MS ASSOCIATED CONTAINER TERMINALS LTD vs IREO GRACE REALTECH PVT.LTD.

HARERA GURUGRAM CORAM: Shri Sanjeev Kumar Arora BEFORE THE HARYANA REAL ESTATE REGUIITTORY AUTHORITY, GURUGRAM Date of decision: 21.04.2023 Complaint No.

1547 of 2022 & others Member ORDER 1.

This order shall dispose of all the three complaints titled above filed before this authority under section 31 of the Real Estate (Regulation and Development) Act,2076 (hereinafter referred as ,.the Act,,) read with rule 28 of the Haryana Real Estate (Regulation and Development) Rules, 2017 (hereinafter referred as "the rules,,) for violation of section 11(4)(a) of the Act wherein it is inter alia prescribed that the promoter shall be responsible for all its obligations, responsibilities and functions to the allottees as per the agreement for sale executed inter se between parties.

NAME OF THE BUILDER M/S IREO GRACE REALTECH PVT.

LTD.

THE CORRIDORS PROJECT NAME S.

No.

Case No.

Case title Appearance 7 cR/7547 /2022 Rohit Arora V/S M/s Ireo Crace Realtech Pvt.

Shri Pankaj Kumar Yadav Shri M.K Dang 2 cR/1167 /2022 Anju Popli and Poonam Bhalla V/S M/s lreo Crace Realtech Pvt.

Shri Sanjay Kumar Shri M.K Dang 3 cR/5536/2022 M/s Associated Container Terminals Ltd.

V/S M/s Ireo Grace Realtech pvt.

Shri Gaurav Rawat Shri M.K Dang Page 1of35 trHARERA #eunuennlrr 2.

Complaint No.

1547 of 2022 & others The core issues emanating from them are similar in nature and the complainant[s) in the above referred matters are allottees of the project, namely, The Corridors situated at Sector-67 A, Gurugram being developed by the same respondent/promoter i.e., M/s lreo Grace Realtech private Limited.

The terms and conditions of the buyer,s agreements fulcrum of the issue involved in all these cases pertains to failure on the part of the promoter to deliver timely possession of the units in question, seeking possession of the unit along with delayed possession charges.

The details of the complaints, reply status, unit no. , unit no., date of agreement, possession clause, due date of possession, total sale consideration, total paid amount, and relief sought are given in the table below: Project Name and Location "The Corridors" at sector 67A, Gurgaoo, Haryana.

Project area DTCP License No, Name ofLicensee 37.5125 acres 05 0f2013 dated 21.02.2013 valid upt o ZO.O2.2O2| M/s Precision Realtors Pvt.

Ltd. and S others Rera Registered Registered Registered in 3 phases Vide 378 of2017 dated 07.12.2017(phase 1) Vide 377 of 2Ol7 dated O7 .12.2O77 (phase 2) Vide379 of 2017 dated 07.12.2017 (phase 3) 30.06.2020 [for phase 1 and 2) 3L.12.2023 ffor nhase 3 Validity Status Details ofphases Phase I: Tower A6 to A 10, B1 to Sl and C3 to C7 Phase Il: Tower Alto A5, BS-BB, Cg-C11, C1 and convenient shopping Phase I II: Tower D1 to Ds :t.05.20 ts for phiii r - 27.07.2022 for phase z Not obtained for Dhase 3 Details of Occupation Certificate Possession Clause: - 13. possess@ Subject to force majeure, as defined herein and fuither siblect to the Allottee having compliedwith allits obligations under the terms and conditions ofthis AEreement and Page 2 of 35 HARERA GURUGRAM Compla,nt No.

1547 of2022 & others not having default under any provisions ofthis Ag.eement buinot lilnited to tt e nrely payment of all dues and charges including the total sale consideration, registration chares_, stamp duty and other charges and also subject to the allottee having complied with all the formalities or documentation as prescribed by the company, th; company proposes to offer the possession of the said apartment to the allottee within a period of 42 months from the date of approval of building plans andlor fulfillment of the preconditions imposed thereunder(Commitment period).

The Allottee further agrees and un-derstands that the company shall additionally be entitled to a period of 1BO days (Grace Period), after the expiry of the said commitment period to allow for unforeseen delays beyond the reasonable control ofthe C ol ofthe Company.

Date ofapproval ofbuilding plansr 23.07.2013 Date of environment clearancei 72.12.2013 Date offire scheme : 27 ,11.2074 Note: Grace Period is not allowed.

Due date of possessio 23.07.2017 (Calculated from the date of approval of building plans) Sr.

Complaint No., Case Title, and Date of ffling of complaint Reply status unit No.

Unit admeas uring Date of apartment buyer a8reement Total sale Consider ation / Total paid by the complain ant Relief Sought 1. cR/t547 / 2022 Rohit v/s M/s Ireo Grace Reahech Pvt.

DOFI t6_03.2022 24,11.2022 504,sth c10 (page no.41 ofthe complaint) 1300 sq. fL 37.03.2014 TSC:- Rs, 7,243t,2A 3/- AP:- Rs. r,t8,34,44 8/- DPC.

Possession 2. cR/1167 / 2022 Anju Popli and Poonam 24.17.2022 7402,74th A3 7920.22 sq. ft 27.OA.2074 TSC: - Rs.

2,04,81,26 s/- DPC Page 3 of35 * HARERA #eunuennM Complaint No.

1547 of 2022 & others Bhalla V/S M/s lreo Grace Realtech Pv1.

Ltd DOr: 07.o4.2022 [page no.20 of the complaint) APr Rs.

2,04,97,05 3. cR/ss36/ zo22 Associated Container Terminals Limited v/s M/s Ireo Grace Realtech Pvr Ltd.

DOF: 09.08.2022 03.04.2023 503, sth [page no.

43 of the complaint) 7726_91 sq. ft.

02.05.2014 TSC:' Rs.

7,73,08,26 r/- APr ' Rs.

1,59,99,79 r/- DPC Note: rn the tabte referred above certain abbre"EEoru hiiiTiii usiilTr,iyiiii6borat"d as follows: Abbreviation Full form TSC Total Sale consideration AP Amount Daid bv the alloReels I 4.

The aforesaid complaints were filed by the complainants against the promoter on account of violation of the builder buyer,s agreement executed between the parties in respect ofsaid units for not handing over the possession by the due date, seeking the physical possession of the unit along with delayed possession charges.

It has been decided to treat the said complaints as an application for non_ compliance of statutory obligations on the part of the promoter /respondent in terms of section 34@ of the Act which mandates the authority to ensure compliance ofthe obligations cast upon cast upon the promoters, the allottee(sJ and the real estate agents under the Act, the rules and the regulations made thereunder.

Page 4 of35 ffi IARE&A S- eunuennvr Complaint No, f547 of 2022 & others 6.

The facts of all the complaints filed by the complainant(s]/allottee(sJare similar.

Out of the above-mentioned case, the particulars of lead case CR/l547/2022 Rohit Arora V/S tul/s lreo Grace Realtech pvt.

