GURJINDER PAL SINGH VIRK vs IMPERIA WISHFIELD PVT LTD

ffiHARERA *e-eunuennl,r ORITY, BEFORE THE HARYANA REAL ESTATE REGULATORY A GURUGRAM Date ofdecision: 08.

4.2023 M/S IMPERIA WISHFIELD PRIVATE LIMIT - I poor al Sh.

Sa wan Gurjinder Pal Singh Virk V/s Imperia Wishfield private Limited Kudal Sh.

Rishi apoor ember ember COMM: Shri Ashok Sangwan Shri Sanjeev Kumar Arora ORDER 1.

This order shall dispose of the 2 complaints titled above filed before this authority under section 31 of the Real Estate (Regulation and Developmentl Act,2016 (hereinafter referred as ,,the Act,,J read with rr-rlc 28 ofthe Haryana Real Estate (Regulation and Development.) Rules, 201./ fhereinafter referred as "the rules,,) for violation of section 1 1[4) (a) of th.

Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, respo ns ibilities and functions to th,l allottees as per the agreement for sale executed inter se between partics Page 1 of21 Complaint No.

7234 and others PROIECT NAME cR/7234/2022 Col.

S Aravind Prasad V/s Imperia Wishfi eld Privare Limited cR/7235/2022 ELVEDOR S.

No.

Case No.

Case title App*fi*.

2 HARERA M GURUGRAM 2.

The core issues emanating from them are similar in natu complainantfs) in the above referred matters are allottees of namely, Elvedor situated at Sector-37-C, Gurugram being devel same respondent/promoter i.e., M/s Imperia Wishfield priva The terms and conditions of the buyer,s agreements fulcrum involved in all these cases pertains to failure on the part of th to deliver timely possession ofthe units in question, seeking allotted unit.

3.

The details of the complaints, reply status, unit no., date of possession clause, due date of possession, total sale conside paid amount, and reliefsought are given in the table below: Occupation Certifi cate: Not obtaitred and the e project, ed by the Limited. the issue promoter nd of the ment, total 5.2016 Complaint No. plaint No.

7234 and others f 2022 Proiect Name and Location "Elvedor" at sector 37C, Gurgaon, H Proiect area DTCP License No.

Name of Licensee 2 acres 47 of 2072 dated 12.05.2012 valid upto 11.

M/s Prime IT Solurions pvt.

Ltd.

RERA Registration Not Registered Possession Clause: Not mentioned in fileiiiEBA hiinoibeen exec Complain t No., Case Title, and Date of filing of complain t Date of apartme nt buyer agreeme nt Unit adme asurin Due date Total of I sale Possessi Consid on ration ar*; l Relief Sought age 2 of 21 Unit No.

Sr.

No HARERA Refund Complaint No.7234 and others cR/7234/ 2022 Col.

S Aravind Prasad Imperia Wishfield Private Limited DOF: 06.72.202 2 Reply Status: t3.04.202 3 Not executed Booking date: 02.04.207 2 Allotment Letteri 03.10.201 3 d 659 sq. ft.

02.04.20r 5 (Calculate d 3 years from the date of booking as bba is not executed) TSC: - Rs.

46,41, B/- AP: - 8,66,t Refund cR/723s/ 2022 Gurjinder Pal Singh Virk lmperia Wishfield Private Limited DOFI 06.12.202 2 Reply Status: 13.04.202 3 Booking datel 24.09.207 2 05.05.201 3 379 sq. ft. nl 24.09.201 5 ICalculate d 3 years from the date of booking as bba is not executed) Rs.

37 ,25, i?U 3 of21 # 1."-p'+l I nanl I f -b 5 6 A.

7 r IARLRA H ouRuennvr Complaint No.7234 and others ttf 2022 Note: In the table referred abore ce.U@ follows: Abbreyiation Full form TSC Total Sale consideration AP Amount Daid bv the allotteetsl The aforesaid complaints were filed by the complainants a promoter on account of violation for not handing over the pos the due date, seeking refund of the total paid up amount.

It has been decided to treat the said complaints as an applicati( compliance of statutory obligations on the part of the /respondent in terms of section 34(fJ of the Act which mar authority to ensure compliance ofthe obligations cast upon the I the allottee(s) and the real estate agents under the Act, the rul regulations made thereunder.

The facts of al1 the complainrs filed by the complainanr(s)/allc similar. c similar.

