MANJU YADAV vs ELAN BUILDCON PVT. LTD.

*HARERi S-cLrnrenml BEFORE THE HARYANA REAL ESTATE REGULATORY ATITHORITY, GURUGRAM r ompl nr no.299l of2023 Complaint no l Daie of tlllingl DateofDecisionr Mrs.

Manju Yadav R/o H. no.122, Villase-lauri Khurd, T;hsil-Pataudi, curugram, Haryana-123305 Versus Elan Buildcon Private Limited Reslster€d Oflic€ at 1A,8th Ave Bandh Rd,lunapur Villaqe, luanapur.

New Delhr' Delhr 1r004' Corporateofncer I5th Floor' Two Horizon Centre, DLF Phase 5.

Sector _ 43, Goli Course Road GuflrSram, Pin Code-122002 CORAM: Shri Ashok Sangwan APP[ARANCE: Shri l.K.

Dans 2991o12023 04.07.2023 15,ll.zoz3 Respondent Advocate lor the comPlainant Advocate for the respond€nt ORDIf, 1.

Thepresent comPlaint has been liled by the complainant under sectton 31 of the Real Estate (Regulation and Development) Act' 2016 (in short, the Act) read with Rule 28 of the Haryana Real Estate (Regulation and DevelopmentJ Rules,2017 (in short' the Rules) for violation ol section 11(41(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all obligations' responsibilities and functions under the provision of the Act or the complainino.2991 of 2023 rules and regulations made thereunder or to the allottee as per the agreementfor sale executed inter se.

Pro,ect and unlt related d€talls Th€ pa*iculars of the proiect, the details of sale consideration, the amount paid by the complainant, date of proposed handing over the possession, delay period, it anv, have be€n detailed in the following S.no.

Elan Miracle.

Sector84, Curugram 2 *HARERJ S-eunuonel,t L 2 t-tr RERA registered/not registered no.

190 of 2017 dated ReBistered Registration 't4-09.2017 31-t2-2017 13.09.2023 34of20I4 dated 't2.06-2074 r r.06.2019 BajajMotors Ltd. & others booking + 7 n9.06-2020 l Dl PC License no.

1--'= l*l '" 0SK-01-A.

Second floor 5 lrHARER; $-eunuennN Date of apartme.t buyer Unit area admeasurjng 300 sq. ft. complaintno 2991ot2023 7.

Possession of the prerflises/unit 7. es/unit 7.1 schedule for possession of the said The Prodotet ogted ond l\lerstands thot tiwlr detivery of po$esioh oi the eid p@&s / unn b the ototte(s) ond th to the Nciotion ol attott*(s) or the codwtent authority, os the case nov be k the e$ene ol the Agteenenl The Proho.er ossures to hond over pose$ion of the sold prenises / unit atong \|ith eady and co Plete coh @ortoswithotl specifcotions, o enii6 ond focitittes ol the proiect in ptoce thtn o p.nod ol48 Oo'rt eisht) nonths JtM the dore ol this Agreenent vith on extenslon of lurther welve monrhs uale$ there ls .l.lo! or loituz due to wdt lootl dmuehL fre' .tcloae, .dnhquokQ or onv other eoloniE .aur.d bt ndture ouectine rn regulor d.vetopnent oJ lhe rcol estoE p'oi*t ( Forc Mdieur.") tt ho\|ever' the conptetion al the Prctect it deloved due ra the Force Maqure condnbis theo the Allofi'e oqrees 'hot he Pradotet thall beennlted b theex@n\on ot tine lot .letNery ol pos$ion ol the sotd prcm\ey' uhii. provtded thot such Fofte M-anp .ondnois a.e not oJ a noture whtrh n;ke it inposibte fot the contucr b be mpltu.nted fhe altottee ogtees ond ontt'ns * i rhe P@nr t be.onet tnpostble [ot the Prcnoter to inplenent the proiect due ta Force Maieure conditions, then this ototnen sry!!) 09.06.2020 (Pase 129 ofrePly) L I 10 *HAR S-eunu ER,4 GRA[/ Due date oipossession Total sale coDsideration complarnrnn 2991 of 2023 09.t2.202+ (Grace period ol 6 months allowed as per HARERA notincation no- 9/3-2020 dated 26.05.2020 for the project having completion dateon or after 2S.03.20201 Rs.29,83,000/- [As perpaymentplan on l6l of reply) Rs.243s,a37l' (As per the cancellation letter dated 09.06.2023 at Page 197 of replyl stond teminated ond the Ptunotet sholl refund to the Allottu the entite onount rcceived br the Pranot* t'ron the ollottee 6) sibiect lo deductioh of nonr{uhdoble o ouhts including but not linited to rettr\ on inveetnents paid / poydble b! the Prchoter to the Allo6eeb).

Allo6eeb). by the The complainant has alr€ady conveyed her consent to revision in building plan as well as resultant increase in the area and dimension of l*" 15.03.2021 by the respondent of the reply ) (Pag€ 172 of replY) 15.03.2023 (Pase 187 of replyl 24.46 2022 t1 12 13 14 16 HARERn GURJGRA[,4 conpl nt nu 2991ot2023 22_032023 [Pas€ 190 of reply) t: Irinal l_ Pre-cancellat,on dated 16-05 2023 (Pase 196 of replyl J i*r*"" *,,* a"", hroi.rz: L I fPase 197 ot replyl B, 3.

Facts ofth€ complalnt The complainant made the following submisslons in thecomplaint: i.

That the respondent company and on b€lief of such assurances' husband olthe complainant namelv Mr.

Mukesh Kumar, booked a unit (kiosk) in the project bv paying a booking amount towards the booking of the said unlt bearing no.

