U.P. Real Estate Regulatory Authority, Regional Office, Gautam Buddha Nagar. Hearing Bench-02, Presence : Shri Balvinder Kumar, Member. Rr ) Complaint Number : 4204928926 Shalini Sharma and Shakuntala Sharma, Resident Flat No. 9 House Number 55 (Near Kuber Building) * Maidan wet, Delhi >> Complainant Versus : M R Proview Realtech wife, Address- C-24 Surya Nagar, Ghaziabad 'Opposite Party Adjudication The present suit has been instituted by the complainant against the opposite party for getting possession of the flat along with interest for the delayed period and for removal of electrification charges. In brief, the statement of the complainant is that the complainant says that [they] had booked Unit-H 406 in the project DELHI-s9 operated by the opposite party, in lieu of which the complainant paid bo 34,32,3:8/ to the opposite party. According to the signed agreement dated February 2042 between the complainant and the opposite party, possession was to be received in February 20:5 4. But till now, possession has not been received by the complainant. In support of the complaint, the complainant has filed receipts of the amount paid to the opposite party and photocopies of photographs of the project. Notice was issued by the Authority to the opposite party and the service of which was duly effected on the opposite party. Written statement was filed by Mead advocate. In the written statement it has been mentioned fe project is ready. CC has been received in November 208.

Both parties were heard and the file was perused. From the above analysis, it is clear that the complainant wants possession of his unit and until his unit is delivered, interest be provided to him on the deposited amount. In this regard, it is noteworthy that :- d) ue Scanned by CamScanner

| Under the Act, obligation of promoter has been provided under Sect 44 (4), which reads as: The promoter shall— (a) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made there under 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. On the other hand, rights and duties of allottee have been clearly provided under the Act. Sub-section 4 of Section 49 Read as under;(4) The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the . terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act or the rules or regulations made there under. Besides, Section 38 (7]270/065 that “If the promoter fails to complete or is unable to gjve possession of an apartment, plot or building, in accordance with

the terms of the agreement for sale or, as the case may be, duly completed by ; the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: 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. If we read these provisions conjointly, the language of these provisions suggest that if the promoter/developer fails to fulfill his obligations to handover the possession as per terms of the agreement, the allottee is entitled to claim refund. However, different Authorities set up under the Real Estate (Regulation & Development) Act,206 across the country are taking a balanced /pragmatic view as far as refund to the allottees of project is concerned when the projects are at a much more advance stage of development. Authorities are considering

the situation of allottees of a real estate project as well as status of the project i.e stage of construction , timelines for completion, tentative possible ‘offer date of possession’ from the developer/promoter, possible consensus of the allotee [ Scanned by CamScanner VA | in acceptance of possession within the possible new ‘offer date of possession’ etc.

Section 32 of the RERA Act deals with functions of the Authority for promotion of Real Estate Sector. This Section reads as: The Authority shall in order to facilitate the growth and promotion of a healthy, transparent, efficient and competitive real estate sector make recommendations to the appropriate Government of the competent authority, as the case may be, on,(a) protection of interest of the allottees, promoter and real estate बकशाह0,.........>० (५०००० ((:] Rn (-) reer U (Q)eevveessinj(A)esseeseeene; (j) any other issue that the Authority may think necessary for the promotion of the real estate sector.” On the other hand, Section 38 of the RERA Act, which deals with powers of the Authority expect the authority/RERA to act on the principle of natural justice. The Section reads as (2) The Authority shall have powers to impose penalty or interest, in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents, under this Act or the rules and the regulations made there under. (2) The Authority shall be guided by the principles of natural justice and, subject to the other provisions of this Act and the rules made there under, the Authority shall have powers to regulate its own procedure” This provision confer power to the Authority to impose penalty or interest, in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents for contravention of any provisions of the Act and Rules made there under and it also provides that the Authority shall be , guided by the principles of natural justice. If we read these provisions together along with the scheme of the Act, the Authority is created not only to protect interest of the allottee of the real estate project but also to protect the interest of promoters in order to promote a healthy growth of the real estate sector Thus, from the provisions referred above and view taken by the different authorities, it is clear that complainant has right to withdraw from the project if promoter failed to deliver the flat/unit within the time specified in the agreement. However, different real estate regulatory Authorities are deciding matters and awarding refund on the basis of fact of each case considering stage of construction of the project and period and reasons of delay in handing over the possession to homebuyers. In the project which are at advance stage of completion i.e 70% -80% complete and /or is about to be offered for possession within this year (up to the end of 2049), the Adjudicating Authorities are allowing interest for delayed possession at prescribed rate of interest from the due date of handing over of the ' da We Scanned by CamScanner

