SUTOPA BANERJEE vs RAMPRASTHA PROMOTERS & DEVELOPERS PVT. LTD.

ffiHtuERA #,eunuenntrl BEFORE THE HARYANA REAL ESTATE REGULATORY AUTHORITY, GURUGRAM Versus 1.

M/s Ramprashtha promoters and Developers Privatc Limited. -2.

M/s Blue Bell proptech l)rivate Limitcd.

Both Ha.ving Oftice at: C 10.

C Block Market, Vasant Vihar, New Delhi_ I 10057.

Also at: - Plot no.

114, Sector_44, Gurugram, Haryana-122002.

COMM: Ashok Sangwan APPEARANCE: Raiiv Kumar Khare [Ad vocate) Varun Karyal (Advocalc) with l'arun Arora AR ORDER 1.

This complaint has been filed by the complainant/allottees under section 31 of the Real Estate (Regulation and Development) Act, 2016 (in short, the Act) read with rule 2g of the Haryana Real Estate (Regulation and Developmentl Rules,2017 [in short, the Rules) for violation of section 11[4) (a) ofthe Act wherein it is inrer alro prescribed that the promoter shall be responsible for all obligations, responsibilities and functjons under the provision of the Act or the 200 of 2O23 27.01.2023 08.11.2023 Complaint no. : Date of complaint i Date oforder : Sutopa Baneriee, R/o: - 8203/C-8, Vasant Kuni, New Delhi- 110070.

Complainant Respondents Member Complainant Respondent Page 1 of 16 |Ioi;rt* N"loo "f ,or I HARERA ffiGURUGRAII A.

2.

Complaint No.

200 of 2O23 Rules and regulations made thereunder or to the allottees as per the agreement for sale executed interse.

Unit and proiect related details The particulars of unit details, sale consideration, the amount paid by the complainants, date of proposed handing over the possession, delay period, if any, have been detailed in the following tabular form: cf the complaint) S.

N.

1.

Particulars Name of the project Details "Skyz", Sector :ZC, Village Caaauli Kalan.

Gunrpram 4 Proiect area 60.5112 acres .Bggistered area 102000 sq. mt. -_ _ Group housing complex 4.

Nature of the project e DTCP license no. and validity status 33 of 2008 dated 19.02.2008 valid \pto 18.0?.2025 namprastha nuilders-lvt Ltd and 11 others 7. others 7.

Date of approval of building plans Date of - environm"nt clearances 12.04.20 12 [As per information obtained by planningbBnchl 2 t.0 t.20 I0 [As per information obtained by pla4qlng !rqnclrl Registered vide no.

3ZO of Z0l7 dated L7.10.2017 8. o RERA Registered/ n; registered 10.

RERA registration valid up to 31..03.2079 11.

72.

Extension applied on 26.03.2019 Extension certificate no.

Date Validity HARERA/GGM/ RE P I SO.O:.ZOZO /Rc/320/2017/ I ExT/122/2019 tnl principal approval on 12.06.2019 703, 7,t flo;r1owernlock B - fPage no. l9 of the complaint) ffi 13.

Unit no.

L4.

Unit area admeasuring Page 2 of 16 HARERA P*GURUGRAM Date of execution buyer agreement ofapartment 16.

Possession clause Due date of possession Grace period Amount paid complainants Occupation certificate 70.12.207L (Page no.

17 ofthe complaintJ 15.

POSSESSION (aJ Time of handing over the Possession Subject to terms of this clause and subject to the AIlottee having complied with all the terms and condition ofthis Agreement and the Application, and not being in default under any of the provisions of this Agreement and compliance with all provisions, formalities, Total sale consideration Complaint No.

200 of 2023 I documentation etc., as prescribed by MMPI{ASTHA.

