Complaint No.

2568 of 2018

BEFORE THE HARYANA REAL

ESTATE REGULATORY AUTHORITY, GURUGRAM

Complaint no. : 2568 of 2018

Date of filing complaint: 00.00.0000
First date of hearing : 17.07.2019
Date of decision : 22.10.2021

1. Shri Om Prakash
R/O: - 635, Hewo-2 Sector 56, Gurugram, Complainant
Haryana-122011
Versus
1. M/s SS Group Private Limited
Regd. Office at: - 77, SS House, Sector-44, Respondent
Gurugram, Haryana-122003

CORAM:
Dr. K.K. Khandelwal
Chairman
Shri Samir Kumar Member
Shri Vijay Kumar Goyal Member
APPEARANCE:
Smt. Priyanka Agarwal (Advocate) Complainant
Sh. Dhruv Dutt Sharma (Advocate) Respondent

ORDER

1. The present complaint has been filed by the

complainant/allottee under section 31 of the Real Estate
(Regulation and Development) Act, 2016 (in short, the Act)
read with rule 28 of the Haryana Real Estate (Regulation and

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 Complaint No. 2568 of 2018
Development) Rules, 2017 (in
short, the Rules) for violation of section 11(4)(a) of the Act
wherein it is inter alia prescribed that the promoter shall be
responsible for all obligations, responsibilities and functions
under the provision of the Act or the rules and regulations
made there under or to the allottees as per the agreement for
sale executed inter se.

A. Unit and project related details

2. The particulars of unit details, sale consideration, the amount
paid by the complainant, date of proposed handing over the
possession, delay period, if any, have been detailed in the
following tabular form:

S.no. Heads Information

1. Project name and location “The Leaf”, Sector 85,
Gurugram.
2. Project area 11.09 acres
3. Nature of the project Group Housing Complex
4. a) DTCP license no. 81 of 2011 dated 16.09.2011
b) License valid up to 15.09.2024
c) Name of the licensee M/S Shiva Profins Private
Limited
5. a) RERA registered/not Registered
registered
b) Registration certificate 23 of 2019 dated 01.05.2019
no. valid up to 31.12.2019
c) Extension no. 05 of 2020 dated 20.01.2020
valid up to 31.12.2020
6. Building plan approved 08.08.2013
on
7. Unit no.

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 Complaint No. 2568 of 2018

8. Unit admeasuring
9. Date of execution of the
flat buyer’s agreement
10. Payment Plan
11. Subsequent Allottee
12. Total consideration

13. Total amount paid by the

complainant

14. Possession clause

15. Due date of delivery of
possession
16. Occupation certificate
17. Offer of possession
18. Delay in handing over the
possession till date of this
order i.e. 22.10.2021
19. Grace period utilization Grace period is not allowed
in the present complaint.

B. Facts of the complaint

3. That the respondent M/s S.S Group Pvt. Ltd. is a renowned
developer having a number of housing projects in his name,
one of their residential project (under construction) is at
sector-85, Gurugram and is named as “The Leaf”.
(Hereinafter referred as the said ‘project’) The said project
was started in the year 2012 when the respondent company
through its authorized representatives started collecting
money for the housing project while floating the brochure.
The complainant on 03.07.2012 booked a unit bearing no. 2B

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 Complaint No. 2568 of 2018
(2nd floor), building no. 10
having super area 2280 sq. ft. (Hereinafter referred as the
said ‘unit’) along with reserved parking space for one car by
paying a sum of 10,00,000/- Another few payments of Rs
2,19,887/-, Rs. 12,19,887/-, and Rs.12,27,200/- were made
thereafter on demand form the respondent.
4. That a total of Rs 36,66,794/- was collected by the
respondent when the flat buyer’s agreement (Hereinafter
referred as the ‘FBA’) dated 27.09.2013 was presented to be
signed to the complainant having unilateral clauses written
in it favouring the respondent. At the time of booking it were
the words of the respondent that the possession of the said
unit will be handed over to the buyers within next 36 months
(which the brochure also supports), but by means of the FBA
the period was extended for another 15 months. Fearing that
a huge sum has already been taken by the respondent and
having no other option the complainant signed the
agreement.
5. That from year 2012 till 2018, the respondent has received a
total of Rs.1,06,69,102/- from the complainant but still the
possession of the said unit has not been offered by them. It
was also agreed through the FBA by the respondent that the
said unit will be handed over in 36 months i.e. on or before
28.09.2016 in all respect along with parking for one car but
still the structural construction of the flats\towers is going
on at the site.