Out of the above-mentioned case, the particulars of CR/7234/2022 CoI.

S Aravind prasad V/s Imperia Wishliet Limited are being taken into consideration for determining th the allottee(sl.

Proiect and unit related details The particulars ofthe proiect, the details ofsale consideration, tl paid by the complainant(sJ, date ofproposed handing over the p delay period, ifany, have been detailed in the following tabular CR/7234/2022 Cot.

S Arovind prasad V/s tmperia Wishfiek Limited Iainst th ession b n for non promote dates th( romoters rs and th( Itee(s) arr lead casr d Privatr r rights c, I amoun ssessio n )rm: Private ge4ofz s.

N.

Particulars Details 4 e v HARERA GURUGRAI/ Complaint No.

7234 and others t 2022 1.

Name ofthe project "Elvedor" at sector 37C, Haryana Gurgaon, 2.

Nature ofthe project Commercial Project 3.

Project area 2 acres 4.

DTCP license no- and validity status 47 of 201,2 dated 1 Valid/renewed up to- 11.05.20 t.05.2072 6 Name oflicensee M/s Prime IT Solutions Pvt.

Ltc 6.

RERA Registered/ not registered Not Registered 7.

Unit no.

15_A15 (page no.22 of complaint) 8.

Unit area admea;uring 659 sq. ft. (page no.

22 of complaint) 9.

Date ofbooking 02.04.2012 (page no.

1B of complaint) 10.

Allotment Letter 0 3.10.2 01 3 [page no.22 of complaint] 11.

Date of builder buyer agreement Not executed date of 12.

Due date of possession 02.04.201s (Calculated 3 years from th booking as BBA is not execute( 13.

Possession clause Not provided 1,4.

Total sale consideration Rs.46,47,5481- Page 5 ol 2 B.

B, 9.

10.

11.

HARERA GURUGRAI/ Complaint No.

7234 and others )f 2022 (as per the statement of accou no.

16 of replyJ on page t 15.

Amount paid by the complainant Rs.8,66,188/- [as per the statement of accou no.

16 of replyl t on page 16.

Occupation certificate Not obtained aint: - ltative mount o o /- to the lue.

Thus, )/- to the sponden rcial uni rn vanous he date of tisfactory r trapped :t will be make the Page 6 of 2 77.

6 of 2 77.

Offer of possession Not offered Facts ofthe complaint lhe complainant has made the following submissions in the coml That complainant after believing the statement of the represr respondent booked a unit on 02.04.2012 and paid a booking Rs.3,00,000/-.

That the complainant further paid an amount of Rs.4,00,00 respondent and a sum of Rs.1,66,188/- respectively through che by April'2013, the complainant had paid a sum of Rs,8,66,1€ respondent.

That finally, after 18 months from the date of booking, the r provided an allotment letter dated 03.10.2013 allotting comnl No.15_A15 to the complainant.

That at the time of receiving the allotment letter, the complainant occasions had enquired about the progress of the unit and about possession but the respondents herein did not provide any s reply to the complainant with respect to possession, being customer and on assurances of the respondent that the projr delivered in a timely manner, the complainant was constrained t Th f f HARERA ffiGURUGRAM respondent represented construction and deliver 2012.

1,2.

That however, again for several months, no activity on constructi to have been ongoing.

It is pertinent to note that as per original the respondent ought to have delivered the completed projec however, even till June 2018 hardly any construction was under That realizing the fact that construction has been significantly d complainant sought information from the respondent with resp of construction and further enquired as to whether the p registered with this Hon'ble Authority.

The complainant furthe the respondent that the complainant would make further pay when the information as sought by the complainant is provi respondent.

L4.

That however, no information was forthcoming with resp approvals obtained by the respondent.

The complainant start enquiries from other allottees who were similarlv situated shocked to learn that neither did the respondent have any right i the land at the time of booking, nor did the respond he respondent hav sanctions or approvals from the concerned authorities.

As su representations provided by the Respondent were found to be and false.

A license bearing no.

51 of 2012 was issued in favor of p Solutions which had since expired on 16.05.201g itself.

The respo purportedly applied for a renewal of the license which was exte till 16.05.2018 and subsequently no renewal was effective. payments as were demanded by the respondents.

It is relevant t 13.

Complaint No.

