MS. SHILPA MAHAJAN vs NEO DEVELOPERS PVT. LTD.

HARYANA REAL ESTATE REGULATORY AUTHORITY GURUGRAM gfj;k.kk Hkw&laink fofu;ked izkf/kdj.k] xq#xzke New PWD Rest House, Civil Lines, Gurugram, Haryana नया पी.डब्ल्यू.डी. विश्राम गृह, सिविल लाईंि, गुरुग्राम, हरियाणा An Authority constituted under section 20 the Real Estate (Regulation and Development) Act, 2016 Act No.

16 of 2016 Passed by the Parliament भू-संपदा (विनियमि और विकास) अधिनियम, 2016की िारा 20के अर्तगर् गठिर् प्राधिकरण भारर् की संसद द्िारा पाररर् 2016का अधिनियम संखयांक 16 PROCEEDINGS OF THE DAY Day and Date Monday and 22.10.2018 Complaint No.

428/2018 Case titled as Ms.

Shilpa Mahajan V/S Neo Developers Pvt.

Ltd.

Complainant Ms.

Shilpa Mahajan Represented through Shri Neeraj Mahajan, husband of the complainant in person.

Respondent Neo Developers Pvt.

Respondent Represented through Shri Venkat Rao Advocate for the respondent.

Last date of hearing 28.9.2018 Proceeding Recorded by Naresh Kumari Proceedings Arguments heard.

Complainant presented his case in detail.

He stated that he seeks time for getting reply under RTI Act (by way of adopting dilatory tactics).

At this juncture, any protraction by way of seeking more time will not be in the interest of justice.

It has been alleged by the counsel for the respondent that the earnest money deposited by the buyer has been forfeited on account of the fact that the complainant was not forthcoming by way of fulfilling his obligatory liabilities as per provisions of Real Estate (Regulation & Development) Act, 2016.

16 Act No.

16 of 2016 Passed by the Parliament भू-संपदा (विनियमि और विकास) अधिनियम, 2016की िारा 20के अर्तगर् गठिर् प्राधिकरण भारर् की संसद द्िारा पाररर् 2016का अधिनियम संखयांक 16 No doubt the buyer had deposited Rs.15,72,638/- with the builder but failure on the part of the buyer, the builder had no option but to forfeit the earnest money.

Intimation to this effect has already been conveyed to him vide letters dated 8.7.2016 and 6.4.2018.

Full and final settlement amount in this context has been offered as refund to the buyer.

However, the complainant has not come to receive the same.

Calculation sheet of refund was presented by the builder which has been placed on record.

It has been examined in detail.

It is observed that the service tax, brokage charges and prospective interest has been deducted from the principal amount which is superfluous and not valid.

In view of the situation stated above, the calculation sheet may be corrected to this extent.

Only 10% of the earnest money may be deducted by way of forfeiture.

No extra money on any other pretext may be deduced.

The complaint is disposed off accordingly.

Detailed order shall follow.

File be consigned to the registry.

Samir Kumar (Member) Subhash Chander Kush (Member) Dr.

K.K.

Khandelwal (Chairman) 22.10.2018 .rlirr., ' iA nf wn&i{t Cr35 nrlnl l/^l ri.\l;, {*t llJl il- o ra,, rr ' \-/ \-/ I \ \J \.,/ Itt1t\ lfilvl BEFORE THE HARYANA REAL ESTATE RI|GULATORY AUTHORITY, GURUGRAM ComPlaint no. : First date of hearing: Date of Decision : Ms.

Shilpa IVIahajan, R/o C-11.4, Shakti Nagar Extension, Delhi 11,052 Versus M/s Neo De,veloPers Pvt.

1,205 B, [ower B, signature towers, South city - 1 NHB Gurugram '122001.

Complainant I espondent 428 of 20lB 07,08.2018 22.10.2018 Chairman Member Member CORAM: Dr.

K.K, Khandelwal Shri Samir Kumar Shri Subhar;h Chander Kush APPEARANCE: Shri Neeraj Mahajan Sliri Venkat Rao of com tlainant in for the respondent Husband person Advocate ORDER 1.

