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Complaint No. 419 of 2019

BEFO THE HARYANA REAL ESTATE REGULATORY

AUTHORITY, GURUGRAM

Complaint no.: | +S of 2019

First date of hearing:
I OS.OZ.20L9
Date of decision: I OS.OZ .2022

Rattan Ch
R/o H No. Uniworld City, Sector-30, Gurugram- Complainant
1,22001,

Versus

1. M/s BPT Ltd.

Office ress: M-1
Conna t place, N
2. M/s An i Pro
Office
1 10001 Respondents

CORAM:
Dr. K. K. Kh Chairman
Shri Vijay K Member

APPEA E:
Shri. Sukhb Yadav ('AdvocateJ Complainant
Shri. Venka Rao fAdvocate) Respondents
ORDER
1.. The p complaint dated 26.1.L.2079 has been filed by the
complai t/allottee under section 31 of the Real Estate [Regulation
and ment) Act,2076 (in short, the Act) read with rule 28 of the
Harya Real Estate [Regulation and Development) Rules, 20L7 (in
short, Rules) for violation of sebtion 11(4J [a) of the Act wherein ir is
inter prescribed that the promoter shall be responsible for all
obl hS, responsibilities and functions as provided under the

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ffi HARERA
ffi GURUGI?AM Complaint No. 1,9 of 201,9

provision of the Act or the rules and regulations made the under or to
the allottee as per the agreement for sale executed inter se
A. Unit and proiect related details
2. The particulars of unit details, sale consideration, the am unt paid by
the complainant, date of proposed handing over the poss ion, delay
period, if any, have been detailed in the following tabular rm:
Informati
Project name and location "CENTRA ONE", Sector-6 , Gurugram
Project area

Nature of the project Commercial Complex

DTCP license no. and 277 of 2007 dated 17.12 007 valid
validity status up to 1'6,L2=:?Olg
Name of licensee

RERA registration details

Unit no. 014-1,409

[annexure R4, pg. 50 of

Unit measuring 1000 sq. ft.
[annexure R4, pg. 50 of
Revised unit area as per 1.087 sq. ft.
offer of possession
[pS. 93 of complaint]
Date of execution of flat t0.t2.2008
buyer agreement [annexure P7,p,g.47 of mplaintl
tl. Possession clause
Clause 2.7
The possession of the said ises shall be
endeavoured to be deli
Intending Purchaser by 3 st December
2077, however, subject to ause t herein
and strict adherence to terms and
conditions of this 'nt by the
Intending Purchaser. The i tending seller
shall give notice of ion to the
intending purchaser with rd to the
date of handins ctver and in

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Complaint No. 419 of 2019

the event the intending

accept and take the
premises on such date specified in the
notice to the intending purchaser shall be
deemed to be custodian of the said premises
from the date indicated in the notice of
possession and the said premises shall
remain at the risk and cost of the intending
purchaser.
2.2 The intending purchaser shall only be
entitled to the possession of the said
premises after making full payment of the
and other charges due and
Under no circumstances shall the
on of the said premises be given to
intending purchaser unless all the
in full, along with interest due, if
been made by the intending
z intending seller. However,
payment of consideration
?rest by the intending
intending seller fails to
;sion of the said premises
purchaser by 30th June
to clause t herein
the terms and condition

the intending seller sholl be

pay penalty to the intending
@ Rs.15/- per sq. ft. per month
of handing over of said
appropriate notice to the
in this regard. If the
ryplied to DTCP/any
ling seller has applied
compet-ent authority for issuance of
ation and/or completion certificate
occupation
by 30th April 2012 and the delay, if any, in
making offer of possession by 30th June
2012 is attributable to any delay on part of
DTCP/ competent authority, then the
Intending Seller shall notbe required to pay
any penalty under this clause.
(Emphasis supplied)
[annexure P7, pg. 54 of complaint]
date of possession 30.06.20t2
[Note: Grace period included]

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ffiHAR ERA
ffi Carnrl?UGI?AM
@cl
qvi! 6rA \-/U
I r( Complaint No. LL9 of 201,9

13. Basic Sale consideration as

<57,75,000/-
per BBA dated 10.12.2008

[pg.50 of complaint]
14. Total sale consideration as <80,52,952 /-
per statement of account
annexed with offer of
possession dated
[Pg. 93 of complaint]
29.1,1.201.8
15. Amount paid by the < 66,42,t75/-
complainant AS

statement of a
fl;

annexed with offe

possession

[pg.93 ol plaintl
16. Delay in handing over 30 days
possession till the date of
offer of possession plus two
months i.e., 29.07.2019
t7. O ccupation certificate 09.10.2018
18. Offer of possession T9.LL,20LB.''
[Ih respect of unit ro. 015-150{
measufing \OB7 sq. ft, and increasr
in area of unit by 87 sq ftl
[annexure F18, pg. 9'], of :omplaint]
B. acts of
Fa the complaint
3. 'he complainant has pleaded the following facts:
Th

r. That on 26.1,0.2006, complainant booked an rffice space

admeasuring 1000 sq. ft. bearing office no. 014-1 09 in BPTP

Centra One, Sector - 61., Gurugram and paid Rs. 1 ,55,000/- as

booking amount along with a pre-printed applicati n form. The

office was purchased under the time link payment llan for sale
consideration of Rs. 63,76,000/-.

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ffiGUR Complaint No. 419 of 2079

b. That on 02.07.2007, respondent no. 1 raised a demand of

Rs.B, 6,250 /-. The complainant paid the said demand on
02.0 .2007 vide cheque no. 173625 drawn on standard chartered

ban and respondent[sJ issued payment receipt on 02.02.2007.