Ltd. are being taken into consideration for determining the rights ofthe allottee(s) qua delay possession charges.

A.

Proiect and unit related details 7.

The particulars ofthe project, the details ofsale consideration, the amount paid by the complainant(s), date ofproposed handing over the possession, delay period, if any, have been detailed in the following tabular form: CR/1547/2022 Rohit Arora V/S M/s treo Grace Reattech pvt.

Ltd. s.

N.

Particulars Details 1.

Name ofthe project "The Corridors" at sector 674, Gurgaon, Haryana 2.

Nature ofthe project Group Housing Colony 3.

Project area 37.5125 acres 4.

DTCP license no. and validiry status 05 of 2013 dated 27.02.20t3 valid upto 20.02.202t 5.

Name oflicensee M/s Precision Realtors Pvt.

Ltd. and 5 others 6.

RERA Registered/ not registered Registered Registered in 3 phases Y ide 37 I of 2077 dated 07.12.2017(phase 1) Vide 377 of 2017 dated O7,LZ.ZOL7 (Phase 2) Page 5 of35 HARERA GURUGRAM Complaint No.

1547 of 2022 & others 8. vide 379 0f 2017 dated Oz.tz.zotz (Phase 3) Validity Status 30.06.2020 (for phase 1 and 2) 31,.12.2023 (for phase 3J Unit no.

504,5th floor, tower C10 (annexure- 1 on page no.

41 of the complaint) 9.

Unit area admeasuring 1300 sq. ft. [annexure- 1 on page no.

41 of the complaint) 10.

Date of approval of building plans 23.07.201_3 (annexure R1 on page no.

22 of reply) -1L.

Date of environment clearance 1.2.12.2013 (annexure R2 on page no.

26 of replyJ 12.

Date of apartment buyer agreement 37.03.2014 (annexure- 1 on page no.

38 of the complaint) 13.

Date of fire scheme approval 27.77. val 27.77.20t4 (annexure R4 on page no.

33 ofreply] L4, Due date of possession 23.01,.2077 [calculated from the date of approval of building plans) Note: Grace Period is not allowed.

15.

Possession clause 13, Possession and Holding Gharges Subject to force majeure, as defined herein and further subject to the Allottee Page 6 of 35 * HARERA ffi,eunuennl,r Complaint No.

1547 of 2022 & others having complied with all its obligations under the terms and conditions of this Agreement and not having default under any provisions of this Agreement but not limited to the timely payment of all dues and charges including the total sale consideration, registration chares, stamp duty and other charges and also subject to the allottee having complied with all the formalities or documentation as prescribed by the company, the company proposes to offer the possession of the sald apartment to the allottee within a period of 42 months from the date of approval of building plans and/or fullillment of the preconditions imposed thereunder(Commitment Period).

The Allottee further agrees and understands that the company shall additionally be entitled to a period of 1BO days (Grace Period), after the expiry of the said commitment period to allow for unforeseen delays beyond the reasonable control ofthe Company. t6.

Total sale consideration Rs. t,28,31,283 /- fas per payment plan on page no.74 of complaintl L7.

18.

Amount paid by the complainant Rs.

1,78,34,448/- (as per SOA on page no.95 ofreplyJ Occupation certificate 27 .01.2022 fannexure R7 on page no.

41 ofreply) 19.

Offer ofpossession t6.o2.2022 Page 7 of 35 ffiHARERA S-GURUGRANI Complaint No, f547 of 2022 & others (annexure R8 on page no. +Z ofreptyJ B, Facts ofthe complaint The complainant has made the following submissions in the complaint: - 20. int: - 20.

That complainant relying upon the representations booked an apartment in the project of the respondent namely, ,Corridors, situated at sector 67 A, Gurugram for a total sale consideration of Rs.

1,19,60,000/_ excluding EDC and IDC, PLC, parking etc.

21.

That on 07.08.201,3 respondent issued an allotment letter in favour of them and allotted a unit no.

504, 5th Floor, Tower C10, for a size admeasuring 1300 sq. ft.

22.

That thereafter on 31.03.2014 a preprinted, one sided, builder buyer agreement was executed interse the parties.

As per clause 13.3 of the agreement the possession of the said apartment was to be handed over within 42 months from the date ofapproval ofbuilding plans or fulfillment of preconditions imposed thereunder.

As per the agreement the company was additionally entitled to a period of 1g0 days, after the expiry of rhe said commitment period to allow for unforeseen delays beyond the reasonable control ofthe company.

23.

That the complainant paid a total sum of Rs.

7,7g,34,448/_ till lanuary 2017 .

The respondent violated section 13 of the Act 2016 by taking more than 150/o cost ofthe flat before execution ofthe agreement.

24.

That the respondent has in an unfair manner siphoned offunds meant for project and utilized same for his own benefit for no cost.

The respondent being builder and developer whenever in need of funds from bankers or investors ordinarily has to pay a heavy interest per annum.

However, in Page I of35 *HARERA #eunuennnl the present scenario the respondent utilized funds collected from them and other buyers for his own good in other projects, being developed by the respondent. the project has not been completed yet even after a delay period of more than three and six months approx.

25.

That the complainant has come to know about the poor quality of the construction of his apartment. apartment.

The respondent is not constructing the construction ofhis apartment and the other apartments as per the quality committed at the time of application/allotment/ buyer,s agreement.

26.

That the complainant does not intend to withdraw from the project.

As per the obligations on the promoter under section 1g(1) proviso, the promoter is obligated to pay the complainant interest per month for delay of possession at the rate of 10,50/o as per the prevailing rate of interest till the legal possession of the apartment is handed over to the complainant.

C.

Reliefsought by the complainant: - 27.

The complainant has sought following relief(s): I.

Direct the respondent to offer possession of the booked unit and pay delayed possession interest on total amount paid Rs.

1,1g,34,44g/_ for every month of delay in offering the possession of the apartment since 3Oth September 2017 to the complainant at the prescribed rate as per the RERA Act, 2016 till the respondent handover the possession of the apartment.

Direct the respondent to compete the construction and handover the possession ofthe apartment to the complainant immediately.

Direct the respondent to pay legal expenses of Rs.

1,00,000/_ incurred by the complainant.

1547 of 2022 & others II.

III, Page 9 of 35 HARERA Complaint No.

1547 ot ZO22 & others gP* GURUGRAM 28.

On the date of hearing, the authority explained to the respondent/ promoter about the contraventions as alleged to have been committed in relation to section 11(a) (a) of the act to plead guilty or not to plead guilty.

D.

Reply by the respondent The respondent has contested the complaint on the following grounds.

29.

That the complaint is neither maintainable nor tenable and is riabre to be out-rightly dismissed.

The apartment buyer's agreement was executed between the parties prior to the enactment of the Real Estate (Regulation and Development) Act, 201,6 and the provisions laid down in the said Act cannot be applied retrospectively.

30. ively.

30.

That there is no cause ofaction to file the present complaint.

