IIAR

No.4127 of 2022

BEFORE HARYAN REAL TORYAUTHORITY,

GURU
4lZ7 of 2022
20.o3.2024
Meena Dh
R/o:-DN
Bihar-8120 Complainant

M/s Newl Builders & r'elop

Office - 1.15, Bhav
Respondent
New Delhi- 10001.

CORAM:
Shri Ashok Member
APPEARAN
Shri Nitin J Complainant
Shri. Nitin Respondent

The t comp nant/allottees under

s ecti on 31 of the ) Act, 2016 (in
short, Act) Estate (Regulation
and opment) R e Rules) for violation of
section 11(al(al of it is r'n a/ia prescribed that the
pro shall be r all obliE ons, responsibilities and
functio as provide under the ion ( the Act or the Rules and
regu ons made under or as per the agreement for
sale ted inter se.

PaEe I of 2l'^/'
 -
HAR
GURUGRAM No.4127 of 2022

A. and unit details

2. The culars of project, sale consideration, the
amoun paid by the plainan of ed handing over the
pos ion, delay if any, b een Ied in the following
tabular form:

Sr. I Particulais
No.
lDetairs
the project Esencia", Sector-67,

Project Area 2.I65 acres

Nature ofproject

Licence no.- 25 of2012

Dated- 27 .03 .2012

17.t0.2077

", Block-D
of complaintl

2198.00 sq.ft.

Allotment ietter

of complaint)

Date ofexecution of buyqr's 22.06.2073

1B of complaint)
nt and

PaEe 2 of 21
 RA
No.4127 of 2022

Poss on clause ON OF FLOOR

5.2 infra ond

all the buyers of the
in the Colony moking
the Company shqll
the development
and the Floor as for
36 months with on
of (6) six months
execution of this
subject to the
building/revised
'other qpprovals &
the concerned
as Force Majeure
in the ogreement
t of the Terms
of the Allotment,
including but
payments by the
hereof. The Compony

w ;'" ;laim
extension of time for
struction of the Unit

by
of delay coused
reosons Stated above.
wqy of
sholl lie against
of deloy in honding
Unit on occount of
reasons.......(to be

of complaint.)

ofpossession I 22.06.L0r6

| fGrace period of6 months not

lf,"r,a{a;

Page 3 of 2t
MHARERA
#- ounuennv Complaint No. 4127 of 2022

72. Totai consideration Rs.1,64,59,550/-

(As per customer ledger dated
26.07.2022 on page no. 65 ofreply)

73. Total amount paid by the k.1,39,22,807 /-

complainant
(As per customer ledger dated
26.07.2022 on page no. 65 of reply)

14. E-mails sent by complair ant seeking 75.07.2078

status ofthe project
13.10.201{l

15. 0ccupation certificate \,lot received

67. 0ffer ofpossession {ot offered

'
B. Facts ofthe complair t
The complainant has n rade the following submissions in the complaintr.-
I. The respondenl launched a project under the name and styl,le of
"Sovereign FIor rrs, Esencia" at sector-67, Gurugram and were
r
marketing and publicizing to attfact prospective buyers thrrough
various medium S.
IL That the compl ainant after going through the prospectus of of the
project, decided to book a residential unit in the said projectlfora
I

total sale consid eration of Rs.1,5 5,00,000/- . On 07.06.2013 the

Le unit

was booked on construction link plan and duly signed aliotr

tment
letter was issue( in the name of the complainant.
L

IIL AT the time ol booking, the complainant made a nt of

paymen
Rs.L6,55,731- / -. And from time to time the respondent iss
ssued
payment demar ds and the complainant made the payments..lr is
imperative to m rntion that all the payments were made in the n
name
of "Ansal Phalak Infrastructure Pvt. Ltd." .