C. That on 21.L2.2007, respondent no. 2 sent a letter informing that
the mpany was shortly going to allot the office space in
the id project in the early next year to the customer who
mak the payment of 10% of the basic price as agreed as per
ent schedule on Decembe r,2007...", and raised
"ruioofl$dih
,i
the mand of Rs. 5,77,500/- which was paid by complainant on
08.0 .2008 viide cheque no. 697722 drawn on standard chartered
ban It
lt is pertinent to mention here that complainant had already
already
paid 1,0/o of total cost i.e., Rs. 20,21,250
/- by 02.01,.2007 .

d. That on 10.06.2008, respondent no. 2 issued an allotment letter

con rming office no. 01,4-1,409, measuring 1000 sq. ft. in project
Cent One at sector-61-, Gurgaon. Respondent no. 2 called Rs.
B,B9 50 /- against extra charges for EDC & IDC, PLC and car parking
and e complainant tiid,ltne' iia a"*rnd on 23.06.2008 vide
cheq e no. 0!;2264 drawn on HSBC Bank. Respondent no. 2 issued
ent receipt on 25.06.2008.
e. That on 01.09.2008, respondent no. 2 raised a demand of Rs.

4,33 25/- which was paid by complainant on 1,2.09.2008 vide

ch e no. t67B4B drawn on HSBC Bank.
That on L0.L2.2008, a pre-printed office buyer agreement was
execr ted between complaint and respondent no.2.As per clause no.
2.1, ,
f office buyer agreement, respondents have to give the
ion of office space "by 31 Decemb er,201-1-"

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HARERA
GURUGRAM Complaint No. 19 of 201,9

g. That on 15.05.2009, respondent no.2 sends a letter to mplainant

informing 10o/o timely payment discount on called with every
upcoming instalment. Further, one would get an additi nal discount
of L00/o on net inflow of uncalled BSP in case, he deci es to opt for
pre/ upfront payment. To strengthen commitm for timely
delivery of the project, enhancing the compensatio on delayed
delivery by 1.00o/o i.e., Rs. 30 /- per sq. ft. per month m Rs. 15/-
per sq. ft. per month.
h. That on 1,2.05.201,0, no.2raisedad nd of Rs.

4,33,1,25 /- on constru start of raft". Com lainant paid

the said demand on 25.05,2r de cheque no.273 drawn on
HSBC Bank and responden a paym t receipt on
27.05.2010.
i. t of account
of subject office space, which shows that tilt date, pondentIs)
called Rs.65,94,464/- i.e., more than 95o/o of total sale nsideration
and complainant had paid Rs. 65,73,634/-'. r, first-time,
respondent no. 2 showed are interest dues of Rs. 30 /- which

That on 06.12.,2AT6, on demand of respondent no. 2, complainant

paid VAT of Rs. 68,541.1-. That the marin gr ce of the
complainant in the complaint is that in spite of hav g paid more
than 95o/o of the actual amount of office spaces and rea and willing
to pay the remaining amount, the respondent[s asking the
unjustified and unfair and non-agreed amount t deliver the
possession of office space.

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W*GURUG Complaint No.419 of 201,9

C. Relief ;ht by the complainant:

4. The co lainant has sought following reliefs:
a. Di t the respondents to handover the possession of office space to
the llottee immediately, complete in all respects and execute all
req red documents for transferring/conveying the ownership of
the spective office space.
the respondents to pay interest at the prescribed rate for
month of delay from due date of possession till the handing
of the possessior, uT:t_{Stffiunt paid by the complainant.
c. Dir the respondents toir fun the VAT amount of Rs.B6,5 41/-
d. Refr in the respondents from raising the demand of GST.
e. Refr in the ,respondents from raising demand of electrification
char es.
f. Re in the respondents from raising demand of interest amounting
to 20,830/- as the demands have been paid by the complainant
on ti e.

8, Re in the rerspondents from raising demand of firefighting charges

of 85,873 /-.
h . Refi in the respondgnts from raising the demand of cost escalation.
i. Refr in the respondents from giving effect to the unfair clauses

unil terally incorporated in the office space buyer's agreement.

j. Dire t the respondents to complete and seek necessary
gov rnmental clearances regarding infrastructural and other
facil ties including road, water, sewerage, electricity, environmental
etc. efore handing over the physical possession of office space.
5. 0n th date of hearing, the authority explained to the
respon nts/promoters about the contravention as alleged to have

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been committed in relation to section 1,1(4) [a) of the Act t plead guilty
or not to plead guilty.
D. Reply by the respondent
6. The respondents have contested the complaint on t e following
grounds:
a. That the project'Centra One' is a Greenfield project, I ted at Sector
61, Gurgaon. All the customers including the complain nt was well
informed and conscious of the fact that timely paym nt of all the
demands was of essence,to thbC0ntract. Majority of cus mers opted
for construction linked _p;ffig$!, ptrn after clearly u derstanding
that and agreed ,p-n,io tenUef tfre payrnent as per the nstruction
m ilestones. It 15, p,qrtinen$ to:1 grention here'i that, given e choice of
payment plan and terms of the agreemen[, all th customers
including the complainant specifically understood tha a default in
tendering timely payment by significant number o customers,
would delay the construction activity. It is a matter of fa t and record
that the space/unit holders as a group have default in making
timely payments which has caused majr:r set-l to the
development work.
b. That in the 1st year IFY 07) demands amounting to R 0.84 Crores
were raised by', the iespondent in accordance with e payment
plans chosen by customers, and only Rs.15.83 Crores was paid by
them. Over 430/o customers defaulted in making timel payment in
FY 2007, and percentage of defaulting customers sw led to 560/o,

40o/o and 680/o in the FY 09, 10 and 11 respectively.