7234 and others f 2022 that it has the necessary sanctions to project pursuant to a license bearin no.51 of note that ndertake appears surances, by 201.7 , ken. ayed, the to status iect was info rmed nts only d by the to the making nd were and over requisite h all the eceptive me-Time dent had ded only age 7 of 21 15. trIAREIA ffi eunuenlvr That to the best of the knowledge of the complainant, the respo not even possess a registration certificate under the Real Estate and Development Act.

2016.

The complainant on enquiry be that vide an order dated 02.02.2018, it was clearly pointed our license under DTCP norms had been provided and such time w to supply the license by 28.02.2018.

Even if such license has b during this period, given that the license itself has lapsed, conseq evident that the Respondent does not have the requisite s undertake construction of the proiecL 16.

That the complainant accordingly made several requests to the for refund of the amounts invested by the complainant, but the has failed to entertain any requests.

17.

C.

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

Relief sought by the complainant: - The complainant has sought following relief(s): l.

Direct the respondent to refund the amount of Rs. g,66, complainant with interest @ lgo/o p.a. calculated from respective deposit till the date of actual realization.

19. ation.

19.

On the date of hearing, the authority explained to the re promoter about the contraventions as alleged to have been co relation to section 11(4J (a) of the act to plead guilty or not to pl Reply by the respondent 18.

D.

The respondent has contested the complaint on the following gro age B ol2.l Complaint No.7234 and others dent does egulation awaTe t no valid provided supplied ently, it is nction to po nden t spondent case the the actual 8/- to the he date of nden t/ mitted in d guilty. nds.

20.

HARERA GURUGRAI/ That the complainant, after making independent enquiries and being fully satisfied about the pro,ect, had approached the company for booking of a residential unit in respondent,s proje Retail' located in sector-37-C, Gurugram, Haryana.

The company provisionally allotted the unit bearing no.

1S 41S in complainant for a total consideration amount of Rs.

46,41,549/ applicable tax and additional miscellaneous charges vide boo 02.04.2012 and opted the construction-linked payment plan on and conditions mutually agreed.by them.

21.

That the foundation of the said project vests on venture/collaboration between M/s prime IT Solutions private company incorporated under the provisions of Companies Act, registered office at B-33, First Floor, Shivalik Colony [Near Malv New Delhi-110017 fas One Party] and M/s Imperia Structures p Second Party), laying down the transaction structure for the s and for creation of SPV (special purpose Vehicle) Company, titled as 'lmperia Wishfield Pvt.

Ltd.', i.e., the respondent com 22.

That the role of M/s Prime It Solutions pvt.

Ltd. was indica allottees/ complainants at the time of booking of the said unit, conveyed that M/s Prime IT Solutions pvt.

Ltd. was the owner land and has been granted License No.

47 /2072 by the Direct Towm and Country Planning, Haryana in respect of proiect la respondent being an associate/JV company is undertaking imple of the said project.

23. oject.

23.

That in Iieu ofabove said understanding & promises, M/s ,lmperi Pvt.

Ltd.'was incorporated & formed with 4 Directors & 5 share age 9 of21 Complaint No.

7234 and others only after spo nd ent 'Elvedor spondent or of the including ng dated the terms e ioint imited, a aving its Nagar), Ltd. (as d project med and d to the nd it was the said General, and the entation ish field olders. lt HARERA #.GURUGRAII is pertinent to mention herein that Kumar Setia were from M/s Prime Singh Batra and Mr.

Brajinder Singh Batra were from M Structures Pvt Ltd.

24.

That 3 out of5 shareholders ofthe respondent company, to the shares each, amounting to Rs.

15,00,000/- (rupees fifteen lacks were from M/s Prime IT Solutions Pvt.

Ltd. and remaining 2 S of the respondent company, to the tune of 3 750 shares each we Imperia Structures Pvt.

25.

That the said proiect suffered a huge setback by the act of non-c of M/s Prime [T Solutions Pvt.

Ltd., which proved to be detrim progress of the said project as majority of the fund deposi above-mentioned prorect account by the allottees was under th M/s Prime IT Solutions Pvt.

Ltd. and the said fund was later div M/s Prime IT Solutions Pvt.

Ltd, leaving the respondent co nearly no funds to proceed along with the said project.

Further, filed with the title'M/s Prime IT Solutions Pvt.

Ltd. v.

Devi Ram WishField Pvt.

Ltd.', pursuant to which a compromise deed dated was signed between the respondent company and M/s Prime I Pvt.

Ltd. whereby the respondent company was left wit responsibility to implement the said proiect.