01-A, Second Floor' in Sector 84, havine super area measuring 300 sq ft to the respondent dated 31.12 2017 and the same was acknowledged bv the respondent. ii.

That r€spond€nt sent an allotment letter dated 10'03 2018 to the husband of the comptainant co'nrming ihe booking of the un't dated 31.12.2017, allotting a unit no 01-A, second Floor (hereinafter referred to as 'unit'l measuring 300 Sq Ft (super built up area) in the aforesaid project ofthe developer for a total sale consideration of the unit i.e- Rs.

29,83,000 00, which includes t4-04-2023 (Pase 19s of reply) 1l 18 19 20 *HARERA S-eunuennHr Compla nr no 2991 ofZ023 basic price Plus EDC and IDC, Car parking charges, PLC, IrMS and other Specifications of the allotted unit and providing the time framewithin which the next instalment was to be paid.

That after repeated remind€rs and follow ups with the respondent.

Respondent finaily after delay ofalmost four months sent terms and conditions for fixed amount on provisional booking as the said unit was booked under special Rxed return payment plan to the husband of the complainant namely Mr.

Mukesh Kumar. esh Kumar.

It is pertinent to note here that as per said letter respondent undertookto pay fixed amount per month on the total amount paid till completion ofthe consttuction of th€ buildinS.

That the respondent paid ihe said amount till May,2021- Thereafter failed to pay the said amount till date despite the repeated request and reminders by the complainant and even has failed to obtain the oC till date ftom th€ €oncerned department.

The onginal allottees i.e., husband of the complainant subsequently transferred / endorsed the property in favour ofthe complainant vide amdavit dated 09.06.2020.

Accordingly, now the captioned property stands in the name ot Complainant.

That respondent acknowledging/ connrming the acceptance of documents ior th€ said unit for purpose ol endorsement in favour of the complainant.

As per the demands raised by the r€spondent, based on the payment plan, the Complainant to buy the captioned unit already paid a total sum of Rs.24,35,837.00, towards the said unit against total sale .onsideration of Rs- 29.83,000.00. *HARERA $-crrnrrcnltt compLaint no 2991 of 2023 That after repeated request, emaits and reminders respondent on 09.06.2020, got the buyers agreement executed with the complainant.

As per clause 7.1 of the agreement resPondent undertook to complete the construction of the unit within 48 months from the date ofthe agreement li is peninent to mention here that bookinS of the said unit was done on 31.12.2017, allotment letter was issued on 10.03 2018 and the agreementwas executed on 09.06-2020 aft€r delay of almost more than 2 years.

Therefore, the due dat€ of possession to be calculated from the date of the allotmert letter l.e.

10.03 2018. henc€ the due date of possession comes out to be 10.03.2022.

That respondent sent an email dated 09.06.2021 to the complainant, stating that occupation certificate has been applied lor the commercialproiect namely "Elan Miracle" on 09. le" on 09.06 2021'' Further, to this significant milestone, you shall not be entitled to get the fixed amount/delay penaliv/down pavmert rebate (if applicable) with eftect lrom the date ofapplication ofthe OC' That respondent sent letter of offeI of possession for ht-outs dated 24.06.2022 to the complainant' mentioning that the .on.truction of the said unit has been completed and the occupation certificate for said proiect has been applied.

The unit is ready for the possession for the purpose ofcommencing the fit' outs and interior work and the same can be legitimately offered by the developer to You.

Further stating that the super area of your unit stands revised from earlier commun,cated 300 Sq.

Ft. ro 414 Sq FL and that all {SHARERA S- c,rnrcnnv (ompld,nt no.

2991 of 2023 the sums payable as mentioned herein below have been calculated on the basis otthe sLrper area ofyour unit i.e.414 Sq.

Ft.lt is peninent to note here that along with theabove said letter of offer of possession respondent raised several illegal d€mands on account of electriciry connection and pre-paid meter charSes of Rs.

9,854.00, external electrification charges and HUDA warer connection charges ol Rs.60,088/-, Labou.

Cess ot Rs.

1r,799.00, wh,ch was never the part of the payment plan provid€d along with allotment letter.

Furthermore, respondent had an arbitrarily increased the super area also hom 300 Sq.

Ft. to 414 Sq.

Ft.

Therefore, the totaldemand raisedbythe respondent in aforesaid mentioned Ieiter is of Rs.

20,S8,992-00/- That oflering possession by the Respondent on payment of charges which the buyer ls not contractually bound to pay, cannot be considered to be a valid offer of possession.

It would be noticed hom the details provided above that those charges were never payable by the Complainant as per the allotmenL by the complainant and hence the ofrer of possession. ossession.

That,t has been held by the Honourable NCDRC, New Delhi in many cases that offering otpossessior on the payment ofcharges which the unit buyer is not conkactually bound to pay, cannot be considered to be a valid otrer of possession.

In the present case asking for charges as elaborated above, which the allottees are not contractually bound to pay is illegal and un,ustified and therefore not a valid offer of possession. ln fact it is a letter for demdnd of money ralher lhan being /n offer of possession. *HARER^ S-cr,nlrcnm,r compl.int no.

2991 of 2023 That it is pertinent to ment,on here that allotment ofthe unit i/as made on 10.03.2018, after com,ng into force of the RERA Act2016 and as per the Act the respondent can charge only on the carpet of the unit not on the super area of the unil ln the present case, respondent has charge the complainant on the super area i.e.

300 Sq- Ft. now revised to 414 Sq.

FL @ Rs.7,500 per Sq.

Ft. which is against the provis,ons of the RERA Acl2016 and the rules,2017 made thereol Hence, in accordance to the provisions of the RERA Act, necessary penal action to be taken against the respondent and directlor may kindly be passed to the respondent to chatge on the car?€t arca instead ofthe super area ln the present case respondent has collected approx Rs.