31.

That the complainant has no locus standi to file the present complaint.

32.

That the complainant is estopped from filing the present complaint by their own acts, conduct, admissions, acquiescence and laches.

33.

That the complaint is not maintainable for the reason that the agreement contains an arbitration clause which refers to the dispute resolutjon mechanism to be adopted by the parties in the event of any dispute i,e., clause 35 of the buyer's agreement.

34.

That the complainant has not approached this authority with clean hands and has intentionally suppressed and concealed the material facts.

The present complaint has been filed by it maliciously with an ulterior motive and it is nothing but a sheer abuse of the process of law.

The true and correct facts are as follows; 35.

That the complainant after checking the veracity of the project namely 'The Corridors', Sector 674, Gurugram had applied for allotment ol an apartment vide booking application form dated 23.03.2013.

The Page 10 of35 ffiHARERA #eunuennl,r Complaint No.

1547 of 2022 & others complainant agreed to be bound by the terms and conditions of the booking application form.

36.

That based on the said application, the respondent vide its allotment offer letter dated 07.08.2013 allotted to the complainant apartment no.

CD_ C10-05-504 in group housing proiect known as,The Corridors, having tentative super area 1300 sq. ft. for a sale consideration of Rs.

7,28,37,283 /-.

The builder buyer,s agreement was executed on 3t.03.201.4.

37.

That the possession of the unit was supposed to be offered to the complainant in accordance with the agreed terms and conditions of the buyer's agreement.

Clause 13.3 of the said agreement stipulates as follows:- 'Subject to Force maieure as defined herein and further subject to the allottee having complied with all formalities or documentation as prescribed by the company, the company proposes to o poses to offer the possession of the said apartment to the allottee within a period of 42 months from the date of approval of the building plans and/or fulfillment of the preconditions imposed thereunder (commitrtrent period).

The allottee further agrees and understands that the company shall additionally be entitled to a period of 180 days (Grace periodJ...,,Furthermore, the complainant had further agreed for an extended delay period of 12 months from the date of expiry of the grace period vis_i_vis receipt of the possession ofthe unit as per clause 13.5 ofthe agreement.

38.

That from the aforesaid terms ofthe buyer,s agreement, it is evident that the time was to be computed from the date of receipt of all requisite approvals.

Even otherwise, construction can,t be raised in the absence of the necessary approvals.

It has been specified in sub_clause (iv) ofclause Page 11 of35 HARERA Complaint No.

1547 of 2022 & others ffiGURUGRAM 17 of the approval of building plan dated 23.07.2073 of the said project that the clearance issued by the Ministry of Environment and Forest, Government of India has to be obtained before starting the construction of the project.

39.

The environment clearance for construction of the said pro.iect was granted on 72.12.201,3 wherein clause 39 of part A of the said clearance stipulated that fire safety plan was to be duly approved by the fire department before the commencement of any construction work at site.

As per clause 35 of the environment clearance certificate dated 72.L2.20L3, the respondent was required to obtain permission of Mines & Geology Department for excavation ofsoil before the start of construction.

The requisite permission from the Department of Mines & Geology Department has been obtained on 0 4.03.2014.

40.

That the final statutory approval which forms a part ofthe pre-conditions was the fire scheme approval which was obtained on27.71. d on27.71.2014 and that the time period for offering the possession, according to the agreed terms ofthe buyer's agreement, will expir e only on27.L1,.2019.

The complainant is trying to mislead this Hon,ble Authority by making baseless, false and frivolous averments.

The respondent has already completed the construction of the tower in which the unit allotted to the complainant is located and has even applied for the grant of the occupation certificate vide application dated 10.09.2019.

41.

That the concerned authorities, after scrutiny of the documents granted the occupation certificate for the tower in question o n 27 .O1.ZOZ2 and the respondent offered the possession to the complainan t on 16.02.2022.

Page 12 of35 *HARERA ffieunuennrrl Complaint No.

1547 of 2022 & others 42.

That the implementation of the said project was hampered due to non_ payment ofinstalments by allottees on time and also due to the events and conditions which were beyond the control of the respondent, and which have affected the materially affected the construction and progress of the project.

Some of the force majeure events/conditions which were beyond the control of the respondent and affected the implementation of the project and are as under: 43. : The respondent had awarded the construction of the project to one of the Ieading construction companies of India.

The said contractor/ company could not implement the entire project for approx.

7-g months w.e.f from 9-10 November 2016 the day when the Central Government issued notification with regard to demonetization.

During this period, the contractor could not make payment to the labour in cash and as majority of casual labour force engaged in construction activities in India do not have bank accounts and are paid in cash on a daily basis.

During demonetization the cash withdrawal limit for companies was capped at Rs.

24,000 per week initially whereas cash payments to labour on a site of the magnitude of the project in question are Rs. on are Rs.

3-4 lakhs per day and the work at site got almost halted for 7-8 months as bulk of the labour being unpaid went to their hometowns, which resulted into shortage of labour.

Hence the implementation of the proiect in question got delayed due on account ofissues faced by contractor due to the said notification ofcentral government.

Page 13 of 35 HARERA ffiGURUGI?AI/ 44.

There are also studies of Reserve Bank of India and independent studies Complaint No.

1547 of 2022 & others the and undertaken by scholars of different institutes/universities and also newspaper reports of Reuters of the relevant period of 20L6_77 on said issue of impact of demonetization on real estate industry construction labour.

45.

Thus, in view of the above studies and reports, the said event of demonetization was beyond the control ofthe respondent, hence the time period for offer of possession should deemed to be extended for 6 months on account ofthe above.

46.

Orders Passed by National Green Tribunal: In last four successive years i,.e.

2015-2076-2077 -201A, Hon'ble National Green Tribunal has been passing orders to protect the environment of the country and especially the NCR region.

The Hon'ble NGT had passed orders governing the entry and exit ofvehicles in NCR region.

AIso the Hon,ble NGT has passed orders with regard to phasing out the 10 year old diesel vehicles from NCR.

The pollution levels of NCR region have been quite high for couple ofyears at the time of change in weather in November every year.

The Contractor of the respondent could not undertake construction for 3-4 months in compliance of the orders of Hon'ble National Green Tribunal.

Due to following there was a delay of 3-4 months as labour went back to their hometowns, which resulted in shortage of labour in April _May 2015, November- December 2016 and November- December 2017.

The district administration issued the requisite directions in this regard.

47. egard.

47.

In view of the above, construction work remained very badly affected for 6-12 months due to the above stated maior events and conditions which Page 14 of 35 *HARERA #eunuennl,r were beyond the control ofrespondent and the said period is also required to be added for calculating the delivery date of possession.

48.

Non-Palrment of Instalments blrAllottees: Several other allottees were in default of the agreed payment plan, and the payment of construction linked instalments was delayed or not made resulting in badly impacting and delaying the implementation ofthe entire proiect.