26.

That these circumstances caused monetary crunch and other p leading to delay in implementation of the said pro)ect. complications, there was a delay in procurement of the land ownership by the respondent company.

However, the sam acquired by the respondent company and the proiect is near to Complaint No.

7234 and others f 2022 Mr.

Pradeep Sharma and IT Solutions Pvt.

Pvt.

Ltd. and M Avinash Harpreet Imperia e of 2 500 nly) each reholders from M/s operation tal to the with the charge of by the any with case was d lmperia 2.01.2016 Solutio ns the sole icaments, to these cense and has been mpletion. age 10 ol21 HARERA GURUGRAM 27.

That several allottees have withheld the remaining paymen further severally affecting the financial health of the responde and further, due to the force majeure conditions and circumsta were beyond the control of the respondent company as menti below, the construction got delayed in the said project.

Both the the complainant as well as the respondent company had con the very initial stage while signing the MoU that some delay mi future and that is why under the force majeure clause, it is dul the complainant that the respondent company shall not be liable any or all of its obligations during the subsistence of anv fo circumstances and the time period required for perlorma obligations shall inevitably stand extended. lt was unequivo between the complainant and the respondent company that the company is entitled to extension of time for delivery of the account of force majeure circumstances bevond the con respondent company.

28.

Firstly, owing to unprecedented air pollution levels in Delh Hon'ble Supreme Court ordered a ban on construction activt region from 04.71,.2019 onwards, which was a blow to realtv d the city.

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

Fo Central Pollution Control Board (CpCB) declaring the AQI severe, the SC lifted the ban conditionally on 09.11.201 construction activities to be carried out between 6 am and 6 p complete ban was lifted by the Hon,ble Supreme Court on 14.02.

Complaint No.723 and others f 2022 , which is company ces, which ed herein rties i.e. rties i.e., plated at t occur in agreed by perfo rm majeure lof the ce of its ly agreed pondent id flat on NCR, thE es in the lopers in e 900, wing the ls as not allowing , and the 20.

Ee ll ol21 HARERA ffiGURUGRAII 29.

Secondly, after the complete ban was lifted on 74.02.2020 by t Supreme Court, the Government of India imposed National Lo 24.03.2020 on account of nation-wide pandemic COVI conditionally unlocked it on 03.05.2020, However, this has I impact on the procurement of material and labour.

The 40-da effective since 24.03.2020, extendable up to 03.05.2020 and su to77.03.2020, led to a reverse migration with workers leavi return back to their villages.

It is estimated that around 6la walked to their villages, and around 10 lakh workers were stu camps.

Aftermath oflockdown left a great impact on the sector fo the fast-paced construction for achieving the timely delivery under the allotment letter.

30.

That initially, after obtairling the requisite sanctions and app concerned Authorities, the respondent company had c construction work and arranged for the necessary infrastructur Iabour, plants and machinery, etc.

However, since the constru was halted and could not be carried on in the planned manner force majeure circumstances detailed above, the said infrastru not be utilized and the labour was also left to idle resulting i expenses, without there being any progress in the constru Further, most of the construction material which was purchased got wasted/deteriorated causing huge monetary losses.

Even the machineries, which were arranged for the timely comple construction work, got degenerated, resulting in huge los respondent company.

7234 and others f 2022 e Hon'ble own on a great lockdown equently cities to workers in relief resu m r ng s agreed from the mmenced including -19, and ion work ue to the on work. ure could mounting advanr:c lants and n of the s to the age 12 of 2l HARERA M GURUGRAM 31.

RUGRAM 31.

That on account of above-mentioned circumstances, in additio force majeure developments, the respondent company was complete the said project.

32.

That despite all the impediments faced, the respondent compa trying to finish the construction ofthe said project and managed t the civil work ofthe said tower/project, and the finishing work, I the MEP work of the towers under progress, which is estim completed by the year 20ZS and the respondent company shall out physical possession ofthe said:unit to the complainant.

33.

That the complainant is not entitleii to the relief prayed for complainant has miserably failed to bring to the notice of authority any averment or document worth its salt which could fr for this hon'ble authority to consider the complaint under repl totally devoid of any merit in ]aw.

The complainant himself has v agreed terms by not making timely payment and not making p full consideration ofthe said unit and hence are not entitled to ge The instant complaint is an abuse of process of law.

34.

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

Their authenticity is not in dispute.