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 Complaint No. 2568 of 2018
6. That the FBA has been very
cleverly drafted by the respondent with terms and conditions
which suits them and the terms are not mutually agreed
between the parties. It bears only the arbitrary wishes of the
respondent and is fastened upon the complainant. One of the
clauses in the FBA was also to this effect that in the event of
failure of the flat buyer to sign and return this agreement in
this original form to the developer (respondent) within 30
days, there shall be forfeiture of the money paid by the buyer.
That having no option left with the complainant as he has
already paid Rs. 36,66,974/- by this time, he had to forcibly
sign the FBA after a gap of 15 months from 1 st payment made
by him.
7. That the respondent by means of the FBA again extended the
of completion/ possession of the said unit by saying that
developer (respondent) proposes to hand over the
possession of the flat within a period of 36 months from the
date of signing of this agreement. That at the time of booking
of flat on 03.07.2012 the words of the respondent were that
the building plan/ floor plan are already approved and the
construction will soon be completed and within 3 years the
possession will be handed over to the complainant. This
period has again been extended by the respondent by way of
their allotment letter and the imposed FBA dated 27.09.2013.
It is clearly an unfair practice on the part of respondent.
8. That at the time of applying for the said unit the respondent
represented that the building plan were already approved

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 Complaint No. 2568 of 2018
and the construction was
started. Believing on these representations made by the
respondent, the complainant paid Rs. 10,00,000/- for the
said unit on 03.07.2012. This fact was actually a false
averment made by the respondent and was only to allure the
complainant. After reading of the FBA, it was transpired that
the respondent took approval of the building plan from
District Town and Country Planning Department Haryana on
08.08.2013 vide approval no. 48267. Also, to say here that
before this approval dated 08.08.2013, the respondent has
already collected sum of Rs. 12,27,200/- on 15.07.2013
under the head of ‘Commencement of Construction Work’.
The amount of starting construction was collected in prior to
the approval of the building plan.
9. That it was agreed by the respondent that the possession of
the said unit will be given to the complainant within 36
months and if in case the possession will not be handed over
in time then there shall be compensation for this delay @
Rs.5/- per sq. ft. per month to be paid by the respondent
which also has not been complied by the respondent.
10. That the respondent from June 2012 to December 2018
consistently demanded payments which were paid by the
complainants on time. No reason has ever been
communicated by the respondent for the delay in handing
over the possession of the said unit. The complainant visited
the respondent’s office a number of times with a request to
speedily conclude the work but it was of no avail.

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 Complaint No. 2568 of 2018
11. That the act and conduct of the
respondent has caused lot of physical as well as mental
harassment to the complainant. The complainant also
suffered huge financial loss as hard-earned money is
withheld with the respondent. No possession of the said unit
has been offered to the complainant till date. Hence the
respondent is liable to payback Rs 1,06,69,102/- to the
complainant under section 18 of the Act of 2016 along with
interest @18% per annum. The respondent is also liable to
pay compensation for mental tension as well as physical
harassment as he is guilty of deficiency of service and
commitment.
12. That the status of the said unit as on 09.07.2018 is that in
tower B-10, there are 16 floors in total to be constructed by
the developer and RCC frame structure is complete upto 15th
floor. The brick masonry work is complete up to 13th floor.
The plumbing of the tower is yet to be started. No external
plaster is there and is yet to be started. The other number of
works which are yet to be started are – doors, windows,
electrical wiring, painting – internal & external, kitchen,
floor/wall tiles, POP, RCC water storage tank on terrace, car
parking etc. etc. Besides it, the number of other major work
are the community building, shopping complex, playground,
water supply connection to be taken from HUDA, power
backup genset. It shows that a very limited work has been
done in the last 6 years by the respondent builder who is
enjoying the hard-earned money of the complainant.