A complaint dated 13. dated 13.06,2018 was liled unrler sectitln 31 ol the Real Estate (Regulation and Development) Act, 2016 read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 by the complalnant Ms.

Shilpa Mahajan, against the promoter M/s Neo Der elopers PvL Ltd,, on accrlunt of violation of the clause 5.2 in acdition with 5.4 of Page 1 ol 14 Complaint No, 428 of 2018 ffil{Arutru ffi euni,GilAM the buyer's agreement execttted on 06.1,220L2 in respect of shop number 45, ground floor, block/tower I in the project 'Neo Square'sector 109, Gurugram with a super area of 565 sq' ft, for not handing over possession on th: due date i,e.

06.06.2016 which is an obligation under sec -ion 11[4)[a) of the Act ibid.

The par[iculars of the complaint case are as uttder: - Complaint No.

428 of 2018 2.

1.

Name and location of the project Neo s Guru, Z, Nature of proiect Comn 3.

Shop no.

45, to floor 4.

Shop measuring 565 sr 5.

FI,ERA registered / nat registered.

Regir 20L7 6.

F(evised date of completion as Per registration certifi cate 23.0t 7.

Date of execution of apartment tluver's agreement 06.12 o L-,, Payment plan Const 9, DTCP licence no, 102 o 10. i fotal amount paid by the , ,.tt I r Rs.

1! luare, Sector 109, ra4 ,_ ercial complex ruer B, ground LII r;tered (109 of I .202L 201,2 1.1..

12.

Date of delivery of possession as per clause 5.2 of buyer's agreement (-36 Months + 6 months grace ,72,638 l- Rs.65 09,0+1 l' 06.06.20L6 2 yea-s 4 months ruction linked f 2008 Total consideration amount Delay in handing over possession till date lreriod from the date of ilgreement Page 2 ot 1,4 13. ffiFJAreEI? #t eunuGIrAM The detzrils provided above have been checketI on the basis of record available in the case file which have bt en provided by the complainant and the respondent, An alireement dated 06.1.2.2012 is available on record for the aforer;aid shop no. d shop no.

45, according to which the possession of the same was to be delivered by A6,06,2016, Therefore, the pri)moter has not fulfilled his committed liability till date.

Taking cognizance of the complaint, the authority issued notice to the respondent for filing reply and rtppearance, The responclent appeared on 7.08.2018.

The case came up for hearing on 07,08,20L8, 20,09,2O1'B and 22.t0,20 18, The reply has been filed by the respondent on 18.09.20 .B Facts of the comPlaint The complainant stated that she had booke d a shop in the commercial proiect "Neo Square", Sector 109, Gurugram in the year 201.2.

The respondent took 30 o/o of the payment from the complainant without showing her any buildir g sanction plans, any allotment letter and no builder agreemer t.

6, The complainant submitted that there was ro response front the rel;pondent side for almost 2 years.

The respondent company collected money against the shop ro.

45 and had no Complaint No.

428 of 201B aJ.

4.

5, Page 3 olL4 #m ffir{AreEI? #$ eunLGl:tAM intention of delivering it on time as their only i ltention was to collect rnoney from investor by exploiting the booming and unregulilted real estate market in GurugramZ)1,2.

The cornplainant submitted that due to the Itarassment and deluged with payment demand letter, she mai e frantic calls to the managing director of the' responder t company to empathlise him with herr problems as to ho'ry the excessive delay has crippled her financially and emotionally, but lre simply snubbed her innumerable pleas anl caused many sleeples;s nights to her and her family' The complainant submitted that she visitetI the site many times irr the last six years and was disappointed every time as the work progress was way behind schedule, The complainant further submitted that decision of the responrlent company itr not providing any honourable exit tcl the complaint and ulrimately forfeiting alL her money in malicious, arbitrary, illegal, unjust, unfair and breach of natural of naturaljustice and fair play and is unsustainable in the eyes of law and liable to be prosecuted under section 18 [1) and other relevant sections of the Real Estate lRegulation and Developmentl Act 201.6.

