7

OOHARYANA REAI ESTATE REGUTATORY AUTHORITYGURUGRAM

ERqr"n T-TtTfl frfrqrro sTfto.q.r, Tgqr-r

New PWD Rest House, civil Lines, Gurugram, Haryana a-qrfree{s Earrryr frf+aa6g Us.lrrq Eftqrun

BEFORE S.C. GOYAL, ADIUDICATING OFFICER,HARYANA REAL ESTATE REGULATORY AUTHORITY

GURUGRAM

Complaint No. z 145/2O18Date of Decision= 27 .OL.ZOZO

1.Smt Pushpa Gupta2. Gaurav GuptaR/o 83, Tagore Park, Model Town,Delhi -110009

vls

M/s VSR Infratech Pw Ltd.R/o Corporate Office Plot No.14, GroundFloor, Institutional Area, Sector-44Gurugrarn-122003

Complainants

Respondent

Argued by:

For Complainants

For Respondent

Mr. Venket Rao, Advocate

Mr Amarieet Kumar, Advocate

This is a.orr,ffi.. section 31 of the Rear

EstatefR.egulation and Development) Act,20!6 (hereinafter referred to Act

of 201.6) read with rule 29 of the Haryana Real Estate(Regulation and

Development) Rules,20L7 (hereinafter referred as the Rules of 2017) filed

by Smt. Pushpa Gupta and Gaurav Gupta seeking refund of Rs. 47,028,70/-

,. deposited with [t "\rpondent for booking of a commercial unit No.G-39 on

Itt( ( i-\ '/)-J J ' l1,a>4

HA,RERAGURUGRAM

2

grouncl floor in Tower-B, 68 Avenue, situated in Sector-68 Gurugram on

account of violation of obligations of the promoter under section.Ll (aJ(aJ ofReal Estate(Regulation and Development) Act, 2076. Before tak:ing up the

case ol'the complainants, the reproduction of the following deterils is must

and which are as under:

Proiect re ated details

I Nam of the project 68 Avenue, Sector 68

II. Loca tion of the project Sector-68, Gurgaon, JHaryana

III Natu re of the project Commercial (construction linkplan)

Unit relaterd details

IV. Unit ,lo. / Plot No. GB-60

V. Tovrre r No. / Block No. Tower B

VI Sizer f the unit [super area) 500 sq. ft (changed to 831.840sq. ft. at the time of SPA)

VII Sizer r f the unit (carpet areaJ -DO-

VIII Ratiio of carpet area and super area -DO-

IX Categ;ory of the unit/ plot Commercial

x Datr: >f booking 23.7L.20 t7 / 1,9 .t2.2A12

XI Datr: rf Allotment 20.06.2012

XII Datr:SBA I

of execution of SBA [copy ofe enclosed as annexure-1)

25.06.2073

XIII Due c1te

of porTxsryn as per SBA 30.06.2018

9r,, .. ;;\ ii,,,-

XIV Delatill d

r in handing over possessionrte

More than two years

XV Pene

resphancsaid

Ity to be paid by therndent in case of delay ofing over possession as per theJBA

As per clause 31 of SpaceBuyer Agreement Annexure- L

Payment details

XVI Tcrt I sale consideration Rs.90,87,852/-

XVIITc,t

conrl amount paid by theplainant till September, 201.4

Rs.47,02,870/-

2. It is

advertisemr

the responr

respondent

paying a sur

Annexure L

allotted uni'

with a grac

i.e.25.06|2(

total sum ol

different d;

between, tl

whereby it

having sup

complainan

handed ove

information

unit, the tot

9qt,

the case of the complainanB that impressed by various

nts in the media as well as brochure and the promises made by

lent, they booked a commercial unit in the pro;ect of the

known as '68 Avenue', situated in Sector-68, Gunugram by

n of Rs. 10,00,000 /- on 23.11.20L1. A Space Buyer ,Agreement

was executed between the parties and the possesrsion of the

was to be handed over to them within a period of 36 months

: period of three months from the date of signing of agreement

13. It is further the case of the complainant that they' deposited

Rs.47,02,870/- with the respondent upto September 2074 on

tes against a total sale consideration of Rs.90,87,852/-. In

.e respondent issued an allotment letter dated 120.06.201,2

:hanged the unit number and size of the allotted uni,t as GB-60

)r area of 831.840 square feet. It is also the case of the

:s that though the possession of the allotted unit was to be

'to them by 24.06.20L6 but in-betweenrthey asked for certain

with regard to total carpet area, covered area of the allottedr-\.

