be s grace period of6 months allowed to the developer over ond above the period of42 months as above in offering the possession of the unit. the unit." At the outset, it is relevant to comment on the preset possession clause of the agreement wherein the possession has been subjected to all kinds of terms and conditions of this agreement and application, and the complainants not being in default under any provisions of these agreements and compliance with all provisions, formalities and documentation as prescribed by the promoter.

The drafting of this clause and incorporation of such conditions are not only vague and uncertain but so heavily loaded in favor of the promoter and against the allottee that even a single default by the allottee in fulfilling formalities and documentations etc. as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottees and the commitment date for handing over possession loses its meaning.

The incorporation of such clause in the buyer's agreement by the promoter is just to evade the liability towards timely delivery of subiect unit and to deprive the allottee of his right accruing after delay in possession. 'l'his is just to comment as to how the builder has misused his dominant position and drafted such mischievous clause in the agreement and the allottee is left with no option but to sign on the dotted lines.

Due date of handing over possession and admissibility of grace period: The respondent/promoter has raised the contention that the construction of the project was badly affected on account of the orders dated 16.07.201.2, 31.07.2012 and 21.08.2012 0f the Hon'ble Punjab & flaryana High Court duly passed in civil writ petition no.

20032 of 2008 through which the shucking/extraction of water was banned which is the backbone ofconstruction process, simultaneously orders at different dates 34.

Page23 of28 ffiHARERA S- eunuennvr Complaint No.

2 others. passed by the Hon'ble National Green Tribunal restraining thereby the excavation work causing Air Quality lndex being worse, may be harmful to the public at large without admitting any liability.

In this particular case, the Authority considered the above contentions raised by the respondent and observes that the promoter has proposed to hand over the possession of the apartment within a period of 42 months from the date of execution of the agreement or within 42 months from the date of obtaining all the required sanctions and approval necessary for commencement of construction, whichever is Iater.

The authority calculated due date of possession from the date of commencement of construction i.e., 01.10.2013 being later.

The p eriod of 42 months expired on 01.04.2077.

Since in the present matter the BBA incorporates unqualified reason for grace period/extended period in the possession clause.

Accordingly, the authority allows this grace period of 6 months to the promoter at this stage.

Admissibility of delay possession charges along with prescribed rate of interest: 1'he complainant is seeking delay possession charges for the delay in handing over the possession at the prescribed rate of interest.

Ilowever, the allottee intend to continue with the project and is seeking delay possession charges in respect of the subject unit with interest at prescribed rate as provided under rule 15 of the rules.

Rule 15 has been reproduced as under: Rule 15.

Prescribed rate of interest- [Proviso to section 72, section 18 ond sub-section (4) qnd subsection (7) oJsection 191 (1) l.or the purpose of proviso to section 72; section 18; and sub- sections (4) and (7) of section 19, the "interest at the rqte prescribed" sholl be the Stote Bonk of lndia highest marginal cost of lending rate +20/0.: 35.

36.

PaEe 24 of 28 ffiHARERA #-euRuonnvr Complaint No.

2 others.

Provided that in cose the State Bank of lndia marginol cost of lending rate (MCLR) is not in use, it shall be replqced by such benchmork lending rates which the State Bonk oflndia may f;x from time to time for lending to the generol public.

37.

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 ofinterest 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.

38.

Consequently, as per website of the State Bank of India i.e., httLs/sbi.co.in, the marginal cost of lending rate (in short, MCLRI as on dale i.e., 14.12,2O23 is 8.750l0.

Accordingly, the prescribed rate of interest will be marginal cost of lending rate +2o/o i.e.,1O,75o/o.

39.

0n consideration of the documents available on record and submissions made by both the parties regarding contravention of provisions of the Act, the authority is satisfied that the respondent is in contravention of the section 11(4J(a) ofthe Act by not handing over possession by the due date as per the agreement.

By virtue of clause 31 of the agreement executed between the parties on 1.4.12.20L2, the possession of the subject apartment was to be delivered within 42 months from the date of obtaining all the required sanctions and approval necessary for commencement of construction, whichever is later.

The authority calculated due date of possession from the date of commencement of construction i.e., 01.10.2 013 being later.

The period of42 months expired on 01.04.2017.

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

Therefore, the due date of handing over possession is 01.10.2017.

The respondent has failed to handover possession of the subiect unit till date ofthis order. his order.

Accordingly, it is the failure ofthe respondent/promoter /L-- Page 25 of 28 ffiHARERA #-eunuennnt Complaint No.

7374 of 2022 aod 2 others. to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

The authority is of the considered view that there is delay on the part of the respondent to offer of possession of the allotted unit to the complainant as per the terms and conditions of the agreement to sell d ated 14.12.2012 executed between the parties.

It is pertinent to mention over here that even after a passage of more than 6.2 years neither the construction is complete nor an offer of possession ofthe allotted unit has been made to the allottee by the builder.

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

Hence, this project is to be treated as on-going project and the provisions of the Act shall be applicable equally to the builder as well as allottee.

40.

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

As such, the complainant is entitled to delay possesslon charges at rate of the prescribed interest @ L0.7 5o/o p.a. w.e.f .

01.10.2017 till actual handing over of possession or offer of possession plus two months, whichever is earlier, as per section 18[1) of the Act of 2016 read with rule 15 ofthe rules.

Ii.

Directions ofthe authority 41.

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 function entrusted to the authority under section 34(l): PaEe 26 of 28 ffiHARERA S-eunuennnt a. b.

C. d Complaint No.

The respondent is directed to pay interest to the each of the complainant(s) against the paid-up amount at the prescribed rate of 10.7 5o/o p.a. for every month of delay from the due date of possession i.e., 01,.10.20U till actual handing over of possession or offer of possession plus two months, whichever is earlier, as per section 18(1J ol the Act of 2 016 read with rule 15 of the rules. 'l'he respondent shall not charge anything from the complainant(s) which is not the part of the flat buyer's agreement.

The complainant(s) are directed to pay outstanding dues, if any, after adjustment of interest for the delayed period and after clearing all the outstanding dues, if any, the respondent shall handover the possession of the allotted unit.

The arrears of such interest accrued from due date of possession i.e., 0L.L0.2017 till the date of order by the authority shall be paid by the promoter to the allottees within a period of 90 days from date of this order and interest for every month of delay shall be paid by the promoter to the allottees before 1Oth of the subsequent month as per rule 16(2) ofthe rules.

The respondent is directed to offer the possession of the allotted unit within 30 days after obtaining occupation certificate from the competent authority.

The complainantfsJ w.r.t. obligation conferred upon him under section 19(10) of Act of 2016, shall take the physical PaEe 27 ofZB MHARERA ffi eunueRnur Complaint No.

7374 of 2022 aod 2 others. possession of the subiect unit, within a period of two months of the occupancy certificate.

I 'fhe rate of interest chargeable from the allottees by the promoter, in case ofdefault shall be charged at the prescribed rate i.e., 10.750lo by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottees, in case of default i.e., the delayed possession charges as per section 2(za) of the Act.

42. e Act.

42.

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

43.

1'he complaints stand disposed of.' rtified copies of this order be placed on the case file ofeach matter.

44.

Filcs be consigned to registry. vJ- fihl; Datedt 14.12.2023 (Vilay I-umar Goyal) Member Haryana Real Estate Regulatory Authority, Gurugram Page28 of28