Complaint No.

2051 of 2018

BEFORE THE HARYANA REAL ESTATE

REGULATORY AUTHORITY, GURUGRAM

Complaint no. : 2051 of 2018

First date of hearing : 02.04.2019
Date of decision : 17.05.2019

1.Mr. Dharmender Kumar Phogat

2. Ms. Jyoti
Both R/o. House no. 2126, HUDA Colony,
Sector 4, Gurugram, Haryana. ……Complainants

Versus
BPTP Ltd and Countrywide Promoters Pvt.
Ltd.
Office : M-11, First floor, Middle Circle,
Connaught Circus, New Delhi-110001 ……Respondent

CORAM:
Shri Samir Kumar Member
Shri Subhash Chander Kush Member

APPEARANCE:
Shri Sukhbir Yadav Advocate for the complainants
Shri Shashank Bhushan Advocate for respondent

ORDER

1. A complaint dated 04.12.2018 was filed under section 31

of the Real Estate (Regulation and Development) Act,

2016 read with rule 28 of the Haryana Real Estate

(Regulation and Development) Rules, 2017 by the

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 Complaint No. 2051 of 2018

complainants Mr. Dharmender Kumar Phogat and Ms.

Jyoti against the promoter BPTP Ltd. on account of

violation of clause 3.1 of flat buyer’s agreement executed

on 29.11.2012 in respect of the unit described below for

not handing over possession by the due date which is an

obligation of the promoter under section 11(4)(a) of the

Act ibid.

2. Since the flat buyer’s agreement was executed on

29.11.2012 i.e prior to the commencement of the Real

Estate (Regulation and Development) Act, 2016, so the

penal proceedings cannot be initiated retrospectively.

Therefore, the authority has decided to treat this

complaint as an application for non- compliance of

statutory obligation on the part of the respondent in

terms of the provision of section 34(f) of the Act ibid.

3. The particulars of the complaint are as under: -

• Nature of the project : Group housing complex

• DTCP license no. : 83 of 2008 and 94 of 2011

• RERA Registered/ un registered : Registered

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 Complaint No. 2051 of 2018

1. Name and location of the project “Park Generations”,

Sector 37D,
Gurugram
2. Nature of real estate project Group housing
complex
3. DTCP license no. 83 of 2008
94 of 2011
4. Unit no. T5-103, 1st floor,
tower T5
5. Unit area 1470 sq. ft
6. RERA registration status Registered
7. RERA registration no. 07 of 2018
8. Completion date as per 30.04.2018 (expired)
RERA registration certificate
9. Date of flat buyer’s agreement 29.11.2012
10. Payment Plan Construction linked
payment plan
11. Total consideration amount as Rs. 67,67,104/-
per statement of account dated
16.10.2018 (page 109 of
complaint)
12. Total amount paid by the Rs. 67,53,093/-
complainant as per statement of
account dated 16.10.2018 (page
109 of complaint)
13. Due date of delivery 29.05.2016
(as per clause 3.1 : 36 months +
180 days grace period from the
date of execution of flat buyer’s
agreement)

14. Delay in handing over 2 years 11 months

possession till date 19 days

4. The details provided above have been checked as per record

available in the case file which has been provided by the

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 Complaint No. 2051 of 2018

complainants. Flat buyer’s agreement dated 29.11.2012

is available on record for the aforesaid unit. As per clause

3.1 of the flat buyer’s agreement, the due date of handing

over possession was 29.05.2016. The respondent has not

paid any interest for the period it delayed in handing over

the possession. Therefore the promoter has not fulfilled

its committed liability as on date.

5. Taking cognizance of the complaint, the authority issued

notice to the respondent for filing reply and for

appearance. The reply filed by the respondent has been

perused.

FACTS OF THE COMPLAINT:

6. The complainants submitted that complainants got to

know about BPTP Park Generations project situated at

Sector-37D, Gurugram promoted by reputed BPTP

Limited i.e. the respondents.