C. It is submitted that the complainant has approached this hon'ble

authority for redressal of his alleged grievances with u clean hands,

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GURUG Complaint No. 419 of 2079

i.e., not disclosing material facts pertaining to the case at hand

and , by distorting and/or misrepresenting the actual factual
situa n with regard to several aspects. it is further submitted that
the h n'ble apex court in plethora of decisions has laid down strictly,
that party approaching the court for any relief, must come with
clea hands, without concealment and/or misrepresentation of
ma ial facts, as the same amounts to fraud not only against the
ndents but also againpt,the court and in such situation, the
com is liable to be'di$misSbd at the threshold without any
furth adjudication.
d. That e com;rlainant
Lnant has
h concealed and misrepresented from this
hon' le authorify that the complainant on 26.10.2006 approached
the ndents through his broker namely 'Yash Realtors for
ng a commercial space in the project developed by the
r ndents a.t Faridabad, thereby tendered a cheque amounting to
Rs. 1,55,0011/- towards booking amount. The complainant
volu tarily and willingly again approached the respondents and
furth r desired to surrender/cancel the booki made in the project
:he booking

atF idabad. The respondents with an intent to secure booking

righ of the-..co,mplainan! caneelled, thg said booking the
com ainant after conducting due diligence and out of his own
voliti n desired to seek allotment in another project developed by
the pondents at Gurgaon. Thereby, the complainant submitted
fresh application form and thus, already deposited amount was
tran 'erred/adjusted towards new booking/allotment.
e. That :he complainant has concealed from this hon'ble authority that
vide lause 9 of the application form which was further reiterated

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ffiHARERA
W- cllnuGRAM Complaint No. t9 of2079

vide clause 6.3 of the executed SBA, that the complaina t agreed and
accepted to deposit charges towards electrification an sTP [E SrP)
as and when demanded by the respondents. The de nd towards
E_STP was placed upfront and made known to the co plainant on
two occasions, while submitting application and while
executing SBA.
That the complainant has also concealed from this hon le authority
that vide clause B of the,.application form which was further
reiterated vide clause 1,.1, and clause 6.1 of the that the
to deposit cha demanded
towards 'any other statutory demand/charges nifitis

g. That the complainant has concealed from this hon' le authority.

That with the;, motive to' encourage the:r iomplain nt to make
payment of the dues within the stipulaated timb, th
me, the ndents also
gave additional incentive in the form of timely p nt discount
(TPDI to the complainant and in fact, till date, the co plainant has
availed TPD of Rs.Z,06.214.31/-.
h. That the respondents after issuance of OOP lel.ter da 29.1L.2018,
as a goodwill gesture have.granted.a.special credit mounting to
Rs.8,15,250/- towards unit in question
t. Thus, it is further evident that the customers as a grou defaulted in

making timely payments, which obviously had a ripp ing effect on

the development of the project and hence, the poss on timelines
also stood diluted accordingly. Further, in view of e same, the
complainant is not liable to demand any delay pen Ity when he
himself has hugely defaulted in making timely paym It is further

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sub: itted that in case, the complainant wants to withdraw the

boo ng of the unit in question, the same shall be governed by the
duly greed clauses of the agreement executed between both the
parti
j. It is owever pertinent to point out that the construction of the
proj as well as the unit in question is complete. The respondents
have received occupation certificate on 09.10.2018 and in
acco ance with which they, vide letter dated 29.1,1,.2018 have
al y offered possession letter to the complainants thereby
requ ting him to clear ffiC;id$,Istanding dues and complete the
,l

docu entation in order to initiate the process of physical handover

of ession of the unit in question. As a goodwill gesture, the
resp ndents further after issuance of OOP ,letter, has also granted
spec I credit discount amounting to Rs. 8,75,250/- to the
com lainant with regard to the said unit.

7. Copies o all the documents have been filed and placed on record. The
authenti ty is not in diSpute. Hence, the complaint can be decided on the
basis of ' eses undisputed documents.

E. ]urisdict n of th.e authority

B. The aut ority observed that it has territorial as well as subject matter
jurisdic' on to adjudicate the present complaint for the reasons given
below.
Ter itorial iurisdiction
E.I.

9. As per otification no. 1,/92/2017-ITCP dated 1,4.1'2.2017 issued by

Town a d Country Planning Department, the jurisdiction of Real Estate
Regula ry Authority, Gurugram shall be entire Gurugram District for
all pur with offices situated in Gurugram. In the present case, the

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ffiHARERA
ffieunuennrvr Complaint No. 1,9 of 2019

project in question is situated within the planning area f Gurugram

District, therefore this authority has complete territorial j risdiction to
deal with the present complaint.
E.II. Subject matter jurisdiction
10. The authority has complete jurisdiction to decide complaint
regarding non-compliance of obligations by the pro oter as per
provisions of section 11(a)(a) of the Act leaving aside pensation
which is to be decided by the adiudicating officer if pu ued by the
complainants at a later stage.
F. Findings on the objections raised by the respondent
F.l. Objection raised by the respondent regarding fo maieure
conditions.
L1,. The respondents have submitted the following contentio to be taken
into note by the authority for granting grace peric,d on nt of force
majeure:
a. That the complainAnt is the allottee of a shop beari no. 15-1509
in the commercial project of the respondent compan Centra One,
situated in Gurugram, Haryana.,"The complainant in the present
complaint is inter alia seeking interest bn accoun of delay in
handing over po'ssbssion, The project, Centra One, i a business
complex situated in Gurugram's sector 61, ipread ov, r an area of
3.675 acres. The said commercial complex has been eveloped by
M/s Anjali Promoters Pvt. Ltd. in collaboration with /s Saiexpo
Overseas Pvt. Ltd. and M/s Countrywide promot rs Pvt. Ltd
(collectively referred to as'Company'). Subsequently, Department
of Town and Country Planning, Haryana ["DTCP") Las issued a
license bearing no.277 of 2007 to M/s Countrywide p moters Pvt.
Ltd. for developing a commercial complex on the said d.

