MRS VIJAY RANA AND AARUSHI SINHA vs ILD MILLENNIUM PVT. LTD

i8r HARER S eunuenel,, HARYANA REAI.

ESTATE REGULATORY AUTHORIIY GURUGRAM eR-qpn tqra fEftqrxro srhrrur, T€[rq House, Civil lines, GuruScm, Haryana ;rql qt PROCF]EDINGS O[' THE DAY Wedne sday and 24.05.2023 CR/887 /2020 Casc ritlcd as N4RS VIIAy RANA AND AAIIUSHI SINHA Vs ,D MII,I,I]NN It'M PV'I I,'ID i\4 RS Vtl^y RANA AND AAT JS I SIN A I)ay and Date Complaint No. (iorrplainant Represented through Nonc l,ast datc ol hcaring l)rocccding Ilccordcd Narcsh Kunrari and llR Mchta Responde n t II,D MII,I,I]NNIUM PVl' I,TD Respondent Represented Shri Aradhya AR of the respondent conr palry Rectifi cation application by Proccedings allowed in two cascs, frstly, ordcrs against which ap;rcal has becn oroferrcd 'Ihc prcscnt complai nt was disposcd off vidc ordcr ciatcd 1 4.Og.2OZ.Z with a dircction to the rcspondcnt to rclund thc amoLlnt paicl by the complainant alicr deducting I09lo of thc salc consideration with intcrcst (rD I0% p.i. on the refundable amount from thcdate oflettcrol surrcndcri.e., 17.07.2d17 till the Jclual datc ol rclund o, thc amounr.

The complainant has filed an application of rectification under section 39 of thc.Act on 29.09.2022 stating rhat thc ordcr dated 14.0g.2022 may be rectified and the amount paid by complainants may bc reiundcd lronr the respectrvc paynrcnts thcrein till realisation without deduction ofany anount since lt was not considercd that the ,ailurc [o cxccurc thc BBA reiulLcd in issuance ol surrcnder lettcr datc.l 17.07 .2017 . 'fhc authority obscrves that scction 39 deals with thc rectilicotion ol orders which crnpowcrs thc authority to nrakc rcctiflcation within a pcriod of 2 yc.ars from the dato ol'ordcr mado undor this Act. ,lhc aLrthority may rectify any mistake apparcnt from thc rccord and makc such amcndmcnt, ii thc mrstake is brought to its noticc by thc partics. llowcver, rcctification cannot he {*{, fifrsi rtt E R) ,frttq, ,orea uo, zor, .r,o,reo.# & HARER S eunueqnNr HARYANA REAL ESTATE REGUI.

ATE REGUI.ATORY AUIHONITY G U RUGRAM 6R-qrqr {-sqqr ru911'Y-"i" -j{, r'Ta{ ft:!I. o amend su ntrvc part aTThE ordai sect,on is reproduced below. while rect:ifying ony mistoke of its order possed under the /\shbk Me r 24.05 23 sa id Section j9: Rectifrcotion o[orders -The Au,thonty_noy. ot ony ittne wtrhnt o pet tod oJ two ycors from the dolp ot tnp orocr m0dc unclcr Lht, /1rt. with o vpw to r{tiDtng ony mistoke oDDorenl fram t.he re.ord omcnrt orv oftt?t posscd ,i,,'rri .n"ti )"i7rrii omenQmpnt. tl thp qtstokc t\ bfouoht to ls noLr ? by thp pofl te5_ Provided Lhot no such anentlnent sholt be ntode in respecl of ony order uaoinst which on appeot hos bcen pre/.erred under Lhis Act: Provided further thot the Authorily shall not, opporent from record, omend substontive part provisiotts ol !his Act.', Since the prescnt application i'rvolvcs amt.ncl,rcnt ol substanLive part ol thc order by secking relicf of allowing thc rctirnd tfr" ."rp".iiu" priiunt, ttff realisation without deduction ol any amount.

Accordrngly, rhe said lpplication is not maintainable being covcred undcr thu "*."piinn ,"nrion'",0 in z* proviso to scction 39 of thc Act, 2016.

Thu-s, in vicw of the lcgal position discussed abovc, thcre is no merit in the application datcd 29.09.2022 iilcd by the complainrnt fo..".iiit*iio'n ot orde r :1:"^d-ll_9?,2grlrasscdbythcauthorityana'tnesamcistr","ifa"i'ir"a. r,,r" nc constgncd to thc rcgistry. ffi HARERA #euntlGRAM BEFORE THE HARYANA REAL ESTATE *..U'O'O*" AUTHORITY, GURUGRAM 887 of 2OZO 26.O2.2O20 07.o4.2020 14.09.2022 Complaint no, Date of filingioEplaint First date of heaiin= Date of decision Mrs Viiay Rana Aarushi Sinha Both R/o: House no.