17,93,841.00 till date without executing the builder buy€r agreement.

That complainant sent an €mail dated 29-07-2021to the respondent statingthat respondent has failed to pay the fixed return from April,2021 and it has been seven months but you have failed to obtarn the OC. turther, chall€nging the letter of offer of possesslon.

Tlereafter, on 13.10 2022 complainant again sent an emailasking for the copy of the 0C but respondent fail€d to provide the same.

Furthermore, compla,nant repeatedly request the respondent to provide justificatio. tificatio. for increase in area and to withdraw the offer of possession le$er ior fit outs and issue fresh ofier of possession after adjustment and without illegal demands but respondent failed to do so till date That Complainant after *HARERA #-ctrn,nnlnt comp a nr no 2991 of2023 receiving the aloresaid demand on account of raised/ challenged the aforesa,d demand letter on account ot non-adiustment ofthe amount, non-payment ofassured return change in paymeot plan, price and raising the concern/ob,ection that on giound reality status of construction of is not the same as the demand ofmoney raised.

Furthermore, requested for the inspection of the unit as per the agreement.

That thereafter Complainant sent several reminder through telephone and emails to the respondents company but they were never able to give any satisfactory response regarding the aforesaid issues raised by the Complainant.

That the respondent instead ofcomplyln8as per the provisions ot the Act, and obtaining the OC, payment of the Fixed return sent cancellation letter dated 09.06 2023 to the complaioant forfeit'ng an amount of Rs.

13,95,528/- without providing anv,ustificalion to same and against the spirit of the RERAAcr,2016 The complainant ls seeklng the followlng reliet c.

4.

The complainant has sought iollowing relier[s): Direct the respondent to haod over the possession of the said unit with all amenities and spe.iflcation as promised in all completeness without any further delay.

Restrain the respondent from raising fresh demand for payment Quash the illegaldemand ofrespondent raised along with ofrer of possession forfitoutdated 26.06.2022 and increase super area Direct the respondent to set aside cancellation letter dated 09.05-2023. ;:: -:: T), HARERN complainrno.299l of 2023 GURUGRAN/ Reply nled by the resPondent The r€spondent had contested the complaint on the followinS grounds: i. rounds: i.

That the Complainant has misinterpreted and misconstrued the provisions of the Real Estate (Regulation and Development) Act' 2016 hereinafter referred to as RERA and the Rules and Regulations made thereunder as well as the provisions of the Buyer's Agre€ment dated 09.06.2020, willinglv and consciouslv executed bY the Parties ii.

That the present complaint raises several such issues which cannot be decided in summary proceedings- The said issues require extensive evidence to be l€d by both the partles and examination and cross_examination of witnesses for proper adjudication.

Therelore, the disputes ralsed in the present €omplaint can only b€ adjudicated bv the Civil Court' The present complaint deserves to be dismissed onthis ground alone iii Alt averments, claims, allegations and contentions raised in the complaint of the Complainant are denjed as false and incoriect unless speciflcally admitted to be true by the Respondent The €ontents ofthe complaint that are not being specifically admitted may be deemed to have been denied and traversed lt is submitted that the complaint filed under the Act is liable to be summarily dismissed on the ground that it is not only false' frivolous and lacks factual and legal basis for institution b'rt also reeks ofmalicious afld malafde inr€nt and nefarious purpos€ and design of the Complainant as would also be abundandy manifest from the present reply.

Thatthe Complainanthas not comebefore 5 f HARER I !is-crrnrnnnvr rnmnla'nt n6 2991 of 2023 this Authority with clean hands and have concealed the real and true tacts, which are set out in the succeedingparas ofthe present reply.

That the Complainanfs husband, Mr Mukesh Kumar (hereinafter referred to as the Original Allottee) had approached the Respondent through property dealer, A & A lnfratech, expressing an interest in the purchase of a Commercial Unit in the Commercial Complex being developed by the Respondent known as "ELAN MIMCLE" (the Projeco situated in Sector -84, C tor -84, Curugram.

The Original allottee had approached the Respondent after making independent enquiries and duly satisrying himself regarding the viability and suliability of the aforesaid proiect as per his needs and requirements as well as the capability of the Respondent to undertake the proiect- That thereafter, the Original allottee was allotted a Commercial Space /unit tentativety ad measuring 300 sq. ft super area b€aring Unit No.

01-A on the Second Floor of the Project by the Respondenf subject, intpralio, to increase or decrease on basis of variation in calculation of actual Super Area of the Premises which were to be delermined at the time of offer of possession of the Premises.

The terms and conditions forming part of the application form were duly understood and accepted bv the orig,nal allottee.

The application fo.m dated 31 12.2017 executed and submtted by the Original allottee.

That the Respondent issued letter dated 24.04.2018 whereby the Respondent agreed to pay to the complainants e fixed amount of *HARERA SeunLcnArrr complaint no.

2991 of 2023 Rs 1a,286/- per month in accordance with the terms and conditions set out there,n. h was clarined rhat offer ofpossession shall not be dependent upon grant ot completion certificate and/or occupation certificate and thatthe Respondent shaltsrand discharged of its liabilities after ofier ofpossession.

That the buyer's agreement was forwarded to rhe OriSinal alloftee on 26.04.2018 for execution- Thereafter reminder dated 06.05.2019 and email dated 29.06.2019 were sent by the respondent calUng upon the Original allottee to execute the buyer's agreement.

The orlglnal allottee approached the respondent sometime in Juneand requested that the allorment be Eansferred in favour of, his wife, the complainant herein.

The originalallottee and the complainantwe.e called upon to ex€cut€ transler documents. documents.