Page 4 of27
ffiHARERA
HeunuennH,r Complaint No. 4127 of 2022

IV, That on 31.03 016 as per the demand of the respondent, the
complainant d an amount of Rs.7,23,04,632/-. The complainant
in order to I her part of obligation and making the balance
payment took a home loan of Rs.16,1,9,549/- from ICICI Bank, which
was sanctioned and the loan was then disbursed by the bank in the
name ofthe res ondent.
That Builder Buyer ement was executed between the
complainant Ans ructure Pvt. Ltd. on 22.06.2013.
As per clause 5 of the sa ment, the respondent was bound
to handover p no \rnit within 36 months with an
extended peri mo m the date of execution of the
builder buv ent.
VI. It is pertinen mention t thb work at the project site started
with a very ce. U n noticing such delay in work the
complainant s sln nldence upon the credibility ot
of the
th
l.ta,-^
respondent. Fo was no communication from the
respondent al ut the of the project. When the
complainant de verific r about the progress of the said
project, to the ock of the plainant, the said project was much
delayed. But responde .t kept on demanding the instalments,
keeping the co plainant i dark about the actual progress of the
unit.
VII, That on 15. .2018, th complainant's husband Mr. Atul
Dhandhania th wrote an mail enquiring about the delivery and
status of the co ction. e sa[d e-mail was then replied by the
respondent on 6.07.20L8 the most vague manner and with an

Page 5 of 21
 HARERA
MGURUGRAM Com1laint No. 4727 of 2022

apology for th delay and committing of giving delay penalty as

mentioned in agreement.
VIII. Thereafter, als the respondent was not only callous in attitude but
was nowhere ng the clear picture to the complainant. Hence, on
13.10.2018 the complainant's husband wrote an email explaining
therein that th purpose of buying the flat failed as the respondent
failed to fulfil th commitment and sought refund ofhe paid amount.
IX. That vide email dated 1 e complainant again stated that
the constructio work is I tional since two years and again
asked for refu d of the ohey. But the respondent neither
replied nor ad
The complai
writing wha messages to the executives of the respondent to
adhere to the 1 of th uilder buyer agreement. Hence, this
complaint.

C, Relief sought by the

4. The complainant has ught follo
trt
I. Direct the responde ttor
a ll\
amount paid by the complainant
alongwith interest.

D. Reply filed by the pondent

5. The respondent had co tested the complaint on the following grounds:
I. That the name f the respondent i.e., Ansal Phalak Infrastructure
Pvt. Ltd. has be changed to "New Look Builders and Developers
Pvt. Ltd." on 23. 0.2020. The respondent is engaged in the business
of construction d development of real estate projects.

Page 6 ofZl
 HARERA
MGURUGRAM Complaint No. 4127 of 2022

II. It is humbly s bmitted that the complainant has arrayed "Ansal

Phalak Infrastr cture Pvt. Ltd." as the respondent in the present
complaint. H er, the name of "Ansal Phalak Infrastructure Pvt.
Ltd." was cha to "New Look Builders and Developers Pvt. Ltd."
on 23.10.2020, ence, the present complaint is not maintainable for

mis-joinder of parties and same is liable to be dismissed with

exemplary cost pon the complainant the aforesaid reason alone.
III, That complai nt was the said unit vide allotment letter
dated 07.06.20 3 and r Duyer agreement was executed on
22.06.20L3 for basi , o[ Rs.t,ss,oo,ooo7- .

IV. That in terms

respondent
to deliver its p ;ession to the complainant within forty two months
from the dat( of execution of the flat buyer agreement i.e.
22.1,2.2016 or m the date of receiving the approval of the building
plan from the D )artment ofTown and Country Planning, whichever
is later.

That till date th mpl t has paid Rs.L,29,29,466 / - towards the

basic sale pric of the Rs.5,14,104/- towards the external
development , Rs.3,86,918/- towards the preferential
location ch and Rs.92,318/- towards the interest for delayed
payment as per e flat buyer agreement.
VI. It is pertinent mention that the construction of the unit is already
complete and the respondent has applied for the occupancy
certificate of e said unit vide its letter dated 27.09.2022 before
Department of istrict Town Planner, Gurugram. However, till date