| | 7 : possession as originally agreed (as provided in Agreement to Sale) till actual date of handing over the possession. In any:case, the promoter will be required to pay interest on delayed period till the date of possession. हु In this regard, the observation made by the Hon'ble Supreme Court in Civil Appeal No. 744/20:7 Chitra Sharma etc. Versus Union of India etc. is important :- " 40. The figures........ which have been made available presently, following the opening of the web portal by the amicus curiae, indicate that 8% of the home buyers have sought a refund of their monies while 92% would evidently prefer possession of the homes which they have purchased. We cannot be unmindful of the interests of 92% of the home buyers many of whom would also have obtained loans to secure a home. They would have a legitimate grievance if the corpus of Rs 750 crores (together with accrued interest) is distributed to the home buyers who seek a refund." In light of the above judgment, it is clear that under the provisions of U.P. Ww, interest will be payable for the delayed period in accordance with the agreement entered into between the promoter and buyer, because the said amount was utilized by the promoters. Therefore, providing interest to the complainant for the delayed period up to the date of handing over possession appears justified. Order The opposite party is ordered to obtain [HIT] occupation certificate and provide possession (physical possession) to the complainant by May 2049. Along with this, in accordance with the Builders Buyers Agreement (BBA) signed between the complainant and promoter, with respect to the delayed period, delay period, till date 30.04.206 as per the GS/penalty mentioned in BBA, and from date 04.05.2046 (the date of coming into force of the Real Estate Regulation & Development, Act 20i6), penal interest / penal interest shall be paid by the promoter at the rate of MCLR +0४%. L Scanned by CamScanner

This amount of interest / penalty will be adjusted in the final payable amount at the time of giving possession. The opposite party is also ordered that electricity charge and other charges will be applicable from the date of Wa [obtaining] occupation certificate. If the opposite party fails to give possession to the complainant by May 2000, then the complainant will be free to apply again for Rows wet. Violation of this order will be punishable under Section-63 and other relevant provisions of the U.P. Real Estate (Regulation and Development) Act, 20i6. The order be uploaded on the portal. Date : 43/03/209 . wales (Member) U.P. Real Estate Regulatory Authority Today this judgment was pronounced by us in open court after being signed and dated. Date : 43/03/209 03-2० Kumar) (Member) U.P. Real Estate Regulatory Authority Scanned by CamScanner * * * उ0प्र0 भू-सम्पदा विनियामक प्राधिकरण, क्षेत्रीय कार्यालय, गौतमबुद्धनगर | सुनवाई पीठ-02, उपस्थिति : श्री बलविन्दर कुमार, सदस्य. (रेरा ) शिकायत संख्या : 420:928926 शालिनी शर्मा व शकूंतला शर्मा निवासी फ्लैट न. 9 हाउस नम्बर 55 (निकट कुबेर बिल्डिंग) मैदान गढ़ी, दिल्ली sence वीदी बनाम एम aR wey रियलटेक wife, पता- सी-24 सूर्या नगर, गाजियाबाद ................. 'प्रतिवादी अधि-निर्णय प्रस्तुत वाद वादी द्वारा प्रतिवादी के विरूद्ध फ्लैट का कब्जा मय विलम्बित अवधि पर ब्याज दिलाये जाने व इलैक्ट्रिफिकेशन चार्ज हटाने हेतु संस्थित किया गया है।