Complaint No.

428 ol2078 7.

B.

L Page 4 olL4 ffiL{AreEt? ffi eunuG[]AM Issues raised by the complainant are as follow: Whether the project Neo Square of lhe respondent conlpany has been delaYed or not?

Why did the respondent company repeatedly change the layout of the shops, its size and its location without even infclrming the complainant whose mone) is used to fund ir?

Whether the respondent company i:; liable to be prcrsecuted under the RERA Act, 2016 lbr violations rlt other provisions other than sections 7+(2), 1B(1) and 1B(:31? ii, iii, ii, Complaint No, 428 ot 201B 10.

Relief sought: The complainant is seeking the following relit'f: Compensation @1To/o per annum till date on the principal arrrount paid of Rs,10,82, 754/-,under section 1B of the Real Estate [Regulation and Developmer t) Act 2076, Compensation of Rs.

10,000/- be awarded as the reimbursement of the expenses in fightirrg for this relief.

Ad,ditional compensation of Rs, 25,00,0{)0 under section 18 of the Real Estate (Regulation and Development) Act 2016 for mental, emotional and finar cial harassment inlflicted upon the complaint, her future, rnd her family by iii, Page 5 of 14 I, l. -{i-!. t tft rcl- f\ *;Iq# FqL\!lt-t1 \fr'i{s i i/ \l \Ll\ ffl'iX /at,nl l,'\i*' AIi H;. tTUl(Ut7l{illvl tr"pr-|@ the misconduct of the respondent colnpany and its direrctor.

Respondent"s replY 1,1,, The respondent submitted the fact that as the conccrncd project namely "Neo Square" is located in Dwarka express\/ay in Sector 109, Gurugram, thus the authority has completed territorial jurisdiction to entertain the present complaint" 1.2. aint" 1.2.

The respondent submitted that the complainant has not approac:hed this ld, authority with clean handr; and is trying to suppress material facts relevant to th,: matter, The complainant is making false, misleading, frivolous, baseless, unsubst-antiated allegations against the rrlspondent with malicior,ts intent and sole purpose of extracting unlawful gains from the resPondent' 13, The respondent submitted that neither the t uyer agreement nor any,other contract subsists between the :omplainant and responrlent as on date or aS on date of conlp aint or any time after thLe date of termination, The builder btlyer agreement/ allotme:nt letterf booking application forrr stated in the complaint, was terminated in good faith, cue to breach of terms of the buyer agreement by the complainant, in Page 6 ol14 #"-ffi {, l, " I Member ,gw ffiNAreEil -Ji:,r.

HH GUt?|JGI'IAM 1.4.

I complaint -"j1tjt ^ tt accordaltce with said buyer agreement by respondent on OB.O7,2C)16 fcontradictory to the agreement di ted 06J.2.2072 as per annexure 11), Accordingly, as su:h the instant complaint is liable to be dismissed with costs.

The respondent submitted that the instant co nplaint is liable to be dis;missed as the hon'ble authority is not :lothed with the jurisdiction to entertain a complaint or dispu -e, ex post facto, even in respect of a buyer agfeelnent/allotrrent letter ri'hrch pertains to a period prior to RERA., and which ha; been tertnrliated well befbre RERA corning into effect and as is rrot in strbsistence or existence any tirne after such tertnir-ratiol or at any tirne after corning into effect of RERA.

The respondent submitted that complainant has no cause of action to file the instant complaint against respondent since the delay in completion of project as :laimed by the respondent has not occurred, even considerjng the erstwhile executed builder buyer's agreement on the c ate of complaint and or ias per the disclosures made under REIiA registration ol the project, he roject, hence the complaint may be disn issed' 16.

It is submitted that complainant made all application on 28.05,2.01,2 for booking/registration e nd provisional allotment for a unit in the project under co lstruction linked 15.

PageT ol14 ffiI{AreEFI # eunl:GttAM I Complaint ,lo.

