UMA VIJAY AND TANUJ VIJAY vs ANSAL HOUSING LIMITED FORMERLY KNOWN AS ANSAL HOUSING AND CONSTRUCTION LIMITED

Complaint No.46 2022 and ORITY, 6.O4.2023 9.O7.2023 RANCE Gupta p Kadyan Member filed before (Regulation ) read with ent) Rules, on 11(+)(a) tcr shall bc ions to the n parties. ,v 5 Page 1 of 2 ffiFi,qRTR ffi, eunUcRAr'il NAME OF THE BUILDER PROIECT NAME I S.

No.

Case No.

1 C.Rl4680 /2022 c.t\14684 /2022 cR/s196/2022 CORAIVI: Shri A:;hok Sangwan ANSAL HOUSING LTD.

ANSAL HEIGH'tS 86 Case title tJma Vijay &'l'anuj Vijay V/s Ilousing [.td.

Uma Vijay & Nishant Viyay Y / tlousing Ltd.

Maclhu Gupta V/s r sal IIous 2. wi-{d\RER # eunt:GtlAM Case Title 'fhe core issues cmanatin complainant[s) in thc abov namely, "Ansal [leights 86" same respondent/promo l,imited. 'fhe terms and co thr: issue involvecl in all prrtmoter to deliver timcl aw,ard ol' dcla1, possessior-r 3. 'f he details of the complain possession clause, due da paid amount, and rclief so "'l'he developer shall offer months from the date of the date of obtaining all commencement of dttes by buyer and subject to fct lit rther, there shall be a grace and above the lteriod of 42 Or:cupation ccrtificatc: - Not Due date: 01.10.201 7 fNote: 42 months later + 6 rnonths Bracc pcriod a Note: Grat'c pcriocl is allor cl Lrc c'latc of' pos;scssio n. llomplaint No., CR/ Uma Complaint No. of2022 and from thcm are similar in n rcfcrrcd mattcrs are allottees re and the the project, group housing colony) being d ped by the r i.e., M/s Ansal Ilousing & onstruction ditions of the buyer's agrccmen fulcrum of part of the se cases pertains to failure on th posscssion of the units in que on, seeking arges along with intertest. , reply to status, unit no., date o agreement, of possession, total sale consid ht erre given in the tablc bclow: tion, total ANSAL HOUSING LTD "ANSAL HEIG Sector-86, Gurugram. on of'Lhe unit any time, within a of 42 ion oJ'the agreement or within 42 ths from required sanctions and approval for whichever is later subject to timely tyment of all e majeure circumstances as described in clause 32. clause 32. of 6 months allowed to the ths as above in offering the possession the unit." s supplied) m dat.c of'starl ol'construction i.c.,01.1 .2013 bcing lowed being unqualified) omputing at o CR/ Ma 96/2022 u Gupta Tanuj V ) /2022 ' CR/4684/2O22 iiay & Uma Vijay & iay V /s Nishant Vijay Page 2 of 25 Project Name and Location Z7 Ansal ousing Reply status 27.0 2022 I)- 32o ffiL:,qRER #" ounlGRAM Unit no.

151 omplaint 20L2 nrplarnt'l Date of apartment buyer agreement Offer of possession for fit outs Total TSC: t 77 ,701.2s/- AP: t 76, 2e6/- lpg,.29 o lpg 31 ir AP:{7 ere filed by ation of thc in rc:;pcct of tc, secking award e said compla bligations on tion :J4(0 of cc of the obligat tate agcnts u ts filed by the -mentioned ca 'l'hc aforcsaid complaints promoter on ;tcc0unt of vi cxccuted betwcen the parti thc posscssion by'thc due di along with interest.

It has bcen dccided to treat compliancc of st.atutory ( rcspondcnt in terms of sc authority to ensu re compliat ther allotteeIs) ancl the rcal rcp;ulations made thcrcundc 'l'he facts of all thc complai also similar.

Out r:f thc atlov CR,/4680/2022 Uma Vijay 4.

5.

6.

Consideration / Total Amount paid by the & Tanuj Vijay Complainl No.

4680 ors. tf 2022 and /s Ansal using Ltd.

Y1 Hor s Ansal sing Ltd.

11.20'22 r-090 2 oIconrplaint] 09.2013 of cornplaint I .09.2022 25 D-1002 I o[ complaint kre.40 ;.10.2012 I oi complaintl t7 lpe 37 7 7 ,04,606.25 /- 6,2'3,293/- 04 lps 63 07.2022 olconrplaintl 2,27 ,426.50 / ,44,367.161- TSC: t 6 AP: t 6. the complainants apartment buyer' said unit for not I rrd of delay posses aints as an applical the part of the thc Act which m ltions cast upon thr nder the Act, the r complainant[s)/a se, the particulars ' V/s Ansal Houst rgainst thc agreement nding o\ICr on charges on for non- promoter/ ndatcs the promoters, les and thc otteeIs)are rf lcad casc tO Ltd. arc Page 3 of 2 Y /s, Housi 34 of 15.1( /v A.

7. ffi*}"JARER #" eunllGRAM 9.

10.

RAM 9.