RAMPMSTHA proposed to hand over the possession of the Apartment by 37,08.2074 the Allottee agrees and understands that MMPMSTHA shall be entitled to a grace period of hundred and twenv days (720) days, Ior applying and obtaining the occupation certilicate in resDect of the Group Housing Complei. l/is per possessjon clause mentioned in the buyer,s qc|994e!q_ Not utilized Rs.69,18,700/- 19 ofthe com laint the Rs.60,42,457 /- (As per demand letter and payment receipts on page no.s 43, 45 and 46 of the complaintl Not received Completion certificate Page 3 of 16 ffiIABEBA ffieunuenau Complaint No.

200 of 2023 0ffer of possession Not offered B. offered B.

Facts ofthe complaint The complainant has made the following submissions: - That the complainant was allotted an apartment bearing no.

703 on 7th floor, in Tower B, having super area of 1750 sq.ft. in project named "SKYZ", Sector 37 D, Gurgaon vide apartment buyer agreement dated 10.12.2011 for a sale consideration of Rs.69,18,700/- and she has paid an amount of Rs.60,42 ,457 /_ against the same in all as and when demanded by the respondent.

That as per terms of the agreement, the unit was to be delivered on 31.08.2014.

However, the complainant has not been given possession of the booked t'lat even after a delay of more than 8 years which is a violation of respondent's lawful contractual obligation towards the complainant.

That the respondent has not been able to meet the terms and conditions of SWAMIH Loan in over two years and has only sought SWAMIH Loan to change the terms of delivery to an indefinite point of time in future.

That the respondent is in possession ofthe complainant,s money and the apartment too and therefore it is misusing its dominant position to extract unlawful concessions from the complainant.

That the respondent is liable to pay DpC at prescribed rate of inrerest to the complainant and hand over possession of the booked flat to the complainant as u/s 18[1) ofthe Act of 2016.

Reliefsought by the complainant: I.

II.

III.

IV.

C.

4.

The complainant has sought following relief(sJ: Page 4 of16 D.

5.

HARERA MGURUoRAN/ 6. ii. complaint No.

200 of 2023 I.

Direct the respondent to hand over the possession ofthe said unit and to pay interest on the paid-up amount at prescribed rate of interest.

Reply by the respondent.

No reply has been received from respondent no.2 with regard to the present complaint and also none has put in appearance on its behalf before the Authority.

Therefore, the respondent no.2 is hereby proceeded ex-parte and the complaint will be decided as per documents available on record and submission made by the parties. e parties.

The respondent no.l has contcsted thc complaint on the following grounds: - That due the lackadaisical attitude of the complainant alongwith several other reasons beyond the control of the respondent caused the present unpleasant situation.

Further, the complainant has never raised any dispute regarding delay in possession or any other aspect and now has raised the dispute only to reap the benefits of the increase in value ofproperty.

The entire intention of the complainant made it crystal clear that she is merely an investor who has invested in the present project only with the motive to reap the benefits of the escalated property rates at a later stagc.

That the complainant has concealed its own inactions and defaults since the very beginning.

The complainant has deliberately concealed the material fact that she is at default .lue to non_payment of several installments within the time prescribed, which has also resulted into delay payment charges/interest.

That the delay in dclivcring thc posscssion of the apartment to thc complainant has attributcil solcly bccausc of the reasons beyond control of the respondent for which it cannot be held accountable. lll.

Page 5 of 16 r' HARERA GUI?UGRAM lv.

200 of 2023 Further clause 15 (a) of the agreement shall not be read in isolation but have to be read in light of other clauses of the agreement as the stipulated date of delivery is not a strict and final date but merely a tentative date which is further subject to several factors involved.

That as per clause 17(aJ of the agreement, the parties had agreed that in the eventuality of delay in handing over possession beyond the period stipulated in clause 15(aJ ofthe agreement, the allottee will be compensated with Rs.5/- per,sq{t. per month ofsuper area.

This part of compensation was specifical.ly consented to and was never objected at any earlier stage, not while signing the agreement or anv time after that. v. r that. v.

