SHEELA DEVI AND ORS vs BPTP LIMITED

I}HARER] *db- ounuennr,,r BEFORE THE HARYANA REAL ESTATE REGUIJTTORY AUTHORITY, GURUGRAM Complaint no.: 1433 ot2|22 Date ofdecisionr Z9,tt,2OZ3 Address: R/o 738123, Laibi carden, oposite DAV Address:- R/o 7:18/2:1, Lrxmi carden, Oposrr.

DAv Addr.ss: R/o 738/2:1, Laxhi Carden, oposite DAV €omplainanrs Versus BPTP Limited negistered omce Ar M 11, Middt. circte connaught Ci.cus, N.w.D.lhi 110001 Al$ ar :.

BPIP Cre\r.

Floor lc, Udyog V.har Phd\p-tv. - . r,urlErd- r.r.0l s, Telno' ot zt 'tgSitT xesponaeDt Complr'nl n!

1433 ot2022 CORAM: Shri Ashok san8wan Gmbcr APPE{MNCE: Shri Maninder Singh Advocate for the complainant Shri Harshit Batra Advocateforthe respondent ONDER 1.

The present complaint dated 31.03.2022 has been ffted by the complainants under section 31 of the Real Estate fRegularion and L ,.: 2 HARERI.

GURI]GRAIV .nmplJ'nt io 1433 ot2022 Developmentl Act, 2016 (in short, the Actl read wjth Rule 20 of the Haryana Real Esrate (Regulation and Devetopmeno Rutes, 2017 (in short, the Rules) for violation of sectjon 11t41(a) of the Acr wherein jr is inter alia prescribed rhar the promoter shaU be responsible for all obligations, responsibilities and functions under the provision of the Act or the rules and regularions made thereunder or to the alotte€ as per the ag.eement for sale executed interse.

Prorect and unlt relatcd detallt The particulars of the proje€! the detajls of sate consideration. the amount paid by the complainants, dare of proposed handinS over the possession, delay period, il an, have been detailed in the followjng Sr.

1. -2 No.

Particulars 4.

Details ''Amstoria" Sector 102, Curugram Date oiexecution BBA 22.03.2012 A-162-FF-, First floor 1999 sq ft.

47.07.207 t ra 3 1 Vi 51 W a9 D7 tre tn TCt vs1 4t 'ltbu ,dy dy. ling ng ry bu. oc t0 lr gt tl fit *HARER., S-eunucnlrtr aohphrtrr no.

1433 of 2022 05.10.20r 2 buildrng plan per BBA at page 2s Rs 85.11992/- the Occupation certificate by Rs 27.4A.0071.

13.

Offer ofpossession + -- ts-03-2022 B.

3.

2022 B.

3. tacts ofthecomplaint Th€ complainants made the following submissions in thecomplaint: a.

That the real estate proied named "Amstor,a", the subje.t matter of the present complaint is situated at Sectorlo2, curugram, therefore, this Authority has rhe jurisdiction ro try and decide the Due date of 05102014 l1T:a- 22-01-2020 r2.02.2020 07.03.2018, 09.04.20r8, 04.u8.2018 Page 88 of reply 7 8 10 1l t2 HARERA GURUGRAI\I complaut no 1433 of2O22 present Complaint.

The respondent is the developer/promoter of the aforesaid residenrial projecr and has developed, sold and marketed the aforesaid residential project.

That the Respondenr had always adverrised jrsetf ro be a very ethical business group that lives onto its commitments in delivering its proiecrs as per promised quat,ty standards and agreed timel,nes.

Thar the Respondent white launching and advertising any new project always commits and promises to the targeted customers thar ttek &€am home wi be completed and delivered to them wirhtn th€ time agreed initialy in the agreemenrwhile sellingthe unitto them.

They atso assured to the consumers like the Complajnant[s) that they have secured a the necessary sanctions and approvals from the appropriate authorities for the consrrucrion and completion of the real esrate project being developed and sold by them.