10. being taken into consideration for determining the rights of t qura delay possession charges along with interest and compen Prroiect and unit related details The particulars of the project, the details of sale consideration, paid by the complainant[s), date of proposed handing over th delay period, il'any, havc been detailed in the following tabul S.

N.

Particulars 1.

Name ol'thc project Project location Project arca Nature of the project D'l'CP liccnsc no. a validity sl-atus Namc ol-licensec RERA details registrati Unit no, lJnit arca admcasurin Datc of exccution buildcr buycr agrccm clI nt Complaint No.

4680 f 2022 and CR/4680 /2022 Uma Viiay & 'tanui Viiay V/s Ansal Ho ng Ltd. allottce(s) tion. thc amount posscssion, form: upto Details Ansal Heights,S6 Sector 86, Gurugram, Ilaryana 1,2.843 acres Group housing colony 48 of 2011 dated 29.05.2011 28.05.20t7 Resolvc Estatc l)vt.

Ltd.

Not registered I)-1003 Ipage 32 ofcomplaintI 1895 sq. ft. super area 15.10.2012 I paf]c 29 ot. complaint I /\ 5 Page 4 of 2 6.

7. ffiur\RER S.* gunLJGl?A[,,] Posscssion claust: Complaint No.

4680 ors.

2022 and 'fhe developer shall offer possess of the unit any Lime,within o period of 42 thsfrom the date of execution of the within 42 months from ohtoining all the required tor date of and k I)age 5 of 25 approval necessary for tof construction, whichever i s subject Lo Limely payment of all dues by buyer and sub,ject to l'orce majeure circu nces as described in clause 32. [;urther, re shqll be o grqce period of 6 months wed to the developer over and above the months as above in olfering the the unit." of 42 'ssion of (Emphasis supplied) lpage 37 of complaintl 01.10.2013 01.1,0.2017 lNote: Due date calculated date of conlmcncement of con on i.e., period 01,10.2013 being later.

G allowed being unqualifiedl < 7 6,2'.2,354 /- Date. o[ corllnlcnccnrcnt of'construction as per customcr lcclgcr dated 0'2.03.2022'. at pg,. '. at pg,.

1,02 of complaint Duc datc ol'posscssion Salc consideration as pcr tlllA at pg.

45 ol- complairrt.

31.

11. lia.

13.

1,+. ryrti\RER #" eunuGRAM B.

B. 'l'he complainants have mad a.

That the respondent o known as 'Ansal IIcigh apartments, residenti facilities, gardens etc.

86, Gurugram, [{aryan llaryana, had grantcd li about 12.843 acres in associates companies f, accordance with thc Rcgulation of Urban A 197 6.

That the complainants respondent in the mo project of the respo Gurugram,'l'he compla project on account of b.

II15. ' Amounl paid hy tht: L .ornplainant as [)cr ! .rstomcr lcdgcr datcrl | 02.03.20 22 at pg.

I o 1 o l- cornplaint rt I 16 | Occupation ccrti[icatc t1 lr, I on.. ot nosscssiorr Facts of the complaint various means like va ious brochures, posters, adverti Page 6 of25 Complaint No.

4680 f 2022 and \ 76,23,296/- Not yet obtained Not offcrcd the following submissions in the mplaint: red for sale units in a group hou 'which claimed to comprise of I units, car parking spaces, tional a piece and parcel of land situ in Sector 'fhe respondent also claimed th t the l)TCP, and area of nse bearing no.

48 of 2011 on a Village Nawada, F'athepur, Gu m to its r development of a group housi g colony in pmcnt and rovisions of the Ilaryana Deve as Act, 1975 and Rules made t under in ng complex ulti-storied officc of residential Sector 86, e aforcsaid rcceived a marketing call from th of litnuary,201.2 for booking i t, 'Ansal I{eights, situated ants had also attracted towards publicity given by the respon nt through ents etc. ffi!{ARER Complaint No.

4680 of 2022 and ors, ffi eunt;Gnru\,{ Thc complainants visitecl thc salcs gallcry and consulted with thc marketing staff of the respondcnt. 'fhc marketing staff of thc respondent paintcd a very rosy picturc of the project and madc scveral represcntations with rcspcct tr: the innumerable world class facilities to be providcd by thc re.spondt:nt in their projcct. r projcct.'fhe marketing staff of the responclcnt also ilssured us of timely delivery of the unit. c.

That the complainants, induced by the assurances and representations made by thc respondcnt, decided to book a rcsidential unit in thc project of thc respondcnt as the complainants required the samc in a time bound manncr for their own usc and occupation and of thcir family members. 'l'his fact was also specifically brought to thc knowlcdgc of the officials of thc respondent who confirmcd that thc posscssion oI the apartmcnt to bc allotted to thc complainants would be positively handed over within the agreed time framc. 'fhc complainants signed sevcral btrarnk and printed papers at the instancc of the responclcnt who obtaincd the same on the ground that thc samc were required for completing the booking formalitrcs. 'l'hc complainants were not given a chance to read or understand thc said documents and they signcd and completcd the formalities as dcsircd by the respondent. d.

That the comlllainants had made thc payment of { 6,00,000/- at thc time of booking vidc chcquc no.