PageT of 21
|
ffi HARERA
#- eunuennvr Complaint No. 4727 of 2022

the occupanry rtificate has not been issued. That as on date, the
unit is comple in all aspect and the respondent has already offered
possession to e complainant subject to payment of the due after
adjustment of e delay possession charges in terms of the floor
buyer agreem t. Therefore, in such circumstances where the
construction of e unit is already complete and the consideration
paid by the co plainant in lieu of the floor buyer agreement has
been utilized in constr unit, the direction for refund of
the considerati n paid by e complainant towards the unit would
be against the i erest ofjustice and settled proposition of Iaw.
VII. It is submitted at due to license granted for additional land, the
layout plan of t e housing prorect developed by the respondent was

changed which ed to delay in certain approvals from competent

authorities and onsequently caused delay in the construction of the
said project. It ectfully submitted that many of the
buyers who h e Flats/Villa in the proiecr have
defaulted in y payment and therefore also the
project was dela l.
VIII. It is submitted non-payment of the instalments by the allottee is
a 'force majeu ' circumstance, as stated in Clause 5.2 of the floor
buyer agreeme t. Furthermore, the other reasons for delay in
project are stop age of construction activities in NCR region by the
orders of Court, n-availabirlity of construction material and labour,
demonetisation of currency and change of tax regime,
implementation of GST, implementation of nationwide lockdown to
contain the sp d of 'Covid-19', etc. Moreover, all these situations

Page 8 of21
 HARERA
P-GURUG:IAI/ complaint No. 4127 of 2022

and adverse c s are force majeure circumstances which are

beyond the con he respondent.
IX. Furthermore, i :tinent to state that the said proiect of the
respondent is )ably delayed because of 'force majeure'
situation whi )nd the control of the respondent. Vide clause
5.2 of the flat b 'eement, the complainant has agreed and duly
acknowledged case the development of the said unit is
delaved for an s beyond the control of the company, then no
claim wha uay of any compensation shall Iie against the

respondent.
x. Other than th e r6a3ons, the delay in handing over the
possession o has been caused due to the various reasons
which were nd the control of the respondent. Following
important a are relevant which are submitted for the kind
consideration o eau thority:
I El^^--,/ rlhi+- -^-i^.,-t.,

construction: It is su at the global recession badly hit

the econom nd par the real estate sector. The
constructio roject is ent on the monies received frorn
the bookings e. However, it is submitted that during the
prolonged e ct of the global recession, the number of bookings
made by th prospective purchasers reduced drastically in
comparison the expected bookings anticipated at the time of
launch of the roject. The reduced number of bookings along with
the fact that everal allottees of the project either defaulted in
making pa nt of the instalment or cancelled booking in the

I
PaEe 9 of 27
 HARERA
MGURUGRAM Complaint No. 4127 of 2022

proiect, resul in less cash flow to the respondent. Hence, causing

delay in the co struction work of the project.
ii. The
following vari us problems which are beyond the control the
respondent s ously affected the construction;
a. Lack of ad uate source6 of finance;
b. Shortage of abour;
c. Rising man r costsj
d. Approvals a d proce

XI. In addition to e afores

played major the offer of possession;
a. There was {e of water in the region which
affected th :onstructiol works.
b. There was ;hortage of bricks due to restrictions imposed by
Ministry of nvironmen and Forest on bricks kiln.
c. Unexpected sudden oir of demonetization policy by the
\artt
Central the construction works of the
respondent way for many months. Non-availability
of cash-in-h e availability of labor.
d. Recession i economy a o resulted in availability of labour and
raw materia s becoming scarce.
There was ortage of llabour due to implementation of social
schemes li National Rural Employment Guarantee Act
(NREGAI a d .fawaharlal Nehru Urban Renewal Mission
(JNNURM);

Page 10 of21
ffiHARERA
S-eunLLennH,r Complaint No. 4127 of 2022

Direction the National Green Tribunal & Environmental

authorities stop the construction activities for some time on
regular in als to reduce air pollution in NCR region.

XII. It is pertinent mention here that the construction of the project

was stopped times during the year 2016, 20L7,201.8 and
2019 by the o er of EPCA, HSPCB, NGT and the Hon'ble Supreme
Court of India. lt is most respectfully submitted that due to the
increase in the level of in the NCR region, the Hon'ble
Supreme Court ide its or 14.1"1.2019 passed in the matter

of "MC Mehta Union of r & Others" bearing Writ Petition (cl

No. 13029/19 ete ban on construction and
excavation k across National Capital Region from
04.r1-.20L9, ich was ultimately lifted on L4.02.2020. Ban on
construction ed irreparable damage to the delivery timelines
and the real es te developers' finances as the respondent was not
able to underta :tion work during the aforesaid period
and the same beyon :ontrol of the respondent.
XIII. AII the above
respondent. It
occasions oral communicated to the complainant that if the
respondent is nable to construct the unit, it shall offer another
residential uni of a similar value for which the allottee shall not
raise any obje ons.