rl sup{r arbq, dimensions as well as the latest stage rcf on going

- .\, J;)) ' lzz

4

constnrction of the tower of the project in which they were allotted the

commercial unit. However, they never received any response. Later-on, vide

letter riaterd 8.4.201,6, the respondent raised a demand on the pretext ofcasting ser:ond slab. But when they visited the site, they did nr:t find any

construction at the spot. Though a number of communications were

exchanged between the parties but despite that the responderrt failed tocomplete the construction at the spot. So, that ultimately led to giving notice

dated t|.5.21016 for cancellation of the allotted unit and refund of the amount

to the tune of Rs. 47,02,870/- besides interest. However, instead of

acknovsled.ging that notice the respondent raised another demand and

which led to issuance of legal notices dated l6.os.zol6, oB.Lo.2016,

18.10.2:01(i respectively. It is also their case that they wrote a letter dated

08.11.2i01(i seeking certain information from the Senior Town Planner,

Gurugram with a direction to the respondent to refund the amount paid.

Thougtr, it was informed by the respondent that it had already applied for

occupationt certificate but due to deficiencies, as pointed out by the Senior

Town F'lanner, the construction of the project ready for occupation could not

be complel-ed. So, the complainants were left with no alternative but to file

a cornplaint seeking refund of the amount deposited besides interest.

3. tlut the case of the respondent as set up in the written reply is that

though initially, the complainants were allotted a commercial unit in Tower-

B on gnound floor having an area of 500 sq. feet but that allotment was

changed since the space was more commercially viable. So, the same led to

execution of a Space Buyer Agreement dated 25.06.201,3 wherein the

booking was made on ground floor Tower N0. GB 16 and having;a tentative

area ol' 8314.840 sq. ft. The complainants continued to make payment

towards that unit and no objection at any point of time was raised. Though

initially,, thre complaifii\made payment towards the allotted unit but

Gu.t(c. \yIq) rlz"z{'}

5

committed default later on. It was denied that the area of the allotted unitwas changed unilaterally. Though there is some delay in construction of the

project but that is due to shortage of labour, non-availability of construction

material, demonetisation and various other factors. More-over, the

respondent has already applied for occupation certificate and the unit of the

complainants is ready for possession. It is denied that the complainants are

entitled to refund of the amount deposited with the respondent.

4. After hearing both the parties and perusing the case file, the learned

Authority vide its order dated 22.Lt.z0LB directed the respondent to pay

interest to the complainants at the prescribed rate of interest i.e. 10.75 o/o per

annum for every month of delay besides sharing the necessary information

not disclosed by it. Feeling aggrieved with the same, the complainants filed

an appeal before the Hon'ble Appellate Tribunal and who vide a common

order in case titled "sameer Mahawar versus MGF Housing Private Limited"

bearing appeal No.6/201B set aside that order and directed this forum to

adjudicate the complaint filed by the complainants in accordance with law

after permitting them to amend the complaint in order to bring it inparameters of form CAo as provided under rule 20 (1) of Haryana Real

Estate (Regulation & Development) Rules, 20L7.

5, In pursuance to those directions, the complainants filed an

amended complaint on 03.08.2019/15.8.2079 by reiterating their pleas

taken earlier before the Authority. The respondent also filed amended reply

reiterating its earlier pleas besides taking a plea with regard to

maintainability of the petition in the present form before this forum. But

vide orders dated 08.0t.2020, it was directed that the complaint liled by the

complainants and received on remand from the Hon'ble Appellate Tribunal

is very much maintainable. So, the plea with regard to maintainability of the

cq^nrplaint filed beforf,Th$ forum after amendment of rules on 12.09.20L9

IttL ( r.\Ja\

L1! l.)a

6

being rlevoid of merit was ordered to be rejected and the same has become

final.