On the basis of the transfer documents executed by the complainant and the ori8inal allottee and upon the complainant agreeinS and undertaking to abide by the terms and conditions ofallotment and the applicable payment plan, the allotment was kansferred/endorsed in the name of the complainanton 09.06.2020.

That thereafter the Complainant and the Respondent had entered into the Buyert Agreement dated 09.06.2020.

Copy of the Buyer's Agreement dated 09.06.2020 bearing vaslka no 2393 and registered on 05.11.2020. lt is pertinent to mention herein that the Buyer's Agreement dat€d 09.06.2020 was willingly and voluntarily executed by the Complainant without raising any viii. *t S-e ARER l\/ URUGRA complaintno.2991 of 2023 objections and the terms and conditions thereofare binding upon the Complainant with fullforce and effect.

That the Complainant vide letter dat€d 15.03.2021 conveyed her consent to revision in building plans as well as resultant incr€ase in the area and dimensions ofthe unit.

That the Respondent duly completed construction ofthe project and made an application to the competent authority on 09.062027 fot issuance of the Occupation certificate.

That vide letter dated 1906.2021 the Respondent informed the Complainant that the Occupation Certilicate for the project in question has been applied bv the Respondent on 09.06.2021.

The complainant was also informed that the complainant would no longer be entitled to get the fixed amount !!4th effect from the dat€ of applicadon for the occupation ceftincate.

Thatthe complainantsent an email dated 29.01-2022 forpaym€nt of fixed amount.

The Respondent replied vide email dated 31.01.2022 informlnS the complainant clarirying that the complainantwas not entitled to anyflxed amountwith efrect from the date of application for ocorpation certlficate.

That vide lefter dated 24.06. ted 24.06.2022 the Respondent sent Offer otPossession for Fit- outs to the Comptainants whereby the Respondent requested the Complainant to take possession ol unit after clearing their outstanding clear dues as per the attached statemenL The Complainant was iniormed that there was an increase in the super area of the Unit allofted, from 300 sq ft to 414 sq ft.

Consequently, the paymentsto be made by the Complainant stood ltHARERA $- cLrnuenlnr revised due to th€ increase in super area.

It is pertinent to mention that Respondent has ofiered the possession ofthe IJnits in the project for fit outs at the,r end so that as and when the Occupation certificate was issued by the Town and Country Planning Department, Haryana, th€ commercial operations fron the units could be commenced without there being any loss of time, therefore, keeping in v,ew the interest olallthe allottees in mind the Respondent issued ofler ofpossession for fit outs to the Allottees in the Complex.

That the following clauses of the Booking Applicanon Form executed by the original allottee are reprodu€ed her€inbelow lor 'Clouv 10: fhe Applicont Lonlmt hoving node thB opplicotion with the tull knowledse thot the Conpan! is in the PNe$ ol dqeloping the Pt dar a: ood ot o con4et t ,ol ,odptq oi land and that rh. ,t?

Plon o4d o.ia.o itr* on tentauve on.!

4o\ be chons.d otkrcd' nodtf@t revked added ot deleted ot the sole di$tetion oJ the ResPondent subPct Lo t?oulatorJ opptuvah ond rhe dpplicont lhall havP no oble.non @ rhe *.; it do;. ;" D 'u"N" .nercol. h ( unde$tood ohd osteed bt thP abor.;N ho. t\e to otbn. ttze ttoot ond dn?nilor ol o Un 'ocludtns ;p \LM Arca nentbned i't?ntotive ond,tbte.t to oag. and nov be nadf;ed ot revtsed or chonsed fun tine to ttne duting the otre ol iLt .oaiterton o& srod ol e, upouon ce4ifr, ok h it onlv upnn lhe rcrapt q ti. 'uporcn c.n[t.oo thP li4at supet tueo 'hott be.otcutoud ond .omnunEokd,whrehsholl be linal ond bindi49. d bindi49." ''Clouse 17: The Applicaht unde$tahd thot the Conponv sho develop the frop,t n o"odan,e rth the opPro\"d torod plan ond btndtng plon\' Uoiq-, t ont anaauont o, n"d'hatbn' nQ r?auned in tu'h lotout ond buildins plons, whether b! ont stotutory authoritv or ds odwise -^ re teinreo n ttt" a*r tntete:t ol dc!"lopnpnt ot .he Pqect. tha aoit,-nt ,tott no t o* ony oblec'ion aad rodq@ket to obde bt onv s,.h.hono" a\ nov b" aqptot?d ht .he DLfrP o' onv other t onpernt notlbn ;uiotities.

While every ottenpt sholl be dode bt th.

Co pont b adhe;e b the locotian ond to the Super orco ol the Unit in the event there is any chonge n the Units l@otion iL, Superarea or reloted PLC then the ;esultu;t voriotion in oppli.oble Total Considemtion ogree'l tumpldLnr no 2991 of2023 Pdge t5 or28 *HARERA -db- cln,rr,nlv herein, os the u* noy be, shall etht be paloble or rcfuhdable ||ithout any intercsr thereon ond the BSP nentioned herein. "Cloue 18: ln the event the variation in the Supd area of the unit is greoter than 20% ond such voriotion is not accePtoble to the applicoha every ottenpt shatt be nade to oller on ottetnate unit ol on oPproxthatett sinilor si2e within the project subjed to ovdilobilit . ln the e@nt srch on olternote unit is ovailable ond the opplicant accepts tLch oltqnote unit" the opplicoble lotol consmerotioh, including the applicoble PLc, resulting due to srch changed locotion/ unit sholl be poyoble ot refundable, os the cose ndJ be, ot the BSP nehtioned herein.