That the project faced various road blocks and hindrances including approvals from different authorities, shortage of labour force in the NCR region, ban on the use of underground water for construction purposes, heavy shortage of supply of construction material were beyond the control of the respondent and which in turn lead to unforeseeable delay in the construction/completion of the project and hence handing over of the possession of the flat to the complainant.

Therefore, the present complaint is not maintainable in its present form and ought to be dismissed with exemplary costs.

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.

Iurisdiction of the authority The respondent has raised a preliminary submission/objection the authority has no jurisdiction to entertain the present complaint.

The objection of the respondent regarding rejection of complaint on ground page 6 of 16 t 7.

E.

8.

HARERA #"GURUGRAII 9. complaint No.

200 of 2023 of jurisdiction stands rejected.

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

E.l Territorialiurisdiction As per notification no.

1./92/2017-1TCp dated 14.12.2017 issued by Town and Country Planning Department, the jurisdiction of Real Estate Regulatory Authority, Gurugram shall be entire Gurugram District for all purpose with offices situated in Gurugram.

In the present case, the project in question is situated within the planning area of Gurugram District, therefore this authority has complete territorialjurisdiction to deal with the present complaint.

E.lI Subiect matter iurisdiction Section 11(4)(al of rhe Act, 2016 provides that the promoter shall be responsible to the allottee as per agreement for sale. for sale.

Section 11[4) (a) is reproduced as hereunder: Section 11 ig rhe promote, sholl- (a),be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the ollottees as per the agreemerlt for so[e, or to the ossociation of allottees, as the cose moy be, till tie conviyance of .oll the apartments, plots or buildings, ai the cose may be,-to tie ollottees, or the common oreos to the association of allitees or the competenL authority, os Lhe cose may be; Section 34-Functions of the Authority: 34(D of the Act provides to ensure complidnce of the obligotions cost upon the promoters, the ollotlees ond the reol estaLe dgents under this Act and the rules an(l regulqtions made thereunder'.

So, in view of the provisions of the Act quoted above, the authority has complete jurisdiction to decide the complaint regarding non_ compliance of obligations by the promoter leaving aside compensation 10.

Page 7 of 16 lv' ffiIAI]ERA S-eunuennnt Complaint No.

200 of 2023 which is to be decided by the adjudicating officer if pursued by the complainant at a later stage.

F.

Findings onthe objections raised by the respondent, F.

I Obiection regarding the complainant being investor.

11.

The respondent has taken a stand that the complainant is an investor and not a consumer.

Therefore, she is not entitled to the protection of the Act and is not entitled to file the complaint under section 31 of the Act.

The respondent also submitted that the preamble of the Act states that the Act is enacted to protect the interest of consumers of the real estate sector.

The authority observes that the respondent is correct in stating that the Act is enacted to protect the interest of consumers of the real estate sector. [t is settled principle of interpretation that the preamble is an introduction of a statute and states main aims and objects of enacting a statute but at the same time the preamble cannot be used to def sed to defeat the enacting provisions of the Act.

Furthermore, it is pertinent to note that any aggrieved person can file a complaint against the promoter if the promoter contravenes or violates any provisions of the Act or rules or regulations made thereunder.

Upon careful perusal of all the terms and conditions of the apartment buyer,s agreement, it is revealed that the complainant is a buyer and paid total price of Rs.60,42,457 / - to the promoter towards purchase of an apartment in its project.

At this stage, it is important to stress upon the definition of term allottee under the Act, the same is reproduced below for ready reference; "2(d) "ollottee" in relation to a reol estqte project means the person to whom a plot, aportment or building, as the cose moy be, has been allotted, sald (\)hether ds freehol(t or leosehold) or otherw|,e trctnsferred by the promoter, ond includes the person who subsequently acquircs the said allotntent through salc, tronsfer or Page I of 16 HARERA M GUI?UGRAM Complaint No.