0022334 on 26.02.2012 and thc respondent had issucd a receipt dated 2t).02.2072bearing no.

495696.

Similarly, the complainants als;o madc paymcnts of { 3,30,8991- vidc chequc no,002602 datcd 07.03.2012 and \ 6,24,500/- vide chequc no.

002605 on 09.04.'2012 and thc respondent accordingly issued rcccipts PageT of25 + ffiHARER ffi eL,nllGRAt\,l bcaring no.

496960 datcd 12.C13.201 2 and 501 1 31 dated respectively. 'l'he complainants; also made the payment of vide chequc no.

457846 clatcd 10.04.2012.

Vide allotment 30.04.201'2, thc rcspondcnt allottcd a unit bearing admeasuring 1895 sq. ft.

It is pertinent to mention herei time of booking and allotment, thc respondcnt had calcul basic sale price @) t 3 1,96 /- per sq. ft, After the allotment the respondent, the complainants vide cheques no.

61 10.05.

61 10.05.2012 again madc the payment of t 1,25,500/ towarrds all thc instalment dcmands sent by the res made by thc complainatrts strictly as per thr: terms of plan. c.

That morcovcr the fact that thc rcspondcnt was in a dominant position and wantecl to deliberately cxploit thc cost of thc innocent purchascrs including thc complainar evidcnt from clausc 'l of the agreement wherein the complctely altered thc rate at which the basic calculated.

It is submitted that as per the allotment I pricc was calculated at thc ratr: of < 31961- and was { 60, llowevcr, vide clausc 1 of the agreement, the responden increased thc ratc from <3196/- to t 361 1.62/' and a rer sale price was increased from '< 60,56,704.251- to { 6U, pcrtinent to mention hercin that as pcr thc terms of th the total salc' consideration ol the unit was { 68,93, includcd thc prcfcrcntial location charges of { 2,36,875/- I)age B ol25 2022 and Complaint No.

4680 o rs. sal 4.04.2012 5,00,000/- tter dated .

D-1003 that at the ted the Net the unit by 2 dated Paymcnts dent wcrc e paymcnt completely mc at thc is furthcr rcspondcnt pricc was , basic sale 6,7 04.25 1 -. unilaterally It the basic ,025/-.

It is agreemcnt, 9/- which ffi${J\RER # euntlGRAt,,l f.

That the above statcd provisions of the apartment buyer's agrccment besides other similar one-sided provisions arc cln the face of it highly illegal, absurcl, unilatcral, arbitrary, unconscionzrble and not valid. 'l'hc legislature has promulgated the Real listate IRegulation and Develotrlment) Act, 2016 to balance thc bargaining power of the allottecs who havc bccn disadvantagcd by the abuse of the dominant trlosition of thc devclopers. l\ bare pcrusal of the above clauses highlights ttrc onc-sided arbitrary agreemcnt, and thc abttsc of dominant position is all pervasive in the terms and conditions of thc agreement executed by the respondent vide various clauses imposing all the liabilities on thc comtrllainants, while convcniently rclicving itself from all obl om all obligations on its part. g.

That the cornplainants madc vocal objcctions to the arbitrary and unilateral clauses of the apartmcnt huycr's agreement to t.hc respondcnt.'t'he complainants rcpeatedly requcsted the responde'nt for executiorr of an apartment buyer agrecment with balanced tcrrns.

I-lowever, during such discussions, the respondcnt summarily rcjectcd the bonafidc requcst of the complainants and stated that thc agreemcnt te.rms wcre non-negotiable and would remain as thcy were. 'l'he respondent/ promoter rcfused to amend or changc any term of the pre-printed apartment buycr agreement and furthcr threatencd the complainants to forfeit the prcvious amounts paid by them if further paymcnts are not made.

It is pertinent to mcntion herein that the complainants had made paymcnt of approximately more than t 21.5 lacs bcfore the cxecution of the agreement.

Since thc complainants had alrcady parted with il considcrablc amount Complaint No.

4680 Qf 2022 and I)age e "t {V ffiN.{ARER.

S* eunlGttArll h. amounting to morc than 300/o of thc salc considr:ration, th with no other option but to accept the lopsided and one- of the apartment buycr's agrccmcnt.

Sincc the complaina paid a huge amount out of thcir hard-earned nroney, they and had no other option but to sign the dotted lines. apartment buycr agrccmcnt datcd 15.10J2012 was cxccu That the conrplainants have been duped of her hard-ea paid to the respondcnt regarding the apartment in q complainants requestcd the respondent to hand ovcr th of the allottcd unit to them, but thc respondcnt has been d the mattcr.'l'hc complainants have been running from p and have been mentally and financially harassed by the c respondent.

It is pertinent to mention herein that to fu the complainants, the rc.spondent has been indulging in th sending haselcss and false newsletters containing t construction status of the projcct.

The rcspondent se newsletter in December 2021 wherein the respondent s finishing work of 'l'owcr I) i.e. cr I) i.e., wherc thc unit allo complainants is located is in full swing and that th complction is in l)ccembcr 2021'2.

That due to the fault of the respondent, the complainan dcprivcd of roof over their hcad for a long ttmr: and have s badly.