Gurugram in the year 2016 and unfavourable weather conditions, all the construction activities were badly affected as the whole town was waterlogged and gridlocked as a result of which the implementation ofthe project in question was delayed for many weeks.

Even various institutions were ordered to be shut down/closed for many days during that year due to adverse/severe weather conditions.

50.

Copies of all the relevant documents have been filed and placed on the record.

Their authenticity is not in dispute.

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

E.

Jurisdiction ofthe authority 51.

The plea ofthe respondent regarding rejection of complaint on ground of jurisdiction stands reiected.

The authority observes that it has territorial as well as subject matter jurisdiction to adiudicate the present complaint for the reasons given below.

E.l Territorialiurisdiction 52.

As per notification no.

1/92/2077-7TCp dated 74.72.2077 issued by Town and Country Planning Department, the.iurisdiction of Real Estate Complaint No.

1547 of 2022 & others onditions viz.

Gurugram: Due to heavy rainfall in Page 15 of 35 HARERA Complaint No, L547 of 2022 & others MGURUGRAM Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

Gurugram.

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

Therefore, this authority has complete territorial jurisdiction to dealwith the present complaint.

E.II Subiect matter iurisdiction 53.

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

Section 11(4)(al is reproduced as hereunder: Section 11 il1 rhe promoter shall- (a) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations mode thereunder or to the allottees as per the ogreement for sole, or to the ossociation ofollottees, os the case may bq till the conveyance ofall the apqrtmentt plotsor buildings, as the case may be, to the ollottees, orthe common oreos to the associqtion ofallotteesor the competent outhori,/, as the cose may be; Section 34-Functions of the Authority: 344 of the Act provides to ensure compliance of the obligotions cast upon the promoters, the ollottees ond the real estate qgents under this Act and the rules and regulations mode thereunder, 54.

So, in view of the provisions of the Act quoted above, the authority has complete iurisdiction to decide the complaint regarding non-compliance of obligations by the promoter leaving aside compensation which is to be decided by the adiudicating officer if pursued by the complainant at a later stage.

F.

Findings on the obiections raised by the respondent Page 16 of35 ffiHARERA # eunuerw F.

I Obiection regarding iurisdiction of the complaint w.r.t the apartment buyer's agreement executed prior to coming into force ofthe Act.

55.

The respondent submitted that the complaint is neither maintainable nor tenable and is liable to be outrightly dismissed as the buyers agreement was executed betlveen the complainant and the respondent prior to the enactment of the Act and the provision of the said Act cannot be applied retrospectively.

56. ively.

56.

The authority is of the view that the provisions of the Act are quasi retroactive to some extent in operation and will be applicable to the agreements for sale entered into even prior to coming into operation of the Act where the transaction are still in the process of completion.

The Act nowhere provides, nor can be so construed, that all previous agreements would be re-written after coming into force of the Act.

Therefore, the provisions of the Act, rules and agreement have to be read and interpreted harmoniously.

However, if the Act has provided for dealing with certain specific provisions/situation in a specific/particular manner, then that situation would be dealt with in accordance with the Act and the rules after the date of coming into force of the Act and the rules.

The numerous provisions oftheAct save the provisions ofthe agreements made between the buyers and sellers.

The said contention has been upheld in the landmark judgment of Neelka mal Realtors Suburban pvL Ltd.

Vs.

UOI and others. (W.P 2737 of 2017) decided on 06.72.2077 which provides as under: "119.

Under the provisions of Section 18, the deloy in handing over the possession would be counted from the dote mentioned in the agreement for sole entered into by the promoter and the ollottee prio, to its registrotion under REP.1..

Under the provisions of REF#., the promoter is given a faciliA tu revise the dote ofcompletion ofproject ond declore the Complaint No.

1547 of 2022 & others Page 17 of 35 ffilABElA S- ounuennv same under Section 4.

The REM does not contemplate rewriting of contract between the flot purchaser and the promotei,..

122.

We have alreody discussed that obove stated provisions of the REIa ore not retrospective in noture, They may to some extent be hoving o retroactive or quasi retroactive elfect but then on thot ground the vqlidity of the provisions of REF./- connot be choltenged. holtenged.

The porlioment is competent enough to legislqte law having retrospective or retroactive elfe_cL A law can be even Iromed to allect subsisting / existing contractual rights between the parties in the lqrger public interest Wi do not hove any doubt in ourmind thatthe REP#.hqs beenfromed in the lorger public i.nterest ofter a thorough study snd discussion mode ot the highe;t level by the Standing Committee ond Select Committee, which suimitted its detailed reports." agreement for sale the allottee shc.ll be entitted to the interest/d;tayed possession charges on the reasonable rate ofinterest os provided in hule 15 of the rules and one sided, unfair qnd unreasonoble rote of compensation mentioned in the ogreement for sole is liable to be ignored." Complaint No.

1547 of 2022 & others 57.

Further, in appeal no.

173 ofZOTq titled as Magic Eye Developer pvL Ltd, Vs, Ishwer Singh Dahiya, in order dated 1,7.I2.ZOlg the Haryana Real Estate Appellate Tribunal has observed- "34.

Thus, keeping in view our aforesaid discussion, we are of the considered opinion that the provisions of the Act are quasi retroactive to some extent in operation qnd will be opplicable to the ogreements for sole entered into still in t.he process of aampletion.

Hence in case o1 aary n tn" oJFer/delivery of possession as per the terms and c;nditio;s of the 58.

The agreements are sacrosanct save and except for the provisions which have been abrogated by the Act itself.

Further, it is noted that the builder- buyer agreements have been executed in the manner that there is no scope left to the allottee to negotiate any of the clauses contained therein.

Therefore, the authority is of the iriew that the charges payable under various heads shall be payable as per the agreed terms and conditions of the agreement subject to the condition that the same are in accordance with the plans/permissions approved by the respective departments/competent authorities and are not in contravention of any Page 18 of 3 ge 18 of 35 HARERA Complaint No.

1547 of 2022 & others ffi GURUGRAI/ other Act, rules and regulations made thereunder and are not unreasonable or exorbitant in nature.

Hence, in the light of above- mentioned reasons, the contention of the respondent w.r.t. jurisdiction stands re.iected.

F.lI Obiection regarding complainant is in breach of agreement for non- invocation of arbitration 59.

The respondent submitted that the complaint is not maintainable for the reason that the agreement contains an arbitration clause which refers to the dispute resolution mechanism to be adopted by the parties in the event of any dispute and the same is reproduced below for the readv reference: "35, Dispute Resolution by Atbitration 'All or ony disputes arising out or touching upon in relotion to the terms of this Agreement or its termination including the interpretation and volidity of the terms thereof and the respective rights ond obligations ofthe porties shall be settled qmicably by mutuql discussions failing which the same shall be settled through reference to a sole Arbitrotor to be oppointed by a resolution olthe Boord ofDirectors ofthe Company, whose decision shqllbefinol qnd binding upon the parties.