12A, Town, Deh radu n-249002, Turner Road, Clement Uttarakhand M/s ILD Millenium pvt.

Ltd.

Reg^d..office: gth Floor, ILD Trade Centrg Sector 47, Sohna Road, Gurugram_12201S, Haryana Complainants Respondent Dr K.K.

Khandelwal Shri Ashok Sangwan Shri Sanjeev Kumar Arora Sh.

Arora Sh.

Pankaj Chandola (AdvocateJ CORAM: Chairman Member APPEARANCE: None Complainant I Respondent I ORDER 1, The present complaint has been filed by the complainants/allottees under Section 31 of the Real Estate (Regulation and Development] Act, 2016 (in short, the Act) read with rul Deveropmen t) R,r.., 2 0 1 ? "(; :; ff TllT:;l":'ff "ff :'r::::: 1 1(41(al of the Act wherein it is inter alia prescribed that the promoter shall be responsibre for ar obligations, responsibilities and functions under the Page 1of 14 2-) 7.

2.

Versus Complaint No.

BB7 of 2020 provision of the Act or the rules and regulations made there under or to the allottee as per the agreement for sale executed inter se.

A.

Unit and proiect related details 2.

The particulars of the project, the details of sale consideration, the amount paid by the complainants, date of proposed handing over the possession and delay period, if any, have been detailed in the following tabular form: s, No.

Particulars Details 1.

Name and location of the proiect "Grand Centra", Sector 37C, Gurugram 1 Nature of the project Croup Housing Colony 3.

Project area 15.48 acres 4.

DTCP Iicense no.

13 of 2008 dated 31.01.2008 Name of licensee Jubliant Malls Pvt.

Ltd and 3 others 6.

RERA Registered/ not registered 62 ofZ0l7 d.ated 17.08.2017 valid upto 77.02.2020 7.

Application for Booking lnitial unit New unit L3.09.20t4 (Page 25 of complaint) Not specified B.

Unit no.

Initial unit New Unit 1105, B Block (Page 25 of complaint) 1104, B Block fPage 30 of complaint) 9.

Unit area admeasuring Isuper areaJ New Unit 1745 sq. ft. (Page 30 of complaintJ 10.

Date of apartment buyer agreement Not Executed 77.

Date of first payment 1.5.09.2074 (Page 32 of complaint) ffi HARERA *iH* eunuennll Page 2 of 14 MHARERA ffieunueRRvr Complaint No.

BB7 of ZO20 72.

1X 1E Possession clause N/A Due date of possession 1.3.09. on 1.3.09.201,7 fTaken as 3 years from date of signing of application form in accordance with Hon'ble Supreme Court judgment on the subject) Rs.

81,14,250/- (As alleged by complainant on page 17 of complaint) Total sale consideration 15.

Amount paid by the complainants Rs.

20 ,93 ,268 / - (As per SOA at annexure C7) 76. n.

1& Surrender Letter 17 .07 .2017 (Page 44 at annexure C5) Occupation certificate Not obtained 0ffer of possession Not obtained B.

Facts ofthe complaint: 3.

That the present complaint is being filed by the complainants against thc respondent company who has failed to hand over the possession of the residential unit in proiect 'GRAND CENTRA,, situated in Sector 37_C, Gurgaon, as per the assurances and promises made it.

4.

That in the year of2014, the complainants, based on the advertisement both in paper and multimedia, visited the proiect site namely,GMND CENTM, and were attracted by the brochures and catalogues shown by the officials/representatives of the respondent company.

The complainants, convinced by the representations made by the respondent company showing that the project namely ,GMND CENTM,as one of its kind, and Page3of14 26 5.

6.

7. ffiHARERA S-eunuennll Complaint No.

887 of 2020 also by the verbal representations made by its officials that the possession would be given within 36 months of the signing of the application form, decided to book residential unit in question.

That based on the promises and information provided by the respondent, the complainants' filled the application form and deposited an amount of Rs.

4,00,000/- on 13.09.2014 as the booking amount.

A receipt dated L5.09.2074, was issued to the complainants as an acknowledgement ofthe amount received by the respondent.

