The builder is liable to refund amounts to the financial institution upon cancellation of the unit, and the financial institution cannot recover amounts from the complainants post-cancellation.

ORDER

S P SOOD, JUDICIAL MEMBER:

The brief facts giving rise for the disposal of the present complaint goes like thaton 10.09.2015, the complainants had jointly booked flat (Apartment/Unit No. R0380K00804 Flat No.0804, Tower-K, 8^th Floor, measuring super area of 1180 Sq. Ft.) in the project of Supertech Hues floated by M/s Supertech Ltd., at Revenue Estate, Village Badshahpur, Sector-68, Gurugram. Further complainants submitted that on 24.10.2015, Builder Buyer’s Agreement was executed between the parties (without signed). The total sale consideration of the unit was Rs.98,83,000/-. That the opposite party No. 2 (Sarv Realtors Pvt. Ltd.,)also being the licensee and co- promoter of the project and had obtained license number 106 & 107 of 2013 dated 26.12.2013and undertook the onus for the development of the group housing colony on the land falling in Sector 68, which included the Project Land. This is how the Opposite Party No. 2 was authorized to develop the Project by the Department of Town Country and Planning (the “DTCP”) asO.P.No.3 had also initially advertised the project and assured through its advertisements, assurances, and warranties that it has the complete authority to develop the said Project. OP No.3 further assured the timely completion of the project and the handover of the units to the prospective buyers. OP No.3 represented himself to the developer of the Project. OP No.3 went into insolvency when an application was filed under section 7 of the Insolvency and Bankruptcy Code, 2016 and was admitted vide order dated 25.03.2022 in IB- 204/(ND)/2021, however, the same was not in respect to the project in question and Mr. Hitesh Goel was appointed as the IRP and was currently responsible for the functioning of the company. However OP No.3 did not attain permission for the development of the project and had grossly misrepresented the complainants, not only with respect to the authority of development of the project but also the completion of the pre-requisite formalities/compliances of DTCP and Haryana Real Estate Regulating Authority, Gurugram (HARERA). Certain ongoing proceedings before the DTCP in respect to the land on which the group housing colony wasto be developed, show that the permission for transfer of the development rights, i.e., the Beneficiary Interest Permission (the “BIP”) has not been made in favour of the Supertech Ltd. Under certain proceedings before the DTCP, various violations by the Respondents have been noted. The minutes of the meeting dated 01.05.2023 note as under:

1. License no. 106 & 107 of 2013 has been granted to Sarv Realtors Pvt. Ltd. for development of GH in sector 68, Gurugram, however, the amount received in lieu of flats is being taken by Supertech Ltd. and all formalities are made by Supertech Ltd. which is against the provisions of Town Planning Act/Rules,

2. Also Company is offering/insisting upon to obtain possession of unit for which occupation certificate has not been granted yet.

3. He informed that various authorities were approached but no action has been taken by any authority against company. Sh. S.K. Sachdeva also mentioned about affidavit of the then DTCP in CWP no 8926/2022 stating that license will be cancelled.

However, later in 2019, when no permission for development with OP No.3 was brought to light, HARERA Authority has taken cognizance of the matter in suo moto complaint no. HARERA/GGM/5802/2019/Suo-Motu (complaints)dated 29.11.2019. The Authority passed an order dated 29.11.2019, wherein it was directed that the registration of the project shall be amended to the extent of recognizing Opposite Party No. 2 as the promoter. The Authority noted: “…Sarv Realtors Pvt. Ltd. being the licensee is responsible for development, marketing and sale of the project admeasuring 32.84 acres.”and Opposite Party No. 2, was noted to be a promoter under the meaning of Section 2(zk) of the Real Estate (Regulation and Development) Act, 2016 for the development in regard to the License