7. The complainants submitted that the complainants along

with their family members and real estate agent of

respondent visited the site. The location was excellent

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 Complaint No. 2051 of 2018

and they consulted the local representative of the

developer. The local representative of developer allured

the complainants with attractive brochure and special

characteristics of finishing of flat.

8. The complainants submitted that on 30.08.2011,

complainants namely Mr. Dharmender Kumar Phogat and

Ms. Jyoti booked a 3 BHK flat admeasuring 1470 sq. ft.

bearing flat no. T5-103 in BPTP Park Generations, Sector-

37D, Gurugram and paid Rs. 5,00,000/- as booking

amount along with application form. Flat was purchased

under the construction link payment plan for sale

consideration of Rs. 67,67,104/-.

9. The complainants submitted that on 14.11.2011,

respondent raised a demand of Rs. 5,73,396/- and

complainants paid the said demand on 25.11.2011 vide

cheque no. 082090 drawn in Oriental Bank of commerce.

Respondent issued payment receipt on 25.11.2011.

10. The complainants submitted that a pre-printed flat

buyer’s agreement was executed between complaints and

respondent. As per clause 3 of flat buyer’s agreement,

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 Complaint No. 2051 of 2018

respondent had to give the possession of flat “within a

period of thirty six (36) months from the date of

execution of flat buyer’s agreement, inter alia due date of

possession was 29.11. 2015. An addendum was also

executed between the parties on 29.11.2015.

11. The complainants submitted that on 07.01.2013,

respondent issued an allotment letter in favor of

complainants, by allotting unit no. T5-103, admeasuring

1470 sq. ft.

12. The complainants submitted that on 21.01.2013,

complainants have taken a home loan of Rs. 45,00,000/-

from State Bank of India against the said flat. Respondent

issued permission to mortgage and signed on tripartite

agreement on 22.01.2018. Since 25.01.2018

complainants are paying interest on housing loan.

13. The complainants submitted that on 25.06.2013,

respondent raised a demand of Rs. 8,52,045/- as per

payment plan on stage “on casting of ground floor slab”.

Complainants paid the said demand and respondent

issued payment receipts on 06.07.2013.13.

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 Complaint No. 2051 of 2018

14. The complainants submitted that on 09.02.2015,

respondent raised a demand of Rs. 6,84,902/- as per

payment plan on stage “on completion of top floor slab”.

Complainants paid the said demand and respondent

issued payment receipts on 24.02.2015.

15. The complainants submitted that on 24.07.2015,

respondent sent a statement of account of subject flat,

which shows that till date 24.07.2015, respondent called

Rs. 61,24,698/- i.e. more than 90% of total sale

consideration and same has been paid by complainants.

16. The complainants submitted that on 17.11.2016,

respondent raised a demand of Rs. 43,678/- against VAT

Amnesty Scheme. Complainants paid the said demand

and respondent issued payment receipt.

17. The complainants submitted that on 19.06.2017,

respondent raised a demand of Rs. 6,17,641/- as per

payment plan on stage “on start of cladding”.

Complainants paid the said demand and respondent

issued payment receipts on 01.07.2017.

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 Complaint No. 2051 of 2018

18. The complainants submitted that on 23.06.2017 &

09.07.2017, complainants sent a grievance email to

respondent and highlighted the issue of raising and

collecting wrong demand “on start of cladding”.

Complainants visited on project site on 08.07.2017, and

thereafter complainants send another grievance email

alleging raising wrong demand (without achieving

particular stage of construction). Particular stage of

construction could be achieved only after more than 2

months from date of site visit.

19. The complainants submitted that on 16.10.2018,

respondent sent a statement of account of subject flat,

which shows that till date 16.10.2018, respondent called

Rs. 67,47,506/- i.e. more than 99% of total sale

consideration and complainants had paid Rs. 67,53,093/-

20. The complainants submitted that as per the payment

schedule of the flat buyer’s agreement, allottee has

already paid the more than 99% amount i.e Rs.