The allottee hereby confirms that it sholl have no objection to the appo[ntment of such sole Arbitrator even if the person so appointed, is qn employee or Advocote of the Company or is otherwise connected to the Company and the Allottee hereby occepts and ogrees thqtthis qlone shall notconstitute o ground for challenge to the independence or importiality of the said sole Arbitrator .to conduct the orbitrotion.

The arbitration proceeclings shall be governed by the Arbitration ond Conciliation Act, 1996 or any statutory amendments/ modificotions thereto and sholl be hetd at the Compony,s oflices or ot a location designated by the soid sole Arbitrator in Gurgaon.

The language ofthe arbitration proceedings and the Award shall be in English. n English.

The compony ond the allottee will shore the fees ofthe Arbitrator in equal proportion,,.

Page 19 of35 HARERA P*GURUGRAI\/ 60.

The authority is of the opinion that the jurisdiction of the authority cannot be fettered by the existence of an arbitration clause in the buver,s agreement as it may be noted that section 79 of the Act bars the jurisdiction ofcivil courts about any matter which falls within the purview ofthis authority, or the Real Estate Appellate Tribunal.

Thus, the intention to render such disputes as non-arbitrable seems to be clear.

Also, section 88 ofthe Act says that the provisions ofthis Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

Further, the authority puts reliance on catena of iudgments of the Hon'ble Supreme Court, particularly in National Seeds Corporation Limited v.

IrI.

Madhusudhan Reddy & Anr. (2072) 2 SCC 506, wherein it has been held that the remedies provided under the Consumer protection Act are in addition to and not in derogation of the other laws in fbrce, consequently the authority would not be bound to refer parties to arbitration even if the agreement between the parties had an arbitration clause.

61.

Further, in Aftab Singh and ors. v, Emaar MGF Land Ltd and ors., Consumer case no.

701 of 2075 decided on 73.07.2012, the National Consumer Disputes Redressal Commission, New Delhi (NCDRCJ has held that the arbitration clause in agreements between the complainant and builder could not circumscribe the ,urisdiction of a consumer.

The relevant paras are reproduced below: "49.

Supportto the qbove view is olso lent by Section Zg ofthe recently enocted Reol Estate (Regulation and Development) Act,2016 (for short,,th" i"ii Ano* Act").

Section Z9 of the soid Act reods os follows:- "79. ows:- "79.

Bar of jurisdiction - No civil court sho hove jurisdiction to entertain ony suit or proceeding in respect of ony mitter which the Authority or the odjudicating officer or thi,ljpellate Tribunat is empowered by or under this Act to determine and no injunction Complaint No.

1547 of2022 & others Page 20 of35 HARERA Complaint No.

1547 of2022 & others MGURUGRAI/ shall be granted by any court or other outhority in respect of any action taken or to be token in pursuance of ony power confer;ed by or under this Act.,, It can thus, be seen that the soid provision expressly ousts the jurisdiction of the Civil .Court in respect of qny matter which the Reol- Estate Reg;htory eutnority, established under Sub-section (l) of Section ZO or the li.ludicoiing OJlicer, oppointecl under Sub-section (1) of Section 71 or the Real Estqte Appeltant Tribunol estqblished under Section 43 oI the Real Estate Act, is empowered to determine.

Hence, in view of the bindmg dictum of the Hon,ble iupiene Court in A..Ayyaswamy (supra), the matters/disputes, wiich the Authori;ies under the Real_Estote Act are empowered to decide, are non-arbitroble, notwiihstanding on Arbitration Agreement between the porties to such matters, which, toi lorge extent, are similar to the dispuies falling for resolution under the Consumer Act. '5e. ..Cors"quentty, we unhesitcttingly reject the arguments on beholf of the Builder and hold thot on Arbitration Clouse in the afore-stoted kiid of Agreements between the Complainants ond the Builder iannot circumscribe thejurisdiction ofa Consumer Fora, notwithstanding the amendments made to Section B ofthe Arbitrotion Act." 62.

While considering the issue of maintainability of a complaint before a consumer forum/commission in the fact of an existing arbitration clause in the builder buyer agreement, the Hon,ble Supreme Court in case titled as M/s Emaar MGF Land Ltd.

V, Aftab Singh in revision petition no.

2629-30/?OtB in civil appeal no. appeal no.

ZSSLZ_Z3SL3 of ZOLT decided on 10.12.2018 has upheld the aforesaid judgement of NCDRC and as provided in Article 141 of the Constitution of India, the law declared by the Supreme Court shall be binding on all courts within the territory of India and accordingly, the authority is bound by the aforesaid view.

The relevant para of the judgement passed by the Supreme Court is reproduced below: "25.

This Court in the series of judgments as noticed obove considered the provisions of Consumer protection Act, 19g6 os well os Arbiffation Act, 1996 ond la.id down that comploint under Consumer protection Act being a speciot remedy, despite there being on orbitrotnn ogreement the proceedings before Consumer Forum have to go on ond no erroi committed by Coiii.L, torm on rejecting the opplication.

There is reason for not intur;ecting proceedings Page 21 of 35 HARERA ffiGURUGRAI,4 Complaint No.

1547 of 2022 & others under Consumer protection Act on the strength an qrbitration agreement by Act, 1996.

The remedy under Consumer prot;ction Act is a remedj provided to a consumer when there is a defect in ony goods or seryices.

The complaint means any allegotion in writing made by a comploinant hqs also been explained in Section 2(c) ofthe Act.The remedy under'the Consumer protection Act^is confined to complaint by consumer as defined under the Actfor defect or defciencies coused by o service provider, the cheap ond a quick'remedy hos been provided to the consumer which is the object and purpose of the Act as noticed obove." 63.

Therefore, in view of the above judgements and considering the provisions of the Act, the authority is of the view that complainants are well within right to seek a special remedy available in a beneficial Act such as the Consumer Protection Act and RERA Act, 2016 instead an arbitration. bitration.

Hence, we have no hesitation in holding that has the requisite jurisdiction to entertain the complaint dispute does not require to be referred to arbitration necessarilv.

In light of the above-mentioned reasons, the authority is of the view that the objection of the respondent stands rejected.

F.lll Obiections regarding force maieure 64.

The respondents-promoter has raised the contention that the construction of the tower in which the unit of the complainant is situated, has been delayed due to Force maieure circumstances such as orders passed by National Green Tribunal to stop construction during 2015- 20L6-201,7 -201,8, dispute with contractor, non-payment of instalment by allottees and demonetization.

The plea of the respondent regarding various orders of the NGT and demonetisation and all the pleas advanced in this regard are devoid of merit.

The orders passed by NGT banning construction in the NCR region was for a very short period of time and thus, cannot be said to impact the respondent_builder leading to such a ofgoing in for this authority and that the the Page 22 of 35 HARERA Complaint No.

1547 of 2022 & others MGURUGRAM delay in the completion.

The plea regarding demonetization is also devoid of merit.

Further, any contract and dispute between contractor and the builder cannot be considered as a ground for delayed completion of prolect as the allottee was not a party to any such contract.