I'hc respondcnt has continuously bccn mis complainants by giving incorrect information and assu would hand ovcr thc possession to the complainants ve pertincnt to r-nention hcrein that the rcspondcnt in blatan Complaint No.

4680 ors. f 2022 and were left idcd tcrms ts had duly It trapped Hence the ed money ion. 'l'he possession ly-dallying lar to post duct of thc er mislcad practicc of so-called one such d that thc ed to the target fbr have been ffered very ing thc nces that it soon.

It is violation of Page 10 ol25 i. ffi r:.rRER a'l*h ,^ r ,nr rr\ n A r H 3.,.t'JSi{A:,1 law, unilaterally sent a draft settlemcnt agreement conta absolutcly in favour of thc re:;pondcnt.

Thc rcspondent draft settlement agrecment admitted that it has not been the construction of thc unit as per clausc 31 of the agrcem the delay in handing ovcr thc possession of thc unit was pcriod of 42 months from thc datc of cxecution of thc Furthermore, vide the said draft settlement rcspondent wants to unilaterally extend thc cornpletion 30th qeptember 2022.It is pertinent to mention hcrein that the respondent is continuing with its illegal acts is e the fact that instead of clarifying about the posscssion, the only mentioned about the complction of thc F'urthcrmore, vide clause 1ll of the said draft settlement the respondent has stated that it would obtain the ccrtificate by March 2023.

Morcover, the rcspondent has 8.1 of the agreement has offered the delay compensatio per sq. ft. as a lump sum amount.'fhe said draft settlcmen is not at all acceptable to the complainants and the respo be allowcd to misuse its dominant position by co complainants to sign the draft settlement agrcemcnt. agrcemcnt.

Relief sought by the complainant: 'l'hc complainants havc sought following rclief[s) a.

Dircct thc respondcnt to pay clelay possession chargcs a the physical possession of, thc r"tnit.

Restrain thc rcspondent from compclling thc complainan settlement agreemcnt.

C.

9 b.

Complaint No, 4680 ors.

20ZZ and ing terms n the said le to finish nt and that ond the eement. ment, the od up to at the fact dent from pondent nstruction. ment, occupation vide clausc L @) Rs.

90 l- agreemcnt t cannot ling thc d handover to sign the Page 11 orzS1lf- ffiI{ARER # eun,lGRAM Direct the respondent to refund the labour cess amount of Pass an order imposing penalty on the builder on accoun defaults and illegalitics under tlhlRA Act,2016 and the same to be paid to the complainants.

On the date of hearing, tl-re authority explained to the promoter about the contraventions as alleged to have been relation to section 11(4) [a) of the act to plead guilty or not to D.

11.

Reply by the respondent.

1'he rcspondent has contcstcd the complaint on thc following a.

That the complainants had approached thc answering re booking a flat bearing no.

D-L002 in an upcoming I{eights, Sector 86, Gurugr;rm. tJpon the satisfacti complainant regarding inspection of the site, title, locatio an agreement to sell dated 15.t0.201,2 was signed parties.

That even if the compnaint is admitted being true and agreement which was signed in the year 201,2 without duress cannot be called into question today.

It is submi builder buyer agrecmettt provides for a pcnalty in the eve in giving posscssion.

It is submittcd that clause 37 agrecment provides for { 5/- sq. ft. pcr month in the su any delay in r:ffering posscssion o[ thc unit as mentioned of the agrcemcnt.'l'hcrcforc, thc complainant will be entitl the said clause and is barrcd from approaching Commission in ordcr to altcr thc pcnalty clause by vi C. d b. complaint more than 6 years after it was agreed upon by Pagc12ol25^f Complaint No.

46Bi) o rs.

6Bi) o rs.

Z0Z2 and 34,1 10 I -. of various ordcred ndent/ mitted in ead guilty. unds. ndent for ject Ansal n of the plans, ctc. the rrect, the ion or any that the t of a delay l' thc said r area for clausc 31 to invoke e Hon'ble ue of this h parties. &l-i&RER ffi, eunilGRAM C. d.

That thc rcspondcnt had in due course of time obtained all neccssary approvals from the conccrncd authoritics.

It is submitted that thc permit for grant of permissions for disposal of mineral extractcd incidental to dcvclopment activities was obtained on 1,4.04.2014.

Similarly, the approval for obtaining a firefighting schemc was obtained by the respondcnts on 24.11.2015. 'l'hus, the respondcnts have in a timely and prompt manner ensured that the requisite complianccs bc obtaincd and cannot be faultcd on giving dclayed possession to the complainant.

That the answering respondent has adequately explained thc dclay and the samc has been acktrowledged by thc complalnant.

It is submitted that the dclay has been causcd on account of things bcyond the control of the answcring respondcnt.

It is further submittcd that the buildcr buyer agrcement providcs for such eventualities and thc cause for the delay is completely covered in the said clausc. 'fhc responclent ought to have cornplied with the orders of the IIon'hle IIigh Court of'Punjab and llaryana at Chandigarh in CWP No' 20032 of 200U, datcd 1,6,07.2012, 31.07.201,2, 21.08.2012. 'l'he said ordcrs banned the extraction of water, which is the backbone of the construction process.

