BEFORE THE ADJUDICATING OFFICER

THE RAJASTHAN REAL ESTATE REGULATORY

AUTHORITY,

JAIPUR

Complaint No.RAJ-RERA-C-2022-4808

Harsha Chanana Complainant

Versus

Sepset Real Estate Ltd. Respondent

Present

Hon’ble Shri R.S. Kulhari, Adjudicating officer

1. Mr. Parmeet Singh, Advocate present on behalf of the

Complainant.
2. Mr. Jitendra Chaudhary, Advocate present on behalf of the
Respondent.

Date of Order: 03.05.2023

ORDER
The present complaint has been filed under
Section 31 of the Real Estate (Regulation and
Development) Act, 2016 (hereinafter referred as
‘RERA Act’) read with Rule 36 of the RERA Rules,
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 2017 for compensation on account of non delivery of
possession as per terms of agreement.

3. The relevant facts of the matter in brief are, that the

complainant had booked a shop bearing no. FF 64 in
commercial complex of the respondent named as
“Indiabulls Mega Mall” admeasuring 270 sq.ft. for
total sale consideration of Rs. 14,37,750/-. The
agreement for sale was executed on 31.12.2013. As
per terms of the agreement the possession of the
shop was to be delivered within 3 years with a grace
period of 6 months from the date of execution of
agreement. However, the possession was not offered
in time, therefore, the complainant filed a complaint
before the Hon’ble Real Estate Regulatory Authority.
4. The Hon’ble Authority vide order dated 03.06.2022
observed that the possession of the unit was obtained
in the month of February 2021 hence, the issue with
regard to refund and interest thereon was not
required to be adjudicated and only the issue of
compensation remained survive. Therefore, the file
was transmitted to this Forum for adjudication of the
compensation.
5. It was stated in the complaint that the possession
was not given as per promise. The entire deposit was