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GURU Complaint No. 419 of 201.9

b. Tha the timeline for possession as per the space buyers agreement,

was proposed to be by 3L't December, 2011 with a further grace

peri d of 6 months. Thus, possession of the unit in question was
pro sed to be handed over by 3gtt fune, 2012. It is further
sub itted that the said timeline for possession was subject to force
maj ure and timely payment of installments by the complainant.
Tha it is pertinent to point out that both the parties as per the
app ication form duly agreed that the respondent shall not be held
res nsible or liable foffi$y lUre or delay in performing any of
,:';; i't,:. .: r;i ":t;,

its ligations or undertekilfu$Bi $'provided for in the agreement, if

SU perfornnance is prevented, delayed or hindered by delay on
par of or intervention of statutory authorities like DTCP or the
lo authorities or any other cause not within the reasonable
con I of the Respondent. In such cases, the period in question
sha automatically stand extended for the period of disruption
cau by such operation, occurrence or continuation of force
maj ure circ'umstanceIsJ.
d. The possession timelines for the said project
project were subject to force
maj ure circumstances and timely payment of called installments

by e allottees. "Force Majeure", a French term equivalent to "Vis

maj re", in Latin, means "superior force". A force majeure clause
is ned under the Black's Law Dictionary as 'A contractual
pro ision allocating the risk if performance becomes impossible or
im icable, especially as a result of an event or effect that the
pa es could not have anticipated or controlled.

e. Tha delay, if any, in handing over of possession of the units of the

SA project is due to reasons beyond the control of the company.

Page 13 of29
HARTRA
GUt?UGl?AM Complaint No. 19 of 2019

In this regard it is pertinent to point out that on 29 5.2008, the

company applied for grant of approval of building p ns from the
DTCP.

That on 21,.07.2008, in the meeting of the building n approval

committee, the committee members concurred with he report of
Superintending Engineer (HQ), HUDA and STP, Gu Lon who had
reported that the building plans were in order. The id members
also took note of the repor! STP
[E&V)'s obse tion on the
!{,1i!e
building plans. The members siated that the said obse
l ja '
tions were
"minor in nature" and henoe appi
reno0rappfoved the building pl ns subject to
corrections.
o
b' That DTCP vide letter dated 30.07.2008 approved the building
.,. :

plans of the comf any subject to certain rectification o deficiencies.

There were in total 3 deficiencies which were asked be corrected

by the company, namely, NOC from AAI to be submi , covered

nd lastly fire safeSr measures were
area not correCt and ot provided.
h. That in compliance with the directions issued by P vide office
memo no.ZP-345/6351 dated 30.07.2008, the compa submitted
revised building plans on 27.08.2008 vide letter date< 25.08.2008.
It is pertinent to point out that since thr:re we no further
objections conveyed to the company for the ielease o the building
plansit was assumed that the building plans woul be released
automatically. Since no communication was ved by the
company for almost 5 months, the company on its volition
enquired the reasons for delay in release of the buil ing plans by
DTCP. To its astonishment, it came to the compan knowledge
that the same was being withheld by DTCP on accoun of EDC dues.

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W*GUI?UG Complaint No. 419 of 2079

Ho 'ever, no formal communication qua the same was received by

the company. Nonetheless, the company on 15.01.2009 and

1,6, L.2009 requested DTCP to release its building plans while
sub itting an undertaking to clear the EDC dues within a specified

tim period. It is pertinent to point out that there were no

pro isions in the Haryana Development and Regulation of Urban
Act, 1975 or the Haryana Development and Regulation of
Ur n Areas Rules, 1976 or any law prevalent at that time which
per itted DTCP to withhold,ielease of a buildinsgpplan on account
ofd es towards EDC.
i,.i i Jii i, \ ; l

Tha DTCP on 27.02.2009,dftbt a lapie of almost six months from

the ate of submission of the revised building plans, conveyed the
CO any to clear EDC/IDC dues while clearly overlooking the
und rtakings given by the company.
Tha it is stated that the.company, on 03.08.2010 deposited full
E IDC with the department. It is pertinent to mention herein
that in terms of the license granted and the conditional approval of
the uilding plans, the company had started developing the project.
Tha to its surprise, the company received a notice by DTCP dated
19. 3.20L3 4j,recting the,company to deposit composition charges
of Rs.7,37,15,792 /- on accourit of alleged unauthorized
con truction of over an area of 34238.64 sq. mtr. The said demand
was questioned by the company officials in various meetings with
DT P officials. Various representations were made by the company

on 4.09 .20 13, 22.',1.0 .20 1.3, 1.1..1.1..20 13, 02.1.2.20 L3, 1, 4.03.20 1. 4,
15. 4.20 L4, 07 .07 .20 14, L3.L1,.201,4, 09.02.20 1.5, 07 .0 4.2 0 1 5. The

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 HARERA
ffiGUI?UGRAM Complaint No. 1,9 of 2019

company in its representation dated 05.06.2015 poin out all the

illegalities in the demand of composition charges of 7.37 crores.
k. That instead of clarifying the issue, DTCP further iss a demand
letter on 31,.1.2.2015 directing the company to sit Rs. 7.37
crores as composition charges, Rs.54,72,889 as labou cess and Rs.
55,282 on account of administrative chargers. That e company
succumbed to the undue pressure and on 13.01.201,6 eposited Rs.
7.37 crores with DTCP as composition ,charges and further
requested for release of its building plans. The mpany on
13.01.2016 further deposited an amount of Rs;.41-,68,1 L/- towards

the balance labour cess.