Every time, the complainants requested for the execution of an agreement, the respondent company gave an excuse that builder buyer agreement would be executed only when 300/o of the total sale price will be paid by the complainants. plainants.

That at the time of booking, the respondent company officials assured the complainants that the unit would be offered to complainants within 3 years however, even after passing of more than 51/zyears neither the ABA has been executed nor possession has been offered.

It is pertinent to submit here that the respondent company has neither issued the allotment letter nor got the builder buyer agreement executed till this date.

Thus, the act of the respondent in demanding more than 250lo of the sale price ofthe unit even before signing ofthe agreement and indulging in illegal activities is in violation ofthe provisions ofthe Act of 2016.

B.

It is pertinent to place true facts that the complainants visited the office of the respondent to upgrade the unit allotted from 2BHK to 3BHK and to delete the name of the Mr.

Anshul Rana (co-applicant) and further add the Page 4 of 14 Complaint No.

BB7 of 2020 name of Mrs.

Aarushi Sinha.

That request was acknowledged by the ffiHARE]]A Heunuenntrr respondent and the said changes were made on 23.05.201,5.In this regard, the complainants made a payment amounting to Rs.

4,88,139/- (llupees Pour Lakh Eighty-Eight Thousand 0ne Hundred and Thirty-Nine) dated 23.05.20L5 to the respondent company and accordingly they were allotted a new unit GCB-1104,3BHK, 1745 sq. ft.

9.

But the respondent, even after passing of 22 months from the date of booking, failed to execute the builder buyer agreement.

So, the complainants had no choice but to ask For the refund of the amount paid by them with interest as it was promised by the respondent that possession would be offered within 36 months from the date of booking i.e by 13.09.2017.

The complainants visited the office ofthe respondent on 17.07.2017 and handed over an application for the refund of the amount paid till date along with interest and the same was acknowledged by it.

10. by it.

10.The officials of the respondent company assured the complainants that action would be taken on the application, and they would contact them for initiating the refund process.

However, till date the refund has not been in itiated.

11 .

That it is pertinent to mention here that the basic sale price of the unit in question is Rs.

81,L4,250/- out of which the complainants had paid an amount of Rs.

20,93,268/-.

However even after 5 years, there is no apartment buyer's agreement.

The willful, malafide and illegal conduct of the respondent company is apparent from the facts as described and the Page 5 oF14 25 ffi HARERA ffieunuennur 13.

The complainants have sought following relief(s): i) Direct the respondent company to refund the payntent made till date by the complainants along with interest @ 18% per annum from the date of first payment till the date of disbursement of refund. ii) Direct the respondent company to pay a sum of Rs.

10 lacs towards damages for the physical and mental torture, agony, discomfort and undue hardship caused to the complainants as a result of the above acts and omissions on its part and an amount of Rs.

1,50,000/- as litigation expenses D, Reply by respondent: The respondent by way of written reply made the following submissions: - 14.

That the respondent is a leading real estate company aiming to provide state of art housing solutions to its customers and has achieved a reputation of excellence for itself in the real estate market.

Complaint No.

887 of 2020 respondent company is liable to refund the amount paid along with interest applicable.

12.

Since the respondent company has failed to handover the possession as per the assurance and promises made to offer the possession within 36 months from date of booking the complainants wish to withdraw from the proiect as there has been a delay of more than 5 years to handover the unit in question.

C.

Reliefsought by the complainants: Page 6 of14 ffilaRun #" ouRuennvr complaint No. plaint No.

887 of 2020 banned in Gurgaon, orders passed by National Green Tribunal to stop construction to prevent emission of dust in the month of April, 2015 and again in November, 2016, adversely affecting the progress of the project.

The demonetization and new tax law i.e., GST, affected the development work of the proiect.

18.

That the complainants have intentionally concealed material facts and filed present complaint with the sole purpose of avoiding the agreed terms of the agreement.

It is brought to the knowledge of the Hon,ble Authority that the complainants are guilty of placing untrue facts and are attempting to hide the true colour of its intention.

The present complaint is devoid of merit and thus is liable to be dismissed.

19.

All other averments were denied in toto.

20.

Copies ofall relevant documents have been filed and placed on record.

Their authenticity id not in dispute.

Hence, the complaint can be decided on the basis of these undisputed documents and submissions made by the parties.

E. lurisdiction ofthe authority: 21.The authority has territorial as well as subject matter jurisdiction to adjudicate the present complaint for the reasons given below.

E.

I Territorial iurisdiction 22.

As per notificarion no. t/92/2017-7TCp dated t4.1,2.201,7 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 Pase B of 14 >q Complaint No.