That the Respondent was very well aware of rhe fact that in today's scenerio looking at the status of the construction of residential projects in India, especlally in NC& rhe key fador to sell is the delivery wirh,n the agreed and promised timelines and that is the prime factor which a consumer would consider white purchasing.

Th€ respondent, thereforei used this tool, which is direcdy connected to emotions ot consumers, in ts marketing plan and always represenred and wa.ranted to the consumers that their dream Floor will be delivered withtn the agreed 1rHARERJ *db- gunlcmr,,r d. lcmr,,r d.

CompUintno 1433 of2022 That in 2011, the Respondent through its marketing executives and advertlsement done through various medium and means approached the Complainant(sl with an offer to jnvest and buy a Floor in the proposed project being devetoped by rhe respondent namely 'Amstoria" in Sector-102 curugram [heretnafter referred to as the "Said Project"l.The Respondent had represented to the Complainant[s) that rhe Respondenr is very ethicat bustness house in the field ofconsrrudion of residential p roiect and in case the Complainant(sl would tnvest in the project of Respondent then they would deliver the possessjon ofproposed Ftoor on the assured delivery date as per tie best quality assured by rhe Respondent.

The Respondent had further assured to the Complainant(s) thar th€ Respondent ha3 alr€ady secured aI the necessary sanctions and approvals hom ihe appropriate and concerned authorities for the devetopmenr and comptetion ofsaid project on time with the promised quality and specification.

The Complainant(s) while relying on the representatiom and warranties of the Respondent and betievlng them to be true had agreed to the proposal ofthe Respondent and booked a Floor in the said project ofth€ RespondenL That the respondent arranged the visit of its represenrarives to the Complainant(s) and they also assured the same as assured by th€ Respondent to the Complainant(s), wherein ir was categorically assured and promised by the Respondent that they al.eady have secured all the sanctions and permissions from the concerned authorities and departments forthe sale ofsaid proiect *HARERA S- eLrnrcnnv comf a,nt no.1433 of2022 and would allor the Floor in the name of Complainant(s) immediately upon booking.

Relying upon those assurances and believing them to be true, the Comptainant(s) booked a noor and was allotted Floor bearing A-162 on tj Ftoor admeasuring 1999 Sq.

Ft fora basic sale price of Rs. ice of Rs.8S,32,000/- in the said projecL It was assured and represented ro the Cornptajnan(s) by rhe respondent that they had already taken the requjred necessary approvals and sanctions from the concerned aurhorities and depa(mentsto develop and conplete the said proje€ton rhe tjme as assured by the RespondenL Accordjngly, rhe Comptatnant(s) paid Rs.8,53,200/- on 31.08.2011 towards booking amourt.

That the respondent assured the comptainant(s) that it would execute the buyers' agreement at the earliesr and maximum within one month.

However, the respondent did not fulfill its promise and ftnallyexecuted thesame on 22.03.2012 wjth adetay ofalmost 5 months.

That from the date ofbooking and till today, the respondent had raised various demands for the payment of installments on the Complainanr[s) rowards the sale consideration oi the said delay on their part. floor and the complainant[s) have duly paid all those demands withour any That the complainant for the smoorh payment ofaforesaid floor approached the bank and sanctioned a loan for the remaining payment for which a tripart,te agreement has been executed on 29 lar\uary 2014 between all the parties i.e.

Complainant, i *HARER' $-eLrnLrcn,qnr Cohplarnt do 1433 ot2022 respondent and the Bank.

The toan demand by rhe respondenton time. amount was subjected to the That the complainanr(s) had paid Rs.Z7,4A,OO7.OO /_ towards the sale consideration as on today to the respondent as demanded by it irom time to time.

That the Compla,nant(s) thereafter had tried the,r levelbest to reach rhe rep.esentatives ofthe Respoddenr to seek a satisfadory reply in respect otdelivery and possession of the said Floor but all in vain and the respondent has started to ignore the Complainanr(s) and had norgiven any repty r€garding the delivery and possession.