संक्षिप्त में वादी का कथन है कि वादी का कहना है कि प्रतिवादी द्वारा संचालित परियोजना DELHi-s9 में यूनिट-एच 406, बुक किया था, जिसके एवज में वादी ने प्रतिवादी को bo 34,32,3:8/ भुगतान किया। वादी व प्रतिवादी के बीच हुये हस्ताक्षरित अनुबंध दिनांक फरवरी 2042 के अनुसार फरवरी 205 4 कब्जा प्राप्त होना था। परन्तु अभी तक वादी को कब्जा प्राप्त नहीं हुआ है। वादी ने वादपत्र के समर्थन में प्रतिवदी को भुगतान की गयी धनराशि की रसीदें व परियोजना की फोटो की छायाप्रति दाखिल किये है। प्राधिकरण की ओर से प्रतिवादी को नोटिस जारी किये गये और जिसकी तामीला प्रतिवादी पर सम्यक रूप से की गयी। ग्रतिगदी अधिवक्ता द्वारा प्रतिवादपत्र दाखिल किया यया। ग्रतिवादपत्र में यह उल्लेख किया यया है fe प्रोजेक्ट तैयार है। सीसी नवम्बर 2008 F प्राप्त हो चुका है। दोनो पक्षों को सुना एवं पत्रावती का अवलोकन किया। उपरोक्त विश्लेषण से स्पष्ट है कि वादी अपनी यूनिट का कब्जा चाहता है और जब तक उसकी यूनिट नही दी जाती है, तब तक उसे जमा धनराशि पर ब्याज दिलाया जाये। इस सम्बंध में उल्लेखनीय है कि :- dA wu Scanned by CamScanner Under the Act, obligation of promoter has been provided under Sect 4 (4), which reads as: The promoter shall— (a) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made there under 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. On the other hand, rights and duties of allottee have been clearly provided under the Act. Sub-section 4 of Section 49 Read as under;(4) The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act or the rules or regulations made there under.

Besides, Section 38 (7]2/0/065 that “If the promoter fails to complete or is unable to gjve possession of an apartment, plot or building, in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: 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.

If we read these provisions conjointly, the language of these provisions suggest that if the promoter/developer fails to fulfill his obligations to handover the possession as per terms of the agreement, the allottee is entitled to claim refund. However, different Authorities set up under the Real Estate (Regulation & Development) Act,206 across the country are taking a balanced /pragmatic view as far as refund to the allottees of project is concerned when the projects are at a much more advance stage of development. Authorities are considering the situation of allottees of a real estate project as well as status of the project i.e stage of construction , timelines for completion, tentative possible ‘offer date of possession’ from the developer/promoter, possible consensus of the allotee ais Scanned by CamScanner in acceptance of possession within the possible new ‘offer date of possession’ etc.

Section 32 of the RERA Act deals with functions of the Authority for promotion of Real Estate Sector. This Section reads as: The Authority shall in order to facilitate the growth and promotion of a healthy, transparent, efficient and competitive real estate sector make recommendations to the appropriate Government of the competent authority, as the case may be, on,(a) protection of interest of the allottees, promoter and real estate agent;(b).......+0 2 (Chesronecencee है! (A) escovsesverj(@) ou HMA) eccssverey ; (j) any other issue that the Authority may think necessary for the promotion of the real estate sector.” On the other hand, Section 38 of the RERA Act, which deals with powers of the Authority expect the authority/RERA to act on the principle of natural justice. The Section reads as (2) The Authority shall have powers to impose penalty or interest, in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents, under this Act or the rules and the regulations made there under. (2) The Authority shall be guided by the principles of natural justice and, subject to the other provisions of this Act and the rules made there under, the Authority shall have powers to regulate its own procedure”