BB7 of 2020 situated within the planning area oF Gurugram district.

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

E.ll Subiect matter iurisdiction 23.

Section 11(aJ(aJ of the Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale.

Section 11(4)[aJ is reproduced as hereunder: Section 11 i+i 1 rn" pro.

1 rn" pro.o,"r rnot- (o) be responsible for all obligations, responsibilities qnd functions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sole, or to the associotion of allottees, as the cose may be, till the conveyance ofoll the apartments, plots or buildings, as the case may be, to the allottees, or the common areas to the association ofallottees or the competent authority, as the cose ma! be; Section 34-Functions oI the Authority: 34(t of the Act provides to ensure complionce of the obligotions cast upon the promotersr the altottees and the real estote ogents under this Act ond the rules ond regulotions mode thereunder.

24.

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 decided by the adjudicating officer if pursued by the complainants at a later stage.

25.

Further, the authority has no hitch in proceeding with the complaint and to grant a reliefofrefund in the present matter in view ofthe judgement passed ffiHARERA s-eunuennnr Page 9 of 74 HARERA GURUGRAN/ by the Hon'ble Apex Court in Newtech promoters ond Developers private Limited Vs State of U.P. ond Ors.

2020-2021 (1) RCR (c) 357 and reiteroted in cose of M/s Sana Realtors privote Limited & other Vs llnion oI tndia & others SLP (Civil) No.

73005 ol2020 decided on 1z.\S.z\Zzwherein it has been laid down as under: "86.

From the scheme of the Act of which a detoiled rekrence hcts been mqde ond taking note of power oI odjudication delineoted with the regulatory quthority ond odjuclicating ollicer, whotlnatty culls out is thot although the Act indicates the distinct expresstons like 'refund', 'interest,,,penalty, ond . lty, ond .compensation,, q conjoint reading ofSections 1B qnd 19 cleorly monifests thatwhen it comes to refund of the amount, and interest on the refund omount, or directing payment ol interest for deloyed delivery of possesston, or penalty ond interest thereon, it is the regulatory quthority which hos the power to exqmine ond determine the outcome of a complaint.

At the some time, when it comes to a question of seeking the relief of adjudging compensation and interest thereon under Sections 12, 14, 1B ond 19, the adjudicqting officer exclusively has the power to determine, keeping in view the collective reoding of Section 71 read with Section 72 of the Act. ifthe odjudicotion under Sections 12, 14, 18 and 19 other thon compensation as envisaged, if extended to the adjudicating oflcer os prqyed that, in our view, may intend to expond the ambit ond scope of the powers and functions of the adjudicating officer under Section 71 ond that would be agoinst the mondote of the Act 2016." 26.

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

F.

Entitlement ofthe complainants for refund: F. l.

Direct the respondent company to refund the payment made tiu date by the complainants along with interest @ 1g%o per annum from the date of first payment till the date of disbursement of refu n d.

887 of 2020 Paseroor14 23 ffi HARERA #- eunuennvr Complaint No.

BB7 of2020 27. ln the present case, the complainants booked a unit in the project of the respondent named as "Grand Centra" situated at sector 37C, Gurgaon, Haryana for a total sale consideration of Rs.

81,14,250/- vide application form dated 13.09.2074.

Thereafter, they were allotted unit no.

1105 in B Block.

However, the allotted unit was subsequently changed to unit bearing no.

1104 in the same block admeasuring 1745 sq. ft.

45 sq. ft.

The complainants have in total paid an amount of Rs.

20,93,269/-.

28.

It is an admitted fact that no buyer's agreement was executed between the parties.

So, the due date for completion of the project and handing over possession ofthe allotted unit has been calculated in accordance. the Hon,ble Supreme Court in the case of Fortune Infrastructure and Ors, vs.

Trevor D'Lima and Ors. (12.03.2018 - SC); MANU/SC/o2 53/2018 wherein itwas observed, "d person cannot be made to wait indeJinitely for the possession of the llots allotted to them and they are entitled to seek the refund ofthe omount paid by them, olong with compensation.

Although we are aware of the fact that when there was no delivery period stipulated in the dgreement, a reasonoble time has to be taken into consideration.

In the facts and circumstances of this cose, a time period of 3 years would have been reosonable for completion of the contract".

In view of the aforesaid judgment, the due date of possession has been calculated as three years from the date of signing of application form i.e., 13.09.2014 and the same comes out to be 13.09.2017.