Hence, the compla decided on the basis of these undisputed documents and submis by the parties.

Iurisdiction of the authority The authority observes that it has territorial as well as subj jurisdiction to adjudicate the present complaint for the reasons gi E.l Territorialiurisdiction E.

2E ge 13 of21 Complaint No.

7234 and others f 2022 to certain t able to was still complete ving only to be ha nd ing ause the ho n'ble m a basis which is lated the ent for ny reliei on the t can be on made matter n below.

HARERA MGURUGRAM 36.

As per notification no.

1/92/2017-7TCP dated 74.72.2017 issu and Country Planning Department, the jurisdiction of Regulatory Authority, Gurugram shall be entire Gurugram Dis purpose with offices situated in Gurugram.

Gurugram.

In the present case, in question is situated within the planning area of Gurugra Therefore, this authority has complete territorial jurisdiction the present complaint.

E.ll Subiect matter iurisdiction 37.

Section 11(4)(aJ of the Act, 2016 provides that rhe responsible to the allottee as per agreement for sale. reproduced as hereunder: Section 11 (4) The promoter sholl- (o) be responsible for oll obligations, responsibilities and t'unc under the provisions of this Act or the rules snd regulotions thereunder or to the ollottees os per the ogreement for sale, or association of a llottees, as the case may be, till the conveyance of aportmenB, plotsor buildings,as the case may be,tothe ollottees, common oreos tothe ossociation ofallottees or the competentauth as the cose may be; Sectio n 34 - Fu nctions of the Authority: 34(D of the Act provides to ensure compliance of the obligotions upon the promoters, the sllottees and the real estate ogents und Act ond the rules and regulations made thereunder.

So, in view of the provisions of the Act quoted above, the au complete ,urisdiction to decide the complaint regarding non-co obligations by the promoter leaving aside compensation whi decided by the adjudicating officer if pursued by the complaina stage.

F, Findings on the obiection raised by respondent Complaint No.

7234 and others f 2022 by Town al Estate ict for all e project District. deal with promo sh all Section 1(a)(al ast /5 ority has pliance of is to be at a later ons xde the the the 'ity, age 14 ol21 I S HARERA ffi eunuennrvr F.l Obiection regarding non ioinder of M/s Prime tT Solutions party.

39.

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

Ltd. as a complaint. tt is pleaded by the respondent that there was joi agreement executed between it and M/s Prime IT Solutions pvt.

L to collaboration agreement dated 0 6.12.201,2 between them. ween them.

On that agreement, the respondent undertook to proceed with the and development of the project at its own cost.

Moreover, even of collaboration agreement the directors of both the com common.

So, in view of these facts, the presence of M/s prime I Pvt.

Ltd. as a respondent before the authority is must and be ad However, the pleas advanced in this regard are devoid of present case no buyer's agreement was executed and an allo was issued on 03.10.2013.

In the allotment letter there is no re collaboration agreement with M/s Prime IT Solutions.

Mo payments against the allotted units were received respondent/builder.

So, taking into consideration all these facts i said that joining of M/s Prime IT Solutions Pvt.

Ltd. as a re must and the authority can proceed in its absence in view of th contained in Order 1 Rules 4 (b) and 9 of Code of Civil procedur F,ll Obiection regarding force maieure conditions: 40.

The respondent-promoter has raised the contention that the of the tower in which the unit of the complainant is situate delayed due to force majeure circumstances such as orders of th age 15 oi 21 Complaint No.7234 and others f 2022 Ltd. as a dent with rty in the t venture .,leading the date tes were Solutions d as such. it.

In the ent letter nce ofthe er, the by the cannot be dent was provlslon 190 8. e basis of struction struction has been CT, High HARERA ffiGURUGRAM Court and Supreme Court, govt. schemes and non-payment of in different allottee ofthe project but all the pleas advanced in thi devoid of merit.

First of all, the possession of the unit in questio offered within 3 years from the date of booking as it a reaso period.

Hence, events alleged by the respondent do not have an the project being developed by the respondent.

Moreover, s events mentioned above are of routine in nature happening a the promoter is required to take the same into considera launching the project. e project.

Thus, the promoter respondent cannot b leniency on based of aforesaid reasons and it is well settled prin person cannot take benefit of his own wrong.

G.

Findings on the reliefsought by the complainant I.

Direct the respondent to refund the amount of Rs. g,66,1 complainant with interest @ 18% p.a. calculated from th respective deposit till the date of actual realization.