428 ol 20 1B plan, subject to other terms and conditions including the 'Paymenlt Schedule' thereof, It is pertinent to nrlte that in spite of booking/ blocking the unit, complainant fail:d to make any payment along with the application form, Further, the application form clearly stated the provisioltal registration and tent;ative size of the unit and complainant t pplied with full knowledlge and free will, It is submitted that r;uch chartges in size flay,cut etc have been expressly agreed by the complainant at the time of booking and /or entering into buyer agreement and ha,re been in accordance with the approved plans' However, it is upon feverish follow up by :he respondent, complainant made an initial payment on 31.05,2012, with a delay of'almost two and half months from the date ol booking' t7.

It is further submitted that the complainan: was always in delay and default of payments as per agreed prtyment schedule and cle;ared the overdues only on 08,09.201,"'. with a delay of over 3.5 to 4 months.

Immediately, after the clearing of dues, the respondent issued the allotment letter or 13,09.201"2 and subsequently entered into a builder buyer ilgreement dated Page B of14 , l,-," ,4*5. q.}!j/ ffiL{&t?Eft Oill?UGNAM 1.2.02.2013 which is again contradictory to [he agreement attached with the comPlaint.

18, It is further submitted that the builder buyer lgreement was finally terrminated by the respondent on 08.0 7 '2016 in good faith, due to breach of terms of the buyer ag'eement by the complainant, in accordance with said buyer ag:eement' tg. ement' tg.

It shall b,e illegal, unconstitutional, unjust, unfi,ir and opposed to equity and fair play to entertain the contplaint by the hon'ble authority, eX post facto even on st ch agreements terminated and not in subsistence or existence in the RERA regime, Determination of issues 20, The complainant has raised issues rega'ding delay ol possession, change in layout of the shops, s ze and location without information to the complainant regarding the violation of the provision of Haryana Real Es:ate [Regulation and De'u'elopmentl Act, 201,6' 21,.

The cornplainant herself is a defaulter as sqhe has not paid instalment due towards her after 08,01).201,2, As the complainant is left with no legal rights or interest in the said project, the issues raised by her become infructuous' Complaint 'lo.428 ol201B Page 9 of 14 ffih <l rr:. l* > l Membe' ,.Lw ffil-{AreEi:i HQ GURUGI?AM I complaint rlo.

428 of 2018 22, As per section 19 of the Haryana Real Estate (Regulation and DeveioprnentJ Act, 2016, the rights and the duties of the allottees, which is reproduced as under: Section 79 - Rights and Duties of Allottees Clause (6)Every allottee, who has entered into an agreennent for sale to take an apartment, plot or building as the case may be, under section 1"3, shall be responsible to mak3 necessary payments in the manner and ttithin the time as specified in the said agreement for sale and shall poy at the proper time and place, the share of the registration charges, municipal tlxes, wc ter and electricity charges, maintenance charges, gro tnd rent' and other charges, if anY. clquse (7) rhe qllottee shqll be liable to pay ir terest, at such rate as may be prescribed, for any delay ir payment towards any amount or charges to be paid under sub' section (6).

23, As the possession of the flat was to be delivered by 06' 06'2016 as per the clause referred above, the authori:y is of the view that the promoter has failed to fulfil his cbligation under section 11(4J[a) of the Haryana e Haryana Real Estate [Regulation and DevelopmentJ Act, 2Ot6,which is reproducec as under: "77.4 Tlne Promoter shall- (a) be responsible for all obligations, res tonsibilities and functions under the provisions of tl',is Act or the rules and regulations made thereundt:r or to the allottees as per the agreement for sate, or to the association of allottees, QS the case mav be, till the conveyqnce of all the apartments, plots tr buildings, as the case may be, to the allottees, ar he common Page 10 of 14 Y.&4 ,r"Iili, llHifl \Wrdd r{L*\ t.lj-/ F{,qffir{ Gil[?UG{?AM I Complaint \o.