This provision confer power to the Authority to impose penalty or interest, in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents for contravention of any provisions of the Act and Rules made there under and it also provides that the Authority shall be guided by the principles of natural justice. If we read these provisions together along with the scheme of the Act, the Authority is created not only to protect interest of the allottee of the real estate project but also to protect the interest of promoters in order to promote a healthy growth of the real estate sector Thus, from the provisions referred above and view taken by the different authorities, it is clear that complainant has right to withdraw from the project if promoter failed to deliver the flat/unit within the time specified in the agreement. However, different real estate regulatory Authorities are deciding matters and awarding refund on the basis of fact of each case considering stage of construction of the project and period and reasons of delay in handing over the possession to homebuyers. In the project which are at advance stage of completion i.e 70% -80% complete and /or is about to be offered for possession within this year (up to the end of 2049), the Adjudicating Authorities are allowing interest for delayed possession at prescribed rate of interest from the due date of handing over of the १000८ Scanned by CamScanner

=e as originally agreed (as provided in Agreement to Sale) till actual date of handing over the possession. In any case, the promoter will be required to pay interest on delayed period till the date of possession. हु इस सम्बंध में माननीय उच्चतम न्यायालय द्वारा सिविल अपील सं0 744/20:7 चित्रा शर्मा आदि बनाम यूनियन ऑफ इंडिया आदि में किया गया आब्जरवेशन महत्वपूर्ण है :- " 40. The figures........ which have been made available presently, following the opening of the web portal by the amicus curiae, indicate that 8% of the home buyers have sought a refund of their monies while 92% would evidently prefer possession of the homes which they have purchased. We cannot be unmindful of the interests of 92% of the home buyers many of whom would also have obtained loans to secure a home. They would have a legitimate grievance if the corpus of Rs 750 crores (together with accrued interest) is distributed to the home buyers who seek a refund." उपरोक्त निर्णय के आलोक में यह स्पष्ट है कि उ0प्र0 Ww के प्राविधानों के अन्तर्गत प्रमोटर व केता के बीच किये गये अनुबंध के अनुरूप विलम्ब अवधि पर ब्याज देय होगा, क्‍योंकि प्रमोटर्स द्वारा उक्त धनराशि का उपभोग किया गया है। अतः शिकायतकर्ता को विलम्बित अवधि पर कब्जा देने तक की तिथि तक ब्याज दिलाया जाना न्यायोचित प्रतीत होता है। आदेश

प्रतिवादी को आदेशित किया जाता है कि occupation certificate IT करके वादी को मई 2049 तक कब्जा (physical possession) उपलब्ध कराये। साथ ही शिकायतकर्ता व प्रमोटर के बीच हुये हस्ताक्षरित Builders Buyers Agreement (BBA) के अनुसार विलम्बित अवधि, delayed period के सम्बंध में दिनांक 30.04.206 तक BBA में उल्लिखित GIS/penalty के अनुसार तथा दिनांक 04.05.2046 (Real Estate Regulation & Development, Act 20i6 के लागू होने की तिथि) से MCLR +४% की दर से प्रमोटर द्वारा दण्ड ANT / penal interest अदा किया जाएगा। ws Scanned by CamScanner ब्याज /दण्ड की इस धनराशि को कब्जा दिये जाने के समय अंतिम देय धनराशि में समायोजित की जाएगी। प्रतिवादी को यह भी आदेशित किया जाता है कि इलैक्ट्रिकसिटी चार्ज व अन्य चार्ज occupation certificate Wd होने की तिथि से लागू होगा। होगा यदि प्रतिवादी वादी को मई 2049 तक कब्जा देने में असफल रहा तो वादी Ros wet करने के लिए पुनः आवेदन करने के लिए स्वतंत्र होगा। इस आदेश का उल्लघंन उ0प्र0भू-सम्पदा (विनियमन तथा विकास) अधिनियम, 20i6 की धारा-63 तथा अन्य सुसंगत प्राविधानों के अन्तर्गत दंडनीय होगा। आदेश पोर्टल पर अपलोड किया जाये। दिनांक : 43/03/2049 डॉ (सदस्य) उ0प्र0 भू-सम्पदा विनियामक प्राधिकरण आज यह निर्णय हमारे द्वारा खुले न्यायालय में हस्ताक्षरित एवं दिनांकित करके सुनाया गया। 08-2० कुमार) (सदस्य) उ0प्र0 भू-सम्पदा विनियामक प्राधिकरण दिनांक : 3/03/209 Scanned by CamScanner