200 of 2023 othetwise but does not include a person to whom such plo, . aportmenl or bu ilding, os the case mqy be, is given on rent;,, In view of above-mentioned definition of.rtto"tt"u,; as well as alt the terms and conditions of the apartment application for allotment, lt is crystal clear that the complainant is an allottee as the subject unit was allotted to her by the promoter.

The concept of investor is not defined or referred in the Act.

As per the definition given under section 2 of the Act, there will be "promoter,, and ,.allottee,, and there cannot be a party having a status of "investor,,.

The Maharashtra Real Estate Appellate Tribunal in its order dated Zg.O7.Z0lg in appeal no.

0006000000010557 titled a.s M/s *ushti Songam Developers pvt.

Ltd.

Vs.

Sarvapriya Leasing (p) Lts.

And anr. has also held that the concept of investor is not defined or relerred in the Act. n the Act.

Thus, the contention ofpromoter that the allottee being investor is not entitled to protection of this Act also stands rejected.

F.II Obiections regarding force majeure.

12.

The respondent/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 ban on construction by orders of Hon,ble High Court and other authorities, delay on part ofgovt. authorities in granting approvals and other formalities, shortage of labour force in the NCR region, ban on the use of underground water for construction purposes, hea!y shortage of supply of construction material etc.

However, all the pleas advanced in this regard are devoid of merit.

First of all, the possession of the unit in question was to be offered by 31.0g.2014.

Moreover, time taken in governmental clearances cannot be attributed as reason for delay in project.

Further, the events alleged by the respondent do not have any impact on the project being developed by the respondent.

Furthermore, page 9 of 16 HARERA ffiGURUGI?AM Complaint No.

200 of2023 some ofthe events mentioned above are ofroutine in nature happening annually and the promoter is required to take the same into consideration while launching the project.

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 the complainant.

I Direct the respondent to hand over the possession of the said unit and to pay interest on the paid-up imount at prescribed rate ofinterest, 13.

The complainant intends to continue with the pro.iect and is seeking delay possession charges as provided under the proviso to section 18(1) of the Act.

Sec.

18(1J proyiso reads as under. "section 7g: - Return ofc/mount ond comlensation 1B-(1). on 1B-(1). tlthe promoter fiib to comptete or isiiiit"ii'iir" pon"uion ofon qpartment, plot, or building, _ Provided thot where on ollottee does not intend to withdrqw from the pr,oject,.he shall be paid, by the fromorer, tnterest for every monti ol delay, tillthe handing over ofthe possession, ot sucn ,oi" r, ,oi, tt"-prlrrrit"a._, 14. clause 15(aJ or the apartmenr bur", ug,""*"nJfl'lflili,llli"i,r",O provides for handing over of possession and is reproduced below: "15, POSSESSION (o) Time ofhanding over the possession Subject to terms ofthis clause qnd subject to the Allottee hqving complied with all the terms ond coidition of thb egreeient and the Application, ond not being in defauti ,rae, inv ofine provisions of this Agreement and conplionce iiti a provisions, formalities, documentation etc., as prescribed by MM?RASTHA.

D"/M?RAS.\ A proposed to nc,ra ore, ti possession of the Apartmcnt by 31.08,2014 the Allottee aqrees and understonds thot RAM p/'/,Sl-HA sholl be entrtlecl to oirctce period ofhundred and rwenty doys (120.)doys.for opplyii ond obtaining the occuptjtion certificare ii ,irpir, oiii" iiup Housing Complex.,' Page 10 of16 15.

GURUGRAI/ HARERA Complaint No.

200 of2023 The authority has gone through the possession clause ofthe agreement and observes that this is a matter very rare in nature where builder has specifically mentioned the date of handing over possession rather than speci8/ing period from some specific happening of an event such as signing of apartment buyer agreement, commencement of construction, approval of building plan etc.

This is a welcome step, and the authority appreciates such firm commitment by the promoter regarding handing over of possession but subject to_observations of the authority given below. _ .