That even after clearing:;.the.dues of EDC/IDC an payment of
composition charges, building plan was not rele d by DTCP,

instead, the bompany was asked tol apply-foi sancti of building

plan again as per the new format. The same was dul done by the
company on 16.06.2017. Further, the company, on mpletion of
construction applied for grant of occupation rtificate on
29.07.201,7.Thatthe company
,l
on the very next day i. 25.1,0.2017
,,J,,,-

replied to the DTCP justiffing the concern while s mitting the

building plan..,again for approval. ln the meantime, e company
also paid cornpdsition chatges to the tune:of Rs.43 3,1,27 /- for
regularization of construction of the project.
m. That, finally on 12.01,.2018 the building plan was app ved for the
Centra One, post approval of the same, the company o 21,.05.201,8,
in continuation to its application dated 31,.07.2077, in requested
DTCP for grant of occupation certificate for its proj It is stated
that occupation certificate was duly granted DTCP on

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GURUG Complaint No. 419 of 2079

09.1 .2018. Thus, even after having paid the entire EDC dues in the
yea 20L0 the building plans for the project in question was not
rel .sed by DTCP. It is reiterated that release/approval of building
pla at that point in time was not linked with payment of EDC.
It is pertinent to mention that in 2013 the company received a

SU rise demand of Rs.7.37 crores for composition towards

una thorized construction without considering the fact that
con truction at the project site was carried out by the company on
the is of approval of building plan in the meeting of the building
pl approval committee on 21.07.2008. Even after payment of the
CO osition charges, the bu,ilding plan was not released by DTCP
ins , the company was asked to apply for sanction of building
pla again x5 pet the new format. The same was duly done by the
co ny on,,16i0$.20L7. However, it is,after almost a lapse of 10
yea from the date of first application that the building plan was
fina ly apprroved on 12.01.201,8. Thus, the circumstances as

me tioned hereinabove falls squarely into the definition and

app icability of the concept of 'force majeure'.
o. Tha in addition to the above, the project also got delayed due to a
co plete ban on extraction of ground water for construction by the
Cen I Ground Water Board. On 13.08.2011,, the Central Ground
Wa r Board declared the entire Gurgaon district as'notified area'
whi h in turn led to restriction on abstraction of ground water only
for rinking / domestic use. Hence, the developer/company had to

use only treated water for construction andf or to buy water for
CO truction.

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GURUGRAM Complaint No. L9 of 201,9

p. That the Hon'ble Supreme Court recently in Puri nstructions

Pvt. Ltd. Vs, Dr. Viresh Arora (Civil Appeal No. 307. of 2020) on
3rd September 2020 while allowing the appeal p rred by the
Developer company against an order passed by th Ld. NCDRC

directed the Ld. Commission to decide afresh on the tter in issue

while taking into consideration the force majeure mstances
pleaded by the developer.
q. The Hon'ble Supreme Court conceded with the subm ssions made
by the Developer CompAh$ ttrat though the NCDRC n ted that the
developer pleaded force ffiHjeuie on the ground that
(i) the construction of the flats could not prroceed ue to a stay
granted by the National Green Tribunal on constr on during
the winter months; and i'r
(ii) demonetization affected the real estate. indus
lt
resulting in
delays in completion, thee submission
submission hasr not bee dealt with
r. The second submission which was urged on b,ehalf of e developer

was that in similai other cases, the tICORC has condo ed the delay
of the nature involved in the present case in nding over
possession, having the quantum of delay i lved.
s. Thus, delay, if any, in handing over possession to allo of Centra
One has been due to reasons beyond control ofthe co ny and the
same need to be taken into consideration by RERA in so awarding
delay possession compensation while also giving the company an
extension of 10 years so as to complete the project by 018-19.
72. As far as this issue is concerned the authority the authori has already
settled this issue in complaint bearing no. 1567 of 2079 ti ed as Shruti
Chopra & anr. V/s Anjali Promoters & Developers Pvt. wherein

Page 18 of29
 HARE
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riqfq q{i \,/U
tD
| \ Complaint No. 419 of 201,9

the auth rity is of the considered view that if there is lapse on the part
of com nt authority in granting the required sanctions within
reasona le time and that the respondent was not at fault in fulfilling the

conditio of obtaining required approvals then the respondent should

approac the competent authority for getting this time period i.e.,
31,.1,2.2 1, till 19.LL.201,8 be declared as "zero time period" for
computi delay in completing the project. However, for the time being,
the auth rity is not considering this time period as zero period and the
respond nt is liable for the delay
rlay in handing over possession as per
provisio of the Act.
G. Findi on the relief sought by the complainant
G.I. DPC nd poss;ession.
13. In the p sent complaint, the complainant intends to continue with the
project nd is seeking delayed possession charges interest on the
amount id. Clause 2.1 & 2.2 of the buyer's agreement [in short,
agreem t) provides for handing over of possession and is reproduced
below: -

.L The possession of the said Premises shal/ be endeavored to be

'livered to, the Intending Purchaser by 37st December 2017,
wever, subject,to clause t herein and strict adherence to the terms
conditions of this Agreement by the Intending Purchaser. The
tending s,eller shatl giue nQtice of possession to the intending
rchoser with regard to the date of handing over of possession, and
the event the intending purchaser fails to accept and take the
session of the said premises on such date specified in the notice to
intending purchaser shall be deemed to be custodian of the said
ises from the date indicated in the notice of possession and the
id premises shall remain at the risk and cost of the intending
rchaser.
The intending purchaser shall only be entitled to the possession of
said premises after making full payment of the consideration and
er charges due and payable. Under no circumstances shall the
'on of the said premises be given to the intending purchaser
less all the payments in full, along with interest due, if any, have
made by the intending purchoser to the intending seller.