No other cloin, nonetorr or otheNise, sholl lie osainst the co Pany " ''clouse 19: ln the event the dpplicont daes not accept such oltethate unit ot il therc 6 no othq unit of oh approxindtelt situlor size ot another la.otian within rhe Pratect, the oqlicaht sholl be reJunded the o.tlal onounts received asaihst the Totol Considention wthortont intel$t ot . tel$t ot .onpentution in on!

Jom within Thitty (30) dors of teceipl ol eqtitulfit ahount Iron the subsequent sole ol the Unft wnhout deduction oI Eomest Monev. ilo refund ol setui@ ra\ pqid b! the opPlicant tholl be node bt rhe Conpan!

No oth* cloin, nonetaq or orhe\ise sholl he agoirs!. the Ca pony.

Fufiher, it is ogreed thot rie opplicdnt shall hote no obiectioA rc nor iall rhete be ony cloih ot lien on the Untt Jot its sub9q!.nt sle resadle$ ol the applkont orcepting t declihi@ the oltenare uniL The .elevant clauses of th€ Euyer's Agreement duly executed by the Cornplainant are reproduced hereinbelow for ready reference 3 1, A LT E MT I O ll / M O l' t F I CATIO N 1",6. ot oat dtr.orcrr nodi-dl ont'\utnng t",\oa|? t" the tup't ArN at h? sat; Ul:t oay. ne ano, ,otad upon,h?lrur ala t"potor "att'tot? ' i0%, the Devetoper shot] ihrnna@ ih wrtins to the Attottee(s) rh' chonses thereot ond the ;eslkort choh'ts if an] h the Totol considerutio^ ol rhe soid u1 ,; De Do'tt bt the Attottre(t ond th. attod.?ttt osft?' @ d'hw @ r^' o*ant innq renwr o, ottqriat ro rn? chonsd wnni" th'tu 130) dof an;?dote aldt'DotdD' th2De\?top?'-ln\o'e th' Attot??ts) doe' not t d .onseht .a oll such okerutions / odif@tions otu lot Povnents il onr' to b' Lan ,n -on,eou"nr? iaeol \ thc Atta prl! oot?

6 td .\uds thdtLauns h^ nonnon ?nt obtanonr to \r.r at@o\a4s .

4alhfitoroh th'n tn tt'h tue olohe th.

Developet no! ot tB sok dncretion deetde b con'el rhk Agrcenent L r nour to h ;o .e ond,Pfund Lhe noa?t'e.aEd lrct the atto@ttl ltas ntn^t nanl & non refi'noode ona"n6t *"hn an.tv te01 dolt [to\ th2 oote ot e 4p1ol tnid ir'\" D?@too t'o^ re,oP ot 'hc 'otd uhn upo^ 'n? ,t{Bi;r of'the DereloDet to ancel the said unit rhe DeveloPq sholl b' db.harue; fanoll its oblisod a ns and I idbtlities undet 'hb Asftenent ond the ,.*"urnr'**- "n.-,Pt?la, t r''ot o^v"ot"P *hoBNve' o^ie a, t nr Dott deteot n th' tl. t,'on.ruuent to th2 protians oI the'lou't l3 01 t ht.

3 01 t ht.

B B 4, hr n h, o' t u t oreo o ad t ol\equP attt th? pt A4o or rh' etd compla nrnu 299 t of2023 *IARERA tS cLrnrennl,r Comflaint no 2991 of 2023 unit sholl ttord in.fto@d oc.atuinglt ond de Allottee herebt gi@ hlt uncondiional occeptunce to the sone " xii.

That from a perusal of the aforesaid clauses of the application torm as wellas the Buye.'s Agreemenl it is evident that the superarea ot the unit is tentat,ve and that the same is determined upon completion of conslruction. ln case ofany increase in super area. the allottees shall have to make payment for such increase and in the event of decrease in super area, the proportionate amount shall stand refunded.

The complainant has consented to additions, amendments, modification of the size, location, dimensions etc. of the unit on account of revision in building plans and have undertaken not to rais€ any obiections to the same.

The Complainant hasalready conveyed thelr no obiection vide letter dated 15.03.2021 to the revised plans as well as the resultant increase in area, units, heighf number offloors, ground xiii.

That on account ofthe increased Super Area, the Complainants is liable to make payment for increase in super area of the unit in accordance ta,ith th€ terms and condt,ons of the Buyer's Agreement executed by the Complainant.

The Respondent had ,nformed the Complainant about the increase in carpet/usage area ofth€ Unit in question vid€ its letter dated 24.06.2022. xiv.

That pertinently, after receipt of the offer of Possession letter dated 24.06.2022, the Complainani never raised any obiection to the increase in super area within 30 days in accordance with Clause 31 ofthe Buyer's Agreement referred to above and is thus deemed to have accepted the increased area However, the *HARER- S- ernLrennul complz,nt no.

2991 or2023 Complainants also refrained from making payment of the demanded amounts. xv. ounts. xv.

That although under no obligation to do so and as a gesture of goodwill, the Respondent gave various opportunities to the complainantto clear her outstanding dues.

Letters and reminders dated 19-10-2022, os-o8.2022, 05.09.2022, 10.10.2022, 03-72-2022, 03-07-2023 and 03.02.2023 were issued lo the complainant reminding the complainant to €lear her outstanding dues.

That It is pertinentto mendon herein that in terms ofClause 28 of the BookinS Application Form, time is the essence with respect to ComplainanCs obligadon to pay the sale consideration as provided in the payment schedule and in case of delay in making payment by the Complainanl the Respondent shall have the right to terminate the Provisional Allotment/ Agreement and forfeit the Booking Amount. xvi.

That in terms ofClause 7 ofthe Buyer's Agreement, possession of the unit was agreed to be off€red to the Complainants within 48 months from the date ofexecution ofthe Buyer's Agreemenl with grace penod of 12 nonths and subiect to force majeure conditions and events beyond the power and control ot the R€spondent.