The complainants wanted to withdraw from the project and are seeking refund before the due date has expired.

It has come in the pleadings that they sent a letter dated 77.07.201,7 [Annexure C5, page 44) to the respondent seeking refund and withdrawal from the project but before the due date for completion of the proiect has expired.

Page 11 of 14 HARERA GURUGRAM 29.

The cancelation/surrender of any alotted ,n,, uy ,t* .fiondent bu der must be as per the provisions of regulation LL of 2O7B framed by the Haryana Real Estate Regulatory Authority, Gurugram providing deduction of 10%o of total sale consideration as earnest money and sending the remaining amount to the allottee immediately.

1.10.

So, the deduction should be made as per the Haryana Real Authority Gurugram (Forfeiture of earnest money Regulations, 11(51 of 2 01g, which states that_ "5. that_ "5.

AMOIJNT OF EARNEST MONEY Scenario prior to.the !?l Estote (Regutations and Development) Act, 2016 was dilferen,t. rrouas *erl ,irr,)) "ri *li,inii rny l"r, ^ there was no taw for the sone but now, in iii, "iri",'"ii* n"r rra tokins into consideration the iudgeneni i1 iii.it" Notionot consume r Disputes R"aresrqt comiiiion.ia"inr,io,iu," srrr"r" court of rndia, the authori.ty is of the iiei ioi ,"n" y"i1",i, * o.orr, of the eornest money shau i", "rriii ,r'r:" liir,,)o* oy ,r" ,;{.ii; : i,,?: ;:;,i:, ?fi' !i,, "Jl,ii,,i!i;" " :i::l_rl : *i;i iqt/unit/ptot is made.by the buitder ii i ,r,tri"r"t ri,rrr, "r r* buyer intends to withirow from ,h" p;;";;;";;;,;;;, ,gr""r"nt containing any clause contrc:ry to the aforesoid rigila'ttons sna be void ond not binding on the buyer.,, 31.

Keeping in view the above_mentioned facts and since the allottees requested for cancellation of the allotment on 77.07.201.7, so the respondent was bound to act upon the same.

Hence the authority hereby directs the promoter to return the amount after forfeiture of 1,00/o of total sale consideration with interesr at the rate of 10.000/o (the State tsank of India highest marginal cost oflending rate [MCLR) applicable as on date +2%J as prescribed under rule 15 of the Haryana Real Estate (Regulation and Development) Rules, 2017 from the date of letter of surrender i.e., Estate Regulatory by the builderJ Page 12 of14 \.. ,/LP Complaint No.

BB7 of 2020 17 .07 .2017 till the actual date of refund of the amount within the timelines provided in rule 16 of the Haryana Rules 2017.

F.ll.

Legal Expenses and Compensation 32.

The complainants are claiming compensation under the present relief, The Authority is of the view that it is important to understand that the Act has clearly provided interest and compensation as separate entitlement/rights which the allottee(s) can claim. can claim.

For claiming compensation under sections 12,14,1,8 and Section 19 of the Act, the complainants may file a separate complaint before the adjudicating officer under Section 31 read with Section 71 of the Act and rule 29 of the rules.

G.

Directions of the Authority: 33.

Hence, the authority hereby passes this order and issue the following directions under section3T of the Act to ensure compliance of obligations cast upon the promoter as per the functions entrusted to the Authority under Secrion 34(0 of the Act of 2016: i) The respondent-promoter is directed to refund the amount after deducting 100/o of the sale consideration of the unit being earnest money as per regulation Haryana Real Estate Regulatory Authority Gurugram (Forfeiture of earnest money by the builder) Regulations, 2018 with interest @ 10.000/o p.a. on the refundable from the date of letter of surrendet i.e., 1,7.07 .20i.7 till the actual date of refund of the amount. ii) A period of 90 days is given to rhe respondent to comply with the directions given in this order and failing which legal consequences would follow. ffi HARERA ffiounuenRlr Page 13 of 14 HARERA M- GUI?UGRAM iiil The respondent is further directed not to create any thirdaarty rights ,ure t+ of 14 21 against the subiect unit before full realization of the paid_up amount along with interest thereon to the complainants, and even il any transfer is initiated with respect to subiect unit, the receivable shall be first utilized for clearing dues of allottee_complainants.

34.

Complaint stands disposed oi 35.

Iile be consigned to the registry. (San Member Memb (Dr.

KK Khandetwal) Chairman Haryana Real Ertrt" R;;;i;;y.y Authoriry,; Gurugram Datedt 14.09,2022 (Ashok Sa