That according to Clause 5.1 of rhe Agreement dated 22.03. ted 22.03.2012 the promised dare ofdeliveryofthe said Floor was 24 months with a grace period of 180 days from th€ date of execution of the agreement i.e., 22.09.2014 but the respondenthas not handed overrhe said Flooras perits promjse.

That the conduct on the part of the respondent has cteared the dust on the fact that all the promises made by rhe Respondent at the t,me of sde ofsaid Floor were fake and false.

The respondent had made all those ialse, fake, wrongtul and fraudulent promises just to induce rhe Complainant(s) to buy rhe said Floor basis its lalse and frivolous prom,ses, which the respondent never intended to fulfill.

The Respondent in ,ts advertisements had represented ialsely regarding the area, price, qualiry and the delivery date orpossession and resorted to all k,nd ofunfair trade practices while transactinC wirh rhe Complainant(sl. *HA S-eun aompla,nr no.

1433 of 2022 That the Complainant no I being a senior citizen had to face all these financial burdens and hardship from their limited income resources, only because of rhe respond€nth fajlure to tutfiI irs promises and commftments.

Failure ofcommjtment on the part of .espondent has made the Complainant(s) to suffer grave, severe and immense mental and ffnancial harassmenr wth no-fault on their part.

The Complainantts) being common person just made the mistake oi relying on Respondenfs false and fake promises, which lured them to buy an Floor in the atoresaid project ofth€ Respondent.

That the cause of a€tion accrued in favor of the Complainant(s) and against the r€spondent on 22.09.2014 when the respondent was to hand over the detivery and posseslion ot the said Floor to rhe Comptainant(sl and the cause ofadion is stitl continuing.

The complalnants are se€king the lollowtng reltef: The complainanrs have sought tolowing retief(s): [i) Direct the respondenr ro refund the totat amount along with interest at the prescribed rate. ibed rate.

On the date of headn& the aurhoriiy exptained to rhe respondent/ promoter about the conrravenrions as atteged to hav€ been committed in relation to section 11(4) [a) olrhe act to plead guitty or not ro plead guilry.

Reply flled by the respondent The respondenthad contested thecomplainton the following groundsi RER t/ UGRA I C, D, *HARERA S-eunLnmvr cohplaLnr no. r433 of2022 a.

That at the outset, it is most respecrfully submitted that ihe complaint filed by the compla,nants is grossly misconceived, erroneous, wron& unjusrified and untenabte an taw besides being clearly exrraneous and irrelevant having re8ard ro facrs and circumstances of this case.

The complainants approached the respondent out of their own freewil and consent and also after ca.rying out the necessary due diligence and further after evaluating the commerciat viabiliry of the proiect of the .espondent with the other opuoEs avaitable in the vicinity. b.

Th€ complainant himselfis a defaulter/offender under secflon 19 (6) and 19 (7) of The Real Estate (Regularion and Developmentl Act,2016 and not in compliance of these sections.

The complainant cannot seek any relief under the provision of The Real Estate (Regulation and Devetopmeno Act, 2016 or rules frame thereunder.

The complaidant has failed to clear th€ outstanding dues in t€rms of off€r of possession ard other previous dues desplte various reminder letters.

Thereafter, the respondent was constrained to issue termination letter dated 15.02.2022 and terminare the booking ofthe comptainant. c.

That without accepting the conrenrs of the complain! jn any manner whatsoever and without prejudice ro the above- mentioned contentions, it is submitted rhar ifin the circumsrance refund is allowed, it has to be after deduction ofstarutory charges like CST,VAT, Service Tax, EDC,IDC, EEDC.

Cop,es ofallthe relevant documents have been filed and placed on the record.

Their authenticity is not in dispute. n dispute.

Henc€, the complaint can *HARER] !&,eunucn,cM be decided on the basis of these undisputed submission made by the parties. ,urisdlction of the authorlg The authoriry observed that it has terrjtorial as welt jurisdiction to adiudicate the present comptajnt for Terrltorial rurlsdictton Complarnt no 1433 of2022 [.