The Buyer's Agreement was executed on 09.06.2020.

Hence the Respondent has offered possession of the unit to the Complainanr well before the agreed timelines for delivering possession.

The Respondent has duly tulfilled its obligations under the Buyer's Agreement.

That ,t is pertinent to mention here,n that the project has been registered under the provisions ITIARERA & eunueneN comphrnrno 2991of2023 of the RERA.

RERA Regiskation Certiffcate bearing Memo No.

HRERA -137 (a)/2017 /1072 dated 14.09.2017.

The registration of rhe project is valid till 13.09.2023.

That the Respondent is in receipt ofthe Occupation Certificate dated 15.03.2023. vide letter dated 22.03.2023, the Complainants have been informed about receipt of the occupation certiffcate. rtiffcate.

That when the Complaimnt still failed to come forward to take possession of their unit even alter numerous remind€rs , the Respondent was constraired to issue a nnal reminder dated 14.04-2023 and thereafter issue pre cancellation notice dated 16.05.2023.

However, the Complainant continued to ignore $e reminders and not,ces sent by the Respondent, accordingly, the Respondent was compelled to issue cancetlarion l€ner dated 09.06.2023.

It ls respectfully submltted that evidently the complainants are not interested in taking possession of the unit but are seeking talse a,td trivolous pretexts to avoid their contractual obligations under the Buyer's xvll. it is evideot from the forBoins that the Complainant has needlessly avoided taking possession of the unit and making payment of outstanding dues on false and fiivolous pretexts The Complainanr is in breach ol the buyer's agreement and a wilful defaulter.

The Respondenr on its part has dulv fulfllled its obligations under theAgreement between the parties.

There is no default or lapse in so far as the Respondent is concemed.

That it is submitted that the Complainant is not left with any right, title or interest in the unit in question The complainant is not enhtled *HARER..

S- eunLrennu 7 8 complaint no.

2991 of 2023 E. lurlsdlctlon of th€ authorlty The authority observed that it has territorial as well as subject mafter jurisdiction to adjudicate the present complaint for the reasons given to any relief and the false and frivolous complaint is liable to b€ dismissed with costs. be responsible lor all obligotions, rcsponsibilities and functions under the prcvisions ol this act or the rules aid regulotions node thereundq or b rhe allot@t os Nt the osrunent t'or sote, ot to the rsociotion of attotteet os the ese moy be, till the . till the .onveron e ol oll the opartrnents, plots u buildings, as the case noy be, to the ollott@s, or the conn@ orcas to the ossociation of ollottees ot rhe @nPPtunt authoriy, os the cae no! be; a.t Territortal iurisdidion As per notification no. rl92/2O17-1'lCP dared 14.12.2017 issued by Town and Country Plaoning Departmenl Haryana the jurisdiction of Real Estate Regulatory Authority, Gurugam shall be enhre Gurugram Diskict for all purpose with ofiices situated in Curugram. ln the present case the project in questlon is situated within the planning area of Gurugram Districl therefore this authority has complete territorial jurisdiction to dealwith the present complaint.

E.ll Subject.matter jurisdiction Section 11(4lta) of the Act provides that the promote. shall be responsible to the allottee as per agreement for sale.

Section 11(al(al is reproduced as hereunder: 'ii)r't " p,,.un,,no,, *IARERA -&-c,LrnLrennu complainr no 2991 ot2023 Sectiq 34-function$ oi th.

AuthdiE: i4A ol the Ad provides to ehsurc cohplionce ol the obttgotions @st upon the pronote6, the otlottees and rle reol estote ogents mder this act o4l rhe.ul$on.l rcaLlauons iode thercun.l?t 9.

So, in view ofthe provisions otthe Act quoted above, the authority has complete jurisdiction to dec,de the complaint regarding non_ compliance otobligations by the promoter as per provisions ofsedion 11t4)(al of the Act leaving aside compensation which is to be decided by the adjudicating officer if pursued by the complainant at a hter stage.

F.

I obie6tlon regardlng force maleurt condltions: 10.

The respondent/promoter in the builder buyer agreement under the clause 7.1 itself has sought the grace period of 12 months as may be approved by the Real Estate Regulatory Authority on account of force majeur€ events, court orders, government guidellnes etc.

The Authoriry as pernotiffcation 1o 9/3'2020 dated 2605.2020 for the projects having completion date on or after 2503. fter 2503.2020, has alreadyallowed the grace period of 5 months trom 01032020 to 01.09.2020.

Therefore, there is no reason why this benefit cannot be allowed to the complainant/allottee who is dulv affected during above such adverse eventualities and hence a reliefof6 months will be Siven equally to both the complainant/allottee and the respondent and no interest shallbe charged by either partv, during the COVID period i'e, lrom 01.03.2020 to 01.09.2020.

G.

Findiogs on the reliefsought by the complainant: HARERA complarntno.299l of 2023 GURUGRAN,I C.l Direct the respondent to hand over the possession of the said unit with all amenities and speciffcation as promised in all completeness wrthout any further dela).