U.P. Real Estate Regulatory Authority, Regional Office, Gautam Buddha Nagar. Hearing Bench-02, Presence : Shri Balvinder Kumar, Member. Rr ) Complaint Number : 4204928926 Shalini Sharma and Shakuntala Sharma, Resident Flat No. 9 House Number 55 (Near Kuber Building) * Maidan wet, Delhi >> Complainant Versus : M R Proview Realtech wife, Address- C-24 Surya Nagar, Ghaziabad 'Opposite Party Adjudication The present suit has been instituted by the complainant against the opposite party for getting possession of the flat along with interest for the delayed period and for removal of electrification charges. In brief, the statement of the complainant is that the complainant says that [they] had booked Unit-H 406 in the project DELHI-s9 operated by the opposite party, in lieu of which the complainant paid bo 34,32,3:8/ to the opposite party. According to the signed agreement dated February 2042 between the complainant and the opposite party, possession was to be received in February 20:5 4. But till now, possession has not been received by the complainant. In support of the complaint, the complainant has filed receipts of the amount paid to the opposite party and photocopies of photographs of the project. Notice was issued by the Authority to the opposite party and the service of which was duly effected on the opposite party. Written statement was filed by Mead advocate. In the written statement it has been mentioned fe project is ready. CC has been received in November 208.

Both parties were heard and the file was perused. From the above analysis, it is clear that the complainant wants possession of his unit and until his unit is delivered, interest be provided to him on the deposited amount. In this regard, it is noteworthy that :- d) ue Scanned by CamScanner

| Under the Act, obligation of promoter has been provided under Sect 44 (4), which reads as: The promoter shall— (a) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made there under 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. On the other hand, rights and duties of allottee have been clearly provided under the Act. Sub-section 4 of Section 49 Read as under;(4) The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the . terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act or the rules or regulations made there under. Besides, Section 38 (7]270/065 that “If the promoter fails to complete or is unable to gjve possession of an apartment, plot or building, in accordance with

the terms of the agreement for sale or, as the case may be, duly completed by ; the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: 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. If we read these provisions conjointly, the language of these provisions suggest that if the promoter/developer fails to fulfill his obligations to handover the possession as per terms of the agreement, the allottee is entitled to claim refund. However, different Authorities set up under the Real Estate (Regulation & Development) Act,206 across the country are taking a balanced /pragmatic view as far as refund to the allottees of project is concerned when the projects are at a much more advance stage of development. Authorities are considering

the situation of allottees of a real estate project as well as status of the project i.e stage of construction , timelines for completion, tentative possible ‘offer date of possession’ from the developer/promoter, possible consensus of the allotee [ Scanned by CamScanner VA | in acceptance of possession within the possible new ‘offer date of possession’ etc.

Section 32 of the RERA Act deals with functions of the Authority for promotion of Real Estate Sector. This Section reads as: The Authority shall in order to facilitate the growth and promotion of a healthy, transparent, efficient and competitive real estate sector make recommendations to the appropriate Government of the competent authority, as the case may be, on,(a) protection of interest of the allottees, promoter and real estate बकशाह0,.........>० (५०००० ((:] Rn (-) reer U (Q)eevveessinj(A)esseeseeene; (j) any other issue that the Authority may think necessary for the promotion of the real estate sector.” On the other hand, Section 38 of the RERA Act, which deals with powers of the Authority expect the authority/RERA to act on the principle of natural justice. The Section reads as (2) The Authority shall have powers to impose penalty or interest, in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents, under this Act or the rules and the regulations made there under. (2) The Authority shall be guided by the principles of natural justice and, subject to the other provisions of this Act and the rules made there under, the Authority shall have powers to regulate its own procedure” This provision confer power to the Authority to impose penalty or interest, in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents for contravention of any provisions of the Act and Rules made there under and it also provides that the Authority shall be , guided by the principles of natural justice. If we read these provisions together along with the scheme of the Act, the Authority is created not only to protect interest of the allottee of the real estate project but also to protect the interest of promoters in order to promote a healthy growth of the real estate sector Thus, from the provisions referred above and view taken by the different authorities, it is clear that complainant has right to withdraw from the project if promoter failed to deliver the flat/unit within the time specified in the agreement. However, different real estate regulatory Authorities are deciding matters and awarding refund on the basis of fact of each case considering stage of construction of the project and period and reasons of delay in handing over the possession to homebuyers. In the project which are at advance stage of completion i.e 70% -80% complete and /or is about to be offered for possession within this year (up to the end of 2049), the Adjudicating Authorities are allowing interest for delayed possession at prescribed rate of interest from the due date of handing over of the ' da We Scanned by CamScanner