Similarly, the complaint itself reveals that thc correspondence from thc answering rcspondcnt specifies force majcure, dermonctizat.ion and thc orders of thc [lon'blc N(;'l' prohibiting r:onstruction in and around Dclhi in addition to thc covid 19 pandemic as thc ciluses w,hich contributed to the stalling of the project at crucial juncturcs for considcrablc spclls.

Complaint No.

4680 Qf 2022 and ors, Pagcl 3rf21V ffi}"JARER # eutticRAr,l e. icRAr,l e.

That the answering respondent and the complainant admi entered into a builder buycr agreement which provides f, of delayed possession.

It is submitted that clause 32 of buyer agrcement is clear that t.here is no compensation t by the complainant/prospcctive owner in the event possession.

Co;ries of all the relevant documcnts have bcen filed and pl record.

Thcir authenticity is not in dispute.

IIence, the comp decided on the basis of thcse undisputed documents and subm by the parties.

Iurisdiction of the authoritY 'l'he application of the rcspondent regarding rejection of Srcund of jurisdiction stands rejcctcd. 'l'hc authority o territorial as well as subject matter jurisdiction to adjudicate cornplaint for the reasons given below.

E, I Territorial iurisdiction As pcr norificarion no.

11921201,7-1TCP datcd 14.12-2017 i anrJ 0ountry Planning Departmr:nt, the jurisdir:tion of Regulatory Authority, Gurugram shall bc cntire Gurugram Di purpose with offices situatcd in Gurugram.

In thc present ca in question is situated within thr: planning arca of Gurugr 'l'herefore, this authority has complete tcrritorial iurisdiction thr: prescnt complaint.

E. ll Subiect matter iurisdiction 1,2.

E.

14.

2022 and edly havc the cvcnt he builder be sought f delay in on the int can bc sion made plaint on that it has e present by Town eal I'lstate trict for all the project m District. deal with + Page14of25 ffiTIARER #. eunuGRAM Secl-ion 11(4)(a) of thc Act, 2016 providcs responsible to the allottec as per agreetnent rcproduced as hcrcundcr: Section 1 1 i'i) rnu promoter shatt- (a) be responsible Jor all obligaLions, responsibilities and under the provisions of this Act or the rules and regulations thereunder or to the ollotLees as per Lhe agreement for sale, or ossociation of ollottees, os the case may be, Lill the conveyance of apartmenLs, plots or buildings, os the case may be, to the allotLees, common areas Lo the osst'tciation ttJ'allottees or Lhe es or Lhe compeLent a qs the case may be; Section 34-Functions of the Authority: 3a(fl of the Act provide.s to ensure compliance of the obl upon the promoters, the allottees ond Lhe real estate agents Act and the rules and regulations made thereunder' So, in vicw of the provisions of the Act quoted allove, the a complete jurisdiction to decide the complaint regarding non- obligations by the promotcr lcaving asidc compcnsation wh decided by the adjudicating officer if pursued by the complaina stage.

Findings on the relief sought by the complainants.

F.l Direct the respondent to pay dclay possession charges a ratc of intcrcst from the due date of possession till the handing over of possession.

In the present complaint, thc complainants intend to conti projcct and is sceking dclay possr:ssion charges interest on paid.

Proviso to section 1B provides that where an allottee d 15.

16.

F.

17. to withdraw from thc projcct, he shall be paid, by the pro er, interest Complaint No.

2022 and that thc promot for salc'.

Scction r shall 1(a)(a) ority has pliance of ch is to be ts at a later prescribed date of e with the he amount not intend the the the 'ity, cast fhi.s Pagcl Srrf Z* ffili$rRER ffi, Guli]GRAlt,l for cvery month of dclay, till thc handing ovcr of possession, as ntay be prescribed and it has been prcscribed undcr rule 15 "section 1B: - Return of amount and compensation 1B(1). lf Lhe promoter fails to complete or is unable to give an ctpartment, plot, or building.' (a) in accordance wiLh the terms of the agreement for sale or, case may be, duly compktted by the date specified therein; or (h) due to discontinuance of his business as a developer on suspension or revocation of the registraLion under this Act or other reoson, he shall be liabte on demand to the allottees, in case the wishes to withdraw from the proiect, withouL pretiudice Lo an. ice Lo an. remedy availoble, to return the amount received by him in thot apartment, plot, building, as the case may be, with such rate os may be prescribecl in this behalf including com in the manner as provided under this AcL: Provided that where an allottee does noL intend to wiLhdraw project, he shall be paid, by the promoter, interest lor every delay, titl the handing over of the possession, Qt such rate as prescribed." 18.

Clause 31 of the apartmcnt br,r1,g1 agreement Iin short, provides for hancling ovcr of possession and is reproduced ,r37, |'he developer shall offer possession of the unit any time, within a of 42 months from the date of execution of the agreement or 42 months from the date of obtaining sll the required approval necessory for commencement of construction, wh is later subject to timely payment of oll dues by buyer and subiect nta jeure circumstonces as described in clause 32.

F'urLher, there o grace period of 6 months allowed to the developer over an the period of 42 months as above in offering Lhe possession of t 19.