67,53,093/- along with car parking and other allied

charges of actual purchase price, but when complainants

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 Complaint No. 2051 of 2018

observed that there is no progress in construction of

subject flat for a long time, they raised their grievance to

respondent. Though complainants was always ready and

willing to pay the remaining installments provided that

there is progress in the construction of flat.

21. The complainants submitted that since December,2015

complainants are regularly visiting to the office of

respondent as well as construction site and making

efforts to get the possession of allotted flats, but all in

vain, in spite of several visits by the complainants.

22. The complainants submitted that the complainants sent

several grievance emails to respondent to know the firm

date of possession of flat and asked for compensation on

account of delay in handing over the possession. On

24.10.2018 & 25.10.2018, complainants sent another

grievance email to respondent and asked for firm date of

possession and quantum of compensation on delay in

possession.

23. The complainants submitted that the main grievance of

the complainants in the present complaint is that in spite

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 Complaint No. 2051 of 2018

of complainants paid more than 99% of the actual

amounts of flats and ready and willing to pay the

remaining amount, the respondent party has failed to

deliver the possession of flat.

24. The complainants submitted that the complainants had

purchased the flat with intention that after purchase, his

family will live in own flat. That it was promised by the

respondent party at the time of receiving payment for the

flat that the possession of fully constructed flat along like

basement and surface parking, landscaped lawns, club/

pool, school, EWS etc. as shown in brochure at the time of

sale, would be handed over to the complainants as soon

as construction work is complete i.e. by September, 2014.

Thereafter respondent assured to complainants that

physical possession flat will be handed over by

November, 2015.

25. The complainants submitted that the work on other

amenities, like external, internal MEP yet not completed.

Now it is more than 8 years from the date of booking and

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 Complaint No. 2051 of 2018

even the constructions of towers are not completed, it

clearly shows the negligence towards the builder.

26. The complainants submitted that the facts and

circumstances as enumerated above would lead to the

only conclusion that there is a deficiency of service on the

part of the respondent and as such they are liable to be

punished and compensate the complainants .

27. The complainants submitted that due to above acts of the

respondents and of the terms and conditions of the

builder buyer agreement, the complainants have been

unnecessarily harassed mentally as well as financially,

therefore the opposite party is liable to compensate the

complainants on account of the aforesaid act of unfair

trade practice. It is pertinent to mention here that

respondent never told the actual reason behind delay in

completion of project and handing over the possession of

flat.

28. The complainants submitted that for the first time cause

of action for the present complaint arose in November,

2012, when the unilateral, arbitrary and one sided terms

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 Complaint No. 2051 of 2018

and conditions were imposed on complainants. Second

time cause of action arose in November, 2015, when the

respondent failed to handover the possession of the flat

as per the buyer agreement. Further the cause of action

arose in December, 2016 when the respondent failed to

handover the possession of flat as per promise. Further

the cause of action again arose on various occasions,

including on: a) February, 2017; b) Jan. 2018; c) June,

2018, and on many time till date, when the protests were

lodged with the respondent about its failure to deliver the

project and the assurances were given by them that the

possession would be delivered by a certain time. The

cause of action is alive and continuing and will continue

to subsist till such time as this Hon’ble Authority restrains

the respondent party by an order of injunction and/or

passes the necessary orders.

29. The complainants submitted that the complainants being

an aggrieved person filing the present complaint under

section 31 with the Authority for violation/contravention

of provisions of this Act.

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 Complaint No. 2051 of 2018

ISSUES RAISED BY THE COMPLAINANTS :

30. The following issues are raised by the complainants :

i. Whether or not the respondents has violated the

terms and conditions of the flat buyer agreement

thereby delaying possession?

ii. Whether the respondent can levy excess GST, VAT?

iii. Whether or not the complainants are entitled to

refund of the amount invested by them?

RELIEF SOUGHT:

31. In view of the above, complainants seeks the following

relief :

(i) Pass an appropriate award directing the respondent to

pay interest at the prescribed rate for every month of

delay from due date of possession till the handing over

the possession on paid amount.