| | 7 : possession as originally agreed (as provided in Agreement to Sale) till actual date of handing over the possession. In any:case, the promoter will be required to pay interest on delayed period till the date of possession. हु In this regard, the observation made by the Hon'ble Supreme Court in Civil Appeal No. 744/20:7 Chitra Sharma etc. Versus Union of India etc. is important :- " 40. The figures........ which have been made available presently, following the opening of the web portal by the amicus curiae, indicate that 8% of the home buyers have sought a refund of their monies while 92% would evidently prefer possession of the homes which they have purchased. We cannot be unmindful of the interests of 92% of the home buyers many of whom would also have obtained loans to secure a home. They would have a legitimate grievance if the corpus of Rs 750 crores (together with accrued interest) is distributed to the home buyers who seek a refund." In light of the above judgment, it is clear that under the provisions of U.P. Ww, interest will be payable for the delayed period in accordance with the agreement entered into between the promoter and buyer, because the said amount was utilized by the promoters. Therefore, providing interest to the complainant for the delayed period up to the date of handing over possession appears justified. Order The opposite party is ordered to obtain [HIT] occupation certificate and provide possession (physical possession) to the complainant by May 2049. Along with this, in accordance with the Builders Buyers Agreement (BBA) signed between the complainant and promoter, with respect to the delayed period, delay period, till date 30.04.206 as per the GS/penalty mentioned in BBA, and from date 04.05.2046 (the date of coming into force of the Real Estate Regulation & Development, Act 20i6), penal interest / penal interest shall be paid by the promoter at the rate of MCLR +0४%. L Scanned by CamScanner

This amount of interest / penalty will be adjusted in the final payable amount at the time of giving possession. The opposite party is also ordered that electricity charge and other charges will be applicable from the date of Wa [obtaining] occupation certificate. If the opposite party fails to give possession to the complainant by May 2000, then the complainant will be free to apply again for Rows wet. Violation of this order will be punishable under Section-63 and other relevant provisions of the U.P. Real Estate (Regulation and Development) Act, 20i6. The order be uploaded on the portal. Date : 43/03/209 . wales (Member) U.P. Real Estate Regulatory Authority Today this judgment was pronounced by us in open court after being signed and dated. Date : 43/03/209 03-2० Kumar) (Member) U.P. Real Estate Regulatory Authority Scanned by CamScanner * * * उ0प्र0 भू-सम्पदा विनियामक प्राधिकरण, क्षेत्रीय कार्यालय, गौतमबुद्धनगर | सुनवाई पीठ-02, उपस्थिति : श्री बलविन्दर कुमार, सदस्य. (रेरा ) शिकायत संख्या : 420:928926 शालिनी शर्मा व शकूंतला शर्मा निवासी फ्लैट न. 9 हाउस नम्बर 55 (निकट कुबेर बिल्डिंग) मैदान गढ़ी, दिल्ली sence वीदी बनाम एम aR wey रियलटेक wife, पता- सी-24 सूर्या नगर, गाजियाबाद ................. 'प्रतिवादी अधि-निर्णय प्रस्तुत वाद वादी द्वारा प्रतिवादी के विरूद्ध फ्लैट का कब्जा मय विलम्बित अवधि पर ब्याज दिलाये जाने व इलैक्ट्रिफिकेशन चार्ज हटाने हेतु संस्थित किया गया है।

