SHRI ANTONY RAJKUMAR vs GODREJ PROJECTS DEVELOPMENT LTD

HARERA RGURUGRAIV BEFORE THE HARYANA REAL ESTATE REGULAT'ORY AUTHORITY, GURUGRAM ComDlaint no.

1305 of 2018 Date offilinq complaint 05.72.2X1.8 First date of hearins t6.o4.2J27 Date ofdecision O5.O9.2t022 CORAM: Shri Vijay Kumar Goyal Member Shri Ashok Sangwan Ft Member Shri Sanieev Kumar Arora Member APPEARANCE: Sh.

Narender Kumar (Advocate) Complainants Sh.

Divij Kumar (Advocate) Respondents ORDER 1.

The present complaint has been filed by the complainant/allottee under section 31 of the Real Estate (Regulation and DevelopmentJ Act,2016 (in short, the Act) read with rule 29 of the Haryana Real Estate (Regulation and DevelopmentJ Rules, 2077 (in short, the Rules) for violation of section 11(4)(a) of the Act wherein it is complaint No.

1305 ol201B 1.Sh.

Antony Rajkumar 2.Smt.

Sowjanya Harathi Both R/o: WW 74, 1" Floor, Malibu Towne, Sohna Road, Gurugram, Haryana Complainants )rsus 1.

Godrej Projects Development Ltd. (through its directors/authorised signatory] 2.

Shri Amit Biren 3.

Mr.

Rabi Kant Sharma All at: Godrej one,5th floor, Pirojshanagar Eastern Express Highway, Vikhroli (East), Mumbai City, Maharashtra-400079 Respondlents PaEe 7 of 12 * HARERA #- eunuenaHl Complaint No.

1305 of 2018 inter alia prescribed that the promoter shall be responsible for all obligations, responsibilities and functions under the provision of the,qct or the rules and regulations made there under or to the allottee as per the agreement for sale executed inter se.

2.

A.

Unit and proiect related details The particulars of the project, the details of sale consideration, the amount paid by the complainant, date of proposed handing over the possession and delay perio{,,if 4ny, have been detailed in the following tabular form: ,:.:'l: I s.

N.

7.

3.

4.

Particulars Details Name of the proiect "Godrei Summit", Sector 104, Gurusram Proiect area 22.723 acres Nature ofthe proiect Croup Housing Colony DTCP license no. and validity status 102 of 2077 dated 07.12.2011 valid upto 06.12.2019 5.

12.2019 5.

Name oflicensee Magic lnfo Solutions Pvt.

Ltd. and 1 other 6.L 7.

RERA Registered/ not registered 75 0F 2077 DATED 27.08.2077 RERA registration valid up to 30.09.2018 B.

Date of Allotment Letter 14.05.2015 tI I" a1L l Unit no.

A-1502, 14!h floor, Tower A [Page 43 ofthe complaintl Unit area admeasuring fcarDet areal 1902 sq. ft. (Page 43 of the complaint) Apartment Buyer's Agreement Executed on 25.05.2015 Possession clause 4,2.

Possession Time and Compensation "The developer shall endeavor to complete the construction of the Aportment within 32 months irom the date of issuance of allotment letten along with grace period of6 months over and above this 32 months period". {Page 89 ofthe complaint') 13.

Due date ofpossession 74.07.2078 (Calculated as per Apartment Buyer,s Agreementl P Page 2 of 12 HARERA ffi GURUGRAI/ 1,4.

Total sale consideration Rs.2,28,90,819 / - IPaEe 117 ofthe reDl 15.

Amount paid by the complainant Rs.

1,51,01,023l- (As alleged by complainantl Amount paid by complain 34,73,06s 1- Amount paid by ban 1,.75.20.777 /- 76. occupation certificate /Completion certificate Not obtained 77.

Offer ofPossession Not offered 18.

Cancellation Acceptance Form 2 3,05.2018 --l nant: nli: B.

Facts ofthe complaint: In 2015, the complainants made an application for book:ing an apartment in the project "Godrej Summit" and was allotted an apartment bearing no.

A-1502 admeasuring 1902.00 sq. ft. for a total sale consideration of Rs.