(ii) Respondent party may kindly be directed to complete

and seek necessary governmental clearances

regarding infrastructural and other facilities including

road, water, sewerage, electricity, environmental etc.

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 Complaint No. 2051 of 2018

before handing over the physical possession of the

flats.

RESPONDENT REPLY:

32. The respondent submitted that the respondent had

diligently applied for registration of the project in

question i.e. “Park Generations” located at Sector-37D,

Gurugram before this Hon’ble Authority and accordingly,

registration certificate dated 03.01.2018 was issued by

this Hon’ble Authority wherein the registration for the

said project is valid for a period till 30.11.2018. It is

further submitted that the respondent had already

applied for the extension of the registration on

30.11.2018 before this Hon’ble Authority.

33. The respondent submitted that the complainants

approached the respondent through a broker, namely

“IIFL Realty Ltd” after conducting due diligence of the

relevant real estate geographical market and after

ascertaining the financial viability of the same. It is

further submitted that complainants are investor and has

booked the unit in question to yield gainful returns by

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 Complaint No. 2051 of 2018

selling the same in the open market, however, due to the

ongoing slump in the real estate market, the

complainants has filed the present purported complaint

to wriggle out of the agreement.

34. The respondent submitted that the complainants have also

concealed from this Hon’ble Authority that with the

motive to encourage the complainants to make payment

of the dues within the stipulated time, the respondent

also gave additional incentive in the form of Timely

Payment Discount (TPD) to the complainants and in fact,

till date, the complainants have availed TPD of

Rs.2,04,249.81/-.

35. The respondent submitted that the complainants in the

entire complaint concealed the fact that no updates

regarding the status of the project were provided to him

by the respondent. However, complainant was constantly

provided construction updates by the respondent vide

emails dated 25.10.2017, 11.12.2017, 09.04.2018,

08.05.2018, 15.06.2018, 15.08.2018 and 09.09.2018.

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 Complaint No. 2051 of 2018

36. The respondent submitted that the reliefs sought by the

complainants are unjustified, baseless and beyond the

scope/ambit of the agreement duly executed between the

parties, which forms a basis for the subsisting

relationship between the parties. It is further submitted

that the complainants entered into the said agreement

with the respondent with open eyes and is bound by the

same. It is further submitted that the reliefs sought by the

complainants travel way beyond the four walls of the

agreement duly executed between the parties. It is

further submitted that the complainants while entering

into the agreement has accepted and is bound by each

and every clause of the said agreement, including clause-

6.1 which provides for delayed penalty in case of delay in

delivery of possession of the said floor by the respondent.

37. The respondent submitted that the above submission

implies that while entering into the agreement, the

complainants had the knowledge that there may arise a

situation whereby the possession could not be granted to

the complainants as per the commitment period and in

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 Complaint No. 2051 of 2018

order to protect and/or safeguard the interest of the

complainants, the respondent has provided reasonable

remedy under Clause-3.3, and, the complainant having

accepted to the same in totality, cannot claim anything

beyond what has been reduced to in writing between the

parties.

38. The respondent submitted that the complainants vide flat

buyer’s agreement dated 29.11.2012 duly agreed that

subject to force majeure, the respondent proposes to

hand over possession of the flat to the complainants

within 36 months from the date of the execution of the

flat buyer’s agreement along with a further grace period

of 180 days. The remedy in case of delay in offering

possession of the unit was also agreed to between the

parties as also extension of time for offering possession

of the floors. It is pertinent to point out that the said

understanding had been achieved between the parties at

the stage of entering into the transaction in as much as

similar clauses, being clause no. 18 (proposed timelines

for possession), Clause 19 (Penalty for delay in offering

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 Complaint No. 2051 of 2018

possession), clause 42 (force majeure) had been agreed

upon between the parties under the application for

allotment also.