6. I have heard the learned counsel for both the parties and have also

perused ttre case file.

7. \A/hile filing the complaint, the complainants sought rel'und of the

amount derposited with the respondent mainly on the following counts

(i) thr: change of area of their unit from 500 sq. feet to 831.840 sq. feet.

(iii) delay in construction of the tower and

[irii) non-receipt of occupation certificate of the project in wltich their

unit is located.

B. Siome of the admitted facts of the case are that on 23.11..2011, the

complaina.nts made an initial payment of Rs.10,00,000/- as booking amount

of a urrit in the commercial project of respondent known as 68 Avenue

situaterl i:: Sector-68, Gurugram. An application form dated 19.}t.zoLz

was signect by the complainants and which led to provisional allotment ofretail space G-39 in tower-B measuring s00 sq. ft.An allotnrent letter

dated 02.07.201-2 was issued by the respondent subsequently wJrereby the

complainants were allotted unit No.GB-60 having a super area of 831.840

sq. ft. A space Buyer Agreement Annexure r. dated 2s.06.:2013 was

executeld between the parties with regard to allotted unit for a tcrtal sum ofRs.90,{17,8152/-. The construction of the allotted unit as per clause 3i. of

Space f]uyer Agreement was to be completed within 36 monthr; from the

signing of that document or from the start of construction of the said

buildinlg/tower which comes to 24.06.2016. It is also a fact that upto

September2014, the complainants paid a total sum of Rs.47,028,'/0.38 with

being raised by it. It is also a fact that

7

complaiinarlts were allotted the commercial space under the construction

linked payment plan. A dispute arose between the partiers after the

complainants send an e-mail dated 18.09,2015 to the respondenLt asking forfollo',vi rrg i n fo rmatio n : -

i) Total covered area of Shop No. GB-60

ii) Total carpet area of Shop No.GB-60

iii) Total super area charged against shop No.GB-60

iv) Di,mensions of shop No. GB-60, i.e. length & breadth of the shop

vJ Tower-B with photographic proof thereof.

However, r:ro response to that communication was received.

g. [t is the case of the complainanrihat despite sending a number ofreminderrs rlated 13.04.201,6, 30.04.20i0, e.os.z016, g.5.2016, 1 6.5.2016,

8.10.2016, 18.10.2016 and 16.8.201.7, the respondent failed to give

satisfactory reply with regard to points raised by them and whictr ultimately

led to their withdrawal from the project and seeking refund of the amount

depositerd. A reference in this regard has been made to communications

dated 18.0:;.2015, 1.3.04.20L6, 30.04.20t6 and 08.052016 rerspectively.

When the same failed to elicit any positive response from the respondent,

then the cornplainants were left with no alternative but to seek rerfund of the

amount deposited with it. Moreover, it was obligatory for the respondent to

complete the construction within the stipulated period and particularly

when the complainants had been making payment regularly uncler the

construction linked payment plan. Then, the respondent also rnis-led the

complainants in having applied for occupation certificate of tower-B on

28.03.2A18 and the competent authority issuing the same on 0lZ.0B.2OL9.

When there were a number of deficiencies while applying for occupation

certificate, then fh4her such a document can be relied upon to s;how that/)t\(t,. \ '\'iI .>>J,l)_"L,C)

8

the resporrdent was sincere towards its commitment. A reference in this

regard has been made to Annexure-D received on 07.tz.z}l8 which may be

re-procluced for a ready reference as under:-

i) Completion certificate by an Architect has not been submitted

ii) Three sets of as-built drawings signed by owner &

Architect have not been submitted.

iii) Licence No.04 of 20tZ dated 23.01,.201,2 is not valid

i'r) Noc from safety point of view from the competent authority

as submitted is not valid.

v) certificate regarding registration of lifts has not been

submitted.

vi) Approval of chief Electrical Inspector, Haryana showing theelectric installation alongwith SLD[single line Diagrarn) has notbeen submitted.

vii) Proof of drinking water has not been submitted.

viii) Certificate regarding full and final payment of labour cess has

not been submitted.

i>rr) certificate from chartered Accountant that no stamp dutycharges has not been collected has not been submitted.

x) Affidavit regarding l00o/o stand by generators alongwithautomatic switchover are provided for running of lilts has notbeen submitted.