41.

In the present complaint, the complainant intends project and is seeking return of the amount paid subject unit along with interest as per section 1g( 1) is reproduced below for ready reference: "Section 7Bi - Return ofdmount dnd compensation 18(1). lf the promoter fails to complete or is unable to give possession apqrtment plot, or building.- (a)in occordance with the terms of the agreement for sole or, os the moy be, duly completed by the dote specned therein; or (b)due to discontinuance of his busines, os o developer on occou suspension or revocation of the registration under this Act or for other reoson, he shqll be liable on demand to the allottees, in cose the ollottee to w_ithdrqw from the project, without prejudice to any other re) ovoiloble, to return the amount received by him in ,espert oS Complaint No.

7234 and others lment by egard are was to be able tinre impact on e of the ually and ion while glven any ple that a /- to the date of to withdra from the by them in ofthe Act an the same ct of of ty ge 16 ol21 HARERA MGURUGRAM apqrtment" plo, building, as the case may be, with interest ot rote qs moy be prescribed in this beholf including compensqtion i manner os provided under this Act: Provided thot where an ollottee does not intend to withdrow project he shall be poid, by the promoter, interestfor every month of till the honding over ofthe possession, ot such rqte os may be prescri (Emphosis supplied) 42. plied) 42.

However, in the present matter no BBA has been executed b parties therefore the due date of possession cannot be a considerate view has already been taken by the Hon'ble Sup the cases where due date of possession cannot be ascertai reasonable time period of 3 years has to be taken into considera held in matter Fo rtune Infrastructure v, Trevor d'lima (2019) : (2018) 3 SCC (civ) I and then was reiterated pioneer U, Infrastructure Ltd, V.

Govindan Raghavan (2079) SC 725 -: "Moreover, o person connot be made to woit indefinitely fo possess,on of the flats allotted to them ond they ore entitled to refund ofthe amount paid by them, along with compensation.

Althou, are aware of the foct that when there wos no delivery period stipula the agreement q reasonoble time hos to be token into consiclerotion_ I Iacts and circumstonces of this cose, a time period of 3 yeors would been reosonoble for completion of the contract i.e., the possession required to be given by last quarter of2014.

Further there is no di. to the foct that until now there is no redevelopment ofthe property.

H in view ofthe obove discussion, which drow us to on irresistible con that there is defrciency of service on the pott of the oppellonts accordingly the issue is answered." 43.

Accordingly, the due date ofpossession is calculated as 3 years of booking i.e., 02.04.2072.Therefore, the due date of possessio to be 02.04.2 015.

44.

The occupation certificate/completion certificate of the project unit is situated has still not been obtained by the respondent-pro authority is ofthe view that the allottee cannot be expected to wa for taking possession of the allotted unit and for which he age l? ol21 Complaint No.

7234 and others f 2022 the ined.

Court in d then a on.

It was SCC 442 n land & the the we the the date mes out thle os ce, on nd here the oter. the oter.

The endlessly as paid a HARERA M"GURUGRAN/ considerable amount towards the sale consideration and as o Hon'ble Supreme Court of India in lreo Grace Realtech Abhishek Xhanna & Ors., civil appeal no.

S78S of 2079, tt.01.2021. cases ofNewtech Promoters and Developers private Limit of U.P. and Ors.ZOZ[-ZOZZ(1) RCR (c ), 357 reiterated in c Sana Realtors Private Limited & other Vs Union of India & hers SLP (Civil) No.

13005 of 2020 decided on 12.05.2022. it was o under: Complaint No.7234 and others f 2022 erved Ltd. by Vs. on "..,,.The occupotion certificote is not available even os on date, which clearly amounts to deJiciency ofservice.

The ollottees connot be_mode to woit indelinitely for po.rses.rion of the apartments allotted to them, nor can they be bound to take the apartments in Phose 1 of the project......." 45.