39. The respondent submitted that possession of the unit in

question has been delayed on account of reasons beyond

the control of the respondent. It is submitted that the

construction was affected on account of the NGT order

prohibiting construction (structural) activity of any kind

in the entire NCR by any person, private or government

authority. It is submitted that vide its order NGT placed

sudden ban on the entry of diesel trucks more than ten

years old and said that no vehicle from outside or within

Delhi will be permitted to transport any construction

material. Since the construction activity was suddenly

stopped, after the lifting of the ban it took some time for

mobilization of the work by various agencies employed

with the respondents.

40. The respondent submitted that it is submitted that

although the plumbing work is partly complete, majority

of fire-fighting work and structure work is complete

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 Complaint No. 2051 of 2018

while finishing work under the civil works is partly

complete, however, the balance work could not be

completed, since, delivery of the materials used in the

said works were abysmally affected on account of Goods

and Service Tax (GST) implications by the Government

authority. It is submitted that the concerned agency,

supplying the said material started the said works only in

November, 2017 and this was on account of non-

availability/ shortage of raw material.

41. The respondent submitted that it is submitted that the

construction of the unit is at full swing and the

construction is nearing completion. It is further

submitted that the construction of tower 1, 2 and 3 has

been completed and the occupancy certificate for the

same has also been received where after, the respondent

has already offered possession to more than 200

customers in the project in question. It is further

submitted that the construction of the balance towers

including the tower where the unit in question is located,

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 Complaint No. 2051 of 2018

is going on at full swing at site and that the respondent

would be offering possession of the unit shortly.

42. The respondent submitted that it is submitted that the

respondent has been regularly updating the

complainants about the status of construction. It is

further submitted that the major construction work of

the unit in question is completed. All the structure, brick

work, plaster work Internal as well as external is

completed and the possession will be handed over

shortly. Thus, the contention raised by the complainants

regarding possession is baseless and misleading. Further,

since the complainants are investor and does not wish to

take possession as the real estate market is down and

there are no sales in secondary market, therefore has

initiated the present frivolous litigation.

DETERMINATION OF ISSUES:

43. After considering the facts submitted by the

complainants and perusal of record on file, the issue wise

findings are as hereunder:

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 Complaint No. 2051 of 2018

44. With respect to first issue raised by the complainants as

per clause 3.1 of the flat buyer’s agreement dated

29.11.2012, the possession of the unit was to be handed

over within 36 months plus grace period of 180 days

from the date of execution of agreement. In the present

case, the flat buyer’s agreement was executed on

29.11.2012. Therefore, the due date of handing over the

possession shall be computed from 29.11.2012. Grace

period of 180 days has been allowed to the respondent

for the delay caused due to exigencies beyond control of

respondent.

Accordingly, the due date of possession was 29.05.2016 and

hence, the period of delay in delivery of possession is

computed as 2 years 11 months 19 days till the date of offer of

possession. The delay compensation payable by the

respondent @ Rs.5/- per sq. ft. per month of super area for any

delay in offering possession of the unit as per clause 3.4 of flat

buyer’s agreement is held to be unjust. The terms of the

agreement have been drafted mischievously by the

respondent and are completely one sided. It has also been

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 Complaint No. 2051 of 2018

observed in para 181 of Neelkamal Realtors Suburban Pvt.

Ltd. Vs. UOI and others. (W.P 2737 of 2017), wherein the

Bombay HC bench held that:

“…Agreements entered into with individual purchasers

were invariably one sided, standard-format
agreements prepared by the builders/developers and
which were overwhelmingly in their favour with
unjust clauses on delayed delivery, time for
conveyance to the society, obligations to obtain
occupation/completion certificate etc. Individual
purchasers had no scope or power to negotiate and
had to accept these one-sided agreements.”
The possession of the apartment was to be delivered by

29.05.2016, the authority is of the view that the promoter

has failed to fulfil his obligation under section 11(4)(a) of

the Real Estate (Regulation and Development) Act, 2016.