10. So, taking into consideration the contractual obligation of the

respondent not to complete the project within the stipulated period and

giving 'wrong information while applying for occupation certificate, the

complainants are legally entitled for refund of the amount deposited with

the respondent as the same amounts to deficiency in service. Reliance in this

regard has been placed on the ratio of law laid down in cases of Fortune

Infrastructu.re & Anr Vs Trevor D'Lima & Ors.[20].8) 5 SCC,442 arrd pioneer

versus Govindan Ragharran & Ors

9

2019(2J 3(lR(CivillT3B wherein it was held by the Hon'ble Apex court of the

land that ;a person cannot be made to wait indefinitely for pos;session of

allottecl unit and is entitled to seek refund of the amount paid by him

alongwith compensation. Thus, argued the learned counsel for the

complainants that keeping in view the change in the area of allotted unit,

non-suppl)r of requisite information by the promoter and delay in

completiorr of the project, the complainants are entitled for refund of the

amount deposited with the respondent.

17. But on the other hand, it has been argued on behalf ofthe respondent

that though earlier the complainants moved for refund of th.e amount

deposited besides interest but that plea was disallowed by ttre learned

Authority 'yide its order dated 22.L1,.20L8. Though they challenged that

order before the Hon'ble Appellate Tribunal but the same was set aside.

Now, once the project is complete and occupation certificate has been

received on 02.08.2019 vide annexure-D, then no case for refund of the

amount deposited with the respondent is made out. Reliance in this regard

has been prlaced on the ratio of law laid down in case of M/s Supertech

versus Rajni Goyal [2018 SCC Online SC 2114J. Moreover, the Hon'ble

Authority has disallowed refund to the complainants. So, as per thre doctrine

of precr:dent that view has to be followed by this forum. Reliance has been

placed on the ratio of law laid down in cases K. Ajit Babu & Ors versus Union

of Indier and others 1997 (6J. SCC 473. Then, though there was some delay

in completion of the project due to various factors as detailed above but the

same were beyond the control of the respondent and the date of occupation

certificate has to be considered as date of handing over the possession as

held by' the Hon'ble Apex Court of the land in case of M/s Supertech versus

Rajni Goel [supra). Although, the complainants sent a number of e-mails and

r4 even thLreatenea t$\tnaraw from the project but that was not ;possible atl>ut - .', )- L)lil)-.-->'l r

10

that stage when the construction was already at an advanced stage. No

doubt, the construction of the allotted unit was to be completed on or before

25.06.2016 as per Space Buyer Agreement Annexure 1 but that rnras subject

to restrictions as imposed under Clause-3j. of that document. When an

occupation certificate has already been received by the respondent and the

allotted urrit is ready for occupation, then the complainants cannot be

allowecl to wriggle out from the terms and conditions of Space Buyer

Agreernent and seek refund of the amount deposited with the respondent.

L2' Admittedly, the complainants applied for allotment of a commercial

space vide an application dated 23.1t.2072 by depositing a sum of

Rs.l-0,00,000/- in the project of the respondent known as 6B Avenue situated

in Sector-68, Gurugram (Haryana). They were allotted provisionally retail

space GB-r50 in Tower-B having a super area of 500 square feet,

Subsequently, that area was changed to 831.840 sq. ft., renumbered GB-60

vide letter of allotment dated 20.06.20L2. It also led to execution of Space

Buyer Agreement Annexure 1 between the parties on25.06.2013 for a total

sale consideration of Rs.90,87,852/-.lt was also provided under Clause 3L

of that clocument that the allotted unit would be offered to the conrplainants

within a period of 36 months from the date of signing of that dor:ument or

within 36 months from the date of start of construction i.e. upto 2,1.06.2076.