8. [,I 9.

As per notification no.

1/92/ZOr7-tTCp dated 14.12.2012 issued by Town and Country PlanninS Departnrenf Haryana the jurisdiction of Real Estate Regulatory Authority, curuSram shal be entire curugram District for all purpose with offices siruated in Curugram. tn the pr€sent case, the proiecr,n question is sluated within the planning area oi Curugram District, ther€fore this authority has complete territorial jurisdiction to dealw,th the pres€nt complaint.

E.Il Subiect-matter iurtsdtctlon 10.

Section 11(4)(a) ol the Act provides rhat the promoter shall be responsible to rhe allottee as per agreement for sale Section 11(4)(al is reproduced as hereunder: (o) be responsible for oll obliqotioft, esponsibinti5 dld fuhctions undet the provisions ol thk Act or the rutes dnl regulorion! nade there|nder or to the allottees 6 per th. asreenent fo. &te or to the osociotion of ottottees, os ke case no! be, till the conteloh.e ol oll the oryrtnents, ptors q buildinss, as the case nay be, to the ollottees, ol the.onnon areos to the osociotion oI ollottes ot the @np.tent au otuq, os the coy noy bej Secria 31-Functlont ol the Aothorlq: *HARE S-ounue l1 RA RAlr/ aomplarnt no.

1433 of2022 344 oI the Act provid5 to ensurc conptiance of the obligotiohs cost upon the ptunoters, the ollottees ond the reol estate ogehts undet thi, act ond therulesond regulations mode thereunder So, in view olthe provis,ons oftheAct quoted above, rhe authorityhas complete jurisdiction to decide the comptaint regarding non- compliance olobligations by the promoter as per provisions ofsection 11t41(al of the Act leaving aside compensation which is to be decided by the adjudicating om icating omcer if pursued by the complainant at a tater stage- Further, the authority has no hitch in p.oceedjng with the comptaint and to grant a relief of reiund in the present matte. in view of the judgement passed by the Hon'ble Apex Court in t\ewtech pmrroaers and Developers Prlwtc Ltnlled Vs Saate ol U.p. and Ors. (Supm) and reiterated in cose of M/s Sano Reoltors Privaae Llmlted & other vs Unton of Indla & others SLP {Clv ) No.

13005 of 2O2O dectded on 12.05,2o22wherein it has been laid down as unde( 12 " 86.

F ron the y hene of the Aa oJ whnh a deLoi led ret'eret e ho s been node ond rokins noe oI Nwet ol odtu.licotioh detineted wth the regutatory authonE and odltdicodns olfcer, what lnally culh out is thot okhough the Act lhdicates the distjnct expre$ions |ike lefund, 'tnte.esf, 'p o1.!' ond 'conpensdtion, o Lonjoint readins olSecuons 13ohd 19 cleo.ly nanlens thor when n con* to refund of the onount ond ihterest on the relund onount, or dnecti.9 polneht of interest fot delored deliverr oI posession, ot penalrJ and intercst th*eon, iI is the rcgularory outhority which hos the po\|er to exanine and detemine the outcone ola conplatnt.

At the nne tine, when it cones to o question of seeking the .eliel aI odtudging conpensation ond tnterest thercon undet se.tions 12,14,18ond 19, theadjudiconns oJlicer *clusively has the powet to detemine, keeping in liew the collective reoding oI Section 71 rcad with Sectioh 72 oI the Act il the ddjudnonon undet Sections 12, 14, la ond 19 other thon conpensotion as fuvisaged, il extehded ta the adjudicotins oficet I}HARER 1 dh suqucnrM Complarnt no.

1433 of2022 as protcd thot, in our view noy in4nd to expand the anbit and topp of the powe^ o4d tu4cnon\ ot the otttu.trothg ollcd Lrdet sert'on ,t oad thd \aaa oe.qanst tie aa,a;k iirte Act 2A16." 13.

2A16." 13.