428 ot 201u I I areas to the association o.f allottees or the competent authority, as the cqse may be: Provided that the responsibility of the promoter, with respect to the structural defect or any other defectfor such period os ls referred to in sub-section (3) of section 74, shqll continue even after the conveyance deed of all the apartment,;, plots or buildings, as the cose may be, to the al ottees are execLtted." 24.

The contplainant made a submission beforc the authority under sr:ction 34 [0 to ensure compliance/rlbligations casI upon the promoter as mentioned above.

3t4 A Function of AuthoritY - To en:;ure compliance of the obligations cast upon the promo,ters, the allottees and the real estate agents under this Ar:t and the rules and regulations mqde ther eunder, 24.

The complainant requested that necessarJ' directions be issued bry the authority under section 37 of the Act ibid to the promotr:r to comply with the provisions and fulfil obligation which is; reproduced below: 37.

Powers of Authority to issue directions The Authority may, for the purpose of dischvging tfs functions under the provisions of this Act or rules or regulal.ions made thereunder, issue such direclions from time tct time, to the promoters or qllottees or real estate agents, as the case may be, as it may consider nec zssary and such directions shall be binding on all concerned. concerned.

Page 11 ofL4 w$-{Areil{ ffi eunucnAtu{ I Complaint \o.

428 ot 2018 Inferences drawn bY the authoritY 25.

The preliminary objections raised by tlre respondent regarding jurisdiction of the authority stands rejected, The authorit'y has complete jurisdiction to decide the complaint in regard to non-compliance of obligations by tre promoter as held in Simmi Sikka V/s M/s EMAAR MGF Lc'nd [td, leaving aside compensation which is to be decided by'.he adjudicating officer il'pursued by the complainant at a latet stage, 26, In the cetse of DLF Ltd, v.

Bhagwati Narula,l t evision petition no.

3860 of 2014 it was held by the National Consumer Dispute Redressal commission, New Delhi that agreement for forfeitinig more than 1,Oo/a of sale price woulrl be invalid and 2Oo/o of rfhe sale price cannot be said to be a reasonable amount which the petitioner company could have forf lited on account of default on the part of the complainant un ess it can show that it )rad only suffered loss to the extent .he amotlnt was forf-eited by it.

Earnest money is said to be the only amounI that is paid at the time of concluding the contract, Thtts, amount beyond lOo/o cannot be forfeited an,l if done so that would be unreasonable.

1 1(201s) cPr 319 (NC) Page 12 ot 14 ffit,&f?tl? ,1,,,{e GLi?LGRlrra 11 L/, Decision and directions of the authority Keeping in view that the buyer deposite d a sum of Rs.15,72, 638l- with the builder but failure on :he part of the buyer, the builder had no option but to fbrfi'it the earnest money.

Intimation to this effect has already be :n conveyed to him vide letters dated 08,07.2016 and 06.04,i 018' Full and linal settlement amount in this context has been offered as refund to the buyer, However, the complainart has not come to receive the same, Calculation sheet of refund was presented by the builder which has been placed on rec( rd.

It has been examined in detail. in detail.

It is observed that tlre service tax, brokerage cliarges and prospective interest hal; been deducted from the, principal amount which is superfluotts and not valid' In view of the situation stated above, the calculation sheet nlay be corrected to this extent' After taking into consideration all the m tterial facts as adducecl and produced by both the partier;, the authority exercising powers vested in it under sectiotr 37 of the Real Estate[RegrrlationandDeve}opment)Act,20l6herebydirects the responclent only 1'00/o of the earnest money may be deducted by way of forfeiture' No extra mor ey on any other pretext maY be deduced' 28, Complaint No.

428 ol2018 Ijr- '{Y .

Page 13 of 14 wij&retru -/t1,.#) GuluGRA\'l 29, The order is Pronounced' 30.

The file is; consigned to the registry' fSamii Kumar) Membrer Dated: 22.1"0."201,8 (subhash Chander Kush) Mer rber Complaint Page 14 of14 Judgement uploaded on 21.12.2018