At the outSCt, it is relevant to commcnt on the prerse't poSSCSS tht: agreement wherein thc possession has been subjected tcrms and conditions of' this iagrccmcnt ancl applicati complairrants not bcing in dcfault under any provisio ag,recmcnts antl compliance with all provisions, for Pagc 1 6of25 )\y 2022 and Complaint No.

4680 ors. (timphosis supplied. such rate f the rules: nt of r any other of at the th of he greement) force lbe above u n it." n clause of all kinds of , and thc of these alities and nof E No.

4680 ol'20'2'2 and ors. documentation as prescribed by the trlromoter. 'l'he drafting of this clausc ffiI{ARER ffi eunuGRAM and incorporation of such conditions arc not only vague and uncertain but so heavily loadcd in favor of the promoter and against the allottee that cven a single default by the allottcc in fulfilling formalitics and documentations etc. as prescribed by thc promot. hc promot.cr may make the possession clausc irrelevant for the purpose of allottees and the commitment datc for halding over possession loscs its meaning.

1'he incorporation of such clause in the buyer's agrccment [y the promotcr is just to evadc thc liatrility towards timely dclivery of subject unit and to deprive thc allottec of Lris right accruing after delay in possession. 'l'his is just to comment as to how thc buildcr has misuscd his dominant position and drafted such mit;chievous clause in the agreemcnt and the allottee is left with no option bult to sign on thc dotted lines.

20.

Due date of handing over possession and admissibility of grace period: The respondent/promotcr has raised thc contention that thc construction of the project was biadly affected on account of thc ordcrs dated 16.07.201,2,:11.07.2012 an<l 21.08.2012 of the Ilon'ble t']unjab & Ilaryana tligh Court duly passed in civil writ pctition no.2003'2 of 200t1 thr^ough which the shucking /cxtraction of water was banned which is thc backbone of construction proccss, simultancously orders at diffcrcnt datcs passed by the [lon'ble National Green 'fribunal rc'straining thereby thc excavation work causing Air Quality Inclcx bcing worsc, may bc harmful to the public at largc without admitting any liability' 21.

In this particular case, the Authority considcrcd thc above contcnl'ions raiscd by thc rcspondcnt and observcs that thc promoter has proposcd to harnd over the posscssion of'thc apartmcnt within a period of 42 months Pagc 1 7 of 2, ^+ ffiI{ARER #- oun,lGRAM from the date of execution of thc agr'eement or within 42 months from thc date of obtaining all the required sanctions and approval neccssary for commcnccmcnt of construction, whichcvcr is later.

The authority calculated due date of possession from the date of commencemcnt ol- construction i.e., 01 .1 0.201 3 being later.

The perio d of 42 months expircd on 01.04.2017 . .04.2017 .

Since in the prescnt matter the IIRA incorporates unqualified reason for grace period/cxtended period in thc posscssion clause.

Accordingly, thc authority allows this grace period of 6 months to thc promoter at this stagc.

22.

Admissibility of delay possession charges along with prescribed rate of interest: 'f he complainants arc seeking delay possession charges for thc delay in handing over the possession at the prescribed rate of intcrcst.

Ilo',,rrever, the allottees intcnd to continuc with the project and are seeking delay possession charges in rcspect of the subject unit with intercst at prescribed ratc as provided undcr rule 1 5 of the rules.

Rule 15 has bccn rcprroduced as under: Rule 15.

Prescrihed rate of interest- lProviso to section 12, section 1B and sub-section (4) and subsection (7) of section 191 (1) t;or the purpose of proviso to section 12; ser:Lion 18; and sub- secLions (4) and (7) of :;ection 19, the "interest at the rctLe prescribecl" shatt be Lhe State Bank of lndia hiplhest marginal cost oJ' lendin,g raLe +20/0.: I'rovidecl thaL in casc t:"he Stote uank oflndia marginal cost of lencling rate (MCl,R) is nctt in use, iL shall be replaced by such benchmark lendinyl rateswhich the State Bank of lndia may fix l'rom time to time for lending to the generctl public.

23.

1'he legislature in its wisdom in the subordinate legislation under thc prpvision of rule 15 of thc rules, has dctermincd thc prcscribcd ratc of intcrest. 'fhe rate of intercst so detcrmined by thc legislature, is reasonablc Complaint No.

4680 of 2022 and Pagc 1B ol 2.^tt "dM r:ARER &b ounuGRAM and if the said rule is followcd to award thc interest, it will ens practice in all the cases.

24.

Consequently, as per website of thc State Ilank of https;/-/sbi.co.in, the marginal cost of lcnding rate (in short, date i.c., 79.o7.?,023 is B.7Oo/o.Accordingly, thc prcscribed rat will bc marginal cost oI lcnding ratc: +20/o i.c., 1O'7Oo/o' 25.

7Oo/o' 25.

On consideration of the documents availatlle on rccord and s made by both the parties rcgarding contravention of provision the authority is satisficd that the respondent is in contrave section 11[4)(a) of the Act by not hilnding over possession by as per the agrccment.