The complainants were allotted the commercial space under the

construction linked payment plan and they have admittedly paid sum of

Rs.47,02,8i'4f - upto September 2014. After that the complainar:Lts started

raising certain concerns about the total commercial area, carpet area, super

area, dimensions and stage of construction of the allotted unit anLd wrote a

number of e-mails dated 18.09.20L5, 13.04.2016 and 30.04.20L(i. But that

ultimately led to making a request by the complainants with the respondent

for cancelliation oftn*t,.d unit vide their notice dated 08.05.2016 and[L ( \ t [ \)

)-; ) r \f-a

11

seeking refund of the amount deposited. So now, the qurestion for

considr:ration arises as to when the parties failed to comply wittr the terms

and conditions of Space Buyer Agreement dated 25.06.201.3, then whether

either rcf them is at liberty to wriggle out from the same. It is a fact that

complaLinants were allotted the commercial space under construction linked

paymernt plan and they deposited various amounts with the respo:ndent upto

September,2014. When it failed to complete the same within the stipulated

period, thern the complainants filed a complaint with the Author:ity seeking

refund of tlhe amount deposited besides interest and other charge,s. But that

plea was rejected by the learned Authority vide orders dated 22.1L.2018.

Though a direction was given for payment of delayed possession charges

of the ;rllotted unit but admittedly that order was set aside in aplteal by the

Hon'ble Appellate Tribunal vide a common order in case titled "sameer

Mahawaf \/ersus MGF Hgusing Private Limited and others" bearing Appeal

No. 06 of 2018 decided on 02.05.2019 and directed this forum bo proceed

further in accordance with law by giving an opportunity to the parties to

amend their pleadings in order to bring the same in parameters of form CAO

as provided in Rule 29 of the Rules ibid. After that both the pilrties filed

amended pleadings reiterating their earlier version. The respondent even

raiseld an issue with regard to maintainability of the complaint and which

was dispos;ed of by this forum vide order dated 08.01,.2020. It is not proved

that the order passed in this regard has been challenged or stayed by the

Appellate'lribunal. So, the same has become final. Secondly, the issue with

regard to refund of the amount deposited with the respondent was dealt

with b,/ the learned Authority and declined the same by observing that in

case ol. projects where substantial construction has taken plar:e and the

project is likely !o be completed by the promoter, the Authority should not

,n allortr refund t\n sudh cases. Though, it is pleaded on beh.alf of the'u\n( . ' c \ '."),2") 1 , \'zaJ'

72

complarinants that when there is delay in completion of the project, the

refund of the deposited amount is the only alternative. A reference in this

regard has also made to the ratio of law in cases of Fo.rtune Infrastructure &

Anr Vs Trervor D'Lima & Qrs and Pionger U.rban Land & I.nfrastmcture Pvt.

Ltd. versus; Golzindan Raghavan & Qrs [supra). There is no dispute about the

ratio ol'lavr laid down in these cases but those cases were dealt r,vith by the

Hon'ble Apex court of the land under the Consumer Protection Act, 1986

and not un.der Real Estate(Regulation and Development) Act, 2016.Then,

it is to be :;een as to what is the objective of the Act of 2076. This Act has

been mader to regulate the development activities in urban areas and not to

shut the same. Moreover, if refund is allowed in cases where the construction

is complete more than 75o/o to B0% or where occupation certificate has

already been received as in the present case, then the project may collapse

and the very purpose of enactment of Act 2076 would be defr:ated. The

schemer of the RERA Act ibid is very different from the scheme of other

legislationr; like Consumer Protection Act, 1986 or the Indian Contract Act.