As the promoter has failed to fulfil his obligation under

section 11(4)(a), the promoter is liable under section

18(1) proviso to pay interest to the complainants, at the

prescribed rate, for every month of delay till the date of

offer of possession. Therefore, as per section 18(1)

proviso read with rule 15 of the Rules ibid, the

complainants are entitled to prescribed rate of interest

i.e. 10.65% per annum.

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 Complaint No. 2051 of 2018

45. With respect to second issue raised by the complainants,

the authority is of the view that this present issue is not

within the purview of the authority and that the

complainants may approach appropriate authority

regarding the same.

46. With respect to third issue raised by the complainants, the

authority is of the view that no documents have been

produced on record based on which the status of the

project can be ascertained. However it is noted that the

project is registered vide registration no. 07 of 2018

which has expired on 30.04.2018. Whether or not refund

to be given shall be ascertained after proceedings.

FINDINGS OF THE AUTHORITY

47. The preliminary objections raised by the respondent

regarding jurisdiction of the authority stands rejected.

The authority has complete jurisdiction to decide the

complaint in regard to non-compliance of obligations by

the promoter as held in Simmi Sikka V/s M/s EMAAR

MGF Land Ltd. leaving aside compensation which is to be

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decided by the adjudicating officer if pursued by the

complainant at a later stage.

48. As per notification no. 1/92/2017-1TCP dated

14.12.2017 issued by Department of Town and Country

Planning, the jurisdiction of Real Estate Regulatory

Authority, Gurugram shall be entire Gurugram District

for all purpose with offices situated in Gurugram. 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.

49. An amendment to the complaint was filed by the

complainant along with the complaint wherein he has

stated that he is not appearing before the authority for

compensation but for fulfilment of the obligations by the

promoter as per provisions of the said Act and reserves

his right to seek compensation from the promoter for

which he shall make separate application to the

adjudicating officer, if required.

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50. The complainant made a submission before the authority

under section 34 (f) to ensure compliance/obligations

cast upon the promoter. The complainant requested that

necessary directions be issued to the promoter to comply

with the provisions and fulfil obligation under section 37

of the Act.

Arguments Heard:

51. As per clause 3.1 of the flat buyer’s agreement dated

29.11.2012 for unit no. T5-103, 1st floor, tower T5, in

project “Park Generations” Sector-37D, Gurugram,

possession was to be handed over to the complainant

within a period of 36 months from the date of execution

of flat buyer’s agreement + 180 days grace period which

come out to be 29.05.2016.

However, the respondent has not delivered the unit in

time. Complainant has already paid Rs. 67,53,093/- to the

respondent against a total sale consideration of Rs.

67,67,104/-. As such, complainant is entitled for delayed

possession charges at prescribed rate of interest i.e.

10.65% per annum w.e.f 29.05.2016 as per the

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provisions of section 18(1) of the Real Estate (Regulation

and Development) Act, 2016 till offer of possession.

DECISION AND DIRECTIONS OF THE AUTHORITY:

52. After taking into consideration all the material facts as

adduced and produced by both the parties, the authority

exercising powers vested in it under section 37 of the

Real Estate (Regulation And Development) Act, 2016

hereby issues the following directions to the parties in

the interest of justice and fair play:

i. The respondent is directed to pay delay interest at the

prescribed rate of 10.65% per annum on the amount

deposited by the complainants with the promoter from

the due date of possession i.e. 29.05.2016 till offer of

possession.

ii. The complainant is directed to pay outstanding dues, if

any, after adjustment of interest for the delayed period.

iii. The respondent is directed not to charge anything

from the complainant which is not the part of the flat

buyer’s agreement.

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iv. The arrears of interest so accrued @ 10.65% per annum

so far shall be paid to the complainants within 90 days

from the date of this order and thereafter monthly

payment of interest till offer of possession shall be paid

before 10th of subsequent month.

53. The order is pronounced.

54. Case file be consigned to the registry.

(Samir Kumar) (Subhash Chander Kush)

Member Member

Haryana Real Estate Regulatory Authority, Gurugram

Dated:17.05.2019
Judgement uploaded on 29.05.2019

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