C.ll Restrain ihe respondent from raising fresh demand for payment underanyhead G.lllQuash the iuegatdemand ofrespondent raised alongwith otrer of possession rorfitoutdated 26 06 2022 and increase superarea' G.lV Direct the respondent to set aside cancellation letter dated 09.06.2023- 11. ln the present complain! the complainant intends to continue with the project and are seeklng del.y Posses.ion charges along w'ith interest on the amount paid Proviso to section 18 provides that wh€re an allottee does not intend to withdrawfrom the project, he shallbe paid' by the promoter, interest for every month of delay, till the handing over of poss€ssioq at such rate as Inay be prescribed and it has been prescribed und€rrule 15 ofthe rules. .setlon 78: ' Retum ol dmNnt oa'l @pensd'ion 18(1) f the prcnoter loih to @nplete or is lnable tb sive posse$ion ol on oryftnent' plot, of btiLlin', - ' i,iijiii',t,, .n"* * "ttotae tloes not intend to withdrow lron the Dtotect, he sholl be pod b! the proMte' inttest lot c9ery o'rn of ii[, it ,n" nnono -u .t the Po\se$ion dt su'h totz as not b' lr. cl";";'r.i ot .t'. "e'.". t'. "e'."."n, to sell provides ror handins over or possession and is reproduced below: 71 The P/ohotq ogrces ond unde5tdnds thot anelv deltu'ry of Dosetlon ol t\" \otd lenq' / Lntt 'o thP oltoteeltl and rhP tonnol orcd to th. fidonon ot otlod?ltl or rhP codpctent outhon?, os the dse avbe is the esen@ ol rhe Ag@nenL The Prcnot;r assures rt hand over pNesion ol the soid prehi9s / unit , *HARERA S-crrnLrcnm,r complrnr no.

2991 of 2023 olong with rcody and @nplete connon oteos with oll specifcotioht onenties dnd locilities aJ the prokct n pla.z $hin o pdioit ol48 (lorq etqht) nMths l.@ fie .tat o, thi.

Aglenqt viih on dtension oJ lufthe. t*elve n@tht fila there ts ileloy or httu.. .l@ to edt,lood, dtuughq l.e' q.loa.' earThquoke or ary othe. @ldhitv eused bv aorure oMq the .egdot .levelopnent ol tlP real .sbr. prok.t ('force MaleN'} tl however, the @nptetion ol the Project k detd*d due ta the For@ Moieu.e @nditions then the Allodee ogres thot the Pronotet shotl be titted to the exbnsion of tide fur detivery of pose$ion of the soid premB*/ unit, provided thot such Fote Mo)eurc cohditions are not ol o noture \|hich noke ir inpo'isible lot the co ract to be impleftented- fhe Allottee ostees ond conJirms thot, in the event it beaons inposstble fot the Pronoter to inpl.nent the prcject.l@ b Fore Ma)ewe conditions rhen this allotnent shalt *and tzmino4,d ond the Pronoter sho t4und to the Alottee the entire anount rceNe.l b! the Pronoter lion the atlot?e 6) tubi.ct to deductton oI n@{efundobte anounts including but not linited to retutn on investf,qLs pdid / potoble bt the Pronoter to the Allottee(s) 13.

At the outse! it is relevant to comment on the pre'set possessiott clause of the agreement wherein the possession has been subjecred to all kinds oi terms and corditions of this agreement and application' and the complainant not being in default uoder any provisions of this agreement and compliance with atl provisions, formalities and documentation as prescribed by ihe promote he promoters The drafting of th's claus€ and incorporaiion of such condit'ons are not onlv vagu€ and uncertain but so heavily loaded in favour ofthe promoter and against th€ allottee that even a single default by the allottee in fulfilling formalities and documentations etc. as prescr'bed by the promoters may make the possession clause irrelevant for the purpose ofallottee and the commitment date for handing over possession loses its P.ge 23 or28 *HARERA #- crnrc,nnH,l comph'ni no.

2991 of 2023 meaning.

The incorporation ofsuch clause in the flatbuyer agreement by the promoters are just to evade the liability towards timely delivery of subject unit and to deprive the allottee of his right accruing aft€r delay in possession.

This is just to comment as to how the builder has misused his dominant position and d.afted such mischievous clause in the agreement and the allottee h l€ft with no option but to siSn on the dotted lines.

14.

Admlsslbillty of grac€ perlod: The promoter has proposed to hand over the possession of the apartment within a period of 48 [forty_ eightl months from the date ol this Agreement.

The authoritv calculated du€ date of possession according lo clause 71 of the agr€ement dated 09.06.2020 i.e., within 48 months from date of exe€ution ol agreement an extension of further twelve months The Authority as per notificatior no.9/3'2020 dated 26.05.2020 for the projects having mmpletion date on or after 25032020, has already auowed the g?ce period of 6 months from 01'03 2020 to 01.09.2020.

Accordingly, this grace period of 6 months shall be allowed to thepromoter atthis stageinstead of12 months and the due date comes out to be 09.12.2024 Therefore, from the due date, it is understood that there is no delay in the present complaint' Hence, no case otdelay possession charges is made out under proviso to section 18(1) ofthe Act.

15. e Act.

15.

The authority would express its views regarding the concept ofa "valid offer of possession" lt is ne€essary to clanE' this concept because' after a valid and lawfuloffer olpossession, the liabilitv of the promoter for th€ delayed offer of possession comes to an end On the other hand' *HARER^ S- cLrnLrenlu tumpla nrno 299 t ofZ023 if the possession is not valid and lawful, the liability ofthe promoter continues till a vatid offer is made and the allotte€ remains entitled to receive interest for the delay caused in handing over of possession.

Th€ Authority after a detajled consideration of the matter has concluded that a valid oafer of possession must have the following a.

The possession must be otrered after obtaining an occupation certifi cate/completion c€rtificate. b.

The subject unir must be in a habitable condition c.

Possession should not be accompanied by unreasonable additional denands 16.

In the present case, the first and foremost condition of a valid otrer oi possession is not tulfilled Th€ occupation certificate in respect of the project in q'restion where the subject unit is situated was granted by the concerned authority on 15 03.2023 and rh€ sameis e!'ident from page 147 of the reply filed by the respondent.

The respondent ofrered the possess,on for fit out ol the allotted unit before obtaining occupation certincate i.e., on 24.06.2022.