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 made upto March 2020 but the mall was not made
operational till January 2022. Thus, in the original
complaint the relief qua payment of EMI from March
2020 till the mall was made operational was sought.
However, after reply of the respondent the
complainant had filed rejoinder in which he has
sought an amount of Rs. 72,900/- for delay in
possession for the period from July 2017 to January
2022, on the basis of clause 25 of the agreement for
sale wherein it was stated that in the eventuality of
delay in possession the developer shall pay Rs. 5 per
sq.ft. of super area per month for the period of delay.
6. The respondent has stated in its reply that there was
an arbitration clause in the agreement for sale as
such the complaint is not maintainable. It was
further averred that possession of the subject unit
was offered in February 2020 yet the physical
possession was taken on 26.02.2021 and the
conveyance deed was executed on the same day. The
complainant has submitted an affidavit-cum-
undertaking mentioning that he would not raise
claim of any nature against the respondent. Hence,
he is estopped from raising any claim. It was also
stated that as a gesture of goodwill the respondent
has waived off Rs. 1,76,963/- against the dues of the
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 complainants and the complainant has executed an
undertaking to the effect that she has not claim any
amount from respondent in view of waiver off the
interest.
7. Heard the learned counsels for the parties who have
reiterated the facts of the complaint and reply in their
arguments.
8. At the outset, it would be apt to ponder over the
preliminary objection raised on behalf of the
respondent with regard to arbitration clause. Though
it is true that clause 63 of agreement for sale
provides for appointment of arbitrator in case of
dispute but the arbitration clause in any agreement
does not preclude the jurisdiction of this forum nor it
can be said that the parties have to first invoke the
arbitration clause and then approach before the
Authority or Adjudicating Officer. Further, the RERA
Act has been enacted in addition to and not in
derogation of the prevailing laws. This view is fortified
by the judgment passed by the Hon’ble NCDRC in the
case of Aftab Singh V/s Emaar Mgf Land Ltd. &
another (Case No. 1373 of 2015) decided on
13.07.2017. It is squarely applicable on the facts of
the present matter. Therefore, this complaint is
maintainable before this Forum.
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9. Having heard the learned counsels for the parties on
merit and on perusal of the record it is undisputed
that the shop in question was allotted to the
complainant for which agreement for sale was
executed on 31.12.2013. As per clause 24 of the sale
agreement the possession was to be delivered within
a period of three years with six months grace period
thereon from the date of execution of the agreement.
Clause 25 of the agreement clarifies that the
developer shall have to pay the buyer penalty of Rs. 5
per sq.ft. for the delay in offering the possession. It is
also matter of record that possession letter was
offered on 11.02.2020. Thereafter demanded amount
of Rs. 13,66,685/- was deposited and ultimately the
possession was obtained on 26.02.2021 and the sale
deed was also executed on that day.
10. Thus, it is apparent from the above facts that in
ordinary course the possession was expected to be
delivered in the month of January 2017. Even if a
period of ‘force majeure’ is included yet the
possession was to be offered in the month of July
2017. The respondent has failed to adduce any
evidence on the aspect as to why the project was not
completed in time and whether there were any
compelling reasons for non-completion. Even there is
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 no whisper in this regard in the reply filed by the
respondent. As such there is clear delay in offering
the possession of the unit which is entirely
attributable to the promoter. Nothing has been
produced on record that any demand was raised by
the respondent for deposit of any amount or any
default was committed by the complainant in making
the payment. So no fault can be attributed to the
complainant in this transaction. The terms and
conditions as laid down in the agreement for sale are
sacrosant in nature and both the parties are expected
to abide by them. Hence, the complainant is entitled
to get the compensation for the delayed period in
offering possession.
11. The arguments that the complainant has
undertaken in the possession letter to have no claim
against the developer and also that she submitted an
affidavit with regard to waiver off its rights, are not
tenable. Firstly, such type of undertaking may be
taken by the promoter from allottee as matter of
routine at the time of giving the possession or
executing the sale deed. But these undertakings/
waiver cannot override or supersede the basic terms
and conditions of the agreement. Secondly, in
possession letter it has been stated that the
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 possession letter is subject to the terms and
conditions of the conveyance deed executed and
registered in favour of the complainant. In the
conveyance deed, it has not been mentioned that the
complainant has waived her right of claim nor there
is any mention about the adjustment of so called
waiver of interest component of Rs. 1,76,963/-.
Thirdly, the respondent has not furnished any detail
with regard to the figure of Rs. 1,76,963/- towards
interest that is to say on what basis he has
calculated this interest component on what amount
and for which period. Thus, mere mentioning of any
figure in any affidavit does not serve any purpose nor
such type of undertaking may curtail the legal rights
of the party.
12. Coming to the compensation part, it is evident that
the complainant has not categorically stated that
what actual or specific loss he has suffered due to
delay in the delivery. In original complaint he has
sought relief of EMI from January 2020 which is not
permissible because in the month the February 2020
offer for possession was given to the complainant.
Therefore, she was supposed to deposit the entire
due amount at the time of offering of the possession.
Thus, in absence of such specific claim, the penalty
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 clause as mentioned in the agreement for sale may be
invoked for which the complainant has also
elaborated the details in its rejoinder. Though the
complainant has prayed for compensation from July
2017 till January 2022 when the mall is stated to
have been opened for general public, but in my
opinion she is entitled for the period from July 2017
till January 2020 at the stipulated rate of penalty as
per clause 25 of the agreement and not beyond that
because once the offer for possession was made it
was incumbent upon the complainant either to
obtain the possession or to raise the objection
alongwith reasons for not obtaining the same. No
such objection or correspondence is there on record.
If the mall was not made operational till January
2022 it cannot be said to be the sole responsibility of
the promoter because it depends on the occupants of
the shops to make their shops functional and after
possession it does not remain under sole control of
the promoter.
13. Therefore, the complainant is entitled to Rs. 5 per
sq.ft. for 270 ft. super area per month from July
2017 till January 2020 which comes around Rs.
40,000/-.

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14. Due to delay in possession the complainant has
suffered the mental agony as well as the
inconvenience with regard to filing of the complaint
as also incurred cost of litigation. Thus, she is also
entitled for adequate compensation on these counts.
15. In view of the above, the complaint is allowed in
the following manner:-
(i) The respondent shall pay Rs. 40,000/- as
compensation for delay in delivery from July
2017 till January 2020.
(ii) The respondent shall further pay compensation
of Rs. 10,000/- towards mental agony and Rs.
10,000/- for cost of litigation.
(iii) The compliance of this order shall be made
within 45 days, failing which whole amount due
under this order shall attract interest @ 9% p.a.
from today till the date of payment.

(iv) The order be uploaded on the website of RERA

and also sent to both the parties. File be
consigned to records.

(R.S. Kulhari)
Adjudicating Officer

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