Page 19 of29
 HARERA
GURUGl?AM Complaint No. 1,9 of 20t9

However, subject to full payment of consideration along with nterest

by the intending purchaser, if the intending seller fails to d ver the
possession of the said premises to the intending purchaser 3qth
June 2072, however, subject to clause t herein antl adheren to the
terms and condition of this agreement by the intending Pu haser,
then the intending seller shall be liable to pay penalty to the i ending
purchaser @ Rs.15/- per sq. ft. per month up till the date of ng
over of said premise by giving appropriate notice to the i, ndrng
purchaser in this regard. If the intending seller has a ed to
DTCP/any other competent authority for issuance of , 'pation
and/or completion certificate by 39* April2012 and the d ,, if ony,

in making offer of possession by 30tn June 2012 is ottributa to any

delay on part of DTCP/ competent authority, then the Intendi Seller
shall not be required to pay a7y p'enalty under this clause."
14. At the outset, it is relevant to #*fi,{ton the preset poss ion clause
of the agreement wherein the$sseSsion has been subjectt to all kinds
of terms and conditionS. of this agreement and applica on, and the
complainant not being in default under any provi ns of this
agreement and rcompliance with all provisi,gns, fo alities and
documentation as prescribed by the promoter. The d ng of this
clause and incorporation of such conditions are not on vague and
uncertain but so heavily loaded in favor of the prorrnoter a against the
allottee that even a single default by the allottee in fulfilli formalities
and documentations etc. as prescribed by the promoter ay make the
possession clause irrelevant for the purpose of all and the
commitment date for handing over ppssegio,n loses its . ning. The
incorporation of such clause=in -the flat buyer agree ent by the
promoter is just to evade the liability towards timely deli of subject

unit and to deprive the allottee of his right accruing a delay in

possession. This is just to comment as to how the builde has misused

his dominant position and drafted such mischievous use the

agreement and the allottee is left with no option but sign on the
dotted lines.

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 HARE
ffiGUI?UG Complaint No. 419 of 20L9

15. Admiss ty of delay possession charges at prescribed rate of

in Proviso to section 1B provides that where an allottee does not
intend withdraw from the project, he shall be paid, by the promoter,
interest r every month of delay, till the handing over of possession, at
such ra as may be prescribed and it has been prescribed under rule 15
of the es. Rule 15 has been reproduced as under:
75. Prescribed rate of interest- [Proviso to section 72,
78 and sub-section (4) and subsection (7) of section 191
For the purpose of p.lg"y.,is,o to section 72; section 78; and sub-
'tions (4) ond (7) of segtion,lgr!4g "interest at the rate prescribed"
ill be the State Bank Af !,1ifi:hlifutt marginal cost of lending rate
To.: $, ,

}i:''l$l,i
'ovided that in case the iffi't n'k of lndia marginal cost oflending
te (MCLR) is not in use,"it shalt be reploced by such benchmark
ding rates which the State Bank of India may fix from time to time
lending to the general public
1,6. The I lature in itS wisdom in the subordinate legislation under the
provisio of rule 15 of the rules, has determined the prescribed rate of
interes The rale of interest so determined by the legislature, is

reasona le and ilt the said rule is followed to award the interest, it will
ensure niform practice in all the cases.
1,7. Conseq ntly, as per website of the State Bank of India i.e.,

ri.co.in. the marginal cost of lending rate [in short, MCLR) as

on date e., 05.07.2022 is 7.500/0. Accordingly, the prescribed rate of
I

interest ill be marginal cost of lending rate +20/o i.e., 9.50%.

18. The defi ition of term 'interest' as defined under section 2(za) of the Act

provide that the rate of interest chargeable from the allottee by the
prom r, in case of default, shall be equal to the rate of interest which
the pro oter shall be liable to pay the allottee, in case of default. The
relevan section is reproduced below:
'zo) "interest" means the rates of interest payable by the promoter
the allottee, as the case may be.
nation. the purpose of this clause-
-For
Page2L of29
ffi HARERA
ffi GURUGRAM Complaint No. t9 of 201,9

O the rate of interest chargeable from the allottee by the

promoter, in case of default, shall be equal to the rate of nterest
which the promoter shall be liable to pay the allottee, in of
default.
(ii) the interest payable by the promoter to the allottee ll be
from the date the promoter received the amount or any pa thereof
till the date the amount or part thereof and interest ls
refunded, and the interest payable by the allottee to the
shall be from the date the allottee defaults in paymen
promoter till the date it is paid;"
19. Therefore, interest on the delay payments from the com ainant shall
be charged at the prescribed rate i.e.,, 9.5 by the
respondent/promoter wh same as is lleing nted to the
complainant in case of de ion charges.
20. On consideration of thedocuments available on record and ubmissions
made regarding contravention
:ravention of provisions of thr:
th Act, th authority is
r.i
satisfied that the responaent i$lintoHtrru.htiod of the on 11[a)[a)
of the Act by not handing over possession by the due da as per the
agreement. By virtue of clause 2.L of the buyer's agreem nt executed
between the parties on 1,0.1.2.2008, the possession the subject
apartment was to be de.liyg5,ed by 31.12.2011. As far as g period is
concerned, the same is illowed being unqualified. The respondents
ossession of
have offered the possession of the subject runit on 29.1,1,.201,8.

Accordingly, it is; the failure of the respondent/prom ter

tha resnonddi to fulfil
obligations and responsibilitie-s as per the agreement to nd over the
possession within the stipulated period.