संक्षिप्त में वादी का कथन है कि वादी का कहना है कि प्रतिवादी द्वारा संचालित परियोजना DELHi-s9 में यूनिट-एच 406, बुक किया था, जिसके एवज में वादी ने प्रतिवादी को bo 34,32,3:8/ भुगतान किया। वादी व प्रतिवादी के बीच हुये हस्ताक्षरित अनुबंध दिनांक फरवरी 2042 के अनुसार फरवरी 205 4 कब्जा प्राप्त होना था। परन्तु अभी तक वादी को कब्जा प्राप्त नहीं हुआ है। वादी ने वादपत्र के समर्थन में प्रतिवदी को भुगतान की गयी धनराशि की रसीदें व परियोजना की फोटो की छायाप्रति दाखिल किये है। प्राधिकरण की ओर से प्रतिवादी को नोटिस जारी किये गये और जिसकी तामीला प्रतिवादी पर सम्यक रूप से की गयी। ग्रतिगदी अधिवक्ता द्वारा प्रतिवादपत्र दाखिल किया यया। ग्रतिवादपत्र में यह उल्लेख किया यया है fe प्रोजेक्ट तैयार है। सीसी नवम्बर 2008 F प्राप्त हो चुका है। दोनो पक्षों को सुना एवं पत्रावती का अवलोकन किया। उपरोक्त विश्लेषण से स्पष्ट है कि वादी अपनी यूनिट का कब्जा चाहता है और जब तक उसकी यूनिट नही दी जाती है, तब तक उसे जमा धनराशि पर ब्याज दिलाया जाये। इस सम्बंध में उल्लेखनीय है कि :- dA wu Scanned by CamScanner Under the Act, obligation of promoter has been provided under Sect 4 (4), which reads as: The promoter shall— (a) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made there under 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. On the other hand, rights and duties of allottee have been clearly provided under the Act. Sub-section 4 of Section 49 Read as under;(4) The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act or the rules or regulations made there under.

Besides, Section 38 (7]2/0/065 that “If the promoter fails to complete or is unable to gjve possession of an apartment, plot or building, in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act: 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.

If we read these provisions conjointly, the language of these provisions suggest that if the promoter/developer fails to fulfill his obligations to handover the possession as per terms of the agreement, the allottee is entitled to claim refund. However, different Authorities set up under the Real Estate (Regulation & Development) Act,206 across the country are taking a balanced /pragmatic view as far as refund to the allottees of project is concerned when the projects are at a much more advance stage of development. Authorities are considering the situation of allottees of a real estate project as well as status of the project i.e stage of construction , timelines for completion, tentative possible ‘offer date of possession’ from the developer/promoter, possible consensus of the allotee ais Scanned by CamScanner in acceptance of possession within the possible new ‘offer date of possession’ etc.

Section 32 of the RERA Act deals with functions of the Authority for promotion of Real Estate Sector. This Section reads as: The Authority shall in order to facilitate the growth and promotion of a healthy, transparent, efficient and competitive real estate sector make recommendations to the appropriate Government of the competent authority, as the case may be, on,(a) protection of interest of the allottees, promoter and real estate agent;(b).......+0 2 (Chesronecencee है! (A) escovsesverj(@) ou HMA) eccssverey ; (j) any other issue that the Authority may think necessary for the promotion of the real estate sector.” On the other hand, Section 38 of the RERA Act, which deals with powers of the Authority expect the authority/RERA to act on the principle of natural justice. The Section reads as (2) The Authority shall have powers to impose penalty or interest, in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents, under this Act or the rules and the regulations made there under. (2) The Authority shall be guided by the principles of natural justice and, subject to the other provisions of this Act and the rules made there under, the Authority shall have powers to regulate its own procedure”