Also, there may be cases where allottees has not paid instalments regularly but all the allottees cannot be expected to suffer because of few allottees.

Thus, the promoter respondent cannot be given any leniency on based of aforesaid reasons and it is well settled principle that a person cannot take benefit of his own wrong.

G.

Findings on the reliefsought by t}le complainants G. ainants G.l Direct the respondent to offer possession ofthe booked unit and pay delayed possession interest on total amount paid R s,l,Lg,34,q4B/_ for every month ofdelay in offering the possession ofthe apartment since 3oth September 2017 to the complainant at the prescribed rate as per the REM Act, 2016 till the respondent handover the possession of the apartment.

G.lI Direct the respondent to compete the construction and handover the possession of the apartment to the complainant immediately.

65.

In the present complaints, the complainants intends to continue with the project and seeking delay possession charges at prescribed rate ofinterest on amount already paid by them as provided under the proviso to section 18(1) ofthe Act which reads as under:_ "Section 1Bt - Return ofamount and compensation 1B(1). lf the pronoter faits to complete or is unable to give possessrcn oJ an opqrtment, plot. or building. _ Page 23 of35 ffi HARERA #eunuennnr Complaint No.

1547 of 2022 & others Provided that where an ollottee does not intend to withdrow from the project, he sholl be paid, by.the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed," 66.

Clause 13.3 ofthe apartment buyer,s agreement (in short, the agreement) dated 31.03.2014, provides for handing over possession and the same is reproduced below: "73.3 Subject to Force Mojeure, os defined herein and further subject to the Allottees having complied with o its obligotions under the terms ond conditions ofthis Agreement and nothaving defoulted under any provision(s) ofthis Agreement including but not limited to the timely poyment ofo dues ond charges including the total Sqle Consideration, registrotion charges, stamp duty ond other charges and also subject to the Allottees hoving complied with allformalities or documentation as prescribed by the Company, the company proposes to offer the possession of the said aportment to the allottees within q period o q period of 42 months from the dote of opprovol of the Building plans and/or fulfitment of the preconditions imposed thereunder ("Commitment period").

The Altottees further ogrees and understands that the company shall odditionolty be entitled to a period of 180 doys (,,croce Period"), after the expiry of the said Commitment period to ollow for unforeseen delays beyond reasonoble control ofthe compony.,, 67.

The apartment buyer's agreement ls a pivotal legal document which should ensure that the rights and liabilities of both builders/promoters and buyers/allottee are protected candidly.

The apartment buyer,s agreement lays down the terms that govern the sale of different kinds of properties like residentials, commercials etc. between the buyer and builder.

It is in the interest of both the parties to have a well_drafted apartment buyer's agreement which would thereby protect the rights of both the builder and buyer in the unfortunate event of a dispute that may arise.

It should be drafted in the simple and unambiguous language which may be understood by a common man background.

It should contain a provision with an ordinary educational with regard to stipulated time Page 24 of35 ffi HARERA ffieunuennrr,l ofdelivery ofpossession ofthe apartment, plot or building, as the case may be and the right of the buyer/allottee in case of delay in possession of the unit.

In pre-REM period it was a general practice among the promoters/developers to invariably draft the terms of the apartment buyer's agreement in a manner that benefited only the promoters/developers.

It had arbitrary, unilateral, and unclear clauses that either blatantly favoured the promoters/developers or gave them the benefit of doubt because ofthe total absence of clarity over the matter.

68.

The authority has gone through the possession clause of the agreement. agreement.

At the outset, it is relevant to comment on the pre-set possession clause of the agreement wherein the possession has been subjected to all kinds of terms and conditions of this agreement and the complainants not being in default under any provisions of this agreements and in compliance with all provisions, formalities and documentation as prescribed by the promoter.

The drafting ofthis clause and incorporation ofsuch conditions are not only vague and uncertain but so heavily loaded in favour of the promoter and against the allottee that even a single default by the allottee in fulfilling formalities and documentations etc. as prescribed by the promoter may make the possession clause irrelevant for the purpose of allottee and the commitment date for handing over possession loses its meaning.

The incorporation of such clause in the apartment buyer,s agreement by the promoter is just to evade the liability towards timely delivery of subject unit and to deprive the allottee of his right accrulng after delay in possession.

This is iust to comment as to how the builder has misused his dominant position and drafted such mischievous clause in the Complaint No.

1547 of 2022 & others Page 25 of 35 MHARERA Heunuenlttl agreement and the allottee is left with no option but to sign on the dotted lines.

69.

The respondent promoter has proposed to handover the possession of the subject apartment within a period of 42 months from the date of approval ofbuilding plans and/or fulfilment ofthe preconditions imposed thereunder plus 180 days grace period for unforeseen delays beyond the reasonable control of the company i.e., the respondent/promoter.

70.

The counsel for the respondent promoter argued that the due date of possession should be calculated from the date of fire scheme approval which was obtained on 27.1L.2014, as it is the last of the statutory approvals which forms a part of the preconditions. onditions.

The authority is of the view that the respondent has not kept the reasonable balance between his own rights and the rights of the complainants/allottees.

The respondent has acted in a pre-determined and preordained manner.

71.

On a bare reading of the clause 13.3 of the agreement, it becomes apparently clear that the possession in the present case is linked to the "fulfillment of the preconditions,, which is so vague and ambiguous in itself.

Nowhere in the agreement it has been defined that fulfillment of which conditions forms a part ofthe pre-conditions, to which the due date of possession ls subjected to in the said possession clause.

If the said possession clause is read in entirety the time period of handing over possession is only a tentative period for completion of the construction of the flat in question and the promoter is aiming to extend this time period indefinitely on one eventuality or the other.

Moreover, the said clause is an inclusive clause wherein the ,,fulfilment of the preconditions,, has been mentioned for the timely delivery of the subject apartment.

It seems to be Complaint No.

1547 of 2022 & others PaEe 26 of35 *HARERA # a;RUGRAM Complaint No, f547 ot 2022 & others iust a way to evade the liability towards the timely delivery of the sub,ect apartment.

According to the established principles of law and the principles of natural justice when a certain glaring illegality or irregularity comes to the notice ofthe adjudicator, the ad,udicator can take cognizance of the same and adjudicate upon it.

The inclusion of such vague and ambiguous types of clauses in the agreement which are totally arbitrary, one sided and totally against the interests ofthe allottees must be ignored and discarded in their totality.

In the light ofthe above_mentioned reasons, the authority is ofthe view that the date of sanction ofbuilding plans ought to be taken as the date for determining the due date of possession of the unit in question to the complainants mplainants.

72.

By virtue of apartment buyer,s agreement executed between the parties on 23.02.2016, the possession of the booked unit was to be delivered within 42 months from the date of approval of building plan (23.

07.201,3) which comes out to be 23.01,.201,7 along with grace period of 1g0 days which is not allowed in the present case.

73.