6. Copies of all the rel nt documpnts have been filed and placed on the
record. Their authen city is not [n dispute. Hence, the complaint can be

Page 11 ol21
ffiHAR
ffi eunui Cornplaint No. 4127 of 2022

on the basis fthese un and submission made

by the

E. furisd ofthe
7. The thority that it well as subject matter
juri on to ad, icate the mp t for the reasons given
bel
E. I erritorial ction
8. As per notification 1/e d 74.12.2077 issued by
'fown d Country Pl th e sdiction of Real Estate
Regula ry Authority, urugram District for all
purp with the present case, the
project inq ng area of Gurugram
Di torial jurisdiction to
deal the
E. II
9. Section 11(a)(a) of the promoter shall be
respo le to the Section 11(4)(a) is
reprod ash
77

(4) The RU
(a) be responsible functions under
e provisions ol Act or the made thereunder
to the allottees per the to the qssociation of
lottees, as the may be, all the aportment'
or as the case or the common
to the ofa quthoriD), os the
may be;
3 oJ the

PaEe 12 of 2l
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#- eunuennH,r complaint No. 4127 of 2022

344 of the Act ides to ensure complionce of the obligations cast

upon the the alloftees ond the real estate ogents under this
Act ond the rules nd regulations mode thereunder.
10. So, in view of the p isions of the Act quoted above, the authoriry has
complete jurisdiction o decide the complaint regarding non-compliance
of obligations by the romoter leaving aside compensation which is to be
decided by the adiud cating officer if pursued by the complainants at a

later stage.
11. Further, the authority has no hitch in proceeding with the complaint and
l

to grant a relief of refrund ln the pfesenl matter in view of the judgement

passed by the Hon'ble Apex lCourt in Newtech Promoters ond
Developers Private Limited Vs ,')of U,P. and Ors. (Supra) and
lfu/ls Private Limited & other Vs

Ilnion of lndia & others SLP (Civil) No. 73005 of 2020 decided on
12.05,2022wherein it has been laid down as under:
l
"86. From the sclfume of the Act ofwhich a detailed reference has been
made ond taking note of power of oqjudication delineated with the
regulatory authority ond adjudtcating olfrcer, what finally culls out is
that although the Act indicatet the dlstinct expressions like refund',
'interest', 'penaly' ond 'compenffition', o conjoint reoding ofSectrcns 1B
ond 19 cleorly mpnifesB that yhen it comes to refund of the omounL
and interest on the refund omoqn| or directing paymenl of interest for
delayed delivery lf possession, dr penolty ond interest thereon, it is the
regulotory autholi\t which hos tfe powbr to exomine and determine the
ouLcome of o colplainL At the lome time, when it comes to o quesLion
of seeking the relief of adjudging compensation qnd interest thereon
under Sections 12, 14, 1B and 19, the adjudicating ofJicer exclusively has
the power to determine, keeping in view the collective reqding ofSection
71 reod with Sectlon 72 ofthe Act. if the adjudication under Sections 12,
14, 18 ond 19 other thon compensqtion as envisaged, if extended to the
adjuclicating oJficer as proyed that, in our view, may intend to expand
the ambit ond scope of the powers and functions of the adjudicating
offrcer under Secfion 71 and thqt would be agqinst the mandate of the
Act 2016."

Page 13 of 21
ffiHARERA
S-eunuennnt Complaint No. 4127 of 202 2

12. Hence, in view of t e authoritative pronouncement of the Hon'ble

Supreme Court in th cases mentioned above, the authority has the
jurisdiction to entert in a complaint seeking refund of the amount and
interest on the refund mount.
F, Findings on the obie tion raised by the respondent:
F.l Obiection regarding delay in completion of construction of project due to
force majeure.
13. The Hon'ble Delhi Hish Court titled as M/s Halliburton Offshore
Services Inc. V/S anta L bearing no. O.M.P (1) (Comm.)
o.
no. 8alzo2o and LAs 3696.3697 /2020 dated 29.05.2020 has

bserved as under:
obs

69. The pdst non-performance of the Contractor cannot

be condoned due to the COVID-19 lockdown in March
2020 in India. The Contractor was in breoch since
September 1019. Opportunities were given to the
Contractor to cure the same repeotedly. Despite the
same, the Coftractor could not complete the Project. The
outbreak of a pandemic cannot be used os an excuse t'or
non-performance of a contract for which the deodlines
were much bgfore the outbreak itself."
14. n the present case also, the respondent was liable
In to complete the