53,64,693 /-.

On 22.05.2(175 an allotment letter was signed between the parties and paid a sum of 3.

Rs.34,13,065/-.

It is pertinent to mention that the complainants opted for bank subvention plan.

Since the ICICI bank was the proiect partner of the respondent in the said project, hence the complainanls were Ieft with no option but to seek finance from the ICICI bank only.

5.

That on 25.05.2015, an apartment buyer's agreement was executed betlveen the parties and was allotted unit melltioned above.

On 15.04.

On 15.04.2016 first instalment of Rs.86,1.4,21a/- was paid by ICICI Bank to the respondent.

Then after the complainatlts had Complaint No.

1305 ol 2018 tA.

Page 3 of 12 offi d b and the 7.

Th b 8.

The ndent from 15.04.2016 to 6.09.2076 i.e., a sum HARERA e-mails, made several tel ne calls and also of the respondent to cancel booking. dl 26.09.2016,ICICI bank d ted a sum of Rs.

1,1 7 ,958 the respondent.

On subm ng the cancellation the respondent issued a nd draft drawn on HD Bank uring the tCtCI Bank.

Ltd, for of Rs.

1,75,20,177 / as full final payment for closi loan account.

How )on ting the demand resaid amount, ICICI demanded a sum - from the com only on depositi the loan unt of mplainants Complaint No.

1305 01.03.2015 3 0.0 4.2 015 ICICI 2 5.0 5.2 018 complainants are cl amount recoverable from ondents = Rs.

40,14,7 bank. had paid an amount of Rs.1,16,87,958/-in total to of the Rs.

Sr.No.

Date Amount Paid to 1.

Rs.

34,r3,065 /- Respondent company 2.

01.01.2018 ro 3 0.04.2 018 Rs.

4,44,744/- 3.

L,s7,502/- ICICI BanK Ltd.

Page 4 of 12 HARERA MGURUGRAII C",rrelr,", N"r30s"tr rOtB I 86,44,218/-, 1,83,979/- and 28,59,761./- respectively and the respondent only paid an amount of Rs.

1,,1,5,20,1,7 U - to the bank through demand draft bearing No.

293205 drawn on HDIiC Bank dated 16.05.2018.

9.

Being aggrieved by the acts of respondent, the complainant is left with no option but to file this complaint.

C.

Relief sought by the complainant: 10.

The complainants have sought following relief(sJ: i) To direct the respondent to refund an amount of Rs.40,74,7LL1- i.e. a sum of Rs.34,13,065/- paid by the complainants as initial payments to the respondents and Rs.4,44,144/- as EMI pard to the ICICI Bank and Rs.

1,57,502/- paid to the ICICI Bank for closing the loan account along with interest @ 18olo p.a. from the date o: deposit till its realization in full and final.

D.

Reply by respondent: The respondent by way of written reply dated made the following submissions: 11. sions: 11.

That the complainants have concealed the material facts liom the authority.

The complainants after going through all the prros and cons, booked a flat in A-1502, 14th floor, Tower A in the project of the respondent.

12.

The complainants opted for subvention plan in which the buyer holds the unit by paying 1570 of money and the rest 85ot! money will be paid by the bank to the respondent in the form of loan.

N Page 5 of 12 * HARERA Sc;unuenRtvr the cancellation ed and placed on , the complaint documents and 77. of complaint on ority observes that Complaint No.

1305 of Accordingly, a tripartite agreement was executed between the parties dated 28.03.20L6.

13.

On .23.05.2018 the complainants signed acceptance form and accepted all the terms and conditions therein, Thereafter, the respondent issued the demand draft dated 16.05.2018 bearin gno.293205 drawn on HDFC bank.

14.

Thus, from the aforesaid, it abundantly clear that there has been no lapse, whats part of the respondent at any point in time.

15.

All other averments ma denied in toto.

16.

Copies ofall the relevant do I record.

Their authentici can be decided based submission made by th E.

Jurisdiction ofthe au The prlea of the respondent grour d of jurisdiction stands it has territorial as well as su diction to adiudicate the plesent complaint for the reasons given below.