I3y virtue ol'clausc 31 of thc agreeme between the parties oll 15.10.201.'2, the possession of apartment was to be delivcred within 4 2 months from the date all the requirecl sanctions and approval necessary for comm construction, whichever is later.

Thc authority calculated possession from the date of Commencement of cons 01 .10.2013 being later.

Thc pcrio d of 4'2 months cxtrlired on 01 far as grace period is concerned, the same is allowed for the above. 'lhercfore, the duc date of handing, ovcr possession is 'l'hc rcspondent has not issued a letter for posscssion till datc' it is the failure of the respondent/promoter to fulfil its obl rcsponsibilities as per thc agrccmcnt to hand over the po the stipulated Pcriod.

Accordingly, the non-compliancc of the mandatc 11(4)(a) read with proviso to scction 1tl(1) of thc rcspondent is establishcd.

As such thc allottce 26.

Page 1e "r 2# 2022 and Complaint No.

4680 ors. contai Act on th shall be uniform India i,c., [,R) as on of interest bmissions of the Act, tion of the e due date t executed he subject f obtaining ncemcnt of ue date of ction i.e., 4.2017.

As ns quoted 1.10.2017. rdingly, tions and sion within in section part of the aid, by the i"iARER GURUGRAI'{ $ffi ,)i,,r& Complaint No.

4680 of 2022 and ors. promotcr, intercst for evcry month of delay from due date of posscssion i.c., 01,.10.2017 till the offer of the possession or handing over of' posscssion after reccipt of OC plus two months whichever is carlicr, at prescribed rate i.e., 10.70 o/o p.a. as per proviso to sclction 1B[1) of thc Act read with rule 15 of the rules.

F.ll.

Restrain the respondent from compclling the complainants to sign the settlement agreement.

27.

F.lll.

Direct the respondent to handover the physical possession of the unit. 'l'hc abovc two reliefs are being dealt with together.

1'he rcspondcnt is legally bound to meet the pre-requisites for obtaining an occupation certificate from the competent authority. 'l'he promoter is duty bound to obtain OC and hand ovcr possession only after obtaining OC.

Sincc the respondent has ol'fered thc possession for fit outs letter to the complainant without obtaining OC from the competent authority accordingly thc said letter is invalid.

And the respondent is directed to offer the posscssion ol thc unit and hand over thc physical possession only after obtaining 0C.

F.lV.

Direct thc rcspondent to refund thc labour cess amount of T 34,170 /- Labour cess is levied @ 1o/o on th.e cost of construction incurred by an employer as per the provisions of sections 3[1J and 3(3) of the Ituilding and Other Construction Workcrs' Welfare Cess Act, 1996 read with Norification No.

S.O 2Bg9 dated 26.9.1996.\t is levied and collected on the cost of construction incurrccl by cmploycrs including contractors undcr spccific conditions.

Morcovcr, this issuc has already becn dealt with by thc authority in complaint no.96 2 of 2019 titled Mr.

Sumit Kumar Gupta and Anr.

Vs Sepset Properties Private Limited wherein it was held that sincc I/v Pagc 20 of'25 28.

29. t&$'rtARER #* eunlGRAM labour cess is to be paid by the respondcnt, as such no labour be charged by the respondent. 'l'hc authority is of thc vicw that rs neither an employcr nor a contratctor and labour cess is not fee. 'l'hus, the demand of labour cess raised upon the co completely arbitr;lry and the complainant cannot bc made liabl labour cess to the respondent and it is the respondent builder responsible for the disburscmcnt of said amount.

Acco respondent is directcd to rcfund the amount takcn by the res account of labour ccss.

F.V. ccss.

F.V.

Pass an order imposing penalty on the builder on accoun defaults and illegalities under RERA Act,2016 and ordered to be paid to the complainants. 'l'hc complainants have ncither pressed thc said relief in the about the above stated falsc bills nor does the counsel argu coLtrsc of hcaring rcgarding thc said issuc. 'l'hereforc, the auth deliberate on this rclicf.

31. 'l'hc following reliefs in adclition to the above reliel's are bei the complainants in other two complaints: F.Vl.

Adiust the uniustitied interest amount of 162,727 /- co complainant for delaY PaYments. 'l'he definition of'term 'interest' as defined under section 2[ provides that the ratc of interest chargeable from the al promoter, in case of default, shall tre cqual to the rate of inte promoter shall be liable to pay thc allottec, in case of default. section is reproduced below: 30.

32.

Z02Z and Complaint No.

4680 ors. ess should allottce a tax but a Iainant is to pay any ho is solely ingly, the ondent on of various same be pleadings during the rity cannot sought by lected from ) of the Act ttee by the t which the e relevant ^r ol25 Pagc 27 ffiI{ARER ffi.

GURUGRAM "(za) "inLerest" means the raLes of interest payable by the prom the allottee, as the case ntaY be.

Iixplctnation. - I:or the purpose oJ'this clause-' (i) Lhe rate of interesL chorgeable from the allotLee by the prom cose of default, shall be equal to the raLe of interest wh promoter shall be littble to pay the allottee, in case of default; it is paid;" 33.

Therefore, interest on the delay payments from the complaina chargcd at the prescribed ratc i.e., 10.70o/o by thc responden which is the samc as is bcing grantcrl to the complainants in posscssion charges.