Here, the authority is dlverging from its earlier view i.e., earlier the authority was calculating/assessing the due date of possession from date approval of firefighting scheme [as it the last of the statutory approval which forms a part of the pre-conditions) i.e., 27 .lir.Z}1.4 and the same was also considered/observed by the Hon,ble Supreme Court in Civil Appeal no.

5785 of 2079 tirled as ,IREO Grace Realtech pvt.

Ltd. v/s Abhishek Khanna and Ors., 74.

On 23.07.201-3, the building plans of the proiect were sanctioned by the Directorate of Town and Country planning, Haryana.

Clause 3 of the sanctioned plan stipulated that an NOC/ clearance from the fire authority PaEe 27 of 35 HARERA Complaint No.

1547 of2022 & others MGURUGRAI/ shall be submitted within 90 days from the of issuance of the sanctioned building plans.

Also, under section 1S(21 and (3) of the Haryana Fire Service Act, 2009, it is the duty ofthe authority to grant a provisional NOC within a period of60 days from the date submission ofthe application.

The delay/failure of the authority to grant a provisional NOC cannot be attributed to the developers.

But here the sanction building plans stipulated that the NOC for fire safety fprovisional) was required to be obtained within a period of 90 days from the date of approval of the building plans, which expired on Z3.lO.ZOt3.lt is pertinent to mention here that the developers applied for the provislonal fire approval on 24.L0.201.3 (as contented by the respondents herein the matter of Civil Appeal no.

5785 of 20L9 tirled as .IREO Grace Realtech pvt.

Ltd. v/s Abhishek Khanna and Ors. a and Ors.) after the expiry of the mandatory 90 days period got over.

The application filed was deficient and casual and did not provide the requisite.

The respondents submitted the corrected sets of drawings as per the NBC-2005 fire scheme only on 13.10.2014 (as contented by the respondents herein the matter of Civil Appeal no.

57g5 of 2019 titled as 'lIlEO Grace Realtech pvt.

Ltd. v/s Abhishek Khanna and Ors.), which reflected the Iaxity ofthe developers in obtaining the fire NOC.

The approval of the fire safety scheme took more than 16 months from the date of the building plan approval i.e., from 23.O7.2073 to 27.71.2074.The builders failed to give any explanation for the inordinate delay in obtaining the fire NOC.

75.

In view of the above the authority changed its stand and diverged from its previous view of calculating the due date of possession from the date of fire NOC as the complainants/allottees should not bear the burden of Page 28 of35 ffHARERA #cuRUGRnM Complaint No.

1547 of2022 & others mistakes/ laxity or the irresponsible behavior of the developers/respondents and seeing the fact that the developers/respondents did not even apply for the fire NOC within the mentioned time frame of 90 days.

It is a well settled law that no one can take benefit out of his own wrong.

In light of the above_mentioned facts the respondents/ promoters should not be allowed to take benefit out of his own mistake iust because of a clause mentioned i.e., fulfilment of the preconditions even when they did not even apply for the same in the mentioned time frame.

In view of the above-mentioned reasoning the authority has started to calculate the due date ofpossession from the date of approval of build ing plans.

76.

Admissibility ofgrace period: The respondent promoter had proposed to hand over the possession of the apartment within 42 months from the date of sanction of building plan and/or fulfilment of the preconditions imposed thereunder which comes out to be 23.01.20U.

23.01.20U.

The respondent promoter has sought further extension for a period of 1g0 days after the expiry of 42 months for unforeseen delays in respect of the said proiect.

The respondent raised the contention that the construction of the project was delayed due to force majeure conditions including demonetization and the order dated 07.04.2015 passed by rhe Hon'ble NGT including others.

77.

Demonetization: It was observed that due date of possession as per the agreement was 2 3.01.2 017 wherein the event of demonetization occurred in November 2076.

By this time, major construction of the respondents, proiect must have been completed as per timeline mentioned in the agreement executed between the parties.

Therefore, it is apparent that Page 29 of 35 ffiIAREBA #euRuennnr demonetization could not have hampered the construction activities ofthe respondents' project that could lead to the delay of more than 2 years.

Thus, the contentions raised by the respondents in this regard are rejected.

78.

Order dated 07,04.2015 passed by the Hon,ble NGT: The order dared 07.04.2015 relied upon by the respondent promoters states that "ln these circumstances we hereby direct stote of U.p., Noidq and Greater NOIDA Authoriry, HUDA, State of Haryana'and NCT, Delhi to i.nmldiateb! direct stoppage of construction activities of oll the buildings shown in the report os well as ot other sites wherever, construction is being carried on in violqtion to the direction of NGT as well as the M1EF guideline of2010.', A bare perusal ofthe above makes it apparent that the above-said order was for the construction activities which were in violation of the NGT direction and MoEF guideline of 2010, thereby, making it evident that if the construction ofthe respondents' project was stopped, then it was due to the fault ofthe respondent itselfand cannot be allowed to take advantage ofits own wrongs/faults/deficiencies. iciencies.

AIso, the allottee should not be allowed to suffer due to the fault of the respondent/promoter.

It may be stated that asking for extension of time in completing the construction is not a sratutory right nor has it been provided in the rules.

This is a concept which has been evolved by the promoter themselves and now it has become a very common practice to enter such a clause in the agreement executed between the promoter and the allotee.

It needs to be emphasized that for availing further period for completing the construction the promoter must make out or establish some compelling circumstances which were in fact beyond his controlwhile carrying out the construction due to which the completion of the construction of the project or tower or a block could not be completed within the stipulated time.

Now, turning to the facts of the present case the Complaint No.

1547 ot 2022 & others Page 30 of35 HARERA W.

GURUGRAM respondent promoters has not assigned such compelling reasons as to why and how they shall be entitled for further extension of time 1g0 days in delivering the possession of the unit.

Accordingly, this grace period of 1g0 days cannot be allowed to the promoters at this stage.

79.

Admissibility of delay possession charges at prescribed rate of interest: The complainants are seeking delay possession charges at the rate of 1B% p.a. however, proviso to section 1g provides that where an allottee does not intend to withdraw from the proiect, he shall be paid, by the promoter, interest for every month of delay, till the hand.ing over of possession, at such rate as may be prescribed and it has been prescribed under rule 15 ofthe rules.

Rule 15 has been reproduced as under: Rule 75.

Prescribed rate ofinterest- [proviso to section 12, section 78 qnd sub-section (4) and subsection (7) of section 7gl (1) For the purpose ofproviso to section 12; section 19;ond sub_sections (4) and (7) of section 19, the "interest ot the rate prescribed,, shall be the Stote B he Stote Bonkoflndia highest marginal cost oflending rate +20k.: Provided that in cqse the Stqte Bonk ollndia marginal cost of lending rote (MCLR) is notin use, it sholl be replacedby such benchmork lending rates which the Stote Bank ofl ndio may fix from time to time for lendi4q to the general public.

80.

The legislature in its wisdom in the subordinate legislation under the provision of rule 15 of the rules, has determined the prescribed rate of interest.