Hence, in view ot the authoritatjve pronouncement of the Hon,ble Supreme Court in the cases mentioned above, rhe aurhoriry has the jurisdiction to entertain a comptaint seeking refund of rhe amount and interest on the refund amount. t.

FindhSs on ibe r€ltef sougbt by tte cornplalnanrs F.

I.

Direct the respondelt to reftnd paid up amount atong wtth inteaest at the prescrjb€d rate.

14.

In the presenr complatnt, the complainanrs Intend to withdraw fiom the project and are seeking rerurn ofthe amount paid by it in respect ot subject unit along with interest at rhe prescribed rate as provided under section 18(1) of rhe Act.

Sec 18(1) of the Act is reproduced below for ready reference. ''Se.tion 1A: - Retum ol anouat oad compedonon 184). tl the pronotcr Joils to conpbe t is uhable to sNe pcesion ofon aPartnenc plor, or building.- (o)in occordance with the terns ol the oorenent fat ete or, dsthe . o.e no)t be dult , ohplete.l b rh. dotp tpecfied ie, en or {b) due ta .lkcon tihuonce afhis busines os a developer on o@ountof suspension or revocatian aI the .esstrotian under this Act ot for he sholl be lioble on demond to the ollotDa, h cose the allottee wishes to Mthdro\| lron ,he project, without prejudice to any other rcned! oeoiloble, to return fie omomt re@lved by him in respe.t oJ thot opodment, ploa buit tinq, os th. .o@ mot be, with interest ot suth rate os mot be prescribe.l )n this behalf tncludinp cahpensotion in thc nanher os orovided undet iIHARER-r $-eunuennvr Complarntno.

1433 of 2O22 Provided thot \|here on ollottee (loes not intend to withdtuw hoh the ptuject" he sholt be poid, b! the pronoter, interest Iot every nonth ol delo!, till the handing ovq oJ the pos1sion, ot such rdte os noy be prescribed ,, 15.

The complainants were altotted unir no.

A_162-FE first floor, admeasuring 1999 sq. ft. (super area) in ihe project ..Amsroria" Sector 102" by the respondenFbuilder for a sale consideration of Rs.

85,31,992/. and they had paid a sum of Rs. sum of Rs.

T7,4A,OO7 /- uthtch is apptox.

47Vo of the sale considemtion.

A buyer,s agreement dated 22.03.2012 was executed between parties w,th regard to the alloned unit and the due date for comptetion of the proied and ofier ot possession was nxed on 05.10.2014.

The Occupation Certificate for rhe proiect of the allotted unit is obtained on 22.OL.ZO2O.

Ttte complainanrs failed to pay amount due againstthe a otment unit.

16.

As per 7 the terms of the builder buyer agreement the complainants were liable to made the payment as p€r the payment plan and the relevant clauses ofrh€ builder buyer agreement are reproduced under for ready reference: Temlnotion, C cdldtioi M., Fo*ln r.: ?.r the ti erl patnent ol ea.h instollneht of the Totol sole considerotio^ Le llasr Sole Price and other chorges os stated herein is the essence ol this transoction / agreenenL t n cose potnent ol ont insrallhent os na, be specilied kdeloted, then the Purchosert) sholl poy intqest on the anount due @ 18% p.a. conpounded ot the tine oJ ae.y suruedinq ihstalln t ar three months, whichev.r 6 ea ier.

HoweveL ilrhe Purchae4E neskcts, on'|l, Bnorct or faih kr ony reoen vhatyever ta pay n tine to the Selter dn! oJ the tnstollnehts ar other onounlt ohd charges due ond poyable by the Purchase*) within three (3) nanths lron the due dote of the autstandins anolnt or lthe Purchose4s) in anr other \|or loib b petarn, conply ot obftNe oh! of the tems and cotulinons on hts/her part herein cantained within the tin. stipuloted ar ogr@d to, the Seller/Confming Potty tuay at its sale optioh t'ofeit the I tr (5 HARERA GURUGRAIV anoLnt ol Eo.nesa Mone! and athet charges ncluding tote pornqt chorges and interest depos ed by the purchoe1) and ony other ohount oJ a nohrefundabh hotute includihg lncentive, btukmse choryes paid by the Sellet/Canfming pant b he broki in coe the booking is done thmugh o broke. etc ond in su.h on e9ent the altothent tholl stahd.oncelled and the purchatu (s) shott b. ) shott b. teft wth ho tight, lien or interest on the ejd Ftoot ond the Selle/Cohf.ning Po y \holl hove th€ r,Jhr ro sel lhe said Ft@r ro any olher perso, lurtheL the selter/Canfitning porty shdllatn be entitted to terninate/cancel the alotnent oF the purchose4s) in the eveht oI deloutt ol ahr of the terhs and @n.titions of this 17.