In the prcsent matter the respondent i possession for fit outs dated 04.07.2022 whercin the charged delay payment interest for an amount of { 44, according to point 7 of thc notcs of the lcttcr it is clcarly m the interest is calculatcd @ SBI MC[,ll as applicable from time 2o/o time 2o/o p.a.

Accordingly the respondent is right in charging the in lieu of the interest charge'd more than the prescribed rate o F.Vll.

Revoke the illegal and unlawful demand of t 11,01,701 the respondent towards offer of possession for fit 04.07.2022.

F.Vlll.

Revoke the illegal and unlawful demand for maintenan I 7,79,454/- raised by the respondent towards offer for fit outs dated 04.07.2022.

34.

In thc prescnt matter thc rcspondent whilc issuing the offer for fit outs has charged certain arnount which sums up to { ', in the the dclay payments as no documentary proof is providcd by the mplainant ill the nded, from date shall be /promoter of delaycd ed offcr of' ndent has 16.62 and tioned that o time plus intercst on interest. - raised by outs dated charges of possession possession 1 1,0 L,1 04 /- + 5 Complaint No.

2022 and (ii) Lhe interest payable by Lhe promoLer to the allottee shall be fr daLe the promoter received the amount or any parL thereol date the amotrnt rtr pctrt thetreoJ' and interest thereon is reJ and the interest payoble by Ll,re allottee to the promoter shall L the datet the allottee tlelaults in payment to Lhe promoter till Page 22 of 2 ffi*ARER #- euntlGttAM under di the dema terms of t inter se payment demand with alli unilatera possessi not to be for thc accordi is invali invalid a G.

Direct 35.

Hence, t directio cast up under a. 'l'he oft orde mon I under certain heads.

Ilefore giving findings upon the amoun rcnt hcads, the question poscd before thc authority d raised vidc lctter dated 04.07.20'22 are in consonan e agreement.

In the present matter, the agreement w rtics on 17.09.2013 whcrcin both thc parties a plan at anncxurc-A of thc llllA according to wh as to be raised by the respondent on account of"on charges".lt is observed that thc rcsponclcnt has arb ly raised thc last demand of { 1 1,01,1 04 I - vide lette n for fit outs.

As per thc agreed payment plan, such aised by the respondent. espondent.

Moreover, as thc occupatio id project has also not been received by the respond y, this letter dated 04.07.2022 of offer of posscssio pcr se.'l'hereforc, any charges imposcd in thc said I arc accordingly liable to be quashed. s of the authoritY authority hereby passes this ordcr and issues t s unclcr section 37 of the r\ct to ensure compliance o thc promoter as pcr the function entrustcd to on 34(f): spondent is dirccted to hand ovcr the actual physica unit to the complainants within 2 months from the and pay intercst at thc prcscribcd ratc of 10'70o/o of clelay from the due date of possession i'c', 01'10' 2022 and Complainl No.

4680 ors. charged s whether with the executed toa the last 'er of poss. trarily and of offcr of and was certificatc nt till datc for fit outs r are also following obligations authoritY possession date of this for every 017 till the Page23 of25 Complaint No.

2022 and tnc pl .c., 10. terest of defi : Act. nplair argcs rfter b urt in .ioned ipt of OC e date of e allottee t for every efore 1Oth any, after omotcr, 0% by the which the ult i.c., thc nts which all not be ng part of vil appcal in para 3 of Page 24 of 25 this ord 'the possession or handing over of possession after r ,,o months whichcver is carlicr. rcars of such interest accrued from 01.10.201'7 till ry thc authority shall bc paid by thc promotcr to a period of 90 days from date of this order and intert of delay shall bc paid by the promotcr to the allottee ;ubscqucnt month as per rule 1 6(2) of thc rules, mplainants arc dirccted to pay outstanding dues, nent of intercst for the delayed period. te of interest chargcablc from thc allottee by thc J 'default shall bc charged at the prcscribed rate i.c., 1 [ rdent/promoter which is the same rate of interes tcrs shall be liable to pay the allottce, in case of de d possession charges as per sectio n Z(za) of the Act. spondcnt shall not charge anything from thc complai [he part of the agreement. agreement.

Howevcr, holding chargcs ld by thc promoters at znI/ point of time cvcn after I ncnt as per law settled by Ilon'ble Supreme Court ir 64-3889 /2020. sion shall mutatis rnutandtis apply to cases mentioner adjust CASC O is not agree &L{ARE #-eunuer offer o plus 'l'he a order withi mon of the C. 'l'hc d. 'l'he respo prom delay C. 'l'he char no.

3 This dec b.

36. ^, ffis,qRtR ,'"itn .^r rrrr li^n r r. .4 Y U.,l(UUri(,t\l','i 'l'hc complaints stand disposcd of. 'l'rue placcd on thc case filc of cach matter. []ilcs be consigned to rcgistrY.

4680 ot'2022 and ors. certified copies of this order be (Ashok Sa' Mem Estdte Regulatory Authority, Gurugram 37.

38.

FIarYana Real I)atcd: 1,9.07.2023 Page 25 of25