This provision confer power to the Authority to impose penalty or interest, in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents for contravention of any provisions of the Act and Rules made there under and it also provides that the Authority shall be guided by the principles of natural justice. If we read these provisions together along with the scheme of the Act, the Authority is created not only to protect interest of the allottee of the real estate project but also to protect the interest of promoters in order to promote a healthy growth of the real estate sector Thus, from the provisions referred above and view taken by the different authorities, it is clear that complainant has right to withdraw from the project if promoter failed to deliver the flat/unit within the time specified in the agreement. However, different real estate regulatory Authorities are deciding matters and awarding refund on the basis of fact of each case considering stage of construction of the project and period and reasons of delay in handing over the possession to homebuyers. In the project which are at advance stage of completion i.e 70% -80% complete and /or is about to be offered for possession within this year (up to the end of 2049), the Adjudicating Authorities are allowing interest for delayed possession at prescribed rate of interest from the due date of handing over of the १000८ Scanned by CamScanner

=e as originally agreed (as provided in Agreement to Sale) till actual date of handing over the possession. In any case, the promoter will be required to pay interest on delayed period till the date of possession. हु इस सम्बंध में माननीय उच्चतम न्यायालय द्वारा सिविल अपील सं0 744/20:7 चित्रा शर्मा आदि बनाम यूनियन ऑफ इंडिया आदि में किया गया आब्जरवेशन महत्वपूर्ण है :- " 40. The figures........ which have been made available presently, following the opening of the web portal by the amicus curiae, indicate that 8% of the home buyers have sought a refund of their monies while 92% would evidently prefer possession of the homes which they have purchased. We cannot be unmindful of the interests of 92% of the home buyers many of whom would also have obtained loans to secure a home. They would have a legitimate grievance if the corpus of Rs 750 crores (together with accrued interest) is distributed to the home buyers who seek a refund." उपरोक्त निर्णय के आलोक में यह स्पष्ट है कि उ0प्र0 Ww के प्राविधानों के अन्तर्गत प्रमोटर व केता के बीच किये गये अनुबंध के अनुरूप विलम्ब अवधि पर ब्याज देय होगा, क्‍योंकि प्रमोटर्स द्वारा उक्त धनराशि का उपभोग किया गया है। अतः शिकायतकर्ता को विलम्बित अवधि पर कब्जा देने तक की तिथि तक ब्याज दिलाया जाना न्यायोचित प्रतीत होता है। आदेश

प्रतिवादी को आदेशित किया जाता है कि occupation certificate IT करके वादी को मई 2049 तक कब्जा (physical possession) उपलब्ध कराये। साथ ही शिकायतकर्ता व प्रमोटर के बीच हुये हस्ताक्षरित Builders Buyers Agreement (BBA) के अनुसार विलम्बित अवधि, delayed period के सम्बंध में दिनांक 30.04.206 तक BBA में उल्लिखित GIS/penalty के अनुसार तथा दिनांक 04.05.2046 (Real Estate Regulation & Development, Act 20i6 के लागू होने की तिथि) से MCLR +४% की दर से प्रमोटर द्वारा दण्ड ANT / penal interest अदा किया जाएगा। ws Scanned by CamScanner ब्याज /दण्ड की इस धनराशि को कब्जा दिये जाने के समय अंतिम देय धनराशि में समायोजित की जाएगी। प्रतिवादी को यह भी आदेशित किया जाता है कि इलैक्ट्रिकसिटी चार्ज व अन्य चार्ज occupation certificate Wd होने की तिथि से लागू होगा। होगा यदि प्रतिवादी वादी को मई 2049 तक कब्जा देने में असफल रहा तो वादी Ros wet करने के लिए पुनः आवेदन करने के लिए स्वतंत्र होगा। इस आदेश का उल्लघंन उ0प्र0भू-सम्पदा (विनियमन तथा विकास) अधिनियम, 20i6 की धारा-63 तथा अन्य सुसंगत प्राविधानों के अन्तर्गत दंडनीय होगा। आदेश पोर्टल पर अपलोड किया जाये। दिनांक : 43/03/2049 डॉ (सदस्य) उ0प्र0 भू-सम्पदा विनियामक प्राधिकरण आज यह निर्णय हमारे द्वारा खुले न्यायालय में हस्ताक्षरित एवं दिनांकित करके सुनाया गया। 08-2० कुमार) (सदस्य) उ0प्र0 भू-सम्पदा विनियामक प्राधिकरण दिनांक : 3/03/209 Scanned by CamScanner