Under the Consumer Protection Act 1986 or under the Indian Contract Act,

the Court or Forum of appropriate jurisdiction i.e. Civil Court or the

Consumer Grievances Redressal Forum as the case may be are c,alled upon

to adjudic;rte the disputes between the litigating parties only. The Civil

Courts/Consumer Forums do not go beyond the lawful provisions of the

agreement made between the parties. The scheme of the RERA Act on the

other hancl is totally different, The Regulatory Authorities whjile passing

appropriate orders on the complaints received from either of t.he parties,

also have to watch the interest of the real estate project as a wholle. Most of

the time, only small number of allottees of a project approach the authority

by way of complaints. The vast majority of the allottees do not approach the

lr.lar,l"rity 1[or va{tlBrtons including that they wish to continLue to be a

,-r) , \20

13

part of the project to get possession of their apartments. Some allottees for

their own reason may seek refund of the money paid by them to the

promo[ers while rest of the allottees wish to continue in the project and seek

possesision in due course of time along with compensation fcrr delay in

offering possession,

13. It has been observed that majority of real estate pr:ojects are

complelted with delay ranging from a few months to a few years for various

reasons including the reasons of economic slowdown, problenr of sale of

unsold inv'entory due to lack of demand, shortage of fund, ancl the delay

caused by various governmental authorities in granting requisite approvals

etc. The Rrsal Estate RegulatoryAuthority in furtherance of the objectives of

the Act anrd in discharge of duties cast upon it by various provisions of the

Act is rnandated to take a holistic view to ensure that the real estate project

is completred as well as interest of all the allottees as a class is protected.

1.4. So, keeping in view the scheme of the Act, itslr manLdateC and

particu,larly when the construction of the project is almost complete, refund

of the amount deposited by the claimants is not possible. Thougtr, there is a

delay irr completing the project but the complainants can be compensated by

way of interest and not refund. Moreover, it is proved that the parties failed

to comply with their contractual obligations i.e. one not depositing the

amount du.e when the same was to be paid to the promoter and the latter not

adhering to the schedule of construction due to various reasons such as

change of dimensions of the allotted unit, slowdown in the market, various

restnaint orders and short supply of labour as well as construction material.

But tal<ing; a realistic view of the matter and the advanced stage of the

project, the respondent cannot be solely punished for the same. It was

required to complete the project despite various constraints anri the same

7- were nrot jin tndti\trol when the stipulated time for completion of the\=\,.i. t t-\: j

-./' 'L-)l\\"-o)--oJ

t4

project was to come. So, in such a situation, the complainants cannot be

allowed relfund of the amount deposited with the respondent though there

is delay in completing the project by the latter. Hence, in ther facts and

circumstarrces of the case, the following directions are hereby orclered to be

issued:

i) lt is proved that there is delay in completion of the project by

the respondent and it was required to offer possession of the allotted unit

to the complainants by 24.06.2016. But due to change in the super area from

500 sq, ft. to 831.840 sq. ft. and not objected to by the complainants while

executing Space Buyer Agreement Annexure P16n 25.06.201,3 and their

continuing to pay the different amounts upto Slptembe r 2024 r;hows that

they gave their consent to that fact. So, now they cannot raise that issue

when the possession has already been offered. However, the respondent

is directed to pay interest to the complainants at the prescribed rate

w.e.f. 24.A6.20L6 upto the date of offer of possession after receipt of

occupation certificate i.e. O2.OB.2OL9 on the amount deposited by them

with it" rar^^L

ii) The complainants were allotted the commercial^ under a

constrtrcti<ln linked payment plan on 02.07.20L2 andwere requir,efto make

payment regularly to the respondent. Though a dispute arose betrryeen them

with regard to area and dimensions of that unit but it is provecl that upto

September', 201.4, they deposited a total sum of Rs.47,02,870/'- with the

respondent. It is proved that a number of reminders were selnt by the

respondent to the complainants to deposit the remaining amount but that

did not produce the desired results. It was not possible to complete the

project without funds and the same has been completed by the rr:spondent,

and an occupatiofr certificate dated 02.08.2019 annexure-D has alneady been

f r.eceiverd. So, thh comblainants are also liable to pay interest to theIL.( . , .\ J7't )-tll\:-ro

15

respondent at the prescribed rate on delayed payments from the date,

the same became due upto 24.06.2016 i.e. the due date for offeringpossession to them by the respondent.

iii) After adjusting the interest amount accrued therein at the

prescribed rate deposited by the complainants, respondent would raise a

fresh demand of the amount due within a month upon the compla.inants and

who would pay the same within 30 days and failing which legal

consequences would follows.

-15. Thus, in view of my discussion, the complaint filed by the

complainants is ordered to be disposed of with above mentioned directions.

File be consigned to the Registry.

Cxt(L((S.C. GoYal) t-\

Adiudicating Officer, ' >-)Haryana Real Estate Regulatory Authority

Gurugram

27.0L.2020 1^ \-o