The rate of interest so determined by the legislature, is reasonable and if the said rule is followed to award the interest, it will ensure uniform practice in all the cases.

The Haryana Real Estate Appellate Tribunal in Emaar MGF Land Ltd, vs.

Simmi Sikka observed as under: - "64, Taking the case from onother qngle, the qllottee wos onlv entitled to the deloyed possession charges/interest only ot the rote of Rs.lSi- per sq. ft. per month as per clouse 1B of the Buyer's Agreement for the period of such delay; whereas, the promoterwas entitled to interest @ 240/a per annumiompounded Complaint No.

1547 of 2022 & others Page 31 of35 HARERA GURUGRAIU Complaint No.

L547 of ZO22 & others o_t the time of every succeeding instolment for the detoyed poyments.

The functions.of the Authority/Tribunat are to safeguard ih" ini"r"rt oy tn" aggrieued person, may be the allottee or the promoier.

The rig hts of the parties qre to be balonced and must be equitable.

The promoter coinot be allowed to take undue advantage ofhis dominqte position qnd to exploit the needs olthe homer buyers, This Tribunal is duty bound to take inio considerqtion the legislative intent i.e., to protect the interest of the consumers/ollottees in the reol estote sector.

The clauses ofthe Buyer,s Agreement entered into between the parties are.one-sided, unfair and unreason;ble with respect to the grant oJ interest for delayed possession. ossession.

There are vorious other clauses in the Buver,s Agreement which give sweeping powers to the promoter to concei the allotment ond forkit the omount pqid.

Thus, the teims ond conditions oJ the Buyer's Agreement dated 09.05.2014 ore ex-focie one-sided, unfoir and unreasonable, ond the same shsll constitute the unfoir trade practice on the part ofthe promoter.

These q)pes ofdiscriminatory terms ond conditions of the Buyer's Agreementwill not befinqt and binding.,, 81.

Consequently, as per website of the State Bank of India i.e., https:/ /sbi.co.in, the marginal cost of lending rate (in short, MCLRJ as on date 21.04.2023 is 8.70y0.

Accordingly, the prescribed rate of interest will be marginal cost oflending rate +2% i.e., 10.700lo per annum.

82.

The definition of term 'interest' as defined under section 2(za) ofthe Act provides that the rate of interest chargeable from the allottee by the promoter, in case of default, shall be equal to the rate of interest which the promoter shall be liable to pay the allottee, in case ofdefault.

The relevant section is reproduced below: "(za) "interest" means the rotes of interest payoble by the promoter or the allottee, as the cose may be.

Explonotion. -For the purpose ofthis clouse_ (, the .rate of interest chorgeoble from the qllottee by the promoter, n case ofdefault, shall be equal to the rate of interest which tie promoter sho be liable to pay the allottee, in cose ofdefault; (ii) the interest poyable by the promoter to the allottee shall be from the dote the promoter received the amount or ony port theteofti the dqte the amount or part thereof and interest thireon is refuided, ond the interest payable by the allottee to the promoter shall be from the dote the allottee defoults in poyment to the promoter till the iate it is paid;" Page 32 of 35 HARERA Complaint No.

1547 of 2022 & others ffiGURUGRAII 83.

Therefore, interest on the delay payments from the complainants shall be charged at the prescribed rate i.e., 10. i.e., 10.700lo by the respondent/promoter which is the same as is being granted to the complainant in case of delay possession charges.

84.

On consideration ofthe circumstances, the evidence and other record and submissions made by the parties, the authority is satisfied that the respondent is in contravention of the provisions of the Act.

By virtue of apartment buyer's agreement executed between the parties on 31..03.2074, the possession ofthe booked unit was to be delivered within 42 months from the date ofapproval ofbuilding plan (23.07.20131 which comes out to be 23.07.20L7.

The grace period of 1g0 days is not allowed in the present complaint for the reasons mentioned above.

Accordingly, non-compliance ofthe mandate contained in section 11(a) (al read with proviso to section 18(1J of the Act on the part of the respondent is established.

As such the complainants are entitled to delayed possession charges at the prescribed rate of interest i.e., 10.70% p.a. for every month of delay on the amount paid by them to the respondent from due date of possession i.e.,23.07.2017 till offer of possession of the booked unit i.e., 16.02.2022 plus tlvo months which comes out ro be 76.04.2022 as per the proviso to section 18(1) (a) of the Act read with rules 15 of the rules.

G,lll Direct the respondent to pay legal expenses of Rs.

1,00,000/. incurred by the complainant.

85.

The complainants in the aforesaid relief are seeking relief rv.r.t compensation.

Hon'ble Supreme Court of India in civil appeal nos.6745_ 67 49 of 2027 titled as M/s Newtech promoters and Developers pvt.

V/s State of UP & Ors. (Decided on 1.1,.1,1.202t), has held that an allottee Page 33 of35 *HARERA S*aJRucRAM Complaint No.

1547 of 2022 & others is entitled to claim compensation under sections 12,74,19 and section 19 which is to be decided by the adjudicating officer as per section 71 and the quantum of compensation shall be adjudged by the adjudicating officer having due regard to the factors mentione s mentioned in section 72.

The adjudicating officer has exclusive iurisdiction to deal with the complaints in respect of compensation.

Therefore, the complainants are advised to approach the adrudicating officer for seeking the relief of compensation.

H.

Directions ofthe authority 86.

Hence, the authority hereby passes this order and issues the following directions under section 37 of the Act to ensure compliance of obligations cast upon the promoter as per the function entrusted to the authority under section 34(f): i.

The respondent is directed to pay interest at the prescribed rate of 70.70o/o p.a. for every month of delay from the due date of possession i.e.,23.07.2017 till offer of possession of the booked unit i.e.,1.6.02.2022 after obtaining occupation certificate plus two months i.e., 16.04.2022 as per the proviso to section 18(11(a) of the Act read with rules 15 ofthe rules. ii.

The respondent is directed to handover physical possession ofthe subject unit within 60 days from the date of this order as occupation certificate of the project has already been obtained by it from the competent authority.

The respondent is directed to pay arrears of interest accrued within 90 days from the date of order. llr.

Page 34 of 35 ffiIABEEA #ounueRRHl The complainants are also directed to pay the outstanding dues, if any after adjustment of delay possession charges.

The rate of interest chargeable from the allottees by the promoter, in case of default shall be charged at the prescribed rate i.e., 70.70o/o by the respondent/promoter which is the same rate of interest which the promoter shall be liable to pay the allottees, in case of default i.e., the delayed possession charges as per section 2 [za) of the Act.

The respondent shall anything from the complainants which is not part ofthe builder buyer agreement.

87.

This decision shall mutatis mutandis apply to cases mentioned in para 3 of this order.

88.

The complaints stand disposed oi 89.

Files be consigned to registry. registry.

HI Haryana Real Estate Regulatory Authority, Gurugram Dated:21.04.2023 Complaint No. f547 of 2022 & others lv. vl. 'eev Kumar Arora) Page 35 of 35 *b/r.- Member