The respondent issued a final opportuoiry letter and thereafter, issued a cancellation lener to rhe complainants.

The occuparion certificat€ ior the proje€r of the allotted unit was granred on ZZ.O1.2O2O. tt is evident from the above mentions facrs thar the complainarts paid a sum of Rs.

27,48,007/- against sale consideration of k.a5372,992/- oithe unit allotted to them 07.07.2011.

The conplainants have failed to adh€re to the terms and conditions ofthe builder buyeraSreement.

The respondent cancelled the unit of the complainants with adequate notices.

Thus, the cancellauon ofunitls valld.

18.

Further, the Haryana Real Estate Regulatory Authority Curugram [Forleiture of eamest money by the b']ilder) Regulations, 11[5) of 2018, states that- "5, ANOUNT OF a,RNEST I,IONEV Scenorio prior to the Reol Estate (Regulatiore and De9elopnent) Act, 2016 was diJlerent.

Frauds were caried out without ony [eat os there wos no law lar rhe same but now, in view of the above fact: ond taking into consideruion the )udgenents of Hon ble Notionol Consuner Disputes Redresol Canmission ond the Hon ble Suprene Court oI Inlia, rhe autho rJ is ol the view thot the loteiture onowt oJthe eornestmone! shallnoterceed nore thon 10% olthe hh.d"rntion of the reol i.e. opartnent/plot/buildiho os the case noy be in oll covs where the concellotion oI the llqt/unit/plot it hode by the btilder in a uniloterul manner or the buter intends to withdrow lron the compr,,nr no.

1433 of2022 1rHARER.

S-eunuennr,r c.

20. ii complaLntno.

1433 of 2022 project and an! og.eement contoining any ctouse contmry to the aloresaid regulotions shalt be voi. lt be voi.t ond not binding on the buyer" Keeping in view, the aforesaid legal provision, rhe respondent/promotor directed to refund the paid-up amount after deducting 1070 of the sale consideration and sha return the amount along with interest at the rate of 10.75% (the State Bank of tndia highest marginal cosr of lending rare [MCLR) appticable as on date +2yo) as prescribed under rule 15 of the Haryana Real Estate (Regulation and Developmenr) Rules, 2017, from the date of cancellation i-e., 15.03.2022 till the actual dare ofrefund of rhe amount w,thin the timelines provided in rule 16 of the Haryana Rul€s 2017 ibid.

Dlrections of the authorlty Hence, the authorityhereby passes this orderand issu€sthe following directions under se.6on 37 of the Act to ensure compllance of obligations cast upon the promoter as per the function enEusted to the authority under section 34[01 The respondent is directed to refund the paid-up amount of Rs.

27,44,007 /- aftet deducting l0% ofthe sale conslderation ofP.s.

85,31,992l-with interest at the prescribed rate i.e., 10.75% on such balance amount, lrom the date of cancellation i.e., 15.03.2022 till the e.tuald.te of refund.

A Period of90 days is given to the respondent to comply with the directions given in this order and failing which legal conseq uences would follow * 4t RERA UGRA[/ UR H G no.

1433 ol 2022 21.

Conplaint stands disposed of.

22.

File beconsigned to regisrry.

IAsh*dtr Haryana Real Esrate Regulatory Authority, Curugram Date 29.7l.2023