At the outset, it is relevant to c6mment on the preset possession clause ofthe agreement wherein the possession has been subiected to all kinds of terms and conditions of this agreement and application, and the complainant not be ant not being in default under any provisions of these agreements and compliance with all provisions, formalities and documentation as prescribed by the promoter.

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

The incorporation of such clause in the buyer,s agreement by the promoter is just to evade the liability towards timely delivery of subject unit and to deprive the allottees of their right accruing 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 agreement and the allottee js left with no option but to sign on the dotted lines.

1.6.

Page 11 of 16 ffiHARERT, #- ounuennrvr L7.

Compiaint No.

200 of 2023 Due date of handing over possession and admissibitity of grace period: The promoter has proposed to hand over the possession ofthe apartment by 31.08.2014 and further provided in agreement that promoter shall be entitled to a grace period of 120 days for applying and obtaining occupation certificate in respect of group housrng complex.

As a matter of fact, the promoter has not applied for occupation certificate within the time limit prescribed by the promoter in the apartment buyer's agreement.

As per the settled law, one cannot be allowed to take advantage ofhis own wrongs.

Accordingly, this grace period of 120 days cannot be allowed to the promoter at this stage.

Admissibility of detay possession charges at prescribed rate of interest: Proviso to section 18 provides that where an allottee does not intend to withdraw from the projec! he shall be paid, by the promoter, interest for terest for every month of delay, till the handing 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 15, prescribed rqte of interest- [proviso to section 72, section 1B a_n.d sub"section (4) dnd subsection (7) ofsection 1gl (1) For the purpose of proviso to ieciion 12; section 18; and sub_ sections (4) and (7) of section 19, the ,,interest at the rate prescribed" shall be the Stote Bonk of India highest marginol cost of lending rote eao.: provicled that n cose the Stqte Bank of lndta marqinal cost of lending rate (MCLR) is not in use, it shoil be replocid by such benchmark lending rates which the Stote Bank of lndia may Jix from time to time Jbr lending to the generql public.

19.

The legislature in its wisdom in the subordinate iegislation under the provision of rule 15 of thc 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.

18.

Page 12 of 16 l/- HARERA GURUGRAM Compiaint No.

200 of 2023 20.

Taking the case from another angle, the complainant/allottee was entitled to the delayed possession charges/interest only at the rate of Rs.S/- per sq. ft. per month as per relevant clauses of the buyer,s agreement for the period of such delay; whereas the promoter was entitled to interest @18% per annum compounded at the time ofevery succeeding installment for the delayed payments.

The functions of the authority are to safeguard the interest of the aggrieved person, may be the allottees or the promoter.

The rights of the parties are to be balanced and must be equitable.

The promoter cannot be allowed to take undue advantage of his dominate position and to exploit the needs of the home buyers.

This authority is duty bound to take into consideration the Iegislative intent i.e. ntent i.e., to protect the interest ot the consumers/allottees in the real estate sector.

The clauses ofthe buyer,s agreement entered into between the parties are one-sided, unfair and unreasonable with respect to the grant of interest for delayed possession.

There are various other clauses in the buyer,s agreement which give sweeping powers to the promoter to cancel the allotment and forfeit the amount paid.

Thus, the ternrs and conditions of the buyer's agreement are ex-facie one-sided, unfair, and unreasonable, and the same shall constitute the unfair trade practice on the part of the promoter.

These types of discriminatory terms and conditions of the buyer's agreement will not be final and binding.

21, Consequently, as per website of the State Bank of India i.e., https://sbi.co.in. the marginal cost of lending rate (in short, MCLR) as on date i.e., 08.1,1,.2023 is 8.75%.

Accordingly, the prescribed rare of interest will be marginal cost of lending ra te +2o/o i.e., 7O.j So/o.

The definition ofterm 'interest,as defined under section 2(za) of the Act provides that the rate of interest chargeable from the allottee by the page 13 of 16 22. : ...' HARERA GURUGRAM Complaint No.