E.

I Territorial iurisdiction As per norification no. t/92/2017-1TCp dated 14.L2.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurup;ram District for all purpose with offices situated in PaEe 6 of 12 v ffiHARERA S* arnuennM Gurugram.

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

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

E, II Subiect matter iurisdiction Section 11[4)(a] ofthe Act, 2016 provides that the promor:er shall be responsible to the allottee as per agreement for sale.

Section 11(4J(a) is reproduced as hereunder: Section 11(4)(a) Be responsible for all obligotions, responsibilities and funct'ons under the provisions of this,Act or the rules ond regulations made thereunder or to the allottees os per the agreement for sale, or to the associcttion ofollottees, as the case may be, till the conveyance of all the qpartments, plots or buildings, os the case mqy be, to the allottees, or the common areas to the ossociotion of qllottees or the competent authority, as the case moy be; Section 34-Functions of the Authority: 34[0 of the Act provides to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agr)nts under this Act and the rules and regulations made thereunder.

18.

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 leavinl; aside compensation which is to be decided by the adjudicating officer if pursued by the complainants at a later stage.

19.

Further, the authority has no hitch in proceeding \/ith the complaint and to grant a relief of refund in the present matter in view of the judgement passed by the Hon'ble Ape:{ Court in Newtech Promoters and Developers Private Limited rvs State of U.P. and Orc.2020-2027 (1) RCR (c) 357 and reiterated in case Complaint No.

1.305 of 2018 Pzrge 7 of 72 *HARERA dh c;unueneHl Complaint No.

1305 of 2018 of M/s Sana Realtors Private Limited & other Vs Union oI lndia & others SLP (Civil) No.

13005 of 2020 decided on 72.05iZ022wherein it has been laid down as under: "86.

From the scheme of the Act of which q detoiled reference has been made and toking note of power of adjudication delineated with the regulatory authori\l ond odjudicating officer, what finally culls out culls out is thot olthough the Act indicates the distinct expressions like 'refund', 'interest', 'penalty' and 'compensation', a conjoint reading of Sections 18 and 19 cleorly monifests thot when it comes to refund of the amount, qnd interest on the refund amount, or directing payment of interest for delayed delivery of possessio4 or penolty and interest thereon, it is the regulotory outhority which has the power to exqmine and determine the outcome of o complqinL At the same time, when it comes to a question of seeking the relief of odjudging compensation and interest thereon under Sections 12, 14, 1B and 79, the adjudicating olficer exclusively has the power to determine, keeping in view the collective reading of Section 71 read with Section 72 oI the Act. ifthe adjudication under Sections 12, 14, 18 and 19 other than compensation os envisoged, if extended to the adjudicating oJJicer as prayed that, in our view, may intend to expond the ambit and scope of the powers and functions of the adjudicsting oJficer under Section 71 and thqt would be against the mandote of the Act 2016." 20.

Hence, in view of the authoritative pronouncement of the Hon'ble ra ,, t:. r,' Suprerne Court in the caseg 19nti919d,above,rthe authority has the jurisdiction to entertain a complaint seeking refund of the amount and interest on the refund amount.

F.

Entitlernent ofthe complainant for refund: F.1.

Refund of an amount of Rs.40,14,711 /- i.e,, a sum of Rs.

34,lil,O6s/- paid by the complainants as lnitial payments to the respondents and Rs.

4,44,144/- as EMI paid to the ICICI Bank and Rs.1,S7,SO2/- paid to the ICICI Bank for closing the Page 8 of12 tr HARERA GURUGRAM loan account along with interest @ !8o/o p.a. from the date of deposit till its realization in full and final.

21.

In the present case, the subject unit was allotted to the complainant on 14.05.2015 under subvention plan.

He pairl a sum of Rs. sum of Rs.

34,13,065/- towards total consideration of allottrd unit which constitutes nearly L5 o/o of total consideration.

The complainant approached the authority seeking relief of refund of the paid-up amount on the ground that the allottee does nf,t want to continue with the project as he had accepted the cancellation by filling a form dated 23.05.2018.