)nstruction of the project and handover the possession of the said unit by
con

8.09.2019.
18.( It is clairding the benefit of lockdown which came into effect
onn 23.03.2020 whereas the due date of handing over of possession was

tuch
mur prior to the event of outbreak of Covid-19 pandemic. Therefore, the
authority is of the vief that outbfak of a pandemic cannot be used as an
excuse for non-perfo/mance of a contract for which the deadlines were

much before the outfireaL itsef [nd fqr the said reason, rhe said time

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MHARERA
S- eunuenRvr Complaint No. 4127 of 2022

period cannot be luded while calculating the delay in handing over

possession.

G. Findings on the reli fsought by the complainant

G.l Direct the nt to refund the amount paid by the complainant
alongwith inte

15. In the present compl int, the complainant intends to withdraw from the
project and is seeki return of the amount paid by her in respect of
subject unit along wi interest at the prescribed rate as provided under
section 18(1J of the I of the Act is reproduced below for
ready reference.
"Section 78: - n
18(1). tfthe is unable to give possession of
on aportment,
(a) in accordo
case may b
(b) due to
suspension
ony other
he shsll be I on deman to the qllottees, in cose the qllottee
wishes to withcl the ect, without prejudice to any other
remedv availab t received by him in respect of
that apartment, plot, as the case may be, with interest at
such rate qs may be prescribed in this behalf including compensqtion
in the monner as provided under this Act:
Provided that where an all does not intend to withdrqw from the
project, he shall be paid, by the promoter, interest for every month of
deloy, till the halding over of the possession, at such rate as may be
pre scribe d. " @m[ h o si s supp ti ed)

16. Clause 5.1 of the ent provirdes for handing over of possession and
is reproduced below:
" 5.1
Subject to Clause 5.2 infro ond further subject to ctll the buyers of the
Floors in the I Colony making tinely payment, the Company
shall endeavour complete the develofiment oI Residentiql Colony ond
the Floor as far possible wit in 36 rionths with on extcnded period
of (6) six mon from the dhte of execution of this Floor buyer
a

Page l5 of21
ffiHARERA
S- ounuennr,,r Complaint No. 4127 of2022

agreement sub to the receipt ofrequisite building/revised buitding

plans/other app ls & permissions from the concerned authorities,
os well as Force qjeure Condltions qs defined in the agreement ond
subject to fuuil t of the Ttrms qnd Conditions of the Altotment,
Certificate& Ag ent including but not limited to timely payments
by the Buyer(s), in terms heraof. The Company shalt be entitled to
extension of time r completion of construction ol the lJnit equivalent
to the period of caused on account of the reosons stated above.
No claim by of damoges/compensqtion sholl lie against the
Company in ca od deloy in handing over possession of the unit on
occount of the a, However, if the Buyer(s) opts to pqy
in advance of edule, a discount moy be qllowed but the
completion le sholl remdln,inaJfected. The Buyer(S) agrees ond
understands tho the construction will commence onty qfter oll
necessorv o ls are received from the concerned outhorities ond
competent auth ities including but not limited to Environment &
Forest
IEmphasis suppl U

17. At the outset, it is rel ant to comment on the preset possession clause of
the agreement wh the possession has been subjected to all kinds ol
terms and conditio of this agreement and application, and the
complainant not be g in
default under any provisions of these
agreements and co pliance with all provisions, formalities and
documentation as pre ibed by the promoter. The drafting of this clause
and incorporation of ;uch conditions are not only vague and uncertain
but so heavily loaded in favour of the promoter and against the allottee
that even a single fault by the allottee in fulfilling formalities and
d
documentations etc. prescribed by the promoter may make the
possession clause ir elevant fol the purpose of allottee and the
commitment date for handing over possession loses its meaning. The
incorporation of such lause in the buyer's agreement by the promoter is
just to evade the liabi ity towards timely delivery of subject unit and to