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 Complaint No. 2568 of 2018
13. That the cause of action to file
the instant complaint has occurred within the jurisdiction of
this authority as the apartment which is the subject matter of
this complaint is situated in Gurugram.
C. Relief sought by the complainant.
14. The complainant has sought following relief:

(i) Direct the respondent to pay interest at the 18% on

delayed possession since the due date of possession
till the actual date of possession.

D. Reply by the respondent.

15. That the
16. Copies of all the relevant do have been filed and placed on
the record. Their authenticity is not in dispute. Hence, the
complaint can be decided on the basis of these undisputed
documents and submission made by the parties.
E. Jurisdiction of the authority
17. The respondent has raised an objection regarding
jurisdiction of authority to entertain the present complaint.
The authority observes that it has territorial as well as
subject matter jurisdiction to adjudicate the present
complaint for the reasons given below.

E. I Territorial jurisdiction
As per notification no. 1/92/2017-1TCP dated 14.12.2017
issued by Town and Country Planning Department, Haryana
the jurisdiction of Haryana Real Estate Regulatory Authority,
Gurugram shall be entire Gurugram district for all purposes.

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 Complaint No. 2568 of 2018
In the present case, the project
in question is situated within the planning area of Gurugram
district. Therefore, this authority has complete territorial
jurisdiction to deal with the present complaint.
E. II Subject-matter jurisdiction
Section 11(4)(a) of the Act, 2016 provides that the promoter
shall be responsible to the allottees as per agreement for
sale. Section 11(4)(a) is reproduced as hereunder:

Section 11(4)(a)
Be responsible for all obligations, responsibilities and
functions under the provisions of this Act or the rules
and regulations made thereunder or to the allottees
as per the agreement for sale, or to the association of
allottees, as the case may be, till the conveyance of all
the apartments, plots or buildings, as the case may
be, to the allottees, or the common areas to the
association of allottees or the competent authority, as
the case may be;
The provision of assured returns is part of the builder
buyer’s agreement, as per clause 15 of the BBA
dated……... Accordingly, the promoter is responsible
for all obligations/responsibilities and functions
including payment of assured returns as provided in
Builder Buyer’s Agreement.
Section 34-Functions of the Authority:
34(f) of the Act provides to ensure compliance of the
obligations cast upon the promoters, the allottees
and the real estate agents under this Act and the
rules and regulations made thereunder.

So, in view of the provisions of the Act quoted above, the

authority has complete jurisdiction to decide the complaint
regarding non-compliance of obligations by the promoter
leaving aside compensation which is to be decided by the

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 Complaint No. 2568 of 2018
adjudicating officer if pursued
by the complainants at a later stage.
F. Findings on the objections raised by the respondent.
18.

G. Findings on the relief sought by the complainant.

G.I Delay possession charges.

Relief sought by the complainant: Direct the respondent to

pay interest at 18% on delayed possession since the due date
of possession till the actual date of possession.
19. In the present complaint, the complainant intends to
continue with the project and are seeking delay possession
charges as provided under the proviso to section 18(1) of the
Act. Sec. 18(1) proviso reads as under.

“Section 18: - Return of amount and compensation

18(1). If the promoter fails to complete or is unable to
give possession of an apartment, plot, or building, —
………………………
Provided that where an allottee does not intend to
withdraw from the project, he shall be paid, by the
promoter, interest for every month of delay, till the
handing over of the possession, at such rate as may be
prescribed.”

20. Clause 8.1(a) of the flat buyer’s agreement, provides for

handing over possession and the same is reproduced below:

8.1 Time of handling over the Possession

(a) Subject to terms of this clause and subject to
the Flat Buyer(s) having complied with all the terms
and condition of this Agreement and not being in
default under any if the provisions of this Agreement
and complied with all the provisions, formalities,
documentation etc., as prescribed by the Developer,

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 Complaint No. 2568 of 2018
the Developer proposes to
handover the the possession of the Flat within a
period of thirty-six (36) months from the date of
signing of this Agreement. The Flat Buyer(s) agrees
and understands that the Developer shall be entitled
to a grace period of 90 days, after the expiry of thirty-
six (36) months for applying and obtaining the
Occupation Certificate in respect of the group housing
complex.”

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