21,. Section 19(10) of the Act obligates the allottee to take pos ion of the
subject unit within 2 months from the date of receipt occupation
certificate. In the present complaint, the occupation ce ificate was
granted by the competent authority on 09.10.2018. Th respondent
offered the possession of the unit in question to the com lainant only
on 29.LL.201,8. So, it can be said that the complainant me to know

Page22 of29
w
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HARE
{iq{a il{i GUl? Complaint No. 419 of 2019

about t e occupation certificate only upon the date of offer of

posses Therefore, in the interest of naturaljustice, the complainant
should given 2 months' time from the date of offer of possession. This
2 mon of reasonable time is being given to the complainant keeping
in mind t even after intimation of possession, practically one has to
arrange a lot of logistics and requisite documents including but not
limited inspection of the completely finished unit, but this is subject
to that t e unit being handed over at the time of taking possession is in
habitab , condition. It is further clarified that the delay possession
charges hall be payable from the due date of possession i.e., 30.06.201,2
till the expiry of 2 months from the date of offer of possession
(2e.17 18) which comes out to be29.01,.2019.
22. Accordi gly, the non-compliance of the mandate contained in section
11(aJ(a read with proviso to s
r ection 1B(1) of the Act on the part of the

respon nts is establ

tabliqhed. As sUch;,:the allottee shall be paid, by the
ii1' ,iiir *i.
promot rS, interest for ev
lvery month iif,'dp'lay
of from due date of
possess n i.e., 30.06.2012 till the date of offer of the possession of the
unit plu two mornths i.e., till 29.01,.201,9, at prescribed rate i.e., 9.50 o/o

p.a. as provir;o to section 1B(1) of the Act read with rule 15 of the
rules
23. The ndents have already offered the possession of the subject unit
on 29.1 .20L8 after the grant of OC. Therefore, the complainant is

dir to take the possession of the subject unit after clearing the
instalm nts due if, any within 15 days from the date of this order.
G. II. Di the respondents to refund the VAT amount of Rs.B6,54l/-.

24. The of Haryana, Excise and Taxation Department vide

noti tion no. S.O.B9 /H.A.6/2003 /5.60 /2OL4 dated L2.O8.2OL4

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ffiHARERA
#* GURuoRAM Complaint No. 1,9 of 201,9

provided a lump-sum scheme in respect of builders/devel pers which

was further amended vide another notifi tion no.
23 /H.A.6/2OO3 /5.60/201-5 dated 24.09.2015 accordi g to which
the builder/developer can opt for this scheme w.e.f. L.04.2014.
Under the above scheme, a developer had an option to pr lump sum
tax in lieu of tax payable by him under the Act, by way of I mp sum tax
calculated at the compounded rate of 1o/o of entire a te amount
specified in the agreement or value specified for the purp se of stamp
duty, whichever is higher, in respect of the said agreeme

25. The builder/developer optin$ foi this scheme here-in-a shall be

referred to as the'Compositioilr,Developer'. This scheme mained in
force till 30.0 6.20L7: The purpose,of
30.06.4p,filtThe lgihp
r;of the lum
p,ilXppse,rof l16inp sum sc
r rme was tO

mitigate the hardship being caused in determining the liability of

the builders/ developers. Again, most of the builders o /availed the
benefit of the scheme. The list of the builders who opted t e scheme is
also available on the website of Excise and T;axation partment,
Haryana. Thus, the VATliability for developen/build opted for
this scheme for the period 01.04.20L4 to 30.06.20 comes to
l.O5o/o.

26. Further, in case any builder/ developer had: nott opted

op any of the
above two schemes, then the VAT liability comes to app mately 4-5
percent (maximum). It is noteworthy that the amnesty eme was
available up to 31.03.2014. However, the same was silent n the issue
of chargingVAT @ 1.050/o from the buyers/ prospective bu whereas
in the lump-sum/ composition scheme under rule 49[aJ the HVAT
Rules, 2003, it was specifically mentioned that incidence f cost has to
be borne by the promoter/ builder/developer only. Thus, the

Page 24 of29
 HAR
GU Complaint No. 419 of 201,9

builde /developers who opted for the lump-sum scheme, were

not el ble to charge any vAT from the buyers/prospective buyers
during period 0L-04-20L4 to 3 0-06-20 L7 . ln other words, the
develo '/builder has to discharge the vAT liability out of their
own p t.
27. The pro oter is entitled to charge vAT from the allottee for the period
upto3 03.201'4 @ 7.05o/o (one percent VAT + 5 percent surcharge on
VAT) u er the amnesty scherne.i.Thg promoter shall not charge any
VAT m the allottees/prospective buyers during the period
0t.04.2 1.4 to 30.06.2017 since the same was to be borne by the
promo developer only. rne,ielnondent-promoters are directed to
adjust e said ;rmoun! if charged from the allottee with the dues
payable ry the allottee or refund the amount if no dues are payable by
the allot
G.lll. Re :ain the respondents from raising the demand of GST.
28. The aut ority har; decided this issue in the complaint bearing no.4031
of 2079 itled as varun Gupta v/s Emaar MGF Land Ltd. wherein the
authori has held that for the projects where the due date of possession

was pr r to 01.47.201,7 [date of coming into force of GST), rhe

respond nt/promoter,,is not entitled to charg; any amount towards GST
from th complainant/allottee as the liability of that charge had not
become ue up to the due date of possession as per the buyer's
agreeme ts.
29. In the resent complaint, the possession of the subject unit was
requi to be delivered by 30.06.2072 and the incidence of GST came
into ope 'ation thereafter on 01.07.201,7. No doubt as per clause 1.1 of
the bui buyer's agreement, the complainant/allottee has agreed to