Page 16 of 2l v
ffiHARERA
#-eunuennn,l Complaint No. 4127 of 2022

deprive the allottee o his right accruing after delay in possession. This is
just to comment as to ow the builder has misused his dominant position
and drafted such mi ievous clause in the agreement and the allottee is
left with no option but to sign on the dotted lines.
18. Admissibility of r nd along with prescribed rate of interest: The
allottee intends to wi draw from the project and is seeking refund of the
amount paid by her in respect of the subject unit with interest at
prescribed rate as pr nder rule 15 of the rules. Rule 15 has been
ded und
reproduced as under:
R le 15. ratu of ,t-'lProviso to section 72, section
18 qnd sub (7) of section 791
(1) For the 12; section 18; ond sub-
sections (, 'td (7) ol section 19, the ","interest
'interest ot th
the rate
prescribed" ll be the Stote Bank of lndio highest margindl cost
of lending rt +20k.:
Provided t in case the Stote Bank of Indio tnarginql cost of
lending (MCLR) is not in use, it sholl be replaced by such
benchmark nding rotes which the State Bank of lndia moy ftx
from time time for lending to the general public.
19. The Iegislature in its wisdom in the subordinate legislation under the
provision of rule 15 f the rules, has determined the prescribed rate of
interest. The rate interest so determined by the legislature, is
reasonable and if the said rule is followed to award the interest, it will
ensure uniform practi :e in all the cases.
;"*!b:# Y tr# sil
" i-, I \ t", \,,!. I \, r,
20. Consequently, as p Bank or rndia i.e.,
https://sbi.co.in. the arginal cost of lending rate [in short, MCLR] as on
date i.e.,20.03.2024 i 8.85o/o. Accordingly, the prescribed rate of interest

will be marginal cost f lending rate +2% i.e., 10.857o.

21. The definition of te 'interest' a$ defined under section 2(za) of the Act
provides that the ra of interest chargeable from the allottee by the
promoter, in case of efault, shall be equal to the rate of interest which

PaEe 17 ofzl /.-

ffiHARERA
S-euRueRRttl ComDlaint No. 4127 of 2022

the promoter shall b liable to pay the allottee, in case of default. The
relevant section is roduced below:
"(zo) "interest" eans the rotes of interest payqble by the promoter or
the allottee, as th case may be.
Explanation. r the purpose ofthis clause-
(i) -Fl
the rote of terest chargeable from the allottee by the promoter, in
case of defo lC sholl be quol to the rate of interest which the
promoter ll be liable to poy the allottee, in cose ofdefoult;
(ii) the interest ryable by the promoter to the allottee shall be from
the date the romoter received the amount or any port thereof till
the dote amount o|ipart thereof qnd interest thereon is
refunded, an the interesil,byabb by the allottee to the promoter
shall be n the clctte the allottee defaults in payment to the
promoter til the clate it is Daid:"
1
22. 0n consideration of a"."rfi,r l*ilable on record and submissions
"
made by both the
Act, the authority is
the section 11(4)(a) the Act by not handing over possession by the due
date as per the
la ent. By virtue of clause 5.1 of the agreement dated
22.06.20L3, the posl of the subject apartment was to be delivered
within a period of 36
the date of executio
calculated 36 month from date of the agreement dated 22.06,2013.
Accordingly, the du rte of possession comes out to be 22.06.2016, It is
pertinent to mention rr here that even after a passage of more than 7
years [i.e., from the te of BBA till date) neither the construction is
complete nor the offe of possession of the allotted unit has been made to
the allottee by the ondent /promoter. The authority is of the view
that the allottee ca not be expected to wait endlessly for taking
possession of the uni which is allotted to her and for which she has paid

a considerable amou of money towards the sale consideration. It is also

Page 18 of}l y'

ffiHARERA
S-eunuennrr,l Complaint No. 4127 of 2022

to mention that complainant has paid almost B0% of total consideration

till today. Further, tllre authority observes that there is no document
placed on record from which it can be ascertained that whether the
respondent has apfllied for occupation certificate/part occupation
certificate or what is [he status of construction of the project. In view of
the above-mentioned facts, the allottee intends to withdraw from the
project and is well \rithin the right to do the same in view of section
18(1) ofthe Act, 2016
/completion certificate of the project
still not been obtained by the
:q. The authority is of the view that the allottee
o wait endlessly for taking possession of the allotted

unit and for which hd has paid a considerable amount towards the sale
consideration and as {bserved by Hon'ble Supreme Court of India in Ireo
Grace RealtechPvt. ltd, Vs. Abhishek Khanna &Ors., civil appeal no,
5785 of 2019, decided on 17.07.2027:

"..., The occupotipn certificate is not dvailable even as on date, which

clearly amounts lp deliciency of ,service. The ollottees cannot be made to
wait indefinitely for possession pf the opqrtments ollotted to Lhem. nor
con they be bounfi to take the alortments in Phose 1 of the project......."
24. Further, the Hon'ble Supreme Court of lndiain the cases o/ Newtech
Promoters and DevQlopers Private Limited Vs State oI U.P. and Ors.
(supra) reiterated ifi case of M/s Sano Realtors Private Limited &
other Vs Union of lnf,ia & others SLP (Civil) No. 73005 of 2020 decided
on 12.05.2022. observed as under: -
"25. The unqualifted right of the allottee to seek refund rekrred llnder
Section 1B(1)(a) and Section 19(4) of the Act is not dependent on any
contingencies or $tipulations thereof. lt appeors thot the legislature has
consciously provided this right af refund on demand qs an unconditionql

Page 19 of 21
ffiHARERA
#*eunuennnr Complaint No. 4727 of 2022

obsolute right to the ollottee, if the promoter

foils to give possession oI
the oportment,
+lot or building v,)ithin Lhe time stipuloted under LhA
terms of the_og.refment regardless of unt'oreseen events or stay orders of
the Court/Tribu\ol, which is in either way not atLributoble to the
allottee/home br\ter, the promoter is under in obligotion to relund the
amount on demlnd with interest ot the rate prescribed by l'he StoLe
GovernmenL incl4ding compensation in the monner provided under the
A.ct with the prot)iso thot if the ollottee does not wish to withdrow
from
L.he project, he sllott be enLitled
Ior interest for the period of deliy till
handing over poslession ot Lhe rote prescribed.'
25. The promoter is responsible for ail obligations, responsibllities, and
functions under the provisions the Act of 2076, or the rules and
regulations made theieunder ).dllottee as per agreement for sale
under section 11(aJ(a). The p has failed to complete or unable to
give possession of the unit in accordance with the terms of agreement for
sale or duly completed by the date speclfied therein. Accordingly, the
promoter is liable to the allottee, as she wishes to withdraw from the
project, without prejgdice to any other remedy available, to return the
amount received in rJspect of the unit with interest at such rate as may
be prescribed.

26. Accordingly, the non-compliance of the mandate contained in section

11(4)(al read with section 18(1) of the Acr on the part of the respondenr
is established. As suctL the complainant is entitled to refund of the entire
amount paid by them ht the prescribed rate of interest i.e., @ 10.85% p.a.
(the State Bank of India highest marginal cost of Iending rate [MCLR)
applicable as on date +270) as prescribed under rule 15 of the Haryana
Real Estate (Regulation and Developmentl Rules,2017 from the date of
deposit till its realization within the timelines provided in rule 16 of the
Haryana Rules 2017 ibid.
E. Directions ofthe authority

r
Page 20 of 2l
ffiHAR
#- eunr.r plahtNo.4127 of 2022

27. Hence, the authority hereby pas ord and issues the following
directi ns under n 37 of the Act en compliance of obligations
cast u n the pro as per fu ction trusted to the authority
under n 34(f);
promoter i di refund the entire paid-up
unt i.e., Rs. ,39,22,807 / re ved it from the complainant
ng with in at the of 0.8 5 p.a. as prescribed under
e 15 of the ryana ( tion and Development)
es, 20t7 the t till the actual realization
the amount.
ii. A eriod of 90 ent to comply with the
di ons gi ch legal consequences
uld follow.
lll. respo te third party right
the u amount paid by the
plainant. If respect to the subiect
it, the recei shall be first utilized for
ng dues

28. The co aint

29. File be consigned

\-'-
20.03.2024 (Ashok

Haryana Real Estate

Regulatory Authority,
Gurugram

PaEe 21 of 21