200 of 2023 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 of default, The relevant section is reproduced below: "(zo) "interest,' meons the rates of interesl payable hy the promoter or the ollouee. os tho tos" mol he Explonotion. -For Lhe purpose ofthis clouse- O the rate of interest chorgeoble t'rom the allottee by the promoter, in case of default, shq he equol to the rate of in;eresr'which the promoter sholl be liable to pqy the ollottee, in cose ofdefoult; (i0 the interest poyoble by the promoter to che allouei sn'alt tte Sron the clote the promotcr received the anount or any port thereoJ till the date the dmount or part thereof and interest thereon 6 refunded, and the interest payable by the ollottee to t ottee to the promoter shall be from the dote the o ote; defoutts in payment to the promoter till Lhe date it is poidi, 23.

Therefore, interest on the delay payments from the complainant shall be charged at the prescribed rate i.e., 10.75% by the respondent/promoter which is the same as is being granted to the complainant in case of delayed possession charges.

24.

0n consideration ofthe documents available on record and submissions made by both the parties regarding contravention of provisions of the Act, the authority is satisfied that the respondent is in contravention of the section 11(4J(a) of the Act by not handing over possession by the due date as per the agreement.

The authority has observed that the apartment buyer agreement was executed on 10.12.2017 and the due date of possession was specifically mentioned in the apartment buyer agreement as 31.08.2 014.

As far as grace period is concerned, the same is disallowed for the reasons quoted above, Therefore, the due date of handing over possession is 31.0g.2014.

The respondent has tailed to handover possession of the subject apartment tilr date of this order.

Accordingly, it is the failure of the respondent/promoter to fulfil its obligations and responsibilities as per the agreement to hand over the possession within the stipulated period.

Accordingly, the non_ Page l4of 16 l./ ffiHARERA #- eunuennrt,l compliance of the mandate contained in section 11(4][a.) read with proviso to section 1g(1] of the Act on the part of the respondent is established.

As such the complainant is entitled to delay possession charges at the prescribed rate i.e., @10.75% p.a. w.e.f.

31.08.2014 till offer of possession plus 2 months after obtaining occupation certificate from the competent authority or actual handing over of possession, whichever is earlier, as per section lti(1) ofthe Act o12016 read with rule 15 ofthe rules.

H. rules.

H.

Directions ofthe authority 25 Hence, the authority hereby passes this order and issues the forowing 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(0: i rhe respondent-promoters are directed to hand over possession of the subiect unit and pay interest to the complainant against the paid-up amount of Rs.60,42,457 /_ at the prescribed rate of 10.75o/o p.a. for every month of delay from the due date of possession i.e., 31.09.2014 till offer ofpossession plus 2 months after obtaining completion certificate/part completion certificate from the competent authority or actual handing over of possession, whichever is earlier, as per section 1g( 1l of the Act of 2016 read with rule 15 ofthe rules. i i.

The arrears of such interest accrued from 3 1.0g.2 014 till the date of order by the authority shall be paid by the promoter to the allottee within a period of 90 days from date of this order and interest for every month of delay shall be paid by the promoter to the allottee before 10th of the subsequent month as per rule 16[2) ofthe rules Page 15 of 16 lv.

26.

27.

HARERA GURU6|?A[/ The complainant is directed to pay outstanding dues, ifany, after adiustment of interest for the delayed period.

The respondent-promoters shall not charge anything from the complainant which is not the part of the apartment buyer,s agreement.

The rate ofinterest chargeable from the allottee by the promoter, in case of default shall be charged at the prescribed rate i.e.

10.750lo by the respon moters which is the same rate of interest which the p be liable to pay the allottee, in case of default i.e., the ossession charges as per section 2(zal of the Act.

Complaint stands dis File be con Haryana Real Dated: 08.11.2023 ,t /{ ol /l T\i'f tNt Page 16 of 16