Page25 of29
 HARERA
ffiGURUGRAM Complaint No. 19 of20t9

pay all the Government charges, rates, tax or taxes of all an any kind by
whatsoever name called whether levied now or in futu as the case

may be, effective from the date of this agreement. The de in delivery
of possession is the default on the part of the respo t/promoters
and the possession was offered on29.17.2018 by that tim the GST had
become applicable. But it is settled principle of law that a n cannot

take benefit of his own wrong/default. So, the respondent romoters is

not entitled to charge GST fro-mthero.ryplainant/allottee r the liability
of GST had not become duerup to the due date of possess n as per the
agreements.
G.lV. Refrain the respondents from raising demand of ctrification
charges.
30. The authoriry has decided this in the complaint beari no.4037 of
2019 titled as Varun'Gupta .V/s. Emaar MGF Land Ltd. herein it has
,

held that the basie',sale price of,a uril als-o ificlude el fication as

street lighting is an integral part of interrialdevelopment rks and also

includes disposal of sewage and sullage, wate?, fire p on and fire
safety requirements, streetlight, electricity supprly, t formers, etc.
Some of these internal development works ha',,e to be done by the
promoter,
31. In the considered opinion of this authority, if the allo has already
paid these charges, then it would be unjust for him pay further
charges under the head "electrification charges" despite ere being a

condition for payment of these charges in the bu der buyer's

agreement, the allottee should not be made or compelled pay amount

towards electrification charges.

G.V. Refrain the respondents from raising demand of interest
amounting to Rs.20,B3O/- as the demands have paid by the
complainant on time.

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 HAR RA
WC Complaint No. 419 of 20t9

32. The co plainant is directed to pay outstanding dues, if any, after

adju ent of interest for the delayed period. The rate of interest
ch le from the complainant /allottee by the promoters, in case of
default shall be charged at the prescribed rate i.e., 9.s00/o by the
respon ent/promoters which is the same rate of interest which they
shall b liable to pay the allottee, in case of default i.e., the delay
on charges as per sectio n Z(za) of the Act.
G.VI. lrain the respondents, from raising demand of firefighting
rges of Rs.B5,B73/-.
33. In the nstant rrratter, clause 1.1 para 4 of the BBA date d 1,0.1,2.2008
clearly pecifies that the firefighting charges will be part of maintenance
charges and are not included in the consideration of the unit. But it is
evident that after receipt of occupation certificate of the project on
09.10.2 18, the respondents have offered the possession of the allotted
unit to t e compJlainant on 29.1.1.zol}.while offering possession, they
annexe statement of account as annexure "A" wherein demand of

Rs.B5,B 3 /- ontLre pretext of firefighting charges

9O as agreed between the
parties ile executing the buyer's agreement dated 1,O.1.Z.ZOOB was

raised. r, the demand raised in this regard by the respondents are as

per a ment fc,r sale and thus, the respondents are right in charging
aforesai expense.
G.VII. n the respondents from raising the demand of cost
lation.
34. There i neither any clause with respect to cost escalation in the BBA
nor th is any mention in the statement of account annexed with the
offer of possession under this head. Therefore, this relief stands
redunda t.
G.VIII. frain the respondent from giving effect to the unfair clauses
ilaterally incorporated in the office space buyer's agreement.

PageZ7 of29
 HARERA
GURUGl?AM Complaint No. L9 ofZ0\9

35. No such unfair and arbitrary clauses are specifically men oned by the
complainant in its complaint therefore, the authori shall not
deliberate upon this relief specifically.
G.IX. Direct the respondent to complete and s necessary
governmental clearances regarding infrastructu and other
facilities including road, water, sewerage, electricity,
environmental etc. before handing over the physi possession
of office space.
36. The occupation certificate of the project was rece by the
respondents on 09.10.2018, and which led to offer of poss sion of the
allotted unit to the complainants, vide letter dated 29 11.2018. An
occupation certificate of the project is issued only' when t e competent
authority is satisfied that the documents submitted by the ilder of the
project where the allotted units are located is fit for hum n habitation.
So, if the project is lacking any facility after receipt occupation
certificate, then the matter can be taken up with competent
li tii
authority. (iXXrt
t::r :a::
:iii

. r:

H. Directions of the authority

37. Hence,
llurluu, the
Lrru authority
quLrrvr rLJ hereby
rrvr vuJ passes
yqr this order and issue following
directions under section 37 of the Act to ensure c pliance of
obligations casted upon the promoters as per the lflunction entrusted to
the authority under section 3a[fl:
i. The respondent no.2 is directed to pay interest at e prescribed
rate of 9.500/o p.a. for every month of delay from th due date of
possession i.e.,30.06.2072tillthe date of offer of the ession plus

two months i.e., 29.0t.20L9.

ii. The arrears of such interest accrued from 30.06.201.2 29.01,.2019
shall be paid by the promoter to the allottee within period of 90
days from date of this order.

Page28 of29
 HAR RA
complaint No. 419 of 201,9

iii. The complainant is directed to pay outstanding dues, if any, after

adju]stment of interest for the delayed period.
iv. The
[ate of interest chargeable from the allottee by the promoter, in
of default shall be charged at the prescribed rate i.e., 9.soo/o by
t/promoter which is the same rate of interest which
the $romoters shall be liable to pay the allottee, in case of default i.e.,
the {elayed possession charges as per section z(za) of the Act.
v. The respondent shall not ;e anything from the complainant
whi(h is not the part t. However, holding charges
shalf not be charged by at any point of time even after
bein[ part of by Hon'ble supreme court
in ciizil appeal
38. Complaint

39. File be to registry.

v.t
(Viiay Ku
- Goyal)
w
(Dr. K.K.
Chairman
ryana Rreal Estate Regulatory Authority, Gurugram
i
Dated: 05.0V.2022 :t':: ri

Judgement Uploaded on 17.08.2022

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