Hence, the said offer is not a valid ofrer of G.lll Quash the illegal demand ofrespondent raised along with otrer of possession forfitoutdated 26.06 2022 and increase superarea' 17. ln the present case th€ respondent allotted the unit of area admeasuring 300 sq. ft. butwhite off€ringthe possession for fit outs to the complainton 24.06.2022, the super area of the unit was revised from 300 sq' ft' to 414sq.lt. by 36%.

ITHARERA 4- cLrnrcnnu Lompla,nt no.

299r of 2023 18. ln the present case, clause 31 deals with alteration/modincation and the same is reproduced as under for ready reference: "31. ence: "31.

ALIEB^TION/MODIFI(ATION tn cae ol ont olterotion / nodtfcorions resukins in chonse in the Supet Arca of the Said Uhtt ohjt tine prior ra ond up on the srant of @uponon certiJicote is nore thon '2a%, the Develop.r sholl lnthate In witing b &e Allo$ee-(s) the cha^ges ther@f ond the resultant change, iI ant, ln the Totol Considerotion ol the Said Unn ro be poiti by the AllottzeG) ond be Allo$ee(s) ogrees to delivet to the Developer witten consent or obi{tiohs to the chonset within thirr [3a) dots lron the dote oI dispat h bt rhe Developef, th cose the Allottee(s) doe! hot send his wtitten con@1 rhe Allouee(s) shall be deehed to hove given uncondttionol consnt to oll such olrerctions / ftodilcotions and lor pa! ents, if ony, to be paid in @nsequence thercoI- tf the AtloueeG) obiects in wrkins indicatins his noh' @nsnt / objations ro slch oherutions / nodilications then in such cqv alone the Develop* nay at lts sole ditrctioh decide to .oncel this Agreneht without fufthq notice ond rcfuhd the none! rccei'ed Iron the Auottuts) (les eo.nea naney & nanrelundoble onouhts) withtn ninetr t^o) dots fron the ddk ol rcceipt ol lunds br the DeveloPet lrod re leof the eid unit.

Upon the decision ol the Develoryr ro cancel the Soid Unia the Developer rha be discha/ged t'ron ol iLs oblilations ond liabilines undq this Agreenent ond the Allottee(s) sholl hate no ight iht rest ot.loin ol ohy nature whotwver on the Sdid Urit ond the Parkiry SNce@ n olloued.

Should there be oht oddinon of a Floor or pott the.eof ln the Unit' conequdr b the pnvisions ol the clause'1a ol this BBA tha the Actual Area ond convquently the Supet Ar@ ol the soid Unir sholl stond inct@sed accordingv ohd rhe Allottee h.reb! givet his uncoiditionol oeepttn@ to 19.

Clause 31 of the buyer's agreement is ln the utter violation of the model agreement laid down in the Rules of 2017 and has been included bv the respondent' builder being in a dom,nant pos,tion as the same has been held in a similar matter ,n i atter ,n its iudgement by the Hon'ble Supreme Court of India in civil appeal no.

5785 of 2019 titled as ,R O Gruce Rcaltech Pt't' t.ti!. vs.

Ahhtshek Khanna & ors. doted 11,01.2021 .

20.

The authority observes that the builder buyer agreement in the present case was executed on 09.06.2020 i.e., after coming into force ofthe Act and HARER .

GURUGRAl\/ comph'nr no 299! of2023 Haryana Real Estate (Regulation and Development) Rules, 2017.

Any increase in area beyond 5% of the carpet area is not justifled keeping in view clause 1.7 of the model agreement laid down an the Haryana Real Estate (Regulation and Developmentl Rules,2017. lfthere is reduction in the carpet area then the Promoter shall reiund the excess money paid by Allottee within 90 days with annual inter€st at the rate prescribed in the Rules, from thedate when such an €x6ess amountwas paid by the Allottee.

If there is any increase,n the caryet area, which is not more than five percent ol the carpet area ol the apartment, allott€d to the Allottee, the Promoter may demand that from the Allottee as per the next mileston€ oi the Payment Plan.

Accordingly, the complainant shall be liableto make the payment for increase in area up to syo ofcarpet area and for any increase in excess ot 5% ot the carpet area, the complainant cannot be made liable to pay.

21.

The respondent offered the possess,on for fit out ofthe allotted unit before obtaining occupation certincate on 24.06.2022 which is not a valid offer of possession.

Therefore the respondentis dire.ted to otrer the possession ol the unit to the comPlainant lvtthln 30 d.ys fron the date otthis order.

The termination mad€ by the respondent vide letter dated 09 06.2023 is held H.

DirectionsoltheauthoritY 22.

Hence, the Authority hereby passes this order and issue the following directions under section 37 otthe Act to ensure compliance ofobligations cast upon the promoters as per the lunctions entrusted to the Authority under Section 34(0 ofthe Act of2016: i3 HARER- i3 HARER- # eunuennu 23. complaintno.

2991 of 2023 i.

The termination made by the respondent vide letter dated 09.06.2023 is hereby set aside and directed to restore the allotted unit of the complainant within a period ot 15 days from the date of this order and issue a fresh statement of account as per builder buyer's agreement with prescribed rate of interest i.e.

10.75% p.a. on the outstanding amount towards complainant/allottee as prescribed under rule 15 ofthe Haryana Real Estate (Regulation afld Development) Rules, 2017 ii.

The respondent is d,rected to offer the possession of the unit to the complainant within 30 days from the date ofthis order. iii.

Tbe respondent shall not charS€ anything from the complaiMnt which is not the part ofthe builder buyers agreement complainr shnds disposed ot File be consigned to registry. lAshok Me Haryana Real Estate Regulatory Authority, Gurugram Drted: 15.11.2023 an)