The said complaint has been filed on 05.L2.2019 whereas as per clause 4.2 of the BBA, the due date of handing over of possession comes out to be 14.07.20t8.

The complainant has also submitted a calculation sheet which rlakes it clear that the complainant has made a payment of Rs.

34,13,065/- to the respondent.

I,l 22.

The above-mentioned facts make it clear that the comlr]ainant wants to withdraw from the project and is seeking refund before the due date has expired.

It has come in his pleadings that he sent an email back in 2 015 but after that the ICICI bank disbursed loan amount to the respondent which was not challenged by complainant.

This clearly proves that the complainant wanted to continue with the proiect.

However, the complainant accepted the cancellation vide letter dated 23.05.2018 which was also before the due date for completion of the prolect has expired and the same has also been taken as date of cancellation of unit.

Complaint No.

1305 0f2018 Page 9 of 12 (A-' * HARERA S* r;unuenaHl Complaint No.

1305 of 2018 The cancellation of any allotted unit by the respondent builder must be as per the provisions of regulation 77 of 2078 framed by the Haryana Real Estate Regulatory Authority, Gurugram providing deduction of 10% of total sale consideration as earnest money and sending the remaining amount to the allottee immediately.

So, the deduction should be made as per the Haryana Real Estate Regulatory Authority Gurugram.{Eorfeiture of earnest money by the builderJ Regulations, 11(5) qffifS, which states rhar- .5. rhar- .5.

AMOUNT OF EARNEST MONEY Scenario prior to the Reol Estote (Regulations and Development) Act,2016 was dwrent.

Frauds were carried out without any fear as there was no law for the same but now in view of the above facts and taking into consideration the judgements of Hon'ble National Consumer Disputes Redressol Commission and the Hon'ble Supreme Court of lndia, the authority is of the view that the forkiture amount of the earnest money shall not exceed more than 100k of the considerqtion omount of the real estate i.e. opartment/plot/building as the case moy be in oll cases where the cancellation ofthe llot/unit/plot is mode by the builder in a unilaterql nenner or the buyer intends to withdraw from the project and any agreement contqining any clause contrary to the aforesaid regulotions shall be void and not binding on the buyer." 25.

Keeping in view the above-mentioned facts and since the allottee accelrted the cancellation by filling a form dated 23.0S.ZOlg.

Hence the authority hereby directs the promoter to return the amolrnt after forfeiture of 100/0 of total sale consideration which comes out to be Rs.

11,23,983.71- with interest at the rate of 10.000/0 (the State Bank of India highest marginal cost of lending rate (MCLR) applicable as on date +2%) as prescribed under rule 24.

Page 10 of 12 HARERA MGURUGRAM Complaint No.

1305 c,f 2018 15 of the Haryana Real Estate (Regulation and Develc,pment) Rules, 2017 from the date of cancellation acceptance form i.e., 23.05,2018 (as no email is on record) till the actual date ol'refund of the amount within the timelines provided in rule 16, of the Haryana Rules 2017.

H, Directions ofthe Authority: 35.

Hence, the Authority hereby passes this order and is:;ue the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoters as per the functions entrusted to the Authority under section 34(0 of the Act of 20L6: iJ The respondent-promoter is directed to refund the balance e balance amount after deducting 10% of the sale consideratiorl of the unit being earnest money as per regulation Haryalla Real Estate Regulatory Authority Gurugram IForfeiture of earnest money by the builder) Regulations, 2018 with interest @ 10 0/o p.a. on the refundable amount from the date accepl.ance of cancellation form i.e., 23.05.2018 till the actual date ol'refund of the amount. iD Out of total amount so assessed, the amount paid by the bank/payee be refunded in the account of bank and the balance amount along with interest will be refunded to the complainant. iiil A period of 90 days is given to the respondents to comply with the directions given in this order and failing which legal consequences would follow.

Page ll of lz Jb.

37. * HARERA # r;unuennll Complaint stands disposed of.

File Lre consigned to the Registry.

Haryana Real Estate lr t9- 1( v.l- (viiay uthority, Gurugram 22 :RA RAf\I Complaint No.

1305 ,rM^, ,/' Member PaEe 12 of 12