Further in the iudgement of the Hon,ble Supreme Court of I ided ia in the Vs State e of M/s rved as 25..The unquolifred right of the ollottee to seek refund referred Under Section 18(1)(a) ond Section 1g(4) oftheAct isiot depindent on qny contingencies or stipulations thereof. lt oppeors thot the legislqture has consciously provided this rigit ofrefund on demond os on unconditionol absolute right to the ollouee. if the promoter foils lo give possession ofthe apartment, plot or buitding withn the time stipuloted under the terms of the agreement rigordless of unforeseen events or stoy orders of the Court/Tribunal,-which is ii either woy not attributable to the allottee/home buyer, the ptomoter is under on obligotion to relund the omount on demond with interest ot the rote prescribed by the Stote Covernment including compensstion in the monner provided under the Act with the proviso thot if the ollottee does not wish to withdrow from the proje.ct, he shall be entitled for interest for the period of deloy till honding over possession at the rote prescribed.,, ns, responsibiities, and 2016, or the liules and . pu. ,gr""."1, fo,. "."1, fo,. ,"r" has failed to c{nplete or ol*""""' I 46.

The promoter is responsible for all obligatio functions under the provisions of the Act of regulations made thereunder or to the allottee a under section 11(4)(a) ofthe Act.

The promoter HARERA gP- GURUGRAI/ unable to give possession of the unit in accordance with agreement for sale or duly completed by the date specifi Accordingly, the promoter is liable to the allottee, as the allotte withdraw from the project, without prejudice to any oth available, to return the amount received by him in respect ofth interest at such rate as may be prescribed.

47.

This is without prejudice to any other remedy available to including compensation for which allottee may file an appl adiudging compensation with thsad.iudicating officer under s 72 read with section 31(1) of the Act of 2016.

48.

Admissibility of refund along with prescribed rate of in section 18 of the Act read with rule 15 of the rules provicle that allottee intends to withdraw from the project, the respondent s of the amount paid by the allottee in respect of the subj interest at prescribed rate as provided under rule 15 of the rul has been reproduced as under: "Rule 75, Prescribed rute of intercst- lprovlso to section 72, section sub-section (4) ond subsection (7) ol section 1gl (1) For the purpose ol proviso to section 12) section 18; ond sub @) ond (7) of section 19, the "interest ot the rute Nesctibed,, sholl Stote Bonk of lndio highest moryinolcost ol lending rote +2%.: Ptovided thot in cose the Stote Bonk of lndio morginol cost of lendi (MCLR) is not in use, it sholl be reptoced by such benchmdrk tendi which the Stote Bonk ol tndio noy fix Ircm time to time .or lending generolpublic." 49.

The legislature in its wisdom in the subordinate legislation provision of rule 15 of the rules, has determined the prescril interest.

The rate of interest so determined by the legi ge 19 oi 21 Complaint No.7234 and others f 2022 terms of therein. f therein. wishes to r remedy unit with e allottee tion f0r ions 71 & rest: 'l'he case the all refund unit with Ru le 15 ond the rote rotes the nder the d rate of ature, is HARERA *@*GURUGRAI/ reasonable and if the said rule is followed to award the in ensure uniform practice in all the cases.

50.

Consequently, as per website of the State Bank of https://sbi.co.in, the marginal cost of lending rate (in short, M date i.e., 08.08.2023 is 8.75o/o.

Accordingly, the prescribed rare will be marginal cost of lending rate +20/o i-e., 10.750/o.

51.

The authority hereby directs the promoter to return the am by him i.e., Rs.

8,66,188/- with interest at rhe rate of IO.7So/o Bank of India highest marginal cost of lending rate (MCLR) a on date 127o) as prescribed under rule 15 of the Harvana (Regulation and Development) Rules,2017 from the date ofea till the actual date of refund of the amount within the timelin in rule 16 of the Rules ibid.

H.

Directions ofthe authority 52.

Hence, the authority hereby passes this order and issues directions under section 37 of the Act to ensure compliance of cast upon the promoter as per the function entrusted to th under section 34(fl: i.

The respondent/promoter is directed to refund the en paid by the complainants in all the above-mentioned with prescribed rate ofinterest @ 10.75olo p.a. as prescri rule 15 of the Haryana Real Estate (Regulation & D Rules, 2017 from the date ofeach payment till the date the deposited amount.

7234 and others t, it will ndia i.e., LR) as on f interest received the State Iicable as al Estate payment provided llowing ligations uthority amount es along under opment) nd of HARERA H GURUGRAM 53.

This decision shall mutatis mutandis apply to cases of this order.

54.

The complaints stand disposed of.

55.

Files be consigned to registry.

A period of 90 days is given to the respondent to directions given in this order and failing which legal would follow.

Member Dated: 08.08.2023 Complaint No. plaint No.

7234 and others in para 3 Q- -r' ^,